COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rockey, 2016 ONCA 891

DATE: 20161125

DOCKET: C62023

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Willmore Rockey

Appellant

David Rockey, in person

Erika Chozik, duty counsel

Jennifer Mannen, for the respondent

Heard: July 12, 2016

On appeal from the sentence imposed on March 22, 2016 by
    Justice Richard T. Knott of the Ontario Court of Justice.

Pepall J.A.:

A.

Overview

[1]

On September 24, 2015, the appellant was convicted of driving while
    disqualified. He was sentenced to 18 months imprisonment with no probation. He
    seeks leave to appeal his sentence.

[2]

The facts relating to the appeal are as follows.

[3]

On February 7, 2015, the appellant, who was 34 years old, was driving a
    van in Brockville. At the time, he was subject to two lifetime driving
    prohibitions. He was stopped by police, co-operated, and was subsequently
    arrested.

[4]

The appellant has an extensive criminal record: approximately 80
    convictions in total, of which 14 are for driving while disqualified and 30 are
    for failure to comply. One is a historical dangerous driving conviction. There
    was no suggestion that any of his convictions related to driving while impaired.

[5]

The appellants last two convictions were for driving while disqualified
    on October 15 and 18, 2010. When he was convicted on October 15, 2010, he was
    sentenced to 12 months imprisonment, in addition to 60 days of pre-sentence
    custody, and then on October 18, 2010, he was sentenced to an additional 150
    days on top of 81 days of pre-sentence custody. The appellant reports that he
    spent the time for these two convictions, as well as his jail time on the
    current conviction, in segregation for his own safety.

[6]

The appellant had no criminal convictions between his release from
    prison on January 19, 2012 and his conviction on September 24, 2015, but he
    admitted to driving on several occasions during that time and had one
    conviction on June 20, 2014, under the
Highway Traffic Act
, R.S.O. 1990, c. H. 8,
for driving
    without a licence.

[7]

The appellant had a traumatic childhood, which included being physically
    assaulted by his father and sexually assaulted by his grandfather. He became a Crown
    ward at age 10 and had difficulties in foster care.

[8]

The appellant has had two admissions to the St. Lawrence Valley
    Correctional and Treatment Centre, where he was diagnosed with anxiety disorder
    (not otherwise specified); sub-syndromal post-traumatic stress disorder; social
    anxiety disorder; learning disabilities; anti-social personality disorder;
    dysthymia; and pathological gambling.

[9]

The appellant has been in a stable common-law relationship with Amy
    Theobald since 2009. They have five children. At the date of his sentencing,
    they were ages 13, 10, 6, 5 and 16 months.

[10]

He and his family have been supported financially by the Ontario
    Disability Support Program (ODSP) since 2009, but when the appellant is incarcerated,
    these benefits are much reduced.

B.

Sentencing Hearing

[11]

At the sentencing hearing, the appellant requested a 12- to 15-month
    conditional sentence. His counsel argued that the appellant is the father of
    five children, and his offences, while serious, were victimless and at the
    lower end of the spectrum. His counsel argued that the appellant may not have a
    full-fledged addiction to driving, but manifested many physiological indicators
    that supported such a description.

[12]

The Crown requested a three-year penitentiary sentence. The Crown
    submitted that the appellant had a very poor record of compliance, and the
    court ought to be imposing lengthier sentences in a stepwise fashion. Moreover,
    the Crown argued that the appellants mental health and addiction issues could
    be addressed while in jail.

[13]

Two medical reports were filed before the sentencing judge. Dr. Adam Newman,
    the author of one of the reports, testified at the sentencing hearing. The
    appellant was referred to Dr. Newman by his family doctor. Dr. Newman is also a
    family doctor, but has training in addiction medicine from the Centre for
    Addiction and Mental Health, in Toronto. Though not identified in Canada as a
    separate specialty, Dr. Newman has focused on addictions medicine for 14 or 15
    years. He testified that while not a recognized behavioural addiction, the
    appellants driving met the four criteria for an addiction: compulsive
    engagement in the behaviour; continued engagement, despite negative
    consequences; continued and escalating engagement; and a craving obsession.

