R. v. Abdelhamid (W.A.), 2015 MBCA 35

Citation: R. v. Abdelhamid (W.A.), 2015 MBCA 35 Date: 20150415 Docket: AR13-30-08025 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) M. S. Minuk and ) D. A. Ripley Respondent ) for the Appellant ) ) R. D. Lagimodière- and - ) for the Respondent ) ) Appeal heard:WALID AHMED ABDELHAMID ) January 22, 2015 ) (Accused) Appellant ) Judgment delivered: ) April 15, 2015 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code). MONNIN J.A. [1] This is an appeal from a conviction on a charge of sexual assault. In addition, the accused seeks leave to appeal thesentence imposed of five years’ incarceration. [2] At the time of the hearing of this appeal, the accused had served the sentence imposed in full. [3] With respect to his conviction, the accused argues that the trial judge erred in admitting and/or relying upon thecomplainant’s videotaped statement, made pursuant to s. 715.1(1) of the Criminal Code (the Code); that she further erred in herapplication of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742; and finally, that she misapprehended the DNA evidence that theCrown tendered at trial. [4] For the reasons that follow, I would dismiss those three grounds of appeal and dismiss the appeal as to conviction. Facts [5] The allegations before the trial judge were that the complainant, a 15-year-old patient at the Children’s Hospital ofWinnipeg, was sexually assaulted by the accused, a resident doctor, on two occasions in the middle of the night of June 15, 2009. Thecomplainant disclosed these allegations to one of the attending nurses and the police were made aware of them.

As part of theirinvestigation, the police took a videotaped statement from the complainant shortly after his disclosure was made. [6] At trial, the judge heard from 16 witnesses, including the accused, who denied the allegations and who claimed heperformed two examinations of the complainant in pursuit of his “academic curiosity” and as part of his preparation for a medicalpresentation that he was required to give. The trial judge disbelieved the accused. [7] The accused was arrested on June 16, 2009, and was detained on charges of sexual assault, sexual interference andsexual touching.

He was granted judicial interim release. The accused failed to report for bail supervision on July 29, 2009, and awarrant issued for his arrest. On or about August 6, 2010, the accused was arrested and detained in Greece. Following an extraditionhearing, the accused was returned to Canada and was detained in custody until his trial on a single charge of sexual assault.

Admission of Videotaped Statement [8] The accused challenges both the trial judge’s finding that the complainant’s videotaped statement was admissible and,after admitting the statement, the weight that she gave to it as evidence in the case. [9] The accused argues that the trial judge erred in admitting the complainant’s videotaped statement because the entirestatement was not captured on video; specifically, that the initial ten minutes of the interview with the police were not recorded.

In thatten-minute period, the police officers testified that they conducted an initial assessment as to the complainant’s cognitive abilities,considering that the complainant had suffered a concussion and had been administered morphine. The accused argues that the failure torecord the police officers’ assessment of the complainant was prejudicial to his being able to challenge the reliability of what wasrecorded. In advancing this argument, the accused relies on the Supreme Court of Canada decision in R. v.

F. (C.C.), (SCC), [1997] 3 S.C.R. 1183. [10] The accused argues that, if the videotaped statement was properly admitted, then the trial judge erred by affording itundue weight in light of the facts of the case. [11] Following a voir dire, the trial judge allowed the videotaped statement to be entered into evidence pursuant to s.715.1(1) of the Code. In that voir dire, the police officers testified as to what transpired and what was said in the assessment portion oftheir interview with the complainant.

The trial judge also heard from a number of nurses who had attended to the complainant while hewas on their ward. [12]

Section 715.1(1) of the Code provides: Evidence of victim or witness under 18 715.1(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time theoffence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victimor witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice. [13] A videotaped statement is admissible if it meets the criteria in s. 715.1(1) of the Code, which deal with the making of thevideotape.

