R. v. Wilson

R. v. Wilson Collection Decisions of the Court of Appeal Date 1998-12-23 Docket numbers C26541 Judges Krever, Horace; Charron, Louise Vivianne; O’Connor, Dennis Subject Criminal Decision Content DATE: 19981223 DOCKET: C26541 COURT OF APPEAL FOR ONTARIO KREVER, CHARRON and O'CONNOR JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Sharon E. Lavine, ) for the appellant Respondent ) ) and ) ) Susan Reid, BURYL LEROY WILSON ) for the respondent ) Appellant ) ) Heard: December 18 and 21, ) 1998 ) BY THE COURT: [1] Following his trial by judge and jury, the appellant was convicted on one count of gross indecency and three counts of obtaining, for consideration, the sexual services of a person under the age of eighteen years. He was sentenced to a term of imprisonment for six months concurrent on each count. He appeals against the convictions and seeks leave to appeal his sentence. [2] The appellant raises three grounds In his appeal against conviction. He argues that the trial judge erred in failing: 1. to declare a mistrial; 2. to exclude the evidence of one of the complainants as secondary evidence obtained in breach of his Charter rights; and 3. to charge the jury on the relevance of consent to the charge of gross indecency. 1. Failure to declare a mistrial [3] The appellant argues that the trial judge erred in failing to declare a mistrial when a prejudicial article was published in the newspaper at the conclusion of the first day of trial. Instead of declaring a mistrial, the trial judge admonished the jury in no uncertain terms that the newspaper article contained false information that had nothing to do with the case to be tried and that they were to disregard it. [4] In our view, it was within the trial judge’s discretion to respond to the situation in the manner in which he did. An appellate court ought not to interfere with this exercise of discretion lightly. We have not been persuaded that the trial judge’s admonition was insufficient to overcome the potential prejudice to the appellant. 2. Exclusion of testimony [5] We do not agree with the appellant’s contention that the trial judge refused to embark on a full inquiry on this issue. The transcript reveals that both Crown and defence counsel at trial agreed to proceed on the assumption that the search was illegal and then argue the admissibility of the secondary evidence on that basis. [6] In our view, it was open to the trial judge, on the evidence before him, to conclude that the strength of the relationship between the Charter breach and the complainant’s testimony was insufficient to trigger the application of s.24(2) of the Charter. While it was conceded by the Crown that the witness would not have been discovered without the illegal search at the appellant’s residence and the seizure of the journal, that fact alone is not sufficient to trigger s.24(2). 3. Charge on gross indecency [7] We are satisfied on reading the charge as a whole that the trial judge adequately charged the jury as to the relevance of consent as one relevant factor in the determination of whether the alleged conduct constituted gross indecency. This was made particularly clear in the trial judge’s review of the theory of the defence. 4. Sentence appeal [8] We are of the view that the trial judge erred in stating that a conditional sentence could only be imposed for this type of offence in “very exceptional” circumstances of “extreme age or illness”. In our view, a conditional sentence was an appropriate disposition in this case. [9] For these reasons, the appeal against conviction is dismissed. Leave to appeal sentence is granted, the appeal against sentence is allowed, the sentence is set aside and, in its place, there is substituted a conditional sentence for the balance of the original term on the statutory terms. RELEASED: December 23, 1998