WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court of Appeal for Ontario

Date: August 6, 2019

Docket: C63397

Panel: Feldman, Lauwers and Fairburn JJ.A.

Between

Her Majesty the Queen

Respondent

and

P.S.

Appellant

Counsel:

Richard Litkowski, for the appellant

Carmen Elmasry, for the respondent

Heard: December 6, 2018

On appeal from: The conviction entered by Justice Howard I. Chisvin of the Ontario Court of Justice on November 2, 2016, and from the sentence imposed by Justice Amit A. Ghosh of the Ontario Court of Justice on February 23, 2017.

Fairburn J.A.:

Overview

1The appellant was convicted of invitation to sexual touching and sexual interference. The complainant, his cousin's son, was between six and eight years of age when the offending conduct took place. Although the complainant child told his parents about the abuse approximately a year and a half after it had stopped, the police were not contacted for almost another two years after that disclosure. Once notified, the police took a video-recorded statement from the child. That video recording was later admitted during the child's evidence at trial.

2The appellant advances five grounds of appeal from conviction, arguing that the trial judge erred by:

(1) admitting the video-recorded statement under s. 715.1 of the Criminal Code;

(2) failing to allow him to lay an evidentiary foundation for a third party records application;

(3) failing to properly consider exculpatory evidence;

(4) finding that the complainant had an absence of motive to fabricate; and

(5) applying different levels of scrutiny to Crown and defence evidence.

3The appellant contends that any one or combination of those errors requires that a new trial be ordered.

4In the event that his appeal from conviction is dismissed, the appellant asks this court to decrease his 54-month sentence on the basis that the principle of restraint was not properly applied.

5For the reasons that follow, I would dismiss both the conviction and sentence appeals.

Analysis

A. Conviction Appeal

(1) The Video Recording Was Properly Admitted Under s. 715.1(1)

(i) The Timing of the Child's Disclosure and Statement to Police

6In the summer of 2006, the appellant moved into the complainant's family home. Although the appellant moved out at the end of 2009, he continued to visit the complainant's family and was sometimes asked by the complainant's parents to look after their three children.

7One evening in July 2012, the complainant disclosed to his father that the appellant had been sexually assaulting him. The child told his father that the appellant had kissed him, touched his penis and "put his penis into [the child's] mouth". The complainant's father immediately told his wife, the child's mother.

8At the time of the child's initial disclosure, his mother decided that the matter should not be reported to the police for two reasons: (a) concern that her son's life would be ruined if the matter became public and her son's name were published; and (b) fear of the appellant. Although the appellant had never directly threatened the family, he told stories that caused the mother and her child to fear for their safety. It was only after the parents received professional advice about the Canadian legal system and protections in place for victims of sexual assault, and after the family moved to a new home, that they reported the matter to the police in May of 2014.

9The complainant gave a video-recorded statement to the police on May 7, 2014, just under two years after he disclosed the sexual assault to his parents. In that statement, the complainant told the police that the appellant would try to kiss him on the mouth, and would touch his genitals and fellate him. Among other things, the complainant also said that the appellant made him touch the appellant's penis with his hands and mouth, requiring him to "suck his…penis." This conduct occurred on six or seven occasions, all at the child's home.

10The trial judge found that, while the evidence about the complainant's age at the time of the alleged conduct varied a bit, he was in the "range" of six to eight years at the time of the offences. It is non-contentious that the complainant's initial disclosure to his parents was about a year and a half after the alleged conduct had stopped, when he was ten years old. Nor is it contentious that the video-recorded statement was taken about three years and four months after the alleged conduct had stopped. By that point the complainant was 12 years old. He testified when he was 13 years old.

(ii) The Components of Section 715.1(1)

11The Crown applied pursuant to s. 715.1(1) of the Criminal Code to have the video recording admitted into evidence. Section 715.1(1) reads:

In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

12As can be seen, s. 715.1(1) contains four mandatory statutory prerequisites to admission of a video-recorded statement. To introduce the statement, the Crown must establish on a balance of probabilities that:

(1) the video-recorded statement was provided by a complainant or witness who was under the age of eighteen years "at the time the offence is alleged to have been committed";

(2) the video recording was made "within a reasonable time after the alleged offence";

(3) the complainant or witness describes the "acts complained of" in the video recording; and

(4) while "testifying", the complainant or witness "adopts the contents of the video recording".

