R. v. Nikkanen

R. v. Nikkanen Collection Decisions of the Court of Appeal Date 1999-10-15 Docket numbers C29487 Judges Labrosse, Jean-Marc; Laskin, John Ivan; O’Connor, Dennis Subject Criminal Decision Content DATE: 19991015 DOCKET: C29487 COURT OF APPEAL FOR ONTARIO LABROSSE, LASKIN and O'CONNOR JJ.A. BETWEEN: ) ) Alan D. Gold HER MAJESTY THE QUEEN ) and Karen Unger, ) for the appellant Respondent ) ) - and - ) Susan Ficek, ) for the respondent MICHAEL NIKKANEN ) ) Appellant ) ) Heard: October 13, 1999 ) On appeal from his conviction by Madam Justice Rose Boyko on February 18, 1998 and from the sentence imposed on April 17, 1998 BY THE COURT: [1] The appellant was convicted of sexual assault by Boyko J. He appeals his conviction and the sentence of eighteen months’ incarceration and three years' probation. [2] The appellant and the respondent had known each other for some period of time and had been intimate. On the evening in question, the appellant visited the complainant at her apartment. The complainant was on medications which had sedative effects. There was no dispute that the appellant and the complainant had sexual intercourse. The issue was consent. The trial judge found that at the relevant time the complainant had been asleep and could not have consented to sexual intercourse. [3] The appellant raises five grounds of appeal. We will deal with them in the order presented during argument. 1. Failure to Grant Appropriate Remedy for Late Disclosure. [4] The police officers’ reports (and their names) were properly disclosed. The investigation officer’s notes, which had been specifically requested by defence counsel, had also been disclosed. It is clear that the late disclosure of the other officers’ notes resulted from inadvertence. [5] The trial judge considered the relevant factors and concluded, in the exercise of her discretion, that a remedy short of declaring a mistrial was appropriate. [6] The late disclosure was not of such a nature as to affect the strategy of the defence. The opportunity to cross-examine the complainant on the new information was sufficient in the circumstances. In our view, no impairment of the right to make full answer and defence was established as a result of the Crown’s failure to disclose the police officers’ notes. We see no error in the trial judge’s exercise of her discretion. 2. Admissibility of the Videotape statement. [7] The appellant had spoken to a lawyer and stated that he had been told not to say anything. The appellant knew that he was speaking to a police officer, he was in custody, he was being videotaped, and anything he said could be used against him. The finding of the trial judge that the appellant chose to tell his side of the story is amply supported by the evidence. We see no breach of the appellant’s Charter rights on this issue. 3. Misapplication of the burden of proof. [8] Due to the complainant’s condition from the medication and the weaknesses in her memory of the incident the trial judge sought confirmation of her evidence, which he found in the appellant’s statement to the police. The trial judge clearly accepted parts and rejected other parts of that statement. The reasons of the trial judge do not disclose a failure to apply the proper burden of proof. 4. Unreasonable verdict. [9] The possibility of a conditional consent, which the trial judge considered as an alternative, was not available on the evidence. However, we are of the view that it was open to the trial judge convict on the evidence reviewed in her reasons for judgment. The trial judge accepted the complainant’s evidence that she was asleep when sexual intercourse occurred and found confirmation of this evidence in the appellant’s statement to the police. [10] On the appellant’s own evidence, there was no air of reality to the defence of honest but mistaken belief. 5. Prior Sexual Conduct evidence. [11] The trial judge held that evidence of prior sexual conduct was not admissible. Much of that evidence was, in any event, allowed to go in. The evidence of prior occasions of sexual conduct could not have assisted the trial judge in determining whether or not the complainant was consenting on this occasion. We see no error in the trial judge’s decision that this evidence was not admissible. 6. Sentence. [12] With respect to the sentence of eighteen months’ incarceration plus probation, we are not persuaded that the length of sentence was outside the usual range of sentence for this type of offence. The trial judge considered the imposition of a conditional sentence. She found that he was not a danger to the community. However, she concluded that a conditional sentence would not adequately reflect the principles of general deterrence and denunciation. [13] Including the period of time preceding the trial, the appellant has now been on bail for approximately three years, apparently without any problem. The appellant has filed fresh evidence. It reveals that he is married and has three teenage children. They are all supportive of the appellant. The oldest child plans to attend college next year and another child is involved in hockey, both at a substantial cost. [14] The appellant is self-employed and owns a contracting company. His wife is employed on a part-time basis. They have two mortgages on their house. If he is incarcerated, the appellant swears that they would lose their house, that the oldest child would not be able to attend college, and that his son would no longer be able to be involved in hockey. [15] Much of this evidence was not presented to the trial judge. In light of the total period of time spent on bail and the disastrous financial results that would flow from incarceration, this is a proper case, at this time, to impose a conditional sentence. [16] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the sentence is varied to a conditional sentence on the statutory terms. In addition, the appellant is to be subject to a daily curfew from 7:00 p.m. to 7:00 a.m. except for work-related purposes. In light of the period of time the appellant has been on bail, we see no reason to impose a probation order. (signed) "J. M. Labrosse J.A." (signed) "John Laskin J.A." (signed) "D. O'Connor J.A." RELEASED: October 15, 1999