R. v. W., S.

R. v. W., S. Collection Decisions of the Court of Appeal Date 1998-07-08 Docket numbers C27724 Judges McMurtry, Roy; Labrosse, Jean-Marc; Abella, Rosalie Silberman Subject Criminal Decision Content DATE: 1998078 DOCKET: C27724 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. S.W. (Appellant) BEFORE: McMURTRY C.J.O., LABROSSE and ABELLA JJ.A. COUNSEL: Craig Parry, for the appellant Trevor Shaw, for the respondent HEARD: July 6, 1998 ENDORSEMENT [1] The appellant appeals his conviction by a court composed of a judge and jury of three counts of indecent assault. He also appeals his sentence of nine months' imprisonment. [2] The offences were alleged to have occurred approximately between twenty and thirty years ago and to have been committed against the appellant's two daughters. [3] The appellant pursued three grounds of appeal before this court. [4] The appellant submits that the trial judge erred in his charge to the jury on the issue of similar fact evidence. The position of the trial judge on this issue is not clear but in the result, neither the Crown nor the defence obtained a favourable instruction and no objection was raised by counsel. As a result, in our view, no prejudice resulted to the appellant and if there was an error, it was to the appellant's benefit as the evidence was clearly admissible as similar fact evidence and the Crown would have been entitled to a much stronger instruction on the inculpatory nature of the evidence. [5] A second ground of appeal is raised with respect to improper comments by Crown counsel. Crown counsel's remarks related to the failure of the defence to ask certain questions, not calling witnesses, and the Crown's own failure to call the appellant's wife. While some comments would have been better left unsaid, we are of the view that in the context of this case, there was no prejudice to the appellant. [6] The third ground of appeal is directed to the trial judge's failure to adequately present the theory of the defence. This was, in effect, a one-day trial and testimony was heard from only four witnesses, two of which were not cross-examined. The theory of the defence was an outright denial and the appellant did not testify. We see no merit in this ground of appeal. [7] The appeal against conviction is dismissed. [8] The final issue is with respect to the imposition of a conditional sentence. We think that this is one of those rare cases when a conditional sentence is the appropriate disposition in a sexual assault case. The appellant is sixty-eight years old and has had serious medical problems. His wife is seventy-five years of age and greatly dependent upon him. The appellant is clearly not a danger to the community. In the unique circumstances of this case, leave to appeal is granted and the sentence is varied to a conditional sentence on the statutory terms together with these additional terms: a) The appellant is not to leave his primary residence except for the purpose of: 1. obtaining basic food, hygiene, and medical products; 2. transporting I.B.W. to religious services, to medical appointments, or to obtain basic food, hygiene, and medical products; 3. attending counselling as required by the conditional sentence supervisor; 4. obtaining medical treatment for himself. b) The appellant is not to be in the company of anyone under the age of fourteen except in the company of an adult. c) The appellant is to notify the conditional sentence supervisor of any change of address within twenty-four hours of such change.