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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200302

DOCKET: C65379

Feldman, Harvison Young and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.C. Appellant

Counsel: Jeffery Couse and Marianne Salih, for the appellant Lorna Bolton, for the respondent

Heard: November 27, 2019

On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on December 14, 2016, and from the sentence imposed on September 5, 2017, with reasons reported at 2017 ONSC 5089.

Jamal J.A.:

A. INTRODUCTION

[1] The appellant, a former fashion photographer, was charged with six counts of sexual assault and one count of sexual exploitation of four young women whom he had photographed, namely, C.K., A.R., C.A., and N.H.

[2] Before trial, the appellant applied to sever the charges and have them tried separately. The application judge severed only the charge involving N.H., which alleged the appellant had briefly touched N.H.’s breasts without her consent during a photography session. He permitted a joint trial of the more serious allegations involving the other complainants, which alleged non-consensual vaginal touching, digital penetration, and penile penetration: see R. v. R.C., 2016 ONSC 6593.

[3] The trial judge later allowed the Crown to adduce similar fact evidence across the counts involving C.K., A.R., and C.A.: see R. v. R.C., 2016 ONSC 7575.

[4] The jury acquitted the appellant of the charge involving C.A., but convicted him of those involving C.K. and A.R. He was sentenced to 51-months’ imprisonment.

[5] The appellant now appeals against his conviction and sentence. He raises four grounds of appeal:

1. The application judge erred in refusing to sever the charges involving C.A., C.K., and A.R.
2. The trial judge erred in granting the Crown’s cross-count similar fact evidence application.
3. The trial judge’s jury charge failed to relate the evidence to the issues and to provide a proper instruction on the principles of R. v. W.(D.), [1991] 1 S.C.R. 742.
4. The 51-month sentence imposed for a first-time offender violated the totality and parity principles and was demonstrably unfit. The trial judge also erred by relying on an aggravating factor that had not been proven beyond a reasonable doubt.

[6] For the reasons that follow, I would dismiss both the conviction and sentence appeals.

B. BACKGROUND

(a) The allegations involving C.K.

[7] C.K. moved to Toronto in 2009 at the age of 18 to pursue a modelling career. She met the appellant, who was 34 at the time, through K.R., a more experienced model who had worked with the appellant.

[8] C.K. attended several photoshoots at the appellant’s studio in 2009 and 2010. At the first shoot, K.R. was initially present, as was another photographer, S.L., who shared the appellant’s studio at the time. C.K. testified that after K.R. and S.L. left, the appellant persuaded her to pose in a so-called “Calvin Klein” implied-nude style, in which the model poses topless but covers her breasts with her arms or hands. She testified that the appellant said that all the best models pose topless, even though C.K.’s modelling agency did not require such shots. C.K. posed topless at several photoshoots. The appellant told her to undress and wear a robe while at the studio to avoid clothing impressions on her skin.

[9] C.K. claimed that the appellant sexually assaulted her three times.

[10] First, during a photoshoot in 2010, the appellant told her to think about sex, placed his hand under her robe, and digitally penetrated her vagina. C.K. testified that she did not want to be touched like this, but she did not object because she was concerned about how the appellant might react and whether he would hurt her career.

[11] Second, a few weeks later, during another photoshoot, the appellant grabbed C.K. and fondled her breasts.

[12] Third, in April 2010, during her final photoshoot with the appellant, the appellant approached C.K. from behind, pushed her over a table, and had vaginal intercourse with her without her consent. Afraid that he would hurt her if she resisted, C.K. just closed her eyes and tried not to cry. After this, C.K. never worked with the appellant again.

[13] C.K. testified that some time later she sent the appellant an angry email, saying that she had trusted him and he should not have done that to her. She testified that the appellant wrote back something like, “I thought that you wanted it”; she responded, “Are you kidding?” C.K. stated that she had deleted the emails as it had never occurred to her that she would require them for anything.

[14] A year or so later, C.K. saw the appellant at a fashion show and told her boyfriend that the appellant had sexually assaulted her. Her boyfriend encouraged her to go to the police, but she was not ready to do so. A week later, she read a newspaper article about several other models who had made allegations against the appellant. She was contacted by S.L., the photographer who had shared the appellant’s studio, who suggested that if something had happened she should tell the police. C.K. then went to the police.

[15] In his testimony, the appellant admitted some of the sexual touching and the sexual intercourse, but insisted that everything was consensual and he always asked for permission before touching C.K. He also testified that C.K. had initiated the sexual contact. He saw nothing wrong in touching his much younger client and did not consider 15 years to be a significant age difference. He also denied ever receiving an angry email from her.

