R v CD: “Frailties in Evidence” and Post-Offense Injury Considerations in Sentencing
In R v CD, 2012 ONCA 696 the Ontario Court of Appeal unanimously substituted a 30-month prison sentence for a two-year conditional sentence due to the “extraordinary” circumstances of the facts of the case. The appellant was a quadriplegic convicted of multiple counts of sexual assault against a minor living in the house above the basement he was renting.
The Court of Appeal was faced with a challenging set of facts. The appellant was rendered a quadriplegic in an accident where the driver was his landlord. In the wake of the accident, he filed a civil suit against the driver for $6 million. Subsequently, the driver`s teenage daughter accused him of sexual assaults spanning a year prior to his accident.
At trial, a jury convicted the appellant of multiple counts of sexual assault against the minor. He was sentenced to 30 months in prison, which he now appealed both his conviction and sentence.
The appellant alleged four deficiencies in the trial judge’s charge to the jury. However, the Court found that none of the alleged deficiencies amounted to a reversible error. The jury received sufficient instruction on how to gauge the reliability of the complainant’s testimony given her young age and potential animus against the appellant.
Another issue raised by the appellant was the availability of videotape and transcripts of the complainant’s police interview during the jury’s deliberations. The Court held that the use of videotaped testimony did not prevent the appellant from receiving a fair trial (R v Archer,  202 CCC (3d) 60 (ONCA)) and upheld the trial judge’s decision to allow the videotape testimony.
The appellant’s final argument was that the jury verdict was unreasonable. While the Court held that there were “frailties in the evidence,” the verdict was not unreasonable as a properly instructed jury could convict based on the complainant’s evidence alone (para 18).
While the Court upheld the appellant’s conviction, it found the original sentence “demonstrably unfit” due to the appellant’s physical infirmity (para 22). The Court made specific reference to the appellant’s reliance on a nurse for his personal care, severe pain and dependence on medication. On the basis of his injuries, the Court substituted a conditional sentence of 2 years less a day to be served in the community for the jail time of 30 months originally imposed. However, the Court never assessed whether the appellant’s care would be compromised in prison or what difference jail time would cause to the treatment of his conditions.
A Dangerous Precedent
Today, conditional sentencing is unavailable to complainants convicted of serious offenses due to the amendment of the s. 742.1 of the Criminal Code, RSC, 1985, c C-46 [Criminal Code]. However, this was available to the appellant because his crime predated the restriction of conditional sentencing to non-serious offenses
The Court’s decision is troubling because no justification was given as to what made this case “extraordinary.” Disabled offenders should be subject to the same prison sentences as their able bodied counterparts. In the absence of clarification, the question remains as to what precedent the Court has set in this unanimous decision. Does this case stand for the proposition that a shorter prison or conditional sentence could be imposed for a severely injured person convicted of a non-serious offense?
The Court affirmed the procedural merits of the trial decision and the jury’s competency to convict the appellant. Moreover, while the Court acknowledged frailties in the evidence,” the complainant’s testimony was acceptable to the trial judge and the Court of Appeal. The only unusual element of the relationship between the complainant and appellant is the involvement of the complainant’s mother in the accident. The car accident was tragic. It doesn’t change the harm caused to the complainant.