Ontario Criminal


Appeal

PROCEDURE
Summary conviction appeal judge had no jurisdiction to order fresh sentencing hearing

Accused was convicted of sexual assault and sexual touching and sentenced to total of six months’ imprisonment. Complainants were 12 and 16 years old at time of offences and were friends of accused’s stepdaughter. At sentencing hearing, trial judge refused to permit accused’s counsel to cross-examine complainants on their victim impact statements. Summary conviction appeal judge dismissed appeal from conviction but allowed appeal from sentence on ground that trial judge had erred by refusing to permit cross-examination on victim impact statements and remitted matter to trial court to hold fresh sentencing hearing. Crown sought leave to appeal on ground that summary conviction appeal judge had no jurisdiction to remit matter for fresh sentencing hearing and that he also erred in finding that trial judge should have permitted cross-examination on victim impact statements. Leave to appeal granted; appeal allowed; original sentence restored. It was conceded that summary conviction appeal judge erred in remitting matter to trial judge to hold fresh sentencing hearing: summary conviction appeal judge had no jurisdiction pursuant to relevant provisions of Criminal Code governing summary conviction appeals to make such order. Appeal judge erred in finding err on part of trial judge. Counsel for accused failed to identify with sufficient clarity fact or facts contained in victim impact statements that were disputable and that request to cross-examine was not specious or empty as required. Trial judge did not appear to have placed any significant reliance on victim impact statements when determining appropriate sentence. Sentence was within appropriate range.

R. v. T. (B.) (Aug. 26, 2013, Ont. C.A., Robert J. Sharpe J.A., Gloria Epstein J.A., and P. Lauwers J.A., File No. CA C56434) Decision at 104 W.C.B. (2d) 896 was reversed.  109 W.C.B. (2d) 143.

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