[14]

In his testimony, Dr. Newman explained that addicts are sentenced to
    prison on the rationale that if put in prison and taken away from their
    addictive behaviour or substance, they will be cured and will not engage in
    their addiction anymore. However, he testified that they will reliably revert
    or relapse to their addictive behaviour or substance as soon as they are released,
    because their forcible isolation has simply deferred them from the behavior
    that was providing relief. That is to be contrasted with a respite from
    behaviour that comes about because somebody is seeking behavioural change and
    participating in therapy.

[15]

Dr. Newman also addressed programs that are available at correctional
    facilities:

[F]rom my point of view as a physician in the community,
    prison is always an expensive way of making bad people worse and everybody who I
    have seen who has had an addiction [and who] has wound up in prison has wound
    up worse off as a result. Ive never seen anybody recover from their addiction
    because they were imprisoned.

[16]

A report from Dr. Helen Ward, a forensic psychiatrist, was also filed before
    the sentencing judge.

[17]

In her report, Dr. Ward outlined the appellants troubled history:

This is a 35 year old male with a history of documented and
    confirmed severe abuse and deprivation as a child. He was apprehended by CAS
    and went on to have a difficult course in their care, as well. As a result, he
    developed significant anxiety symptoms as well as high levels of mistrust of
    others. He has been diagnosed with sub-syndromal Post Traumatic Stress Disorder
    (PTSD) symptoms, which essentially means that he has some symptoms of PTSD but
    not enough to make the full diagnosis.

[18]

Dr. Wards diagnoses of the appellant were: generalized anxiety
    disorder; social anxiety disorder; learning disabilities; and anti-social
    personality disorder.

[19]

Dr. Ward went on to write:

Mr. Rockey claims an addiction to driving, but the concept of
    behavioural addiction in the DSM-5 applies only to Gambling disorders. In order
    to be a potential behavioural addiction, driving would have to produce a high
    similar to the effects of addictive substances on the dopamine-mediated
    pleasure centres of the brain. This is not the type of effect Mr. Rockey
    describes.

Instead I would classify Mr.
    Rockeys driving behaviour as a maladaptive coping mechanism that he uses to
    cope with his severe anxiety. Note that this is not a diagnosis, but simply a
    description. My hypothesis would be that for Mr. Rockey, driving a vehicle is
    psychologically a safe place that he retreats to when overwhelmed. There is
    also likely an unconscious connection for him to feelings of freedom and power.

[20]

Dr. Ward noted that in the early 2000s, the appellant witnessed a
    murder while incarcerated. The appellant was a Crown witness in the case, which
    resulted in a conviction. This has led to him being unable to be in the general
    population when incarcerated, and he is constantly afraid and looking over
    his shoulder while in jail. The appellant reported to Dr. Ward that he had
    received numerous threats from the perpetrators.

C.

Reasons of the Sentencing Judge

[21]

The sentencing judge commenced his reasons by commenting adversely on
    the appellants lack of remorse, at para. 57:

That an accused chose to make the
    Crown prove its case beyond a reasonable doubt is his constitutional right,
    but, to my mind, it does show a lack of remorse. It forces the Crown to spend
    resources on a trial, when this accused knew he was driving a motor vehicle
    subject to multiple lifetime driving prohibitions.

[22]

The sentencing judge referred to the reports of Dr. Newman and Dr. Ward,
    but was not prepared to call the appellants behaviour an addiction. The
    sentencing judge stated that the appellants driving reflected a personal
    choice, and he observed that Dr. Wards report spoke of the appellant driving
    his children to school. The sentencing judge noted that the appellants driving
    seemed closer to a maladaptive coping mechanism, rather than a craving
    obsession consistent with an addiction.

[23]

The sentencing judge also referred to the appellants extensive criminal
    record, which included two conditional sentences, one in 1999 and one in 2002. Without
    submissions or clear evidence on this point, he deduced that the appellant had
    breached the 2002 conditional sentence.