13In R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, the decision upholding the constitutional validity of s. 715.1, both the majority and concurring opinions discussed a residual judicial discretion at common law to exclude statements on the basis that their probative value is outweighed by their prejudicial effect: L. (D.O.), at p. 429, Lamer C.J.; at p. 461, L'Heureux-Dubé J., concurring. See also: R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 51-52. That residual discretion was later explicitly embedded in s. 715.1(1) of the Criminal Code by virtue of An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 23, which came into force January 2, 2006. Therefore, even where the four statutory prerequisites to admission have been met, s. 715.1(1) now requires exclusion where the "admission of the video recording in evidence would interfere with the proper administration of justice."

(iii) The Voir Dire and Admissibility Ruling

14There is no dispute in this case that the complainant was under 18 years of age at the time of the alleged offences, that he described the acts complained of in the video recording, and that he adopted the contents of the video-recorded statement while testifying at trial. Accordingly, the trial judge said that the main issue for determination was whether the video recording had been made within a "reasonable time" after the alleged offences had occurred.

15While the trial judge found that the delay of three years and four months was "long", he concluded that it had "nothing to do with the complainant himself." Rather, the trial judge found as a fact that the delay was explained by the mother's lack of "real understanding of the Canadian judicial process" and her "genuine fear" arising from stories that the appellant had told. In the context of the parents' lives, the trial judge concluded that it was "logical and reasonable" that the parents did not immediately report their child's assault to the police. Accordingly, he concluded that the Crown had met its onus on the reasonable time requirement for admissibility.

16Having found that all of the statutory prerequisites were met, the trial judge went on to consider whether to exclude the statement under the residual discretion. He rejected the appellant's suggestion that the video-recorded interview had been tainted by leading questions posed by the interviewer. To the extent that there may have been any difficulties with the interview process that infected the child's evidence, the trial judge emphasized that this was a judge-alone trial and that these were matters of weight that could be considered during the trial proper. The statement was admitted.

(iv) The Statement Was Made Within a "Reasonable Time After the Alleged Offence"

Is There a "Reasonable Time" Ceiling?

17The appellant contends that the trial judge's reasoning process respecting whether the video recording had been made within a reasonable time after the alleged offence was flawed. He starts with the proposition that the delay of three years and four months in this case was "unusually long" and that courts have generally found delays of more than three years to be unreasonable.

18The appellant points to this court's comments in R. v. S. (P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 75, where a two-year gap between the end of the offending conduct and the video recording being made was described as a "long delay", contributing to making it a "borderline case" for purposes of s. 715.1(1) admissibility. Although the appellant does not advocate for hard ceilings, above which reasonableness could not be made out, he argues that if a two-year delay in S. (P.) was borderline, it points toward the passage of time in this case as being clearly unreasonable.

19Respectfully, I do not agree with the premise that a two-year delay – or for that matter, any amount of delay – is necessarily "borderline". While s. 715.1(1) demands that the passage of time between the alleged offence and the video recording be calculated, the result of that calculation alone will not determine what constitutes a "reasonable time" for purposes of s. 715.1(1). Parliament left it to the courts to determine reasonableness in the specific circumstances of each case: L. (D.O.), at p. 467. Strict timelines stand in direct opposition to the nuanced and case-specific analysis called for in a reasonableness inquiry.

20Accordingly, it is of limited utility to only look to the number of days, weeks, months or years that have been found to be reasonable or unreasonable in other cases to determine whether the passage of time meets the reasonableness requirement under s. 715.1(1). I do not read S. (P.) as suggesting otherwise. The comments in S. (P.) must be considered in context. At no point does S. (P.) suggest that all cases featuring delays of two years or more constitute borderline cases. That descriptor was simply used to characterize the specific circumstances of that case.

21It is important to recall that s. 715.1(1) directs its energy at the testimony of children. The practical and recognized reality is that children will often delay disclosing abuse they have suffered, particularly when the abuse is sexual in nature and involves perpetrators who stand in positions of trust relative to those children: L. (D.O.), at pp. 464, 468; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; S. (P.), at para. 69. Whether the complainant is a child or not, it is a "simple and irrefutable proposition" that the reasons for delayed disclosure in sexual crimes, such as the crime in this case, are many, including "embarrassment, fear, guilt, or a lack of understanding and knowledge": D.D., at paras. 65-66.

