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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

Date: 2018-03-14

Docket: C62212

Judges: Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.

Appellant

Counsel:

• Jill Presser and Daniel Stein, for the appellant
• Lisa Joyal, for the respondent

Heard: October 30, 2017

On appeal from: the conviction entered by Justice M.T. Devlin of the Ontario Court of Justice on February 18, 2016 and from the sentence imposed on May 12, 2016.

Judgment delivered by: van Rensburg J.A.

INTRODUCTION

[1] The appellant, after a judge-alone trial, was convicted of nine historical sexual offences against his two biological daughters, C and D, and his step-daughter, S. He was acquitted of two charges in relation to his third biological daughter, A. He was sentenced to six years' imprisonment concurrent on all charges. The appellant appeals his conviction and sentence.

[2] For the reasons that follow, I would dismiss the appeal.

THE CONVICTION APPEAL

[3] The appellant's assaults on his biological daughters, C, D and A, were alleged to have occurred in the 1980s and 1990s, when they were between the ages of five and 18. His step-daughter, S, alleged she was sexually assaulted by the appellant in 2006/2007 and 2009, when she was in her early twenties.

[4] The abuse described by C consisted primarily of vigorous rubbing of her breasts for many years and, on one occasion when she was 16 or 17, digital penetration. D described a continuous pattern of her father touching her breasts and vagina over and under her clothing from the time she was six until she was approximately 15 or 16, many incidents where he had her masturbate him and of mutual masturbation, one incident where he put his penis between her legs, and one incident where he put his penis in her mouth. A described one incident where the appellant touched A's breasts and vagina while tickling her before D intervened. Finally, S described incidents that occurred many years later, and while she was in her twenties, where the appellant touched her breasts over and under her clothing and put his fingers in her vagina, and two years later when he rubbed her breasts under her clothing and touched her vagina with his penis.

[5] The appellant admitted some of the offences in relation to C, D and S, but not the full extent of the conduct they described. At trial the appellant testified that he touched C's breasts inappropriately about two or three times a month, but without sexual intent and always over her clothing. He also testified that on one occasion he put his hand inside C's pants and touched her pubic hair. He admitted that he fondled D's breasts and vagina on one occasion outside her clothing when she walked in on him masturbating his exposed penis, and that on other occasions he would touch her inappropriately on her breasts and vagina, again always outside her clothes. He admitted speaking with D about "their" inappropriate behaviour, and insisting it not continue. With respect to S, the appellant testified that he fondled her breasts and vagina over her clothes on impulse on one occasion in 2007 when she was lying on his bed, and that after that he apologized, admitted what he had done to his wife (S's mother) and sought counselling. He also admitted that he frequently engaged in tickling and roughhousing with all his daughters. He denied any inappropriate sexual conduct towards A.

[6] The trial judge accepted the evidence of S, C and D and convicted the appellant on all charges relating to these complainants. She found that the evidence in relation to A left her with a reasonable doubt and acquitted him on those charges.

[7] Concerning the conviction appeal, the appellant contends that he was convicted of the various offences based on bad character or general discreditable conduct evidence. Counsel asserts that the trial judge made three specific errors: (i) she erred in admitting the evidence of each complainant as similar fact evidence across counts; (ii) she relied improperly on evidence of other "uncharged" bad conduct, including similar fact evidence that fell outside the scope of the information and general "bad character" evidence; and (iii) she reversed the burden of proof in finding the appellant guilty.

[8] I will address each of these grounds in turn.

(1) Did the trial judge err in her similar fact evidence ruling?

[9] As his first ground of appeal, the appellant challenges the trial judge's similar fact evidence ruling.

[10] The Crown sought to use the similar fact evidence in support of the credibility of each complainant as to whether the offences occurred to the extent they described. The application was opposed by the defence, who asserted that there were insufficient similarities between the accounts provided by each complainant and that there was evidence of collusion.

[11] A trial judge's ruling on similar fact evidence is entitled to a high degree of deference. Interference by this court is justified only if the analysis is unreasonable or if there is legal error or a misapprehension of material evidence: R. v. Cresswell, 2009 ONCA 95, at para. 7. The appellant says there were such errors here.

[12] The appellant says that the trial judge: (i) failed to specifically identify the live issue to which the similar fact evidence was said to relate, with the result that her analysis of the question was unfocussed; (ii) failed to acknowledge meaningful dissimilarities between the incidents the complainants described; and (iii) erred in her assessment of prejudicial effect.

