R. v. Robinson (E.), (2002) 159 O.A.C. 286 (CA)

Judge:Doherty, Goudge and MacPherson, JJ.A.
Court:Ontario Court of Appeal
Case Date:May 28, 2002
Jurisdiction:Ontario
Citations:(2002), 159 O.A.C. 286 (CA)
 
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R. v. Robinson (E.) (2002), 159 O.A.C. 286 (CA)

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Temp. Cite: [2002] O.A.C. TBEd. JN.021

Her Majesty the Queen (respondent) v. Ernest Robinson (appellant)

(C35651)

Indexed As: R. v. Robinson (E.)

Ontario Court of Appeal

Doherty, Goudge and MacPherson, JJ.A.

June 3, 2002.

Summary:

An accused was convicted of sexual assault and sexual touching and sentenced to one year's imprisonment and two years' probation. The accused appealed the conviction and sentence.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - The accused appealed his convictions for sexual offences, asserting that the jury charge favoured the Crown and led to an unfair trial - The Ontario Court of Appeal stated that the trial judge had made critical comments which were closer to argument than jury instruction - However, he had not misstated the evidence or the law and repeatedly told the jury that their assessment of the evidence and arguments had to prevail - The trial judge reviewed the inconsistencies between the complainant's evidence and her previous statements at length and did so on more than one occasion - The trial judge set the accused's position out accurately and fully - Although the complainant's evidence was supported in material respects by the accused's evidence, the trial judge told the jury it stood alone and had to be "scrutinized carefully" - While the impugned comments might have been better left unsaid, the charge, when considered in its totality, was fair and did not result in a miscarriage of justice - The court also noted that defence counsel had not objected - See paragraphs 9 to 12.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See Criminal Law - Topic 4293.1 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4293.1 ].

Criminal Law - Topic 5462

Evidence and witnesses - Evidence of children - Credibility - An accused was charged with sexual offences involving a 13 year old complainant - The trial judge instructed the jury that the testimony of the complainant, then age 15, should not be assessed by adult standards and that when witnesses were testifying respecting childhood events, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the witness's age at the time of the events being described - The accused asserted that the instruction was inappropriate where the complainant had been a "somewhat sophisticated" 13 year old and was testifying about relatively recent events - The Ontario Court of Appeal rejected the assertion, but stated that it would have been better had the trial judge not suggested that "time and location" were "peripheral matters" - They were arguably central to the complainant's story - However, the jury was not invited to apply an inappropriate standard in assessing the complainant's evidence.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - A 42 year old accused teacher was convicted of sexual assault and sexual touching - The accused met the complainant on a chat line - The complainant was a 13 year old grade 8 student - The accused pretended to be a 17 year old high school football player - They eventually met and had sexual intercourse on several occasions - The sentencing judge sentenced the accused to one year's imprisonment and two years' probation - The accused appealed, asserting that the trial judge erred in not imposing a conditional sentence - The Ontario Court of Appeal affirmed the sentence - While the accused was not in a position of trust, he more than most people should have understood the harm done to children by the kind of sexual conduct in which he engaged - There was also a predatory aspect to the manner in which the accused initiated and maintained intensive contact with the complainant - See paragraphs 17 to 20.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5720.4 ].

Counsel:

Marie Henein and Melanie Dunn, for the appellant;

Susan M. Chapman, for the respondent.

This appeal was heard on May 28, 2002, by Doherty, Goudge and MacPherson, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following endorsement for the court on June 3, 2002.

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