Digest: R v P.R., 2018 SKCA 27

Reported as: 2018 SKCA 27

Docket Number: CA17138 , CACR 2813

Court: Court of Appeal

Date: 2018-04-06

Judges:

• Richards
• Herauf
• Schwann

Subjects:

• Criminal Law � Young Offender � Sentencing
• Statutes � Interpretation � Youth Criminal Justice Act, Section 3, Section 38

Digest: The appellant was convicted after trial of sexually assaulting his 11-year-old niece contrary to s. 271 of the Criminal Code. He was 17 years old at the time of the offence and was sentenced as a youth under the Youth Criminal Justice Act (YCJA) to 12 months in secure custody followed by six months of community supervision. He appealed his conviction on the grounds that: 1) he received ineffective trial representation because his lawyer did not cross-examine the complainant at trial concerning her inconsistent statements; and 2) the trial judge made errors in assessing the credibility of the witnesses. He also appealed his sentence as: 3) unfit, as it contradicted the provisions of the YCJA. The trial judge based the custodial sentence on the paramountcy of denunciation and deterrence as considerations under the YCJA.
HELD: The appeal from conviction was dismissed and sentence appeal allowed. The sentence was varied to 12 months of probation. The court found with respect to each issue that: 1) the presumption of competent trial representation had not been displaced. The trial lawyer�s decision not to cross-examine the complainant was a tactical one. She was very young and had difficulty expressing herself in the courtroom whereas she had given clear, coherent statements to the police shortly after the offence. The lawyer determined that it was not beneficial to the appellant�s position to highlight those statements by raising certain inconsistences between them and the complainant�s testimony; 2) the trial judge�s assessment of credibility was entitled to deference. He correctly identified R v W.(D.) as the guiding legal principle in the circumstances and his credibility findings were supportable on the evidence; and 3) the sentence was unfit because denunciation and deterrence are secondary factors in sentencing young offenders and are to be considered in a fashion consistent with the principle of �diminished moral blameworthiness� described in s. 3 the YCJA. The court acknowledged that this offence, committed against an 11-year-old and causing her serious psychological harm, might warrant a custodial sentence but for the appellant�s...