22Accordingly, it would make little sense to take a known feature of many child complainants' journeys toward the justice system – delayed disclosure – and make it a dispositive factor in the admissibility inquiry. This is precisely why each case must be approached on its own facts, having regard to all of the circumstances of the case, to determine whether the passage of time between the alleged events and the giving of the video statement is "reasonable": L. (D.O.), at pp. 467-69.

The Impact of the Delay on the Child's Ability to Accurately Recall the Events in Issue

23The appellant also argues that the trial judge erred when he failed to consider whether the contents of the video-recorded statement demonstrated that the child's ability to accurately recall the alleged events in issue had been impacted by the delay. The appellant relies upon the following passage from S. (P.), at para. 71, in support of that proposition:

In considering whether a videotape has been made within a reasonable time, the court must balance a number of factors, the most important being the reasons for the delay and the impact of delay on the child's ability to accurately recall the events in issue (see R. v. L. (D.O.) at 323 [C.C.C.]). [Emphasis added.]

24While the appellant acknowledges that the trial judge correctly summarized the law from S. (P.) in his reasons, he argues that the trial judge erred by not giving effect to the second consideration regarding the child's ability to accurately recall the events in issue. The appellant contends that the statement is filled with examples of the child's poor recall, including when the child:

• said that it would be better if the police asked him questions because he did not "really remember all of it … I mean, if you ask me questions I'll probably be reminded of it";

• qualified some of his statements by using expressions like, "I don't exactly remember", "I don't remember" and "I'm not that sure";

• said that he did not remember certain things; and

• qualified what he was saying on occasion by punctuating comments with the use of expressions like, "I guess" and "I think".

25I do not agree that the above comments by the child demonstrate an inability to "accurately recall the events in issue". Children do not perceive the world in the same way as adults. This is understandable. Children do not have the advantage of the life education that age brings. Details that are important to adults, like time and location, are often overlooked by children. Accordingly, something that may shake a trier of fact's confidence in an adult witness's evidence will often be less consequential if present in a child witness's evidence. As cautioned by Wilson J. in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55, "[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it." See also R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 133-34.

26In light of the acknowledged manner in which children store and recount information, it would be unwise to subject their video statements to the analysis suggested by the appellant. What may appear to be an inability to accurately recall may be nothing more than a reflection of the child's age and stage. In my view, the comments to which the appellant points as demonstrating an inability on the part of the complainant to accurately recall the events in issue as a result of delay fall squarely within the dicta from B. (G.). This can be easily seen when the almost 40-minute interview is placed within its proper context.

27The interview took place in a comfortable room, with comfortable seating and a plain-clothes police officer asking the questions. At the outset of the interview, the child was told by the police officer that it was important to tell the truth. This statement was followed by an exploration of the child's understanding of the difference between truth and lies. His answers demonstrate that he had a good grasp of those concepts. While the video recording reveals a timid, embarrassed and often hesitant child, it also reveals a child who was able to provide a coherent narrative, delivered in age-appropriate language, of what he said the appellant repeatedly did to him and what he was repeatedly forced to do to the appellant.

28Against that context, I do not accept the appellant's proposition that the trial judge erred when he did not consider the comments that the appellant says are indicative of an inability to recall as a result of delay in his assessment of the reasonable time component of s. 715.1(1). This is particularly true in light of the fact that the child provided a coherent narrative of the "acts complained of". In and of themselves, and in the circumstances of this case, the types of comments emphasized by the appellant do not reveal the child's inability to recall the events in issue as a result of delay.

29While the types of comments relied upon by the appellant could be taken into account by the trier of fact in assessing the child's credibility and the reliability of his evidence, that would occur after a full trial record had developed, including the child's evidence adopting the video recording, the rest of his examination in-chief and cross-examination. To this end, I agree with the following comments of the trial judge:

In the end, what constitutes a reasonable time requires a sensible approach. If a sensible approach, in my view, is not taken, it would defeat the very purpose for the enactment of the legislation. One has to remember that the statement's admissibility is different from the consideration of the ultimate weight and reliability. The weight and reliability cannot be determined until the court undertakes an assessment of all of the evidence after all witnesses have testified and all submissions have been made.

30Thus, the trial judge did not err in not considering the comments emphasized by the appellant in the course of his reasonable time analysis.

