



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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. S.M.A., 2020 ONCA 823

DATE: 20201217

DOCKET: C67294

Watt, Tulloch and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.A.

Appellant

Leonard Max and Wayne Douglas Young, for
    the appellant

Jennifer Trehearne, for the respondent

Heard: September 17, 2020 by
    videoconference

On appeal
    from the convictions entered on March 28, 2019 and the sentence imposed on August
    6, 2019 by Justice Julie Bourgeois of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of sexual assault,
    assault with a weapon, uttering a threat to cause death, and criminal
    harassment by engaging in threatening conduct against his now estranged spouse.
    He received a global custodial sentence of 42 months and various ancillary orders.
    The appellant appeals his convictions and seeks leave to appeal his sentence.
    He also moves for leave to introduce fresh evidence in support of his appeal.

Brief Factual Background

[2]

The appellant committed these offences in the
    context of his deteriorating marriage to the complainant. The couple was
    married in 2004 and subsequently had three children. The trial judge found that
    the complainant told the appellant that she wanted a divorce and attempted to
    have him sign divorce documents that he threw in the garbage. The trial judge
    accepted the complainants evidence and found that the appellant physically and
    sexually assaulted her numerous times during their marriage.

[3]

Further, on March 8, 2015, the appellant
    assaulted the complainant with a broomstick, pushed her on the floor, and
    kicked her. That same evening, the complainant made a 911 call to the police.
    While she did not disclose these acts to the police over the telephone, she
    indicated to the 911 operator that she wanted a divorce.

[4]

The trial judge determined that, upon the
    discovery of compromising photos of the complainant with her cousin, the appellant
    compelled the complainant to leave the family home on December 23, 2016,
    threatening to kill her and distribute the photos of her to their families if
    she did not leave the house. The appellant admitted that he did subsequently
    distribute the photos to some members of their respective families and that,
    ultimately, violence towards the complainant and her cousin could result from this
    action. The trial judge found that the appellant also took steps to alienate
    their children from the complainant.

Conviction Appeal

[5]

While the appellant raised numerous grounds for
    appeal in his written submissions, he significantly narrowed the issues during
    oral submissions.

[6]

At trial, the appellant denied committing the
    offences and attested to a completely different version of events. On appeal, he
    submits that the trial judge erred in her assessment of the appellants evidence.
    According to the appellant, the trial judge failed to carry out the requisite
    analysis in accordance with the principles articulated in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
.
    Specifically, the appellant submits that the trial judge misapprehended
    evidence concerning the timing of the complainants divorce application that
    was commenced in June 2016. This misapprehension, according to the appellant, caused
    the trial judge to negatively assess and reject the appellants evidence that
    nothing had precipitated the complainants 911 call to the police on March 8,
    2015. In support of the latter submission, the appellant relies on evidence from
    the Family Court proceedings commenced in June 2016 that he tenders as fresh
    evidence.

[7]

We do not accept these submissions, nor do we
    admit the fresh evidence.

[8]

First, it is clear from the trial judges
    reasons that she did not simply choose between the complainants and the
    appellants respective versions of events but considered the whole of the
    evidence. Moreover, the trial judge did not base her rejection of the appellants
    evidence simply on his denial that the complainant had told him prior to March
    2015 that she wanted a divorce and that he thought she was joking when she
    called 911. The trial judge gave numerous reasons for finding that the appellants
    evidence was unreasonable and illogical and that his evidence, as well as the
    evidence of his sister-in-law and his eldest daughter, did not leave her with a
    reasonable doubt. The trial judge found that the complainant testified in a
    genuinely sincere manner with attention to details and cautious to be clear on
    what she remembers and what was not so clear in her memory and that [s]he does
    not contradict herself and is unshaken on the core of her evidence. We see no
    error in the trial judges analysis or conclusions.

[9]

Second, the trial judge did not misapprehend the
    evidence concerning the timing of the divorce proceedings. The evidence elicited
    during the complainants cross-examination confirmed that she had issued a
    formal application for divorce against the appellant in June 2016, some 15
    months after her 911 call to the police on March 8, 2015. However, she also testified
    that, prior to March 2015, she had obtained divorce papers from the court that
    her husband refused to sign and either threw away or hid from her. It was open
    to the trial judge to accept this evidence and find that, prior to March 2015,
    the complainant had spoken to the appellant about obtaining a divorce and
    attempted to have him sign documents before she commenced a formal application
    in June 2016. In any event, the trial judge recognized that, even if there were
    some confusion about when the complainant broached the subject of divorce with
    the appellant, there could be no issue that he knew on March 8, 2015 that she
    wanted a divorce and that she was not joking. The trial judges reasons reveal
    no inconsistency or misapprehension of the evidence.

Fresh Evidence

[10]

With respect to the tendered fresh evidence, we
    are not persuaded that it meets the criteria for admission of
Palmer v. The
    Queen
,
[1980] 1 S.C.R. 759
.
    First, the referenced documents could have been put before the trial judge with
    due diligence, given that they were in the possession of the appellant as a
    party to the Family Court proceedings, and his counsel on this appeal
    represents the appellant in those proceedings. Further, the referenced contents
    could not reasonably have affected the outcome at trial. As we earlier
    observed, the information about the timing of the commencement of the divorce
    application was already part of the trial evidence. As a result, it is not
    necessary in the interests of justice to admit the evidence.


Sentence Appeal

[11]

The appellant submits that the sentence is
    demonstrably unfit and that the trial judge erred in relying on parental
    alienation as an aggravating factor. The appellant indicates that the issue of
    parental alienation should have been left for determination in the divorce
    proceedings.

[12]

We disagree and see no basis for appellate
    intervention.

[13]

The sentence is clearly fit. It comes within the
    appropriate range for similar offences by similar first-time offenders. The
    general range for the offence of forced intercourse against a spouse, alone, is
    between 21 months and 4 years:
R. v. Smith
, 2011 ONCA 564, 274 C.C.C.
    (3d) 34, at para. 87. In the case at bar, a global custodial sentence of 42
    months is fit, as the appellant committed multiple, violent offences against
    the complainant.

[14]

As the trial judge correctly held, the
    appellants serious offences against the complainant were committed in the
    context of an abusive domestic relationship, which is an aggravating factor
    under s. 718.2(a)(ii) of the
Criminal Code
, R.S.C. 1985, c. C-46. In
    addition, the trial judge could properly take into account as aggravating
    factors on sentencing the egregious particulars of the offences that she was
    satisfied the Crown had proven beyond a reasonable doubt. These included the appellants
    emotional and physical mistreatment of the complainant, as well as the
    complainants expulsion from the home by the appellant and his efforts to
    alienate his children from their mother.

[15]

That the issue of parental alienation also arises
    in the Family Court proceedings between the complainant and the appellant did
    not preclude the trial judge from relying on it as a relevant, aggravating
    factor on sentencing. The trial judge did not exceed her jurisdiction in her
    treatment of this factor. She expressly noted that the issue of custody was not
    before her, as the criminal trial is separate from the Family Court proceedings.

Disposition

[16]

For these reasons, the appeal from convictions
    is dismissed. We allow leave to appeal sentence, but we dismiss the sentence
    appeal.

David Watt J.A.

M. Tulloch J.A.

L.B. Roberts J.A.


