



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stewart, 2013 ONCA 579

DATE: 20130926

DOCKET: C55686

C55956

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Blair Stewart

Appellant

Blair Stewart, in person for the conviction appeal

Joseph Di Luca, for the appellant on the sentence appeal

Michael Bernstein, for the respondent

Heard: September 11, 2013

On appeal from the conviction entered on May 2, 2012 and
    the sentence imposed on June 20, 2012 by Justice L.M. Baldwin of the Ontario
    Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant appeals from his conviction and sentence on charges of
    threatening death, assault, sexual assault and breach of probation. Baldwin J.
    sentenced the appellant to a total of 6 years imprisonment in addition to 15.5
    months pre-sentence custody. At the conclusion of oral argument the court
    dismissed the conviction appeal but allowed the sentence appeal and reduced the
    effective global sentence to three years and 8.5 months, with reasons to
    follow.

[2]

As to the conviction appeal, the case turned on the assessment of
    credibility. The appellant and the complainant had known each other for many
    years and had an intimate relationship at various times. On the date of the
    offences, however, the complainant had made it clear that she did not want the
    appellant at her home. The essential dispute was whether, after an initial
    dispute, the complainant consented to sexual activity with the appellant. The
    appellant argues that the trial judge did not properly analyze credibility
    because she made the assessment solely on the basis of the assessment of the
    character of the appellant and the complainant and failed to consider the evidence
    of additional witnesses, such as the parties son and his girlfriend.

[3]

We are satisfied that the trial judge did not err in her assessment of
    credibility and provided adequate reasons for her findings. There was physical
    evidence in the form of injuries to the complainant that confirmed her
    testimony. The trial judge was entitled to consider the history of the
    relationship between the parties in making her assessment of credibility. That
    history was directly relevant since it explained the behaviour of both parties
    and informed the credibility assessment. This was not merely an exercise in
    reasoning from character. The trial judge made brief reference to the evidence
    of the other witnesses. In the circumstances that is all that was required,
    since there was little dispute that the central issue, the nature of the
    alleged sexual assault, depended almost entirely on the evidence of the
    appellant and the complainant. Accordingly, the appeal from conviction is
    dismissed.

[4]

As to sentence, in our view, the trial judge made several errors in
    principle. She exceeded the sentence sought by the Crown by a substantial
    amount, over two years, without giving the parties an opportunity to make
    submissions as to why the range suggested by counsel was inappropriate and failed
    to provide reasons for such a significant departure from the suggested range.
    Further, the sentence was manifestly excessive.

[5]

At trial, defence counsel sought a sentence of thirty months
    imprisonment less credit for pre-sentence custody of 15.5 months. Crown counsel
    sought a sentence of 5 years less credit for pre-sentence custody. Both counsel
    relied upon this courts decision in
R. v. B.R.
(2006), 81 O.R. (3d)
    641, where the court upheld a sentence of 30 months imprisonment for a sexual
    assault arising out of a domestic relationship. Crown counsel sought a higher
    sentence in the appellants case because of his record for offences of domestic
    violence involving this same complainant. Another helpful case in fixing the
    range for these types of offences is
R. v. Smith
(2011), 274 C.C.C.
    (3d) 34 (Ont. C.A.), which suggests a range of 21 months to four years for
    cases of forced sexual intercourse with a former spouse.

[6]

We agree with the submissions of Crown counsel at trial that a global
    sentence in the range of five years less credit for pre-sentence custody was
    appropriate. A sentence greater than those imposed in
B.R.
and
Smith
was required given the history of abuse in this relationship, even though the
    earlier offences were less serious and involved much shorter periods of
    imprisonment. On the other hand, there was also reason to give some emphasis to
    rehabilitation. After many years of drug and alcohol addiction, the appellant
    had discontinued the use of illicit drugs and had substantially reduced his consumption
    of alcohol. The appellant was a skilled mechanic and had developed a plan to
    remove himself from any contact with the complainant by obtaining employment in
    Fort McMurray.

[7]

Finally, we agree with Mr. Di Luca that the trial judges offer to provide
    further written reasons should her decision be reviewed did not comply with her
    obligation to provide reasons for imposing a sentence substantially outside the
    range suggested by counsel. It would have been inappropriate to ask the trial
    judge for further reasons once her judgment was under appeal.

[8]

Accordingly, leave to appeal sentence is granted, the appeal allowed and
    the sentence on count 4 is reduced to 2 years and 8.5 months imprisonment
    consecutive and the sentences on counts 5 and 6 are made concurrent to the
    other sentences imposed. The sentences imposed on the other counts will remain.
    In the result the appellant is serving a total sentence of 3 years and 8.5
    months imprisonment.

[9]

We wish to thank Mr. Di Luca, who was retained only on the sentence
    appeal, for his assistance with the conviction appeal.

Released: AH September 30, 2013

A. Hoy A.C.J.O.

M. Rosenberg J.A.

R.J. Sharpe J.A.