[13] I would not give effect to these arguments.

[14] First, there was no question about the live issue to which the similar fact evidence related in this case: whether, in addition to the abuse the appellant acknowledged had occurred, any or all of the other abusive conduct the complainants described, and which the appellant denied, had also occurred. While it would have been preferable for the trial judge to have framed her analysis of the admissibility of the similar fact evidence with reference to the specific issue, it was not a reversible error for her to fail to do so in the circumstances of this case.

[15] The trial judge's ruling on similar fact evidence was responsive to the arguments of counsel. The appellant's trial counsel focused his submissions on two points – that the incidents described by the complainants were too dissimilar to be used as similar fact evidence, and that there was a possibility of collusion.

[16] The trial judge adverted to the applicable legal principles in R. v. Handy, 2002 SCC 56, recognizing that similar fact evidence is presumptively inadmissible and that the Crown has the onus to establish that the probative value of the evidence outweighs its prejudicial effect. She concluded that, while none of the sexual abuse described by the complainants was exactly the same, there were similarities, namely: grabbing breasts, "tickling" and touching the breast and vaginal areas over and under clothing. She noted that the allegations involved all of the appellant's children and his step-child, that virtually all of the abuse occurred inside the family home, that the abuse occurred when the daughters were between six and 17 years old (she was referring here to the biological children), and that some of the conduct described was very similar. The trial judge observed that there was no evidence to support collusion or collaboration among the complainants (a finding not challenged on appeal). Noting that the appellant admitted that he did engage in some of the sexual abuse that was described, the trial judge concluded that the probative value of the evidence significantly outweighed its prejudicial effect.

[17] The appellant's second argument on this ground of appeal is that the events described by the complainants were too dissimilar to be used as cross-count similar fact evidence.

[18] The appellant points to the dissimilarities between the accounts of the various complainants: the time lapse of 15 years between the alleged assaults on the appellant's biological daughters and on S; the variation in surrounding circumstances, with some incidents occurring in secret, while others occurred in the context of roughhousing out in the open; and the variation in the specific details of the assaults, with D's allegations of oral sex and mutual masturbation being far more serious than the incidents involving the other complainants. The appellant says that the trial judge placed too much emphasis on similarities that were "generic" only: that he was in loco parentis, that the complainants were female, and that the assaults took place in the home.

[19] I disagree. "The judge's task [was] not to add up similarities and dissimilarities and then, like an accountant, derive a net balance": R. v. Shearing, 2002 SCC 58, at para. 60. The question is whether there were connecting factors between the alleged assaults, and whether there was a "persuasive degree of connection between the similar fact evidence and the offence charged": Shearing, at para. 48. The trial judge concluded that there was such a connection.

[20] Here, the context in which the alleged behaviour occurred was similar – the appellant was a parent or step-parent of each complainant, in a position of trust or authority, and engaging in sexual touching in the home. As this court noted in R. v. B.(L.), at para. 37, "in cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents". While there were some differences between the sexual acts described, and while S was older than the other complainants at the time of the assaults she recounted, this does not materially diminish the level of connectedness that would make the evidence on other counts admissible on the question of whether a particular assault took place. See for example R. v. R.B., where this court upheld a trial judge's similar fact ruling on evidence across counts notwithstanding that the assaults described by two of four complainants occurred when they no longer lived in the appellant's home, and where the types of sexual misconduct varied between complainants. The similarity or connectedness was in the fact that the assaults occurred when the appellant was a father figure, beginning in the appellant's home while the complainants were vulnerable (at paras. 13 to 16). Finally, in the present case the probative value of the evidence was significant, and its reliability was enhanced by the fact that the appellant admitted certain abusive conduct in relation to each of C, D and S.

[21] The appellant's third argument on the similar fact evidence ruling is that the trial judge erred in failing to dismiss the application on the basis that the prejudice caused by such evidence outweighed its probative value.

[22] I disagree. Prejudice in the similar fact context involves the two distinct concepts of reasoning prejudice and moral prejudice: R. v. T.B., 2009 ONCA 177, at para. 26. This was a non-jury case where the similar fact evidence related to the counts in the information and the evidence was already before the court. As noted by this court in T.B., at para. 27, there is little risk of reasoning prejudice in a judge-alone case, as the trial judge is presumed to know the law and the proper and improper use of evidence.