However, even if the videotape meets those criteria, the trial judge has an overriding discretion under the legislation to refuseto admit it if “the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with theproper administration of justice.” [14] The trial judge correctly set out the criteria in s. 715.1(1) for the making of the videotape and reviewed them as theyapplied to the evidence in this case. She then concluded: I have no difficulty in finding that the requirements of

Section 715.1 have been complied with in terms of the statement being madewithin a reasonable time, containing a description of the acts complained of, and the complainant’s adoption of the videotaped statement. [15] The trial judge then considered whether she should exercise her discretion to exclude the videotapedstatement, noting that, “The cases where this discretion has been exercised are relatively rare.” In doing so, she reviewed the issuesraised by the accused: the leading questions, the failure to record the pre-video interview and the taking of the statement withoutmedical clearance regarding the complainant’s cognitive condition.

She referred to the leading jurisprudence regarding the

interpretationand application of s. 715.1(1) and concluded that the issues raised by the accused went to the weight to be given to the videotapedstatement as evidence in the case and not to its admissibility. In that regard, she stated: After a consideration of the excellent submissions by counsel and the case law, I am not satisfied that the videotaped statement cannotassist or would interfere with the truth-finding process. In the circumstances, the statement will be admitted as I am satisfied it wouldnot interfere with the proper administration of justice or trial fairness.

There are issues within that statement, such as the taking of thestatement as well as the complainant’s cognitive state, that will require argument and an evaluation or assessment of the weight to beascribed to the evidence. That being said, these issues are just that: matters of weight, and do not affect the admissibility of thevideotape statement conducted June 15th, 2009. [16] In

summary regarding the admissibility of the videotaped statement, the trial judge correctly set out the law as it relates tos. 715.1(1) of the Code, made no errors as to the facts and correctly applied the facts to the law. Further, she considered whether sheshould exercise her discretion and exclude the statement, concluding properly in my view, that she should not. [17] Next, the trial judge considered at some length the weight to be given to the videotaped statement as evidence in the case,taking into account the issues raised by the defence. The weighing of evidence is within the fact-finding purview of the trial judge and is

not open to appellate interference except if there has been a palpable and overriding error.

She made no such error in arriving at herdecision that the statement was reliable and should be “afford[ed] weight in coming to the conclusions I have reached with respect to thiscase” (2013 MBQB 119 at para. 141). [18] Thus, I would find that the trial judge committed no errors either in admitting the videotaped statement into evidence or infinding it to be reliable and worthy of weight as evidence in the case. [19] As an aside, I would have found it to have been preferable and a better practice had the police recorded their pre-interview assessment of the complainant.

However, for the reasons set out above, the failure to do so was not fatal to the Crown’srequest to have it entered into evidence. Application of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 [20] With respect to the application of the W.(D.) analysis, the accused alleges that the trial judge misapprehended and failedto properly consider and assess the evidence.

He argues that the trial judge failed to take a critical look at the evidence of thecomplainant and ignored the inconsistencies, and that she eventually conducted a credibility contest as between the accused and thecomplainant. [21] With respect to the application of W.(D.), it is clear from her reasons that the trial judge knew precisely what the lawwas and the manner in which that analysis must be conducted.

She stated the following (at paras. 131-33): In accordance with the dictates of W.(D.), … I must first consider whether I believe [the accused’s] evidence that he did not commit theoffence of sexual assault and, accordingly, find him not guilty. I can categorically state that I did not believe [the accused’s] testimony ordenials with respect to this matter. Further, with respect to the second criterion of W.(D.), [the accused’s] testimony did not leave me inreasonable doubt by it, or about an essential element of the offence charged.

In considering the first two criteria of W.(D.), I have nohesitancy in finding that I must proceed and consider this case under the third criterion. That criterion is: Even if [the accused’s]evidence, or an essential element of the offence charged, or an offence, does not leave me in reasonable doubt, I may convict him only ifthe balance of the evidence that I do accept proves his guilt beyond a reasonable doubt. I found [the accused] to be an evasive witness, combative, sometimes nonresponsive and able to backtrack on his own testimony withease.

I also was not satisfied with respect to his lack of recall as regards certain evidence, nor did I believe him with respect to aspects ofhis testimony that I will expand upon further, which included issues surrounding his “academic curiosity” of pneumothorax, as well asthe circumstances that transpired during the course of his interactions with B.G. It is also necessary to consider the evidence of theattending nurses, the DNA, and the other witnesses who testified with respect to this matter under the third criterion.

