R. v. Clarke (R.J.), (2016) 480 Sask.R. 277 (CA)

• Judge: Jackson, Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 30, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 480 Sask.R. 277 (CA);2016 SKCA 80

R. v. Clarke (R.J.) (2016), 480 Sask.R. 277 (CA);

    669 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JL.004

Randy Joseph Clarke (appellant) v. Her Majesty the Queen (respondent)

(CACR2557; 2016 SKCA 80)

Indexed As: R. v. Clarke (R.J.)

Saskatchewan Court of Appeal

Jackson, Caldwell and Whitmore, JJ.A.

June 30, 2016.

Summary:

The accused was convicted of sexual assault (count 1) and invitation to sexual touching (count 2). He was sentenced to three years' imprisonment on count 1 and six months consecutive on count 2, less seven months credit for pretrial custody (35 months go-forward sentence). He appealed the conviction and sentence. The accused applied for the appointment of counsel under s. 684(1) of the Criminal Code.

The Saskatchewan Court of Appeal, per Whitmore, J.A., in a judgment reported at (2015), 451 Sask.R. 300; 628 W.A.C. 300, allowed the application. The accused sought judicial interim release pending his appeal.

The Saskatchewan Court of Appeal, per Whitmore, J.A., in a judgment reported at [2015] Sask.R. Uned. 21, dismissed the application. Although the grounds of appeal were not frivolous, the court was not satisfied that the accused would surrender himself into custody and held that his release would "undermine public confidence in the administration of justice and would be contrary to the public interest". The accused again applied under s. 679 of the Criminal Code for release based on a material change in circumstances.

The Saskatchewan Court of Appeal, per Herauf, J.A., in a judgment reported at (2016), 472 Sask.R. 273; 658 W.A.C. 273, dismissed the application. The accused failed to establish a material change in circumstances warranting his release.

The Saskatchewan Court of Appeal dismissed the conviction appeal and allowed the sentence appeal and reduced the go-forward sentence from 35 months to 27 months. The court also dismissed an application to adduce fresh evidence on the appeal.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The 34 year old accused had consensual sexual intercourse with a 15 year old girl who told him that she was 17 years' old - As the girl was under the age of 16, she was unable to consent (Criminal Code, s. 150.1(2.1)) and the accused was convicted of sexual assault (s. 271) - The trial judge held that the accused did not take "all reasonable steps" to ascertain the girl's age (s. 150.1(4)) - Subsequently, the accused sent sexually explicit texts to the girl, which led to a conviction for inviting sexually touching (s. 152), as the trial judge found that the accused, by this time, knew the girl was under the age of 16 - The Saskatchewan Court of Appeal, in dismissing the accused's conviction appeal, held that the trial judge did not make any palpable and overriding error in assessing the credibility of the girl and the accused - The credibility of witnesses was a fact finding subject to a deferential standard of review - The trial judge clearly articulated his reasons for finding that the accused gave contradictory testimony and why he disbelieved certain of his testimony - Even though the trial judge found "much of" the evidence of the girl "simply unbelievable, or at best, suspect", there was evidence supporting the finding that the accused took no steps to ascertain the girl's age - Much of that evidence came from the accused's own testimony that he paid no attention to how old the girl was - The trial judge did not misapprehend any evidence that would lead to a verdict that was unreasonable or unsupported by the evidence - Any misapprehension of evidence was not relevant to the "all reasonable steps" assessment - The trial judge properly interpreted and applied s. 150.1(4) - He did not place a burden on the accused to prove that he took all reasonable steps - See paragraphs 29 to 95.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Saskatchewan Court of Appeal declined to admit fresh evidence on the accused's conviction appeal where the fresh evidence, when considered with all of the evidence adduced at trial, "could not be reasonably expected to have affected the result" - See paragraphs 96 to 103.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 34 year old aboriginal accused was convicted of sexual assault and invitation to sexual touching - He was sentenced to three years' imprisonment for sexual assault and six months' imprisonment (consecutive) for inviting sexual touching, less seven months credit for pretrial custody (35 months go-forward sentence) - The accused appealed against sentence - The accused had consensual intercourse with a 15 year old girl without taking reasonable steps to determine her age - He had a lengthy criminal record of largely property offences and was addicted to drugs and alcohol - He was assessed as a medium to high risk of reoffending generally, and a low risk to reoffend sexually - The Saskatchewan Court of Appeal reduced the accused's global sentence from 35 to 27 months' imprisonment - There were aspects of his arguments that would justify intervention under R. v. Lacasse (SCC 2015), but since he had already served 18 months of his 35 month sentence, and was presumably eligible for parole after serving two-thirds, "it would be of no utility to pick apart these issues or to attempt to resolve them in any meaningful or precedential way" - By reducing the sentence to 27 months, it permitted the Parole Board to release the accused in short order (if he was eligible) and allow him to continue under parole supervision - See paragraphs 114 to 119.

Criminal Law - Topic 5963

Sentence - Inviting sexual touching - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5932 ].

Counsel:

Ammy S. Murray, for the appellant;

Erin L. Bartsch, for the respondent.

These appeals were heard on November 25, 2015, before Jackson, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal.

On June 30, 2016, the following judgment was delivered by the Court.