



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Beer, 2019 ONCA 763

DATE: 20190927

DOCKET: C65862

Juriansz, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Philip Beer

Appellant

Jennifer Dagsvik, for the appellant

Leslie Paine, for the respondent

Heard and released orally:
    September 17, 2019

On appeal from the conviction entered by
    Justice Helen M. Pierce of the Superior Court of Justice on June 11, 2018 and
    the sentence imposed on August 22, 2018.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for sexual
    assault by a judge sitting alone. The complainant alleged that on October 16,
    1992 after a night of drinking she awoke to find the appellant having
    intercourse with her. The fact that intercourse had taken place was established
    by DNA evidence proving the appellant was the father of the complainants
    child. The issue at trial was whether the complainant had consented to the
    sexual assault.

[2]

The appellant submits that the trial judge
    relied on the trial Crowns misstatement of the evidence to support her finding
    that the complainant was credible. The trial judge found that there was a
    strange coincidence in a similarity of language used by the accused and the
    complainant about the sex act. The coincidence was that the complainant
    testified in-chief that when she awoke and confronted the accused who was
    having sex with her, he had said, calm down I didnt put it in you. And when
    the police contacted the appellant he denied having sex with the complainant
    saying, I never stuck it in her.

[3]

In cross-examination and in her closing
    submissions, the Crown mistakenly stated that the complainant had attributed
    this comment to him in her statement to the police. In her reasons, the trial
    judge correctly recited what the complainant had said at trial, but also
    repeated the Crowns misstatement that she had also said it when interviewed by
    the police.

[4]

We are not persuaded that the misapprehension
    was material and rendered the appellants trial unfair. The complainant had
    indeed attributed the statement to the appellant in her testimony at trial,
    just not in her police statement. The significance of the coincidental use of
    the similar phrase is not undermined by the misapprehension that the
    complainant said it in her police statement as well.

[5]

In any event, there were many other reasons
    given by the trial judge for finding the appellant was not credible.
    Significantly, he had denied sexual intercourse had taken place until the DNA
    results became available.

[6]

We are not persuaded that the trial judge used
    the complainants prior consistent statements to support her credibility. The
    prior statements were admissible and properly used to rebut the defences
    allegation of recent fabrication and the submission that the complainants
    behaviour had not changed.

[7]

We also see no merit in the contention that the
    trial judge failed to consider the reliability of the complainants testimony. Trial
    judges need not expressly refer to reliability where their reasons show that
    they have considered it.

[8]

Turning to the sentence appeal, the then 71-year-old
    appellants absence of remorse permeated the trial judges reasons for
    sentence. In our view, she treated his absence of remorse as an aggravating
    factor. Therefore, it falls to us to determine a fit sentence.

[9]

The Crown observed that one would be
    hard-pressed to find a truly comparable case in the jurisprudence that resulted
    in a four-year sentence and, that if the court saw fit, a sentence of three
    years would be substantial but not crushing and would give effect to the
    serious impact on the complainant.

[10]

In these circumstances, we would grant leave to
    appeal sentence, allow the sentence appeal and reduce the sentence to three
    years.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