I must also address the weight to be afforded to B.G.’s video statement, which was admitted in evidence pursuant to s. 715.1 of theCriminal Code. The issues raised by the defence to promote a minimization of the weight to be afforded to the statement related to thecircumstances in which it was made and the overall reliability of the evidence. In reviewing this issue, I have considered cases such asF.(C.C.), …, Myran, … and R. v.

R.G.B., 2012 MBCA 5, 275 Man.R. (2d) 119. [22] And she concluded (at paras. 140-41): I have had the opportunity of hearing all the testimony on this issue, reviewing both video interviews with B.G., as well as observingB.G.’s testimony in court. I am satisfied as to the reliability of B.G.’s video statement to the authorities on the following bases: • The nursing staff testified that B.G.’s cognitive ability and orientation were clear and coherent. • Joslin [head of the Sexual Assault Nurse Examiner Program] undertook the SAP examination one hour before the policeinterview.

She also testified with respect to B.G.’s capacity and cognitive ability.

Further, she said that she would not have conductedsuch an examination if she had any concerns as regards his ability to undergo the process. • The testimony of the two experienced police officers expressed a willingness to “back off” with respect to the video interview ifany concerns as regards B.G.’s cognitive state and capacity to undertake the process had been discerned. • I take no issue with respect to the pre-interview evaluation to determine B.G.’s cognitive state and the fact that no notes weretaken during that interview. • B.G.’s presentation during the two video interviews that were conducted days apart was very much the same and showed a quietand controlled young man who answered questions appropriately.

He did not display any type of concerning behaviour related to his

ability to respond and advise as to the allegations. This included the fact that, during the first video interview, he immediately corrected the officer as to his name and seemed entirely capable of participating appropriately in the video interviews in question. • B.G.’s demeanour and presentation during the course of the trial was very much in keeping with the manner in which he provided his testimony during the video interviews, albeit acknowledging that he is now four years older.

That being said, he was calm, quiet, and coherent. • There was no evidence as to B.G.’s experiencing any side effects related to morphine, including the most common being nausea and vomiting. • B.G. was cross-examined on his video statement and a number of inconsistencies in his evidence were detected. That being said, those inconsistencies did not in any way undermine the reliability of his video statement or his testimony in general. I have no hesitation in finding the video statement to be ultimately reliable.

Further, I am prepared to afford it weight in coming to the conclusions I have reached with respect to this case. There is no question that B.G. was slow speaking and careful in his responses — that is his manner.

That being said, he corrected errors, answered responsively and appropriately, maintained good eye contact, listened carefully, and was alert, aware and clear during the course of the video interview/statement with the police. [ 23 ] She then went on to assess the evidence of the accused and wrote (at paras. 143-45): In reviewing all the evidence, I do not accept [the accused’s] concocted explanation for being on the CK-3 ward and interacting with B.G., of endeavouring to satisfy an “academic curiosity” as regards the topic of a pneumothorax that was to be presented in two weeks.

This was not credible given such a clinical situation had never presented itself to [the accused] in the preceding two years. Yet, he contended that he was maintaining that topic and very fortuitously B.G. happened to be admitted through the Emergency unit of the Children’s Hospital with a pneumothorax. Also fortuitously, [the accused] was situated in the Emergency unit and learned that his academic subject had finally presented itself. Further, when told of the sexual assault allegations by Dr.

Chiu, he had at no time indicated that he was in B.G.’s room to satisfy his “academic curiosity” of a pneumothorax. [The accused’s] testimony as regards the pneumothorax examinations lacked plausibility. At the time of the first examination, he was initially seen by Cockwell [registered nurse] to be focused on B.G.’s abdominal/groin area, but after being “startled” by her attendance, he then performed a 3- to 3½-minute examination of the chest before moving on to conduct a head-to-toe review. These examinations occupied an approximate 10-minute period.

If indeed [the accused] was attending in B.G.’s room for the purpose of satisfying his “academic curiosity”, it was likely he would have advised the nurse as to what he was doing, as well as focused on the relevant body area. Further, when queried by Cockwell on the topic of a pneumothorax, it was illogical that he was unable to respond to her questions or to not have advised that he was in room 37 because of his “academic curiosity”.