(2) The Trial Judge Did Not Err by Preventing Questioning to Lay the Foundation for a Third Party Records Application

31At the end of the s. 715.1(1) voir dire, the appellant's counsel sought permission to ask the complainant if he had received counselling and, if so, to ask:

(1) where it was done;

(2) who the doctor was;

(3) whether the alleged events were discussed; and

(4) whether the counselling helped him to recall those events.

32Despite acknowledging that he had finished questioning the complainant about the video statement, defence counsel wanted to ask the complainant those questions to "lay a foundation for a possible 278 application". Crown counsel at trial opposed the line of questioning on the basis that it was not relevant to the s. 715.1(1) voir dire, emphasizing the fact that the counselling did not commence until after the video-recorded statement had been given. Defence counsel then modified his position to suggest the questions were in fact relevant to the s. 715.1 voir dire. There was no clear rationale provided for that submission.

33The trial judge precluded counsel from asking the questions, finding that they had no relevance to the "narrow issue" he needed to decide on the s. 715.1(1) admissibility voir dire. Even so, he left open the possibility that counsel could bring a third party records application at a later date.

34The trial Crown later provided disclosure to the appellant as follows:

Dear [Counsel]:

The counselling information you requested is as follows:

Counselling agency: YRAP (York Region Abuse Program)

Therapist: [name of therapist]

35For all intents and purposes, this left only two questions that the appellant had wanted to ask at the s. 715.1(1) voir dire unanswered: whether the alleged events were discussed during counselling and whether the counselling had helped the complainant to recall the alleged events.

36The appellant brought a third party records application a couple of months later. All such applications are governed by ss. 278.1 - 278.91 of the Criminal Code. They proceed in two stages, the first requiring the accused to establish that the records sought are "likely relevant to an issue at trial or to the competence of a witness to testify" and that their production "is necessary in the interests of justice": s. 278.5(1).

37The child was represented by counsel at the hearing. The trial judge concluded that the appellant had fallen well short of the test for production. While the trial judge was prepared to assume that counselling had taken place and that the alleged incidents were discussed during that counselling, he concluded that there was nothing to suggest that the private counselling records were likely relevant to an issue at trial. He found that there was no basis upon which to find that the counselling had assisted the complainant's memory regarding the allegations.

38The appellant does not challenge the trial judge's ultimate ruling, refusing to order production of the records for his review. Rather, the appellant challenges the ruling that was made during the s. 715.1(1) application, refusing to allow defence counsel to ask the complainant about matters that were left unanswered by the later Crown disclosure. Accordingly, the only live question on appeal is whether the appellant should have been permitted to ask about those things at the s. 715.1(1) voir dire.

39The appellant fairly acknowledges on appeal that, given that the counselling only commenced after the video-recorded statement had been made, the prohibited questioning was not relevant to the s. 715.1(1) voir dire. Accordingly, he accepts that the sole purpose of that questioning was to lay a foundation for a third party records application. The appellant contends that he should have been permitted to use the s. 715.1(1) voir dire to lay that foundation. He relies upon R. v. B. (E.) (2002), 2002 CanLII 23582 (ON CA), 57 O.R. (3d) 741 (C.A.), to advance this proposition, a decision that opines on the appropriateness of exploring a foundation for a third party records application at a preliminary inquiry.

40I do not find the analogy to B. (E.) persuasive. Even assuming that the questions could have been properly asked at a preliminary inquiry, or at trial, I do not agree that a s. 715.1(1) application is analogous to a preliminary inquiry.

41The result in B. (E.) is inextricably linked to the discovery function of a preliminary inquiry: B. (E.), at paras. 41, 46, 49, 56, 61, 66. It goes no further than suggesting that an appropriately limited cross-examination to set an evidentiary foundation for a third party records application will sometimes be consistent with the discovery function of the preliminary inquiry. The question is one of relevance. As Cronk J.A. said, at para. 49, "what is necessary … is a determination of the relevance of each proposed question having regard to the purpose of the preliminary inquiry process" (emphasis added).

42A s. 715.1(1) application does not share the same discovery function as a preliminary inquiry. Determining any details about a complainant's counselling that took place after the video-recorded statement was created would be immaterial and irrelevant to the question of whether the s. 715.1(1) test has been met.