(b) The allegations involving A.R.

[16] A.R. was a 21-year-old university student with no professional modelling experience when she met the appellant. On March 6, 2011, he messaged her through a website where she had a modelling profile and offered her a modelling opportunity. She was flattered that someone so experienced had contacted her.

[17] A.R. testified that S.L. was leaving when she arrived at the appellant’s studio with her boyfriend. The appellant told her that the modelling opportunity was no longer available but said he “saw potential in her and would like to help”. He offered to take some headshots and asked her boyfriend to leave. He then gave her a robe and told her to remove her top and bra. He had already told her that he required models to remove their clothes and put on a robe to avoid visible clothing lines. He then asked her to pose topless. A.R. was uncomfortable, but did as she was told. She assumed that the appellant knew what he was doing. The appellant then proposed a “Calvin Klein” implied-nude shot and asked her to pose topless again. Once more, A.R. felt uncomfortable, but complied.

[18] A.R. testified that, at a later photoshoot on March 10, 2011, the appellant sexually assaulted her. He first encouraged her to change in the open and tried to talk to her about sex. She alleged that he touched her vagina and digitally penetrated her. She testified, “I was scared for my life. It shocked me. I didn’t know what was happening.” She said the appellant told her he could help her succeed, just as he had helped K.R., whom he said he had also touched sexually. A.R. thought about trying to leave, but was afraid the appellant might hurt her or assault her again. She testified that the shoot ended when the appellant encouraged her to touch herself but she refused. He then forced open her legs and touched her where her pelvis and leg join. A.R. insisted that the appellant never asked if he could touch her sexually and she never consented to him doing so.

[19] Later that night, A.R. told one of her female friends and her boyfriend about what had happened. Soon afterwards, she contacted S.L. and told him.

[20] In his testimony, S.L. confirmed that A.R. had contacted him and had told him that the appellant had sexually assaulted her. S.L. gave A.R. the phone numbers of C.A. and K.R., whom she called later that year, but she claimed she did not discuss the details of the alleged assault with them.

[21] On March 16, 2011, S.L. moved his photography equipment out of the appellant’s studio and told him that he had done so because he had learned that the appellant was doing inappropriate things with models. S.L. testified that the appellant said nothing in reply.

[22] A.R. ultimately went to the police in May 2012.

[23] In his testimony, the appellant admitted some of the sexual touching, but insisted that it was all consensual.

(c) The allegations involving C.A.

[24] C.A. met the appellant in 2009 through the model K.R., who had also introduced C.K. to the appellant. C.A. was 18 and new to professional modelling.

[25] At their first photoshoot, the appellant encouraged C.A. to pose topless in the “Calvin Klein” or “implied-nude” style. She complied but was uncomfortable.

[26] At their second photoshoot, C.A.’s evidence was that the appellant encouraged her to lie down on a bench. He then touched her breasts, vagina and clitoris, and digitally penetrated her, all without her consent. She testified that the appellant said that K.R. had done sexual things with him and that it had made her a better model. The appellant denied both the alleged sexual contact and the comments about K.R.

[27] Some time later, the appellant offered to let C.A. sleep at his studio (where he was living at the time) because she had a casting at a nearby location the next morning. She accepted. C.A.’s evidence was that the appellant had sexual intercourse with her that night without her consent. After this, she stopped working with him. The appellant denied any sexual contact that night but stated that later he and C.A. had a consensual sexual relationship for a time.

[28] On December 14, 2016, the jury acquitted the appellant of the charge involving C.A., but convicted him of the charges involving C.K. and A.R.

C. ANALYSIS

(1) Did the application judge err in refusing to sever the charges involving three of the complainants?

(a) Background

[29] Before trial, the appellant applied to sever the charges involving each of the four complainants on the basis that a joint trial would prejudice his right to a fair trial, particularly since he intended to testify in defence to the allegations of C.K., A.R., and C.A., but not to those of N.H.

[30] The application judge severed the charge involving N.H. He noted that the factual allegations involving N.H. were not at the same level of severity as those involving the other complainants and there was no suggestion that N.H. had been in contact with them or S.L. Accordingly, the application judge concluded that it would be very prejudicial to try the less serious allegations made by N.H. with the very severe allegations made by the other three complainants. The application judge also reasoned that the appellant’s announced intention to testify in defence to the charges involving all the complainants except N.H. would “potentially be read by a jury as an acknowledgement of guilt in the one silent case.”