The brief examination of the chest area was also unusual given the fact that he testified that he was unable to identify the exact location of the pneumothorax at the time of his first examination. I acknowledge for the purposes of a clinical presentation that a head-to-toe examination may have been necessary but at an appropriate time and after securing the necessary consent. That being said, what was done here and [the accused’s] lack of focus on the chest area constituted an unlikely methodology of proceeding and was certainly curious in all the circumstances.

This was particularly so when the majority of his examination time was not focused on his “academic curiosity”. These concerns are particularly heightened when one evaluates [the accused’s] testimony that he was engaged in a very busy shift on the P.I.C.U. and lacked certainty that he would be able to re-attend at the CK-3 ward. This contention was also difficult to accept given the fact that he also testified that such a condition could resolve “spontaneously” further enhancing what might be perceived as his need to secure a localization of the pneumothorax as quickly as possible.

The obvious motive for [the accused’s] attendance at the CK-3 ward at approximately 1:30 a.m. was to engage in a sexual assault of B.G. He had no reason or authority to be in room 37, and no consent to touch B.G. He was in room 37 for 30 seconds, leaning over B.G. when interrupted by Cockwell, which resulted in his having to alter his plan and proceed as if conducting an “appropriate” medical examination. B.G. testified that [the accused] had entered his room, said nothing to him, moved the bedding and his hospital gown, and touched his “private part”.

He also stated that he felt [the accused] digitally touch his anus. I accept B.G.’s account as to what occurred. [ 24 ] All of the above then lead to her ultimate finding (at paras. 153-54): As I have said, I found B.G. to be a credible witness and while acknowledging the small inconsistencies in his testimony, I accept that

what he told the court was true. He was lucid, coherent and clear during his pre-interview questioning and video interview and was found to be that way by the attending nursing staff upon all their contacts with him. He was also a soft-spoken, thoughtful and straightforward witness while providing his testimony to the court. He at no time deviated from the position that he was sexually assaulted on two occasions by [the accused]. He was able to provide an accurate description of [the accused] and what had been occasioned upon him within a very short time frame after the assaults.

The existence and corroboration of the DNA evidence has satisfied me well beyond a reasonable doubt that [the accused] is guilty as charged with respect to this matter. The evidence of the nursing staff was also of assistance in that it served to provide a description of B.G.’s cognitive state and capacity both before and after the assaults. Additionally, that testimony served to provide relevant time frames, as well as describe the conduct, appearance and movements of [the accused]. The testimony of Cst. Doyon, Cst.

Tereck-McDonald, and Joslin was also of importance in terms of setting out the demeanour of this young man after the sexual assaults. Only a constellation of very bizarre circumstances could have served to have innocently collided and removed a finding of guilt beyond a reasonable doubt in this case.

After a careful consideration of all the evidence, I am satisfied beyond a reasonable doubt as to the guilt of [the accused] on the charge of sexual assault. [ 25 ] I am satisfied that the trial judge dealt with the inconsistencies which were raised before her, that she did not engage in a credibility contest as alleged and, quite to the contrary, provided a thoughtful, thorough and clear analysis of her view of the evidence. This she was entitled to do and did so particularly well. There is no merit to this ground of appeal.

Misapprehension of the DNA Evidence [ 26 ] The accused’s last ground of appeal is that the trial judge misapprehended the DNA evidence that was adduced by the Crown. The accused alleges that the trial judge relied on the DNA evidence as corroboration and that this reliance was integral to her finding of guilt.

The accused further argues that the evidence that placed the accused’s DNA on the complainant was by way of secondary transfer which could easily have occurred when the accused conducted the medical examination of the complainant, which he testified he performed, and was not, as found by the trial judge, to be by way of primary transfer of DNA evidence.

In support of his argument, the accused relies on the following portion of the evidence of Thomas Suzanski (Suzanski), whose function was that of the reporting scientist, interpreting DNA profiles from exhibits forwarded to him, as a profiler with the RCMP Forensic Laboratory Services in Halifax. He testified as follows: A primary transfer would occur if the two sources came in contact with one another. A secondary transfer would occur if I took something, and the DNA transferred there, and then it transferred somewhere else.