[23] Further, the risk that the appellant would be convicted solely on the basis of his general bad behaviour (moral prejudice) is also not a significant concern in a judge-alone trial: T.B., at para. 33. See also: R. v. MacCormack, 2009 ONCA 72, at paras. 56, 68 and 69. And, both moral and reasoning prejudice are significantly reduced in a "count-to-count" similar fact application, as the evidence is admissible independent of its status as similar fact.

[24] I do not see any error in the trial judge's conclusion that the probative value of the similar fact evidence in this multi-count, multi-victim sexual assault trial outweighed any prejudice that could result from the admission of such evidence.

(2) Did the trial judge improperly admit and rely on evidence of "uncharged" bad conduct?

[25] The second error alleged by the appellant is that the trial judge improperly admitted and relied on evidence of other "uncharged" bad conduct. This evidence falls within two categories: (i) evidence of disposition (i.e. similar fact evidence) that fell outside the scope of the information; and (ii) general "bad character" evidence.

[26] The first category of evidence arises from the trial judge's request, at the conclusion of closing submissions, that counsel link the evidence to the specific counts in the information. The appellant asserts that, in responding to this request, the Crown particularized the counts in the information, notwithstanding that the appellant did not at any time request particulars or object to the information as drafted. The appellant submits that the Crown's failure to link certain incidents described by the complainants to a particular count turned evidence of those incidents into extrinsic (uncharged), and therefore inadmissible, bad character evidence, and the admission of this evidence resulted in an unfair trial.

[27] I disagree. First, contrary to how the appellant seeks to characterize what occurred, there was no particularization of the charges. The defence never requested particulars, and it was not prejudiced by the form of the information. The appellant received disclosure, including the complainants' statements to police, and had a preliminary inquiry. He knew the case against him. After closing submissions the trial judge asked both Crown and defence counsel for assistance in linking the evidence to the particular counts, which covered various locations and time periods during which there had been changes to the provisions of the Criminal Code. Counsel responded by identifying specific incidents that were relied on to support each charge. For example, counts 7 through 11 all dealt with D, with different offences in sometimes overlapping locations and time periods. Counsel identified specific incidents referred to in D's evidence and relied on by the Crown, together with the appellant's position in respect of each incident.

[28] The assistance provided by counsel linking the evidence to the specific counts did not mean that the counts were then particularized. And, more to the point of the appellant's argument, the process of tying evidence to specific counts did not mean that all of the complainants' other evidence about the appellant's conduct was automatically transformed into inadmissible discreditable conduct evidence. Indeed, there was no objection during the trial to what the appellant now says was extraneous discreditable conduct evidence.

[29] With one exception, which I discuss below, the incidents that were admitted as similar fact evidence fell within the scope of the charges set out in the information; evidence of those incidents was therefore properly admitted by the trial judge in her ruling on the "count-to-count" similar fact evidence application.

[30] The exception relates to C's evidence about massages that the appellant had her give him when she was six or seven years old, while the family was living in Corunna. Because the offences with which the appellant was charged in relation to C (sexual assault and sexual exploitation) did not even exist at the time of the alleged massages, these incidents fall outside the scope of the information. The Crown sought, and the trial judge allowed, the massage evidence to be admitted as similar fact evidence without anyone adverting to the fact that this was "extrinsic", rather than count-to-count, similar fact evidence.

[31] However, I am satisfied that, had counsel and the trial judge adverted to this issue, the massage evidence would have been properly admitted as extrinsic similar fact evidence. In addition, the admission of this evidence caused the appellant no prejudice in terms of how he conducted his defence. He knew that the Crown was seeking to have the massage evidence admitted as similar fact; the Crown's factum in support of the similar fact application indicated that the Crown was seeking to have the massage evidence admitted as similar fact, and the appellant's responding factum addressed this particular piece of evidence. Even if the trial judge may have relied on the underlying conduct in sentencing the appellant, I am satisfied that it would not have materially affected the sentence that was imposed. I therefore find that admitting the massage incidents as similar fact evidence did not amount to reversible error: R. v. Graham, 2015 ONCA 113.

[32] I also reject the appellant's contention that a mass of general "bad character" evidence was admitted at trial without a Crown application, causing him prejudice. Much of the evidence was admissible because it was inextricably connected to the incidents of abuse described by the complainants. For example, evidence that the appellant had pornographic magazines and videos was directly connected to D's description of two incidents of abuse (during which, she testified, she was shown the pornography) and was relevant to show the sexual nature of the contact. The evidence of D and A that the appellant struck D after she intervened while the appellant was tickling A was part of their account of the very incident that gave rise to the charges involving A. Evidence of the appellant's bullying and belittling behaviour was part of the factual circumstances of the offences charged, and was offered by the appellant as an explanation for why he did certain things, especially to C – to "bug" and tease, rather than for a sexual purpose.

