Vauclair, Sansfaçon, Cournoyer

Motions for leave to appeal from convictions and sentence. Granted. Appeals from convictions and sentence. Dismissed.

Following his second trial, the appellant was convicted on charges in connection with sexual offences committed against his step-daughter, who was under the age of 13 years at the time of the events. He was sentenced to 3 years’ imprisonment. The appellant argues that the trial judgment is not sufficiently reasoned, that the verdict is unreasonable, and that the judge imposed on him the burden of proving that the witnesses for the prosecution had an interest in lying. He also submits that the judge erred in imposing the same sentence as the one he received in the first trial.

The appellant has not identified any elements that should have been included in the judgment. The judge took into consideration the weaknesses of the testimony, which concerned peripheral aspects only. The contradictions identified between the testimony of the complainant and that of her mother concern details of narratives that were recounted eight years after the facts took place. The judge was well aware of this fact and did not err in his assessment of the facts or in the reasons for his decision. He also did not err in his interpretation and use of the emails or of the appellant’s remarks to the complainant’s mother. The appellant did not testify and has offered no evidence allowing for a different interpretation. The defence argued that the divorce of the appellant and the complainant’s mother was a reason for the mother to lie and that the judge could have been responsive to that issue. The judge could conclude on the basis of the evidence that the reason for the complaint was not the separation, but the more serious nature of the actions revealed and the involvement of protection services. Although the complainant’s mother was present during the appellant’s testimony at the first trial, there is nothing to suggest that her testimony contains contradictions as a result.

Following a second trial, the judge is free to determine a fit sentence but cannot impose a harsher sentence than the one imposed at the first trial in the absence of new facts to convincingly justify such a change. A first judgment on sentencing remains a relevant precedent and must be considered attentively. On the other hand, it would be wrong for the judge to conclude that he or she must impose the same sentence as the first judge. In this case, it may be understood that the judge agreed with the sentence imposed after the first trial, and there is therefore no error. Moreover, a sentencing hearing was held, and a full case was presented. The portrait of the crime and of the appellant’s situation remained essentially the same. The fact that the judge did not accept an aggravating factor that the first judge had mentioned is not determinative of the appellant’s moral culpability. Even if the judge rendered the sentence because he felt bound to do so, the Court’s intervention would not be justified. In the circumstances, the rejection of an aggravating factor and the passage of time are not decisive factors. The appellant has not established grounds authorizing an intervention on the quantum.

Text of the decision: http://citoyens.soquij.qc.ca