43I disagree that a child required to take the witness stand on a s. 715.1(1) voir dire should be opened up to questioning about matters that are wholly irrelevant to the admissibility of the video-recorded statement at issue. The trial judge did not err in concluding that the questions had no relevance to the issues he was being called upon to decide on the s. 715.1(1) application. The fact that s. 278.4(2) dictates that a complainant is not a compellable witness on a third party records application only strengthens this point. To permit a child to be subjected to exploratory questions at a s. 715.1(1) voir dire would circumvent the s. 278.4(2) prohibition and do indirectly what the Code otherwise prohibits.

(3) The Appellant's Denials

44The appellant says that the trial judge erred by failing to consider that the appellant had denied all wrongdoing when he was first confronted by the complainant's parents with the allegations. The appellant says that those denials should have been considered as going to the appellant's credibility and that the failure to consider them amounts to an error of law because they were exculpatory statements that could have left the trial judge with a reasonable doubt. In a case that the trial judge acknowledged "boiled down" to the credibility of the appellant and the complainant, the appellant says that the trial judge was duty-bound to consider the exculpatory statements and to instruct himself in accordance with the principles in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The appellant says that the trial judge failed on both of these fronts.

45The respondent accepts that the trial judge did not specifically mention the appellant's denials in his reasons. In light of the circumstances involving those denials, the respondent says that the trial judge was under no obligation to do so. Relying upon R. v. Liard, 2015 ONCA 414, at para. 56, the respondent suggests that for a statement denying an allegation to be considered by a trial judge, there has to be an accusation of a crime that can garner a spontaneous response from the accused. As there was no specific accusation of a crime here, the trial judge was under no obligation to specifically consider the denials. In any event, the respondent says that the court should consider the reasons as a whole: they make it clear that the trial judge was alive to all of the evidence and properly applied the principles in W. (D.).

46I do not agree with the suggestion that an accused's denial that has been admitted into evidence does not have to be considered by a trial judge because of the lack of a specific accusation that is capable of garnering a spontaneous result. That position conflates an admissibility issue regarding a potentially exculpatory statement with the trier of fact's assessment of a potentially exculpatory statement. This is not a case where the accused sought to have an exculpatory statement admitted into evidence: Liard, at para. 49; R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 72. Rather, it was the Crown who elicited the appellant's denials.

47Even so, when considered in context, the denials are not nearly as probative as the appellant suggests. An accused's denials must be considered against what it is that he or she is denying. It is the actual allegation being denied that lends probative value to the denial. In this case, there was no specificity to the allegation being denied.

48Both of the complainant's parents were asked about a telephone call they had with the appellant the morning after their child had made the initial disclosure. The father testified that he asked the appellant the following question: "Why did you do, what did you [do] to my kid?" He received the answer: "Nothing." The mother asked him: "Why did you do this?" or "Why you do like this?" or "What did you do to my child?" He answered: "I didn't do anything."

49Importantly, the appellant confirmed the nature of the questioning when he was examined in chief. The following exchange took place between defence counsel and the appellant:

Q. And what – did [the mother] talk to you? What did she tell you?

A. [The mother] asked me, "What did you do to my child?"

Q. And what did you say?

A. I – I asked her, "What? What did I do?" She asked me, "What did you do to [my child]?" I said, "I didn't do anything. What is the matter? What is the problem?"

Q. And what did [the father] say to you?

A. [The father] asked me similar questions. I said, "What did I do? I didn't do anything."

50The appellant testified that he only came to know of the actual allegations after they were explained to him by another person, which took place after the telephone call with the child's parents.

51This ground of appeal really distills into a complaint regarding the sufficiency of the reasons for judgment. The reasons demonstrate that the trial judge was alive to the evidence about the appellant's denials. Although he did not recount the conversation between the parents and the appellant over the phone, he noted that one had taken place and that both parents had spoken to the appellant.

52A functional approach to the adequacy of reasons applies. They must be read as a whole, against the evidentiary backdrop of the trial and the positions taken by the parties: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35; R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 32, 37-40. It is not necessary for the reasons to demonstrate that the trial judge considered all of the evidence, or answered each and every argument of counsel: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. The key consideration is whether the reasons respond to the live issues before the court.

53Although the appellant points to the submissions of trial counsel (not counsel on appeal) and suggests that he argued that the appellant denied any "inappropriate touching" while on the phone with the child's parents, that submission placed the nature of the denials above what the record supports. At its highest, the appellant denied an amorphous suggestion that he may have done something wrong. Accordingly, any probative value that could be assigned to the denials was so weak that it is unsurprising that the trial judge did not specifically refer to them.

