R v Frances, 2017 SKCA 109

Court of Appeal for Saskatchewan Docket: CACR2957 Citation: R v Frances, 2017 SKCA 109Date: 2017-12-07 Between:Thomas David FrancesAppellantAndHer Majesty the QueenRespondentBefore: Jackson, Ottenbreit and Caldwell JJ.A.Disposition: Appeals dismissed (orally)Written reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice OttenbreitOn Appeal From: Provincial Court, Swift CurrentAppeal Heard: December 7, 2017Counsel: Thomas David Frances appearing on his own behalf Beverly L.

Klatt for the Respondent Caldwell J.A. [1] Thomas David Frances appeals against his conviction and sentence on the charge of sexual assault contrary to s. 271 of theCriminal Code, RSC 1985, c C-46, as a party to that offence (s. 21). He appeals against conviction on the ground of an “error injudgement [sic]”, which we take as alleging broadly that the verdict is unreasonable or unsupported by the evidence. In his sentenceappeal, Mr. Frances asserts his sentence of 18 months’ incarceration followed by a year of probation is excessive.

Having reviewed thetranscript of trial, we find no tenable basis to interfere with the verdict or the sentence. We must therefore dismiss the appeals. [2] The trial of this matter came down to the credibility of Mr. Frances and that of the complainant as to who had spoken certainwords during a sexual assault. Notably, until this appeal hearing, Mr. Frances had not disputed the complainant’s account of beingsexually assaulted by the principal offender. Although Mr. Frances’ testimony had been generally consistent with that of thecomplainant, the trial judge found Mr.

Frances’ testimony as to his whereabouts and state of mind during the assault was not credible.The trial judge accepted the complainant’s testimony that it was Mr. Frances who had told the principal offender to “take her phone” andto “take her pants off” in the course of the sexual assault. In his own testimony, Mr. Frances said he had instantly fallen asleep at thekitchen table just prior to the assault, had not been awakened by it and, therefore, could not have uttered the words in question during it.The trial judge also rejected Mr.

Frances’ explanation for him later wanting to apologise to the complainant as being inconsistent withother of his testimony. The trial judge found the complainant had been forthright and credible throughout and her testimony wasconsistent with the timing of her calls to 9-1-1 and other circumstantial evidence. More concretely, she knew Mr.

Frances and hadidentified him by his voice as the person who had uttered words of encouragement to her assailant. [3] It is well understood that an appellate court must show “great deference” to a trial judge’s assessment of witness credibility(R v W.(R.), (SCC), [1992] 2 SCR 122 at 131). Where an unreasonable verdict is alleged and the verdict was based onassessments of credibility, we may only interfere if the verdict “cannot be supported on any reasonable view of the evidence”: R v Burke, (SCC), [1996] 1 SCR 474 at para 7 (emphasis added); R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746.

And,here, the trial judge’s credibility findings are amply supported by the evidence that was before him and are, therefore, not open toreassessment by this Court. In these circumstances, we are simply not empowered to interfere with the conviction.

We must thereforedismiss the appeal against conviction. [4] As to sentence, except where a sentencing judge makes an error of law or an error in principle that has an impact on thesentence, an appellate court may not vary the sentence unless it is demonstrably unfit (R v Lacasse, 2015 SCC 64 at para 11, [2015] 3SCR 1089; R v L.V., 2016 SKCA 74 at para 74, [2017] 1 WWR 439). In our assessment, the factors Mr.

Frances seeks to raise in hissentence appeal—such as his age, his health, his lack of prior criminal record, etc.—were all put before the trial judge and addressed inhis determination of a fit sentence for Mr. Frances’ offence, revealing no error in law or in principle. Moreover, an 18-month sentencefollowed by a year of probation is not demonstrably unfit in the circumstances. We observe Mr. Frances had at trial submitted anincarceral term of 12 to 18 months was appropriate in the circumstances. [5] Mr.

Frances’ oral arguments against his sentence in this appeal hearing were essentially a revisiting of his arguments againsthis conviction. Put in their best light, the arguments served as a weak challenge to the credibility of the complainant’s testimony as to theextent of her injuries and as to Mr. Frances’ involvement in the offence. We note the trial judge was aware Mr. Frances had assisted thecomplainant earlier in the evening of the assault. Nonetheless, as to the degree of his responsibility for the offence, the trial judge alsofound Mr.

Frances’ involvement in the offence might well have instigated the principal offender to commit the sexual assault (T218). Forthese reasons, we find there is no basis upon which to interfere with the sentence imposed by the trial judge. [6] In sum, the appeals against conviction and against sentence are dismissed.