The reason I said it has to occur less often is because in order for you to get a secondary transfer you have to have a primary transfer. But, having said that, I can't tell whether the DNA got there as a result of a primary transfer or a secondary transfer because I have no way of knowing that. I have no way of knowing what factors could affect it because there are so many. [ 27 ] The accused, finally, argues on the basis of an Ontario Court of Appeal decision in R. v.

M.C. , 2014 ONCA 307 , 318 O.A.C. 354 , that because of this misapprehension of the evidence by the trial judge, he did not receive a fair trial and therefore he should be acquitted or, at the very least, his conviction should be set aside and a new trial ordered. [ 28 ] The DNA evidence was provided by two witnesses.

One was, as noted above, Suzanski, and the second one was Christine Lavigne (Lavigne), who was a forensic search technologist and a civil employee with the RCMP Forensic Laboratory Services in Ottawa. [ 29 ] The trial judge summarized Lavigne’s evidence as follows (at para. 22): Lavigne acknowledged that there could be a secondary transfer of DNA in certain circumstances. Therefore, in the event a doctor was to touch a patient’s hospital gown with his bare hands, there could possibly be a DNA transfer to other areas, albeit such an occurrence was unlikely. [ 30 ] The trial judge’s

summary of findings with respect to Suzanski’s evidence is set out in her reasons (at paras. 28-29): Suzanski’s

interpretation of the forwarded exhibits included the swab of B.G.’s urethra. That swab demonstrated that [the accused] was a major contributor to the DNA found in that location. “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 650 billion.” (See Forensic Science and Identification Services Laboratory Report issued June 9, 2011, p. 1.) [The accused] was also found to be a contributor to DNA discovered on both B.G.’s glans penis and penis shaft (Exhibits 8 and 9).

With respect to the glans penis, the swab identified both B.G. and [the accused] as possible contributors to the mixed profile. “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 100 trillion.” (See Forensic Science and Identification Services Laboratory Report issued June 9, 2011, p. 2.) Further, the donor sample with regard to the shaft of the penis was again a mixed profile with the possible

contributors being B.G. and [the accused]. “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 46 million.” (See Forensic Science and Identification Services Laboratory Report issued June 9, 2011, p. 2.) Suzanski testified as follows on the issue of secondary transfer: Secondary transfer, we know what occurs. Secondary transfer depends on the state of the DNA, whether it’s wet or dry. It depends on the surface that it’s being transferred from. It depends on the surface that it’s being transferred to.

It depends on the type of contact, whether or not it’s light contact, versus pressure, versus rubbing. There’s just a great many factors that can affect a secondary transfer. In terms of the frequency of the secondary transfer, all I can say is we know what occurs, but it has to occur less often than a primary transfer just by the nature of the type of transfer it is. (T.P. held Sept. 7, 2012, vol. 4, p. 82, lines 19-29) Skin cells, if we’re talking skin cells, they’re dry so they’re not going to transfer around as easily as a wet DNA.

For example, you could get my DNA typing profile, I’m pretty sure, from these glasses, from the drinking cup that I’ve been drinking from, from the briefcase, the handle that I carry around all day. So skin cells do transfer to objects, and you can get the DNA typing profile from those objects. It’s the basis of what we do. The transfer of DNA is the basis of forensic science really, you know. It’s (inaudible) exchange principle to objects come in contact. There’s an exchange of material. So, yes, we know secondary transfer occurs. We even know primary transfer occurs.

Secondary has, transfer has to occur less often because in order for you to have a secondary transfer, you have to have a primary transfer. But in order for me to determine how the DNA got there, I have no idea. All I can tell you is the DNA is there, this is the profile, does it match or not match, and the frequency of occurrence. (T.P. held Sept. 7, 2012, vol. 4, p. 83, lines 25-34 and p. 84, lines 1-9) [ 31 ] The trial judge’s findings with respect to the DNA evidence are set out in her reasons. She writes (at para. 150): [The accused] denied at any time touching B.G.’s groin region.