54The trial judge was alive to the principles in W. (D.). He expressed his understanding that this was a case that turned on credibility and that he was required to assess the evidence in accordance with the principles set out in W. (D.). He was under no duty to exhaustively review those principles; his only duty was to apply them correctly. Having regard to the judgment as a whole, I am satisfied that the trial judge correctly performed that task.

(4) The Trial Judge Did Not Err By Finding No Motive to Fabricate

55The appellant argues that the trial judge erred when he said that he could find "no motivation on [the complainant's] part to lie or fabricate the events." The appellant contends that this sentence demonstrates that the trial judge misunderstood the distinction between finding an absence of evidence of a motive to fabricate and making a positive finding of an absence of motive to fabricate. The appellant points to R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44, in support of the proposition that just because "a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate."

56The respondent encourages the court to place this alleged error within the context of the defence position at trial. In his closing submissions, the appellant asked the court to find that the child falsely accused the appellant because the child's parents were upset over the appellant having moved out of their home. He also suggested that the child's parents would have been upset with the appellant because they did not like the appellant's mother, whom the appellant went to live with when he moved out. Although somewhat convoluted, the defence closing submission at trial was as follows:

Because you know from the evidence on the trial that there is some kind of, of difficulty between [the appellant's] parents, mother, and [the child's] family, right? It's not controversial. So, what happened when he left the house, assuming now, that [the complainant] and [the appellant] are as loving as everybody says? He leaves in 2009 and where does he go? He goes to live with his mother. And what is being said in that house? 'Cause people have to be upset, it just makes sense that people are upset.

57The impugned comment in the trial judge's reasons must be read against the background of that defence position. Read in context, the clear effect of counsel's submissions was that the parents' negative feelings about the appellant influenced the child to the extent that the child made a false report about what the appellant had done to him.

58The following statement from the reasons for judgment is entirely responsive to that defence position:

In reviewing the evidence, I can see no motivation on [the complainant's] part to lie or fabricate the events. Even if there was animosity between [the appellant, the complainant's mother and the complainant's father], there is nothing to suggest it had any effect upon [the complainant], nor that it was a motivation for [the complainant] to fabricate the events. [Emphasis added.]

59While there is a difference between the absence of evidence of a motive to fabricate and a proven absence of motive to fabricate, the defence had specifically asked the trial judge to find a motive to fabricate: L.L., at para. 44; R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at para. 31. In light of that defence position, the trial judge had to grapple with whether the complainant had a motive to fabricate. In rejecting that defence position, the trial judge did not cross the line and use this rejection to bootstrap the credibility of the child. Rather, his finding that, in his review of the "evidence", he could not see "motivation … to lie or fabricate the events" was entirely responsive to the defence position. I see no error in the trial judge's approach.

(5) The Trial Judge Treated Crown and Defence Evidence Evenly

60The appellant also argues that the trial judge scrutinized the evidence unevenly. He argues that he was held accountable for every frailty and inconsistency in his evidence, yet the complainant was forgiven for similar frailties, leading to what was referred to in R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 41, as a "deeply incongruous" approach to the Crown and defence cases.

61The appellant specifically objects to what he says are the two main bases upon which the trial judge rejected his evidence: (a) the finding that the appellant had minimized the time that he spent with the complainant; and (b) the use of a letter that the appellant had left for the complainant's parents when he moved out of their home.

62The context for the impugned aspect of the trial judge's reasons on the minimization of time with the complainant is as follows:

I have carefully considered the evidence of [the appellant]. I am concerned with parts of his evidence. It is clear throughout his examination in-chief that he tried to minimize the time he spent around [the complainant] in the home. He minimized the time he was at the home, both while he lived there and when he came to visit after he moved out. It is clear he tried to limit his actual involvement with [the complainant].

His evidence suggests that he was frequently away from the home at one of his places of employment and working long hours.

I find that this was not the case.

63The evidentiary record supports the trial judge's conclusion that the appellant had in fact tried to minimize the time he spent around the complainant. By way of one example, despite having lived in the child's home for a long time, the appellant denied that he had ever been alone with the child. He was also confronted in cross-examination with opportunities when he could have been alone with the child. Those opportunities were taken from the schedule he set out in his examination-in-chief. Yet, when confronted with those times in cross-examination, the appellant added to his activities, including small jobs that he said that he did. In light of this evidence alone, it was open to the trial judge to conclude that the appellant was indeed minimizing the time that he spent around the child.