[33] By far the majority of the other evidence the appellant complains about, such as why his marriages failed and his alcohol abuse, was evidence he introduced in his own testimony or it was elicited in his counsel's cross-examination of the complainants. Other evidence, including D's reference to her mother's admission to a psychiatric hospital following her disclosure of the sexual abuse, was part of the narrative, and no objection was taken to this evidence at trial. Finally, the defence pointed to a great deal of what is characterized on appeal as bad character evidence to argue animus – that the complainants had reasons other than the alleged sexual misconduct to have terminated contact with the appellant, and to make false and exaggerated claims of sexual abuse.

[34] In R. v. J.A.T., 2012 ONCA 177, a case relied on by the appellant, this court allowed an appeal where evidence of uncharged misconduct and other morally reprehensible behaviour over nearly a decade (characterized by Watt J.A. as an "evidentiary swamp") included irrelevant evidence, double hearsay, opinion and prior consistent statements, and the jury was not properly cautioned about its use of the evidence. The combined serious errors were prejudicial and required a new trial. By contrast, there was no such "evidentiary swamp" in this judge-alone trial. Finally, I note that there is nothing in the trial judge's reasons to suggest that she improperly relied on such evidence in determining the appellant's guilt.

(3) Did the trial judge reverse the burden of proof?

[35] As his third ground of appeal, relying on comments made by the trial judge in her discussion of his credibility in respect of the charges relating to C and D, the appellant contends that the trial judge erred by shifting the burden of proof.

[36] The appellant relies on a number of cases where this court concluded that it was a reversible error for a trial judge to find an accused guilty, after accepting the evidence of a complainant, and without properly assessing whether the accused's evidence, or the evidence as a whole, raised a reasonable doubt. In R. v. V.Y., 2010 ONCA 544, a majority of this court analyzed the reasons of the trial judge and found that the accused was disbelieved simply because the complainant was believed. In R. v. Stewart, although allowing the appeal on the basis of unreasonable verdict, the court noted that the trial judge shifted the onus to the appellant to give an explanation as to why the complainant would lie (at para. 26). In R. v. A.J.S., 2011 ONCA 566, this court criticized the trial judge's comment that the appellant made an "unvarnished denial" rather than giving an "interpretation of what may have happened", which he characterized as a "denial of convenience". The appeal was ultimately allowed on the basis of insufficient reasons.

[37] This case is quite different from those relied on by the appellant. When the impugned statements are reviewed in the context of the reasons as a whole, this was not a case of a trial judge reversing the burden of proof. The trial judge did not disbelieve the appellant simply because she accepted the evidence of some of the complainants. She did not shift the onus to the appellant to explain why the complainants would lie.

[38] The trial judge's reasons set out in some detail the evidence of the complainants in support of the charges. After referring to R. v. W.(D.), she considered the appellant's evidence and concluded that she did not accept the evidence, and that it did not raise a reasonable doubt. I note here that no objection is taken by the appellant to the trial judge's reasoning in respect of the charges concerning S and A, or to her assessment of the credibility of the complainants. The concern is with respect to the trial judge's discussion of the appellant's evidence denying the extent of his abuse in relation to C and D.

[39] In relation to C and D, the trial judge stated that she did not accept the appellant's evidence and that it did not raise a reasonable doubt, and she referred to six "reasons". Among those reasons were the two statements the appellant finds objectionable: (1) that the appellant minimized the sexual activity with C and D by, for example, claiming all of the touching occurred over the clothing and it only occurred two to three times per month and that he meant it as a teasing gesture, not as abuse; and (2) that the appellant's denials did not include any details, and that when he denied the incident with D, which she said was the first instance of sexual abuse, he did not offer an alternative scenario of when and how the abuse began.

