R. v. F.C.D., 2009 ONCA 290

• Judge: Moldaver, Borins and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 07, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 290;(2009), 250 O.A.C. 60 (CA)

R. v. F.C.D. (2009), 250 O.A.C. 60 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AP.011

Her Majesty the Queen (respondent) v. F.C.D. (appellant)

(C44975; 2009 ONCA 290)

Indexed As: R. v. F.C.D.

Ontario Court of Appeal

Moldaver, Borins and Blair, JJ.A.

April 4, 2009.

Summary:

The Ontario Superior Court, sitting with a jury, convicted the accused of two counts of indecent assault. The accused received a conditional sentence. The accused appealed against conviction. The conditional sentence was completed before the appeal judgment was rendered.

The Ontario Court of Appeal, Blair, J.A., dissenting respecting one count, dismissed the appeal. Both verdicts were reasonable.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was charged with indecent assault - The complainant was in the Venturers, a Scouts Canada group for members aged 14 to 17 - The accused was his leader - The conviction related to an incident that happened at the accused's home in Paris, Ontario, on a Friday night, in 1978, 1979 or 1980, the day before a youth bicycle rodeo that the accused and the complainant were helping in organizing - The accused's daughter participated in the rodeo - The complainant slept at the accused's home on the night of the incident - The complainant testified that he and the accused were alone since the accused's wife and daughter were away in Chatham with the wife's mother on the night of the incident - The accused replied, in cross-examination, that his mother-in-law in fact lived in Paris - It was his wife's sister who lived in Chatham - The wife testified that she would have never left the house overnight in 1980 but she was never asked whether she and the children had ever made an overnight trip to her sister's in Chatham, or elsewhere, on the Friday night before the bicycle rodeo - A jury found the accused guilty - The Ontario Court of Appeal upheld the verdict as reasonable - Had the wife given evidence respecting an overnight trip on the Friday, the verdict might have been different - She did not and it was speculative to conclude that in the absence of such evidence, no reasonable jury properly instructed could have rejected the accused's testimony and accepted the complainant's testimony beyond a reasonable doubt - See paragraphs 20 to 48.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, consd. [paras. 18, 56].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, consd. [paras. 41, 57].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, consd. [paras. 46, 56].

R. v. François (L.) (1993), 64 O.A.C. 140; 14 O.R.(3d) 191 (C.A.), affd. [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, consd. [para. 56, footnote 1].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, consd. [para. 56].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 35 O.R.(3d) 641 (C.A.), consd. [para. 58].

R. v. A.G. (1998), 114 O.A.C. 336; 130 C.C.C.(3d) 30 (C.A.), consd. [para. 58].

Counsel:

Gregory Lafontaine, for the appellant;

Benita Wassenaar, for the respondent.

This appeal was heard on January 7, 2009, by Moldaver, Borins and Blair, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was released on April 6, 2009, and the following reasons were filed:

Moldaver, J.A. (Borins, J.A., concurring) - see paragraphs 1 to 49;

Blair, J.A., dissenting in part - see paragraphs 50 to 75.