[24]

The sentencing judge refused to consider a conditional sentence in this
    case, because the appellant had two more pages of convictions after his last
    conditional sentence order. He took the view that general and specific
    deterrence were the primary applicable sentencing principles in the
    circumstances.

[25]

The sentencing judge noted that the sentence had to be significant to
    reflect the appellants bad record, but added that in this case, the driving
    itself had not been bad. The appellant co-operated with the officer and did not
    flee the scene. He was also of the view that the appellant should receive
    another chance at treatment, so as to address all the issues identified in the
    materials filed with the court, which confirmed that the appellant was
    accessing treatment services.

D.

Positions of the Parties on Appeal

[26]

With the assistance of duty counsel, the appellant submits that the
    sentencing judge made three errors that resulted in an unfit sentence. First, he
    erred by considering absence of remorse as an aggravating factor. Second, he
    ignored the mental health issues underlying the appellants behaviour. Third,
    there was no evidence to support the sentencing judges conclusion that the appellant
    breached his 2002 conditional sentence.

[27]

The appellant seeks the substitution of an 18-month conditional sentence
    for his 18-month custodial sentence. He submits that his most recent
    conditional sentence was 13 years ago, and much has changed since then. He has
    been on bail pending appeal for seven months, during which time he has actively
    sought and received treatment and has refrained from driving. He would like to
    continue with that treatment. Since late December 2015, he has been taking the
    medication naltrexone and, according to Dr. Newman, the appellant has noticed a
    decrease in his compulsion to drive.

[28]

Prior to receiving bail pending appeal, the appellant served almost
    three months in custody and was placed in segregation. During those months, he
    received no treatment.

[29]

The Crown responds by arguing that the appellant is a scofflaw and a
    conditional sentence is inappropriate, as the appellant has over 80 convictions
    and has already been subject to two conditional sentences. The Crown argues
    that the sentencing judge did not use the absence of remorse as a rationale for
    his sentencing decision. As for the breach of the 2002 conditional sentence,
    the Crown submits that the issue was not that the conditional sentence was
    breached, but that the appellant had incurred so many additional convictions
    after the imposition of the conditional sentence.

E.

Analysis

[30]

I agree with the appellant that the sentencing judge erred in his
    sentencing decision.

[31]

First, the sentencing judge erred in principle by considering the
    appellants lack of remorse as an aggravating factor.  See
R. v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.), at paras. 80-85.  While he does not expressly
    identify it as such, there was no need to mention lack of remorse if it was to
    have no impact on the sentence.

[32]

Second, there was no evidence that the appellant breached the 2002
    conditional sentence, and the sentencing judge erred in concluding that a
    breach had occurred.

[33]

The sentencing judges reasons reveal that the principal factors in his decision
    were the appellants lack of remorse; his breach of the 2002 conditional
    sentence; his extensive criminal record; and the need for general and specific
    deterrence and denunciation. Given that the sentencing judge erred with respect
    to two of these principal factors, it is fair to conclude that these errors had
    an impact on the sentence imposed.

[34]

In light of these errors and their impact on the sentence, it falls to
    this court to determine a sentence that is fit:
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. In the unique circumstances of
    this case, I would accede to the appellants request for an 18-month
    conditional sentence. I do so for the following reasons.

[35]

While compulsive driving is not classified as an addiction
per se
,
    the appellant does have significant mental health concerns and requires
    treatment. Since being on bail pending appeal for at least seven months, he has
    complied with all conditions and has been receiving treatment and counselling.
    He has not reoffended.

[36]

The appellant has been attending community treatment services with
    Addictions and Mental Health Services of Hastings  Prince Edward and also
    attends Gamblers Anonymous meetings both in Belleville and in Kingston. Dr.
    Newman reports that the appellant takes the prescribed drug naltrexone and has
    done so since December, 2015. Dr. Newman states that this drug has been
    demonstrated to diminish cravings in behavioural and substance addictions. The
    appellant has attended a Mens Modified Phase One survivor group, which
    provides information and strategies to cope with the effects of sexual violence
    and has also been attending at The Sexual Assault Centre for Quinte &
    District for weekly one-on-one counselling.