[40] Contrary to the appellant's submission, I do not regard these statements as the trial judge reversing the onus of proof to the appellant to disprove the complainants' allegations. It is important to remember here that the appellant acknowledged improper behaviour with C and D over a significant number of years. With respect to C, he not only admitted to regularly grabbing her breasts, he testified that he put his hand down her pants (although he denied "fingering" her). With respect to D he admitted that for years he touched her breasts and vagina (albeit over her clothes), that his behaviour was wrong, and that on one occasion, after she caught him masturbating while fully exposed, he touched her breasts and vagina. The appellant's emphasis throughout his evidence on how he was teasing and roughhousing with his daughters is difficult to reconcile with the specific incidents he admitted, his telling D when she was 12 that their "inappropriate behaviour" had to stop, and the counselling he later sought out. It was not inappropriate for the trial judge in these circumstances to characterize the appellant's emphasis on him merely teasing and roughhousing with his daughters as "minimizing" and to find that it weighed against the credibility of the appellant's evidence about the extent of his abuse of C and D.

[41] As for the trial judge's comment on the appellant's failure to provide details of his abuse of D, including how it started, the appellant on his own evidence had been touching D in a sexual manner from when she was a small child until at least the age of 12. He denied the "French fry" incident (where he offered D a French fry if she would let him touch her) as the first incident of abuse, simply saying that it did not happen. It was not unreasonable for the trial judge to take into consideration in assessing the appellant's credibility about such evidence, his failure to provide any evidence at all about how his conduct with D, which he characterized as "inappropriate" and acknowledged had continued over many years, had started. This is unlike the cases referred to by the appellant where nothing more than a bald denial might have been expected.

[42] In any event I do not regard these comments as reversing the onus of proof, when considered in the context of the reasons as a whole, and in particular the other reasons the trial judge gave for disbelieving the appellant and finding his evidence did not raise a reasonable doubt (which included his "bizarre and illogical" explanations for incidents he recalled differently, such as that he put his hand down C's pants because she was bugging him about his interaction with a female guest, and he decided to "show her"). The trial judge took into consideration the appellant's efforts to cast his daughters in a negative light, to portray himself as both a victim and a great father, and his admitted binge-drinking that he blamed for at least one incident of sexually abusive behaviour, and that the trial judge found difficult to believe was the only incident where alcohol was a factor. Contrary to the appellant's assertions, there was nothing wrong with the trial judge taking these factors into account in her assessment of the appellant's credibility.

[43] Finally, the appellant complains about two other features of the trial judge's assessment of his credibility in relation to the allegations concerning C and D. First, he says that the trial judge failed to mention two factors that were favourable to him: that he admitted to having engaged in sexually inappropriate behaviour with his daughters, and that he sought and obtained treatment for his sex offending behaviour prior to being charged. Second, he contends that the trial judge misapprehended the evidence when she stated that the appellant blamed his daughters for breaking off contact, when the evidence was to the contrary.

[44] The appellant's testimony that he engaged in inappropriate sexual misconduct (although he characterized it largely as non-sexual rough-housing and teasing) was more of a denial of an intention to sexually abuse his daughters than an admission of wrongdoing. As for his participation in sex offender treatment, this occurred after the 2007 incident with S, many years after the sexual abuse of his biological daughters, and very little information was provided about the content of the counselling and treatment. The relevance of this evidence to the appellant's credibility on the extent of what occurred, is not apparent. The trial judge did not err in these circumstances by failing to mention any of this evidence, which could not have had a material effect on her assessment of the appellant's credibility.

[45] As for the assertion that the trial judge misapprehended the evidence when she said that the appellant blamed his daughters for breaking off contact, I do not see an error here. In the context of her comments about the appellant taking pains to cast the complainants in a negative light, the trial judge said that "he seemed to blame his daughters for not keeping in touch, not contacting him when their mother died, and with respect to [A] not inviting him to her graduation". It is a fair and available inference from the evidence that the appellant, while asserting that he respected the complainants' choices to break contact with him, did in fact suggest that the complainants were unreasonable in not informing him of their mother's death and excluding him from such events in their lives as a graduation and contact with his grandchildren.

SENTENCE APPEAL

[46] In his sentence appeal the appellant asserts that the trial judge erred in two ways. First, he says that she started with a global sentence and then imposed a sentence of six years on each count to run concurrently, instead of considering a fit sentence for each count and then applying the principle of totality. The appellant contends that the seriousness of the offences varied, and that each of the counts, individually, ought to have attracted lesser sentences, and resulted in a total sentence of less than six years' imprisonment.

[47] I would not give effect to this ground of appeal.

