



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Finney, 2014 ONCA 866

DATE: 20141203

DOCKET: C55780

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Finney

Appellant

Margaret Bojanowska, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: November 24, 2014

On appeal from the conviction entered on March 9, 2012
    and the sentence imposed on June 29, 2012 by Justice OConnell of the Superior
    Court of Justice.

ENDORSEMENT

The Conviction Appeal

[1]

There are two grounds raised on the conviction appeal.

(1)

The alleged interventions by the trial judge

[2]

The cross-examination of the complainant was lengthy (some 500 pages),
    at times repetitive and often difficult to follow.  The trial judge intervened
    many times during the cross-examination to question the complainant or clarify
    answers she had given.  Many of the trial judges interventions were
    unnecessary and prolonged what was already a lengthy cross-examination.  Many
    of the interventions were, however, appropriate.  They were responsive to
    objections raised by the Crown, or they were a proper request for clarification
    of either the questions being asked or the answers being given.

[3]

We do not accept the submission that the interventions of the trial
    judge in any way prevented counsel from cross-examining the complainant as he
    saw fit.  In our view, the record simply belies any suggestion that any avenue
    of possible cross-examination was curtailed by the trial judges
    interruptions.  We also do not agree that his interruptions, considered as a
    whole, show any bias in favour of the Crown or raise any reasonable
    apprehension of bias.

[4]

Finally, we do not accept, from our reading of the transcript, that the
    interruptions reveal sarcasm or a level of criticism of counsel that is
    inconsistent with the conduct of a fair trial.  There was perhaps some
    indication of impatience near the end of the cross-examination.  Some degree of
    impatience by the later stages of the lengthy cross-examination was understandable.

(2)

The defence of honest belief in consent

[5]

The defence at trial was that the complainant had consented to the
    sexual activity in issue.  Alternatively, the defence argued that the appellant
    honestly believed that the complainant had consented.

[6]

On the findings of fact made by the trial judge in the course of his extensive
    reasons, there could be no basis for any claim of an honest belief in consent. 
    His factual findings and his credibility findings effectively foreclosed that
    avenue.  The trial judges reference to there being no air of reality to the
    defence of honest belief was simply reflective of his findings of fact.  On
    those findings, there was indeed no air of reality to the claim of an honest
    belief in consent.

[7]

The conviction appeal is dismissed.

The Sentence Appeal

[8]

The appellant received a total of six years in the penitentiary.  The
    trial judge imposed a five-year sentence on the sexual assault and a sentence
    of one year consecutive on the choking count.  He then gave the appellant
    credit for pretrial custody of four months.  The trial judge gave that credit
    on the basis of a 1:1 calculation.

[9]

Crown counsel agrees, correctly in our view, that in light of
R. v. 
    Summers
, released after the trial judges reasons, the trial judge should
    have given 1.5:1 credit, meaning that the appellant should have received a
    six-month credit for pretrial custody rather than four months.  We will make
    that adjustment at the end of our treatment of this ground of appeal.

[10]

This
    was a very serious crime worthy of a lengthy penitentiary term.  At the same
    time, the appellant is a virtual first offender with positive rehabilitative
    prospects.  The trial judge was faced with a very difficult sentencing
    problem.  In his reasons, the trial judge imposed consecutive sentences on the
    sexual assault charge and on the choking charge.  He offered no explanation for
    imposing consecutive sentences.  The choking offence was, in our view, part and
    parcel of the sexual assault.  It was but one of several serious acts of
    violence perpetrated against the victim by the appellant.  In our view, on a
    proper application of sentencing principles, however, a consecutive sentence
    was not warranted.  We would make the sentence on the sexual assault charge
    concurrent to the sentence on the choking charge, resulting in a sentence
    totalling five years.

[11]

Five
    years is a fit sentence given the seriousness of the crime and taking into
    account the positive features of the appellants background and his
    rehabilitative potential.

[12]

The
    appellant gets six months credit for his presentence custody, resulting in a
    sentence of four and one half years.  We would impose that sentence on the
    sexual assault charge and impose a one-year concurrent sentence on the choking
    charge.

[13]

The
    sentence appeal is allowed and the sentence varied as set out above.

Doherty
    J.A.

K.
    Feldman J.A.

Gloria
    Epstein J.A.