[37]

In February, 2016 (in advance of the sentencing hearing), Dr. Newman
    outlined the appellants progress in overcoming his challenges and dealing with
    his compulsive tendencies:

Mr. Rockeys use of naltrexone and
    his attendance at [Gamblers Anonymous] meetings are relatively recent additions
    to his treatment plan, which also includes meetings with Mr. Batchelor as well
    as a counsellor at Quinte Sexual Assault Centre. In the treatment of any
    addiction, it generally requires at least six months of abstinence or dramatic
    decrease in the addictive substance or behaviour before one is able to see the
    beginnings of lasting change in an affected individual. Having said that, it is
    well-known that the vulnerability to relapsing [in]to the addictive behaviour
    or substance is chronic and incurable, and requires a lifelong regime of
    therapy and support. Punishment in the form of incarceration is notoriously
    ineffective in deterring a relapse to addictive behaviours.

[38]

This was the appellants first
Criminal Code
conviction since
    2010.  His last conditional sentence was in 2002. He has significant mental
    health difficulties, but is now surrounded by many supports including his
    family. He is actively accessing mental health services and has shown
    improvement in that there have been no breaches in the over seven months that
    he has been on bail. He is also on a new medication, naltrexone, which seems to
    be decreasing his compulsion to drive.

[39]

As in
R. v. Fergus
(2006), 217 O.A.C. 32, and
R. v.
    Collette
, 2005 Carswell Ont 6881 (C.A.), the appellant has made much
    progress while on bail pending appeal. While I accept the sentencing judges
    finding that the appellants repeated driving does not amount to an addiction,
    his positive progress should not be interrupted by a term of incarceration. Further,
    the appellant self-reported that he is unable to be in the general population
    when incarcerated and has been in segregation during his previous sentences.
    Such an existence does not contribute to his rehabilitative needs.

[40]

Lastly, there was extensive evidence on the hardship that would accrue
    to the appellants large family should he be incarcerated. This includes a
    reduction in ODSP payments and a significant strain on the appellants partner
    and five children.

[41]

Although served in the community, in certain circumstances a conditional
    sentence can be sufficiently punitive and can further the principles of
    sentencing, including denunciation and deterrence:
R. v. Proulx
, 2000
    SCC 5, [2000] 1 S.C.R. 61, at para. 22. In my view, these circumstances are
    present in this case. Significantly, rehabilitation would be enhanced by a
    conditional sentence, rather than impeded by a sentence of incarceration.

[42]

Considering the particular facts of this case, including the apparent
    need for the appellant to be in segregation while incarcerated, I am of the
    view that an 18-month conditional sentence is fit.

[43]

Accordingly, the appellant is sentenced to a conditional sentence of
    imprisonment of 18 months, followed by a term of probation of 12 months. This
    sentence is less the two months and 24 days already served.

[44]

The terms of the conditional sentence are the statutory terms that the
    appellant:

·

keep the peace and be of good behaviour;

·

appear before the court when he is required to do so by the
    court;

·

report to his supervisor within four days of this order and
    thereafter report when required by the supervisor and in the manner directed by
    the supervisor;

·

remain within the Province of Ontario unless written permission
    to go outside the province is obtained from the court or the supervisor; and

·

notify the supervisor in advance of any change of name or address
    and promptly notify the supervisor of any change in employment or occupation.

[45]

In addition, the appellant will:

·

abstain from the purchase, possession or consumption of drugs,
    except in accordance with a medical prescription;

·

reside at 1-301 McGill Street, P.O. Box 553, Marmora, Ontario, or
    at another residence approved by the supervisor;

·

obey a curfew. The appellant will be in his place of residence
    between the hours of 8:00 p.m. each evening and 5:00 a.m. the following morning,
    unless he has written permission to be outside the residence during his curfew
    hours obtained from his supervisor or a designate, or unless he is required to
    be outside of his residence during curfew hours for the purposes of employment,
    or for medical reasons, or for the purposes of schooling, or for the purposes
    of attending any counselling required pursuant to the terms of this order. As
    well, this order allows him to be outside of the residence when he is in the
    company of Amy Theobald;