[48] The trial judge concluded that a global sentence of six years was warranted. To the extent that she began with a global sentence, and then determined the appropriate sentence for each count, she did not err in principle. This approach was endorsed by this court in R. v. Jewell, at p. 279: "[h]aving determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct". See also R. v. Ahmed, 2017 ONCA 76, at para. 85.

[49] It was not a reversible error for the trial judge to determine a global sentence first and then to impose concurrent sentences of equal length. Concurrent sentences can reflect a trial judge's view that the offences were "sufficiently interrelated to merit concurrent dispositions": R. v. Taylor, 2010 MBCA 103, at para. 12. And, the determination of whether sentences should run concurrently or consecutively is entitled to deference: R. v. McDonnell, at para. 46. In cases of multi-victim sexual abuse where the offender was engaged in a pattern of conduct over many years with various victims, there may be good reason to impose concurrent sentences of equivalent length, after the court considers an appropriate global sentence. See, for example: R. v. Stuckless, 2016 ONCJ 338 and R. v. D.D..

[50] I would not, however, endorse an approach where a trial judge starts with a global sentence and then applies the same sentence "across the board" on a concurrent basis. In this case, the conduct underlying the counts differed in seriousness and, standing alone, any given count could arguably have attracted a different and lesser sentence. Here, the trial judge ought to have explained why concurrent sentences of equivalent length were imposed for these offences. Instead, her sentencing reasons addressed only the question of a global sentence, and she then endorsed on the information sentences of six years on each count to run concurrently. The practice of not differentiating between the various counts in terms of the sentence imposed makes it difficult for this court, on appeal, to properly address the appropriate sentence should an appeal succeed on some, but not all, of the convictions.

[51] None of this, however, affects my view that the total sentence imposed in this case was appropriate. The sentence was within the range of mid to upper single digit penitentiary terms for the regular and persistent sexual abuse by a person in a position of trust of young children over a substantial period of time: see R. v. D.D., at para. 44; and R. v. Woodward, 2011 ONCA 610, at para. 75.

[52] The appellant's second argument on his sentence appeal is that the trial judge erred in relying on at least two "uncharged acts" – the French kissing and attempted intercourse allegations by D, which the appellant says were excluded when the Crown particularized the information. As I have already rejected the argument that there were "uncharged acts", I see no merit to this argument. The incidents the appellant says were "uncharged" were not excluded. They were referred to in the trial judge's reasons for judgment and, in addition to all of the other incidents of repeated sexual abuse of D, were relevant to her findings of guilt in respect of the counts relating to D. In any event, the exclusion of these two incidents would not have had any material effect on the length of the appellant's custodial sentence.

[53] The appellant also contends (and the Crown agrees) that the condition in the ancillary order under s. 161 (d) of the Criminal Code, which appears to have been included as a result of an administrative error, should be deleted from the s. 161 order. I agree.

CONCLUSION AND DISPOSITION

[54] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, and allow the sentence appeal in part, to remove the condition under s. 161 (d) from the appellant's s. 161 order.

K. van Rensburg J.A.

I agree Janet Simmons J.A.

I agree I.V.B. Nordheimer

Released: March 14, 2018

Footnotes

[1] Although not argued by the appellant, I note that the fact that the trial judge ultimately acquitted the appellant on the counts relating to A does not mean that she erred in admitting A's evidence as similar fact: R. v. Arp, at para. 79. In her reasons for judgment, the trial judge indicated that she "relied on the evidence of each individual complainant to corroborate the evidence of the others". The appellant took no issue with this statement and I do not interpret it as an indication that the trial judge improperly used A's similar fact evidence, as this statement was made after the trial judge had made her findings regarding A's evidence about the incident involving A. In addition, other aspects of A's evidence corroborated the other complainants' evidence. For example, A testified that she saw the appellant grab C's breasts.

[2] In the next section, I address the appellant's argument that the similar fact evidence included uncharged conduct "that had been excluded by the Crown when he particularized the information".

[3] The appellant took issue with C's evidence about one occasion when the family was living in Scarborough and the appellant rubbed her breasts. C testified that this occurred when she was ten or 11 years old (i.e. between June 23, 1983 – June 23, 1985), a portion of which timeframe falls outside of the dates in count four (June 23/84 – June 22/90). However, I agree with the Crown that, in the absence of any suggestion that the dates were an essential element of the offence, or that the appellant was misled and therefore prejudiced, the discrepancy in dates does not affect the validity of the charge or the conviction: R. v. B.G., at paras. 38-40; R. v. S.D., 2011 SCC 14, at paras. 1-2.