R. v. L.V., (2016) 480 Sask.R. 181 (CA)

• Judge: Richards, C.J.S., Herauf, Whitmore, Ryan-Froslie and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 13, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 480 Sask.R. 181 (CA);2016 SKCA 74

R. v. L.V. (2016), 480 Sask.R. 181 (CA);

    669 W.A.C. 181

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JN.040

L.V. (appellant) v. Her Majesty the Queen (respondent)

(CACR2496)

Her Majesty the Queen (appellant) v. L.V. (respondent)

(CACR2497; 2016 SKCA 74)

Indexed As: R. v. L.V.

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf, Whitmore, Ryan-Froslie and Jackson, JJ.A.

June 13, 2016.

Summary:

The accused was convicted of sexually assaulting his daughter over a three year period when she was 13-16 years of age.

The Saskatchewan Court of Queen's Bench, in a judgment reported at (2014), 454 Sask.R. 136, sentenced the accused to three years' imprisonment. The court also imposed a DNA order, an order requiring the accused to comply with the Sex Offender Information Registration Act for a period of 20 years, and a $200 victim surcharge. The court declined to impose a firearms prohibition order, because the offence did not involve the use of violence. The accused appealed his conviction. The Crown appealed the sentence.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting on the sentence appeal, dismissed the conviction appeal and allowed the Crown's sentence appeal. The court increased the sentence to four years' imprisonment and imposed a firearms prohibition order under s. 109(1)(a) of the Criminal Code.

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 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused was convicted of sexual assault for "hundreds" of incidents (fondling and digital penetration of her vagina) involving his 13 to 16 year old daughter over a three year period - After the dates covered by the indictment, the accused went on a cruise with his daughter - The mother saw a travel diary in the accused's luggage, which she read - It contained "coded" entries describing sexual activity with the daughter that was consistent with the behaviour alleged by the daughter - The diary entries were admitted into evidence, and referenced by the trial judge, without objection - On appeal, the accused argued that the trial judge erred in admitting the presumptively inadmissible similar fact evidence - The Saskatchewan Court of Appeal held that the trial judge did not err in admitting the similar fact evidence - The evidence was highly probative, as there was a "high level of interconnectiveness" between the similar fact evidence and the actus reus of the offence - Further, the probative value clearly outweighed any prejudicial effect on the accused - See paragraphs 24 to 47.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - The accused was convicted of sexually assaulting his daughter over a three year period when she was 13-16 years of age - The trial judge, in sentencing the accused, declined to impose a firearms prohibition order on the ground that the accused had not used "violence" in committing the offence - The Saskatchewan Court of Appeal held that the trial judge erred in not imposing a firearms prohibition order - The sexual abuse of a child was an act of violence with or without the use of physical force - See paragraphs 108 to 111.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The accused was convicted of sexually assaulting his daughter over a three year period when she was 13-16 years of age - The Crown, in appealing the accused's three year sentence, argued that the Court of Appeal should clarify "major sexual assault" and increase the starting point sentence of three years' imprisonment for sexual assault to four years' imprisonment where children were the victims - The Saskatchewan Court of Appeal held that "major sexual assault" did not require clarification - Case law made it clear that penile penetration was not required to find a "major sexual assault" - Further, the court had endorsed the three year starting point sentence for sexual assaults against adults, not children - There was no need for a starting point sentence respecting sexual assaults against children - The court stated that "I am not persuaded that it is either wise or necessary at this point to establish a formal and specific starting point sentence of the sort suggested by the Crown. However ... I none the less conclude that the time has come to look carefully at the case law in this area with a view to more clearly appreciating the difference between a sexual offence committed against an adult and such an offence committed against a child." - See paragraphs 55 to 69.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused sexually assaulted his daughter over a three year period when she was 13-16 years of age - There were "hundreds" of incidents of fondling the daughter's breasts and vagina, and incidents of digital penetration and "dry humping" - Aggravating factors included sexual abuse of a person under age 18, the number and frequency of the assaults, the egregious breach of the father-daughter trust relationship, the father's lack of remorse for the emotional impact on his daughter, and the failure to accept responsibility - Mitigating factors included the lack of a criminal record and his history of full-time employment and supporting his family of five children - The daughter was favoured and singled out for the sexual abuse - The Saskatchewan Court of Appeal allowed the Crown's appeal from the accused's sentence of three years' imprisonment and substituted a sentence of four years' imprisonment - The trial judge erred in principle in finding that the sexual offence did not involve "violence" - This constituted a mischaracterization of the offence itself - The trial judge also erred in believing that the three year starting point sentence for a "major sexual assault" applied to children - The court had previously endorsed the three starting point only for sexual assaults against adults - The errors impacted the sentence imposed - The accused's moral blameworthiness was very high - He manipulated his daughter and persisted in sexually abusing her over her protestations - The daughter's psychological health was significantly affected - Sentences for sexually assaulting children "normally warrant a stronger sanction" than sentences for sexually assaulting adults - See paragraphs 76 to 107.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Saskatchewan Court of Appeal stated that "an appellate court may substitute its own sense of an appropriate sentence for the one imposed by a trial court level in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider a relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. ... to the extent that this Court's decision in R. v. Slippery , 2015 SKCA 149, might be read as saying that an appeal court may intervene in a sentencing decision only if the sentence is demonstrably unfit, it should not be followed." - See paragraph 74.

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See Criminal Law - Topic 5213 ].

Evidence - Topic 3040

Documentary evidence - Proof of handwriting - General - The accused was convicted of sexual assaulting his daughter - At trial, a travel diary seen in the accused's luggage upon his return from a cruise was read by the mother and given to police - The daughter testified that the accused wrote in the diary on the cruise and the mother testified that she recognized the handwriting as the accused's - On appeal, the accused argued (for the first time) that it was not properly proven that the handwriting was his, as there was no comparison done between the diary entries and a known sample of the accused's handwriting, as provided for by s. 8 of the Canada Evidence Act - The Saskatchewan Court of Appeal rejected the argument - Comparison between the diary entries and a known sample of the accused's handwriting was not the only way to prove the entries were written by the accused - In light of the testimony of the mother and daughter, "there can be no doubt as to who authored the diary entries" - Not surprisingly, "trial counsel did not suggest the diary was not [the accused's] or that [the accused] had not written what was found in it" - See paragraphs 48 to 51.

Counsel:

W. Dean Sinclair, Q.C., for the Crown;

Barry Nychuk and Sharon Fox, for L.V.

These appeals were heard on September 14, 2015, before Richards, C.J.S., Herauf, Whitmore, Ryan-Froslie and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

On June 13, 2016, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Richards, C.J.S. (Herauf, Whitmore and Ryan-Froslie, JJ.A., concurring) - see paragraphs 1 to 112;

Jackson, J.A. (dissenting on sentence appeal) - see paragraphs 113 to 175.