64The appellant also objects to the trial judge's use of a letter that the appellant had left in the complainant's family home when he moved out. This impugned aspect of the reasons also has to be placed in context.

65The appellant testified that he moved out because he had paid off a debt that had been owing to the complainant's parents. (The complainant's father denied the suggestion of any debt.) The appellant testified that he was required to live with the complainant's family until his debt was paid off. He said that once his debt was paid off, he left the home. He agreed that he did so without telling anyone.

66It was non-contentious that the appellant left a letter for the complainant's parents when he moved out. The letter made no reference to the debt or to it having been paid. The trial judge specifically noted that "[n]owhere in the letter was there mention that there was a debt nor does [the appellant] reference moving out because he had paid off the loan." The trial judge's finding that the content of the letter was not consistent with the explanation given by the appellant at trial for moving out was open to him on the evidence. It was an available inference and one that is owed deference. I see no error in the trial judge's approach.

67The appellant also argues that the trial judge spent little time analyzing the Crown's evidence.

68I find nothing incongruous in terms of how the trial judge treated the defence and Crown evidence. He did not apply different approaches to the evidence or apply different levels of scrutiny to assess credibility: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 25.

69The trial judge correctly applied W. (D.). Having rejected the appellant's evidence, he went on to specifically consider the complainant's credibility and reliability. The trial judge found that the child was consistent throughout his evidence and did not embellish. In short, on the whole of the evidence, he disbelieved the appellant, was not left in a state of reasonable doubt by his evidence, believed the child, and was satisfied of guilt beyond a reasonable doubt.

B. Sentence Appeal

70The appellant argues that, because he was a first offender, the sentencing judge erred in failing to apply the principle of restraint when imposing a 54-month sentence: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35.

71While the appellant acknowledges the sentence imposed in this case fell within the range for offences involving similar factual circumstances, he emphasizes that ranges are not "fixed and inflexible" in nature: R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, at para. 33. As the appellant was a first offender, the penitentiary sentence should have been as short as possible and tailored to his specific circumstances. He argues that the primary principles of denunciation and deterrence could have been met in this case by a penitentiary sentence of three years.

72Pursuant to s. 669.2 of the Criminal Code, on the consent of both parties, a judge other than the trial judge sentenced the appellant. The trial Crown requested a sentence of 6 years, and the appellant, a sentence of 2.5 to 3 years. The sentencing judge provided careful reasons for sentence. He reviewed the facts, including the acts of masturbation and oral sex that the child was forced to perform on the appellant and the fact that the appellant would sometimes suck the child's penis. He also reviewed the ways in which the appellant would scare the child to prevent him from resisting, including the use of ghost stories to discourage him from telling anyone. On one occasion he told the child that he was a ghost and could "kill" the child. As noted by the sentencing judge, "[t]hese comments scared [the complainant] into silence and obedience."

73The sentencing judge carefully reviewed the circumstances of the offences and of the offender, the pre-sentence report, the victim impact evidence and the positions of the parties. He also carefully reviewed the operative principles of sentencing, including this court's authorities pertaining to child sexual abuse. He reviewed the aggravating and mitigating factors in the case. The aggravating factors involved the serious breach of trust, the particularly vulnerable child victim, the fact the offence occurred in the sanctity of the child's home, the repeated abuse over two to three years and the use of stories and veiled threats to compel compliance and discourage reporting.

74In his review of the mitigating factors, the sentencing judge specifically noted that the appellant did not have a criminal record, had positive relationships and work history, as well as community supports in place, and was willing to take treatment.

75There is no suggestion that the sentencing judge erred in his review of the principles relevant to sentencing. The suggestion is that he failed to properly apply the principle of restraint. I disagree.

76The sentencing judge specifically turned his mind to that principle, saying that he was "mindful to apply restraint" in sentencing the appellant. Despite that principle, balancing all of the factors, he concluded that a sentence of 54 months was fit and appropriate.

77I see no error in principle in the determination of that sentence. Deference should apply: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44.

Conclusion

78I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.

Released: August 6, 2019

"Fairburn J.A."

"I agree. K. Feldman J.A."

"I agree. P. Lauwers J.A."

Footnote

1The provision has undergone some changes since its inception, including an expansion of its original reach from video-recorded statements of child complainants in sexual offences to those of child complainants and witnesses in all criminal cases.