·

not have the care or control of a motor vehicle during the course
    of the conditional sentence order;

·

attend and take part in any counselling that may be recommended
    by his supervisor for any area identified by his supervisor and provide proof
    of participation in any such counselling to his supervisor, if requested;

·

perform 100 hours of community service work, completed at a time
    and at a rate to be agreed upon with his supervisor, but which will be
    completed during the first 12 months of the conditional sentence; and

·

at all times while serving the conditional sentence, be required
    to carry a copy of the conditional sentence order on his person and, if
    required by a peace officer to provide proof of identification, he will, in
    addition to whatever other identification may be required, provide a copy of
    this conditional sentence order together with the name of his supervisor and a
    telephone number where his supervisor can be reached.

[46]

The terms of the probation order are that the appellant:

·

keep the peace and be of good behaviour;

·

appear before the court when he is required to do so by the
    court;

·

report to his probation officer within two days of the end of the
    conditional sentence order and thereafter report when required by the probation
    officer and in the manner directed by the probation officer;

·

remain within the Province of Ontario unless written permission
    to go outside the province is obtained from the court or the probation officer;

·

notify the probation officer in advance of any change of name or
    address and promptly notify the probation officer of any change in employment
    or occupation;

·

abstain from the purchase, possession or consumption of drugs,
    except in accordance with a medical prescription; and

·

not have the care or control of a motor vehicle during the course
    of the probation order.

[47]

The appellant has not had an easy life. He has made many mistakes, some
    of which are likely linked directly or indirectly to his troubled childhood. It
    appears that the appellant is now on a path of rehabilitation, and I commend
    him for the very positive steps he has taken to get better, and to do better. I
    remind the appellant that the sentence imposed is called a conditional
    sentence for a reason: if he fails to comply with any of the terms of this
    courts order, he could be required to serve the remainder of his sentence in prison.
    For his own sake, and for the sake of his family, he should make every effort
    to succeed.

F.

Disposition

[48]

In conclusion, I would grant leave to appeal the sentence, allow the
    appeal, set aside the original sentence and, in its place, substitute a conditional
    sentence of 18 months less 2 months and 24 days already served followed by
    probation of 12 months.

Released:

NOV 25 2016                                    S.E.
    Pepall J.A.

DW                                                    I
    agree David Watt J.A.

I
    agree M. Tulloch J.A.


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.F., 2016 ONCA 868

DATE: 20161117

DOCKET: C59968

Hoy A.C.J.O., Doherty
    and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.F.

Appellant

Vincenzo Rondinelli, for the appellant

John A. Neander, for the respondent

Heard and released orally:  November 8, 2016

On appeal from the conviction entered on July 24, 2014 by
    Justice M. Epstein, of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant advanced several grounds of appeal in his factum.  In oral
    argument, counsel advanced two submissions.  We will address those submissions
    in these reasons.  We are satisfied that there is no merit to the other grounds
    advanced in the factum.

The First Ground of Appeal

[2]

We do not agree with the submission that the trial judges questioning
    of the appellant at the end of his evidence rendered the trial unfair or
    created an appearance of unfairness.  The questions posed by the trial judge
    addressed two areas.  The first area arose out of the appellants evidence that
    when the complainant was six years old, she and a friend had come into his room
    twice while he was sleeping and touched his genitals.  The trial judge asked the
    appellant what, if anything, he had done to prevent the repetition of that
    conduct.  This matter had been canvassed in the evidence to some extent.

[3]

The second area of the trial judges questions related to the content of
    statements given by the appellant to the police and to his daughter.  The
    appellant had offered an explanation for certain errors that he said he had
    made in those statements.  The trial judge asked about the errors and, in
    particular, how the explanations applied to his statements made to the
    daughter.

[4]

The trial judges questions posed in the first area gave the appellant
    an opportunity to further explain what steps, if any, he had taken to avoid the
    repetition of the conduct of his daughter and her friend that he had described.
    This issue was of obvious concern to the trial judge and was germane to the
    believability of the appellants evidence on a very important issue.  The
    questions properly fall under the rubric of amplification.  The questions
    were asked of the appellant at an appropriate time in the trial, that is, after
    the examination by counsel and were asked in an appropriate manner.  In our
    view, if anything, the questions enhanced the appearance of the fairness of the
    trial.