How then did the DNA come to rest in that location? Clearly, the defence’s contention was that a secondary transfer of DNA had occurred and had resulted from the skin-to-skin examination of B.G. by [the accused] on two occasions. Further, he had touched the bedding of B.G. so as to facilitate his examinations. [The accused] acknowledged that he touched B.G. in the chest and abdominal areas with his bare hands. This examination was performed under the hospital gown worn by B.G. B.G. said he was only wearing a gown, while other evidence would suggest that he was also wearing a pair of blue pajama bottoms.

Indeed, a swatch from the pajama bottoms was sent for testing purposes. It is implausible, if B.G. was wearing the pajamas, that there would be an “innocent” explanation as to why DNA would be found on B.G.’s penis. That being said, it cannot be completely discounted that he was not wearing such clothing and a secondary transfer could have resulted from the bedding or even the skin of B.G. after [the accused’s] examination arguably could have left skin cells on his chest or abdominal area.

However, even in those circumstances where only a hospital gown was being worn, Lavigne stated that if a doctor was to touch a patient’s gown with his bare hands, it was possible that a DNA transfer could result, albeit that situation was unlikely. Suzanski also testified that a secondary transfer could occur on a less frequent basis after assuming a primary transfer had taken place.

Therefore, this evidence imposed on the scepter of DNA being found on the shaft of the penis, the glans penis and the glands of the urethra of B.G. has satisfied me that it would be unlikely that its presence was there by way of secondary transfer. Instead, its presence is better explained by the more sinister conclusion that B.G. was sexually assaulted by [the accused]. [ 32 ] In the final analysis, the trial judge rejected the accused’s theory of secondary DNA and that is, in my view, a factual conclusion that she could draw on the evidence that was before her.

That does not give rise to a finding of misapprehension of evidence on the part of the trial judge. In this case, she considered all of the evidence that was before her on the issue of DNA and came to the reasonable conclusion that a secondary transfer was not a realistic proposition.

The finding was open to her to make on the evidence and she made no error and certainly no palpable or overriding error in so finding. [ 33 ] In any event, the trial judge’s reliance on the DNA evidence to establish the accused’s guilt was secondary and was not the sort of material evidence that would bring about the type of evidentiary misapprehension that is referred to in M.C . Accordingly, I would also dismiss this ground of appeal. Sentence Appeal [ 34 ] The accused also seeks leave to appeal the sentence of five years that was imposed on August 15, 2013.

As indicated earlier in these reasons, the accused has served his sentence in full and is no longer incarcerated. This is, no doubt, due to the fact that he was in custody from May 10, 2011, and that, as part of his sentence, he received a credit of 1.5:1 for the time in custody prior to being convicted and sentenced.

[35] Notwithstanding the fact that he has served his sentence, the accused still wishes to appeal it, alleging that the trialjudge was in error when she relied on this court’s decision in R. v. James (G.M.), 2013 MBCA 14, 288 Man.R. (2d) 269, to justify thesentence she imposed. [36] In imposing the sentence that she did, the trial judge stated (2013 MBQB 201 at para. 45): I have no hesitation in concluding that the acts of [the accused] towards B.G. constituted a major sexual assault in the circumstances of apediatric resident holding a position of trust towards this young patient.

I am also satisfied that the starting point for sentencing such anindividual is one of four to five years’ incarceration as held by the Manitoba Court of Appeal. That starting point may, of course, beincreased or decreased consistent with the aggravating and/or mitigating factors of the matter before the court. [37] And she continued (at para. 50): I have considered the sentencing principles of proportionality and parity while reaching my conclusions in this decision with reference tothe facts and the case law provided.

I am satisfied, however, that this major sexual assault, perpetrated in the circumstances of a trustrelationship, must attract the starting point sentence of four to five years for all those circumstances to which I have previously referred. The statement of the sentencing guideline as set out in the James decision well illustrates this starting point sentence with respect to asingle major sexual assault. [38] Because of the fact that the accused has served his sentence in full, I consider his seeking to appeal it a moot point and Iwould deny leave because of that.

It is a long-established practice that, save for exceptional cases, a court will not hear a matter that isor has become moot. See Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342. [39] Accordingly, the conviction appeal is dismissed and leave to appeal the sentence is denied. J.A. I agree: J.A. I agree: J.A.