R. v. Schwartz, (1991) 1 B.C.A.C. 192 (CA)

• Judge: McEachern, C.J.B.C., Hutcheon and Toy, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 07, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 1 B.C.A.C. 192 (CA)

R. v. Schwartz (1991), 1 B.C.A.C. 192 (CA);

    1 W.A.C. 192

MLB headnote and full text

Regina (respondent) v. Douglas Louis Schwartz (applicant/appellant)

(No. CA011717)

Indexed As: R. v. Schwartz

British Columbia Court of Appeal

McEachern, C.J.B.C., Hutcheon and Toy, JJ.A.

June 21, 1991.

Summary:

The accused pleaded guilty to aggravated sexual assault and wounding of a seven year old girl, contrary to s. 273 of the Criminal Code. He was sentenced to nine years' imprisonment in addition to nine months already spent in custody. He applied for leave to appeal the sentence.

The British Columbia Court of Appeal, Toy, J.A., dissenting, granted leave to appeal, allowed the appeal, and reduced the term of imprisonment to five years.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - The accused was convicted of aggravated sexual assault of a young child - On appeal the accused sought to introduce a recent psychiatrist's report, not available at the time of trial - In the new report, the psychiatrist opined that prior psychiatric reports were mistaken in concluding that the accused was a risk to the community and that he needed treatment for sexually deviant thoughts and behaviour - The British Columbia Court of Appeal admitted the new report pursuant to s. 687 of the Criminal Code - See paragraphs 25, 48 to 65.

Criminal Law - Topic 5835

Sentencing - Considerations - Protection of the public - [See Criminal Law - Topic 5933.1 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - [See Criminal Law - Topic 5933.1 ].

Criminal Law - Topic 5933.1

Sentence - Aggravated sexual assault - The 26 year old accused, while visiting with friends, got into bed with their sleeping seven year old daughter and sexually assaulted her - The child required reconstructive surgery to her vaginal area and was emotionally troubled by the assault - Accused had difficult childhood - Impaired at time of offence - Prior record, but no sex related offences - He was sentenced to nine years' imprisonment - The British Columbia Court of Appeal reduced the sentence to five years' imprisonment where the evidence did not sufficiently establish that the accused was sexually deviant or a risk to the community.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 273 [para. 38]; sect. 687 [paras. 41, 52]; sect. 687(1) [para. 32].

Counsel:

K.M. Ker, for the accused;

   W.S. Ehrcke, for the Crown.

This appeal was heard in Vancouver, B.C., on May 7, 1991, before McEachern, C.J.B.C., Hutcheon and Toy, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on June 21, 1991, including the following opinions:

McEachern, C.J.B.C. (Hutcheon, J.A., concurring) - see paragraphs 1 to 37;

Toy, J.A., dissenting - see paragraphs 38 to 73.