[5]

The questions asked by the trial judge in the second area also gave the
    accused an opportunity to provide a further or better explanation for
    statements he had made, particularly to his daughter and the errors that he
    said he had made in those statements.  However, this questioning clearly had a
    tone of cross-examination and potentially left the appellant in a position
    where there was nothing he could possibly say in answer to the question.  It
    probably would have been better had the trial judge left this area alone.
    However, we are satisfied that his questions did not impair the fairness of the
    trial, or the appearance of the fairness of the trial.

[6]

This ground of appeal fails.

The Second Ground of Appeal

[7]

Counsel alleges various errors by the trial judge in his treatment of
    the evidence of a witness named Nickole Atkinson.  We do not accept these
    submissions.  The trial judge found that the demeanour and deportment of the
    witness on the witness stand showed her to be a person strongly committed to
    the protection and support of victims of child abuse.  He found that deportment
    to be entirely consistent with her evidence of the very positive, if not
    aggressive, steps she took when the complainant first revealed that she had
    been sexually abused by the appellant.  We see no error in the trial judges
    treatment of this aspect of Ms. Atkinsons evidence.  Insofar as the other
    complaints are concerned, the trial judge fully and fairly reviewed Ms.
    Atkinsons evidence.  His findings that she was a credible and, indeed,
    powerful witness were, in our view, open to him on this record and we defer to
    them.

[8]

The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


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. Sanderson, 2016 ONCA 866

DATE: 20161118

DOCKET: C61267

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garry Sanderson

Appellant

James Zegers, for the appellant

David Friesen, for the respondent

Heard:  November 10, 2016

On appeal from the conviction entered on June 16, 2015
    and the sentence imposed on July 31, 2015 by Justice L.C. Leitch of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant and the complainant met at a social gathering at a
    mutual friends home. The complainant fell asleep on the couch in the early
    morning hours. The trial judge found that the appellant engaged in sexual
    intercourse with the complainant while she slept, without her consent, knowing
    that she was not consenting.

[2]

The appellant was convicted of sexual assault and sentenced to a period
    of incarceration of 30 months. He appeals his conviction and seeks leave to
    appeal sentence.

[3]

The appellants primary arguments on his appeal of conviction are that:

1.

The trial judges credibility analysis was unreasonable and unsupported
    by the evidence;

2.

The trial judge misapplied R. v. W.(D.) and impermissibly shifted the
    burden of proof to the appellant; and

3.

The trial judge erred in concluding that the forensic evidence was
    consistent with both the appellants and the complainants version of events.
    He submits it was only consistent with his version of events.

[4]

We reject these arguments.

[5]

The trial judges credibility analysis was reasonable and fully
    supported by the evidence. She began that analysis by instructing herself in
    accordance with
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742,
and expressly and properly applied
R. v.
    W.(D.)
. She explained why she did not believe the appellants evidence
    that he engaged in consensual sexual activity, short of intercourse, with the
    complainant and why his evidence did not leave her with a reasonable doubt. She
    then proceeded to set out the evidence that she did accept and why she accepted
    it. She was entitled to consider that the complainants behaviour and emotional
    state, as observed by others, was inconsistent with the appellants version of
    events. The trial judge did not impermissibly shift the burden of proof onto
    the appellant.

[6]

We agree with the trial judge that the forensic evidence that the amylase
    detected on the complainants underwear could have come from the appellants
    saliva was consistent with both the appellants and the complainants version
    of events and therefore neutral.

[7]

Finally, there is no basis to interfere with the sentence imposed by the
    trial judge. At the hearing, appellants counsel conceded that the sentence the
    trial judge imposed was within the range established by applicable
    jurisprudence and that the potential immigration consequences could not justify
    reducing the sentence to less than six months.

[8]

Accordingly, the appeal is dismissed, leave to appeal sentence is
    granted, but the appeal of sentence is dismissed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.