R. v. Sowkey
The trial judge's jury instructions and review of the evidence were legally adequate; failure to distinguish confinement incidental to sexual assault from separate confinement was not error when neither party requested that distinction; there was evidence potentially supporting confinement separate from the assault...
Source-derived case information.
- Citation
- C29697
- Parties
- Appellant: Richard Sowkey; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 12 October 1999
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence
- Outcome
- Appeal dismissed
- Legal Topics
- Sexual Assault, Unlawful Confinement, Jury Instructions, Kienapple Principle, Reasonable Doubt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Richard Sowkey
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the trial judge erred by failing to distinguish confinement incidental to sexual assault from separate unlawful confinement
- 2 Whether convictions on both sexual assault and unlawful confinement gave rise to a stay under the Kienapple principle
- 3 Whether the trial judge's review of the evidence omitted material defence evidence (complainant's alleged motive to fabricate) constituting reversible non-direction
Ratio Decidendi
The trial judge's jury instructions and review of the evidence were legally adequate; failure to distinguish confinement incidental to sexual assault from separate confinement was not error when neither party requested that distinction; there was evidence potentially supporting confinement separate from the assault so a Kienapple stay could not be mandated on this record and the Kienapple issue was not advanced at trial; omissions regarding the complainant's alleged motive to fabricate did not amount to reversible non-direction; the reasonable doubt instruction was satisfactory; consequently the appeal must be dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Convictions and concurrent sentences affirmed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Sowkey Collection Decisions of the Court of Appeal Date 1999-10-12 Docket numbers C29697 Judges Osborne, Coulter Arthur Anthony; Doherty, David H.; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 19991012 DOCKET: C29697 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. RICHARD SOWKEY (Appellant) BEFORE: OSBORNE A.C.J.O., DOHERTY and CHARRON JJ.A. COUNSEL: Jodi C. Whyte for the appellant Christine McGoey for the respondent HEARD: September 24, 1999 On appeal from the conviction of Madam Justice Epstein dated February 21, 1997 and the sentence dated April 22, 1997. ENDORSEMENT [1] The trial judge properly instructed the jury on the essential elements of the offence of unlawful confinement. She did not distinguish between the evidence of the confinement which was necessarily incidental to the alleged sexual assault and the evidence of confinement apart from the commission of sexual assault. The trial judge was not asked to make that distinction by either the Crown or the accused. In our view, her failure to do so does not constitute an error in law. [2] The jury convicted on both the sexual assault and the confinement charges. There was some evidence which could support a finding of confinement apart from the sexual assault. In light of the charge, the unlawful confinement charge may or may not have been based on confinement other than that which formed part of the sexual assault. The two findings of guilt may or may not have given rise to a Kienapple claim. That claim was not advanced at trial. The trial judge entered convictions on both counts and imposed concurrent sentences. On this record we are not in a position to conclude that the unlawful confinement charge should have been stayed pursuant to the Kienapple principle. This ground of appeal fails. [3] The trial judge’s review of the evidence was adequate. Her failure to advert to a piece of evidence which could offer some support for one aspect of the case for the defence (the complainant’s motive to fabricate) does not constitute reversible non-direction. [4] The reasonable doubt instruction was satisfactory. [5] The appeal is dismissed. “Coulter Osborne per Doherty J.A.” “Doherty J.A.” “Louise Charron J.A.”