[31] However, the application judge refused to sever the other charges. He reasoned that there was a viable similar fact argument for them, and there would be nothing unduly prejudicial in trying them together. The appellant argues that the application judge erred in so ruling.

(b) Applicable principles of severance

[32] Section 591(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46, gives the court broad discretion to sever counts in an indictment “where it is satisfied that the interests of justice so require”. The accused bears the onus of justifying severance on the balance of probabilities: R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 26.

[33] In exercising this discretion, the court balances the accused’s right to be tried on the evidence admissible against the accused with society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner, mindful of the risk that evidence admissible on one count could influence the verdict on an unrelated count: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-17; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 72.

[34] The “interests of justice” under s. 591(3)(a) of the Criminal Code have been interpreted as including several non-exhaustive factors to be weighed in the balance. These were summarized in Durant, at para. 73, as including:

i. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; ii. the legal and factual nexus between or among counts; iii. the complexity of the evidence; iv. the desire of the accused to testify on one or more counts but not on another or others; v. the possibility of inconsistent verdicts; vi. the desire to avoid a multiplicity of proceedings; vii. the use of evidence of similar acts; viii. the length of trial; ix. prejudice to the accused’s right to be tried within a reasonable time; and x. the existence or likelihood of antagonistic defences.

See also Last, at para. 18; Jeanvenne, at para. 29.

[35] Considerable deference is owed to a lower court’s exercise of discretion as to severance. An appellate court may intervene only if the lower court “acted unjudicially” or “the ruling resulted in an injustice”: Last, at paras. 14, 21; Jeanvenne, at para. 26; and Durant, at para. 79. These are distinct inquiries. A lower court acts unjudicially if, based on the circumstances at the time the ruling was made, the court errs on a question of law or principle or makes an unreasonable decision. A lower court’s ruling results in an injustice based on how the entire trial and the verdicts unfold, including the potential prejudicial effect of the evidence, the closing addresses of counsel, the judge’s jury instructions, and any inference that may be drawn from the jury’s ultimate verdicts: Last, at para. 15; Jeanvenne, at para. 27; and Durant, at para. 79.

(c) Application to this case

[36] The appellant asserts that the application judge acted unjudicially because he erred in concluding that: (i) the Crown had a viable similar fact argument; and (ii) the prejudice arising from trying the allegations pertaining to C.A., A.R., and C.K. together was low. The appellant also asserts (iii) that the severance ruling caused an injustice based on how the trial unfolded.

(i) Viability of the similar fact application

[37] The Crown is not required to bring a similar fact application at the time of the severance application — it is entitled to defer the argument of the admissibility across counts of the evidence of similar acts until all the Crown’s evidence has been tendered: Last, at para. 34.

[38] Where the Crown intends to argue the admissibility of the similar fact evidence later in the trial, the trial judge should consider the similar fact evidence “carefully in the context of the severance application”: Last, at para. 33; R v. Waudby, 2011 ONCA 707, at para. 4. As stated in R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at para. 49:

[A]ssessing the viability of a similar fact application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar fact evidence is on the Crown. The exercise must be approached with great care[.]

[39] Where a judge carefully considers the viability of an anticipated similar fact application at the time of the severance application and concludes that it appears to have sufficient merit, it will be difficult to establish that the judge erred by refusing to sever: Waudby, at paras. 3-4. The severance application judge need only assess whether the anticipated similar fact application has some possibility of success, or whether it is reasonable to consider that it might succeed: R. v. Blacklaws, 2012 BCCA 217, 285 C.C.C. (3d) 132, at paras. 43-44, per Finch C.J.B.C. (dissenting), aff’d at 2013 SCC 8, [2013] 1 S.C.R. 403. This threshold is considerably lower than the test for admitting similar fact evidence: Blacklaws, at para. 42.

[40] Here, in my view, the application judge correctly weighed the relevant considerations at the time of the severance application in evaluating whether the Crown had a viable similar fact application. He considered the appellant’s arguments that the cases had no unifying threads and that trying them together would come “perilously close to saying that he is the type of person to take advantage of his position”. Nevertheless, the application judge reasonably concluded that the Crown had a viable similar fact application because all the offences alleged very similar conduct in very similar circumstances. He was also entitled to conclude that there was “nothing unduly prejudicial” about trying the C.K., A.R., and C.A. cases together. It was not necessary for the application judge to go into further specifics about the sources of prejudice, and it is clear from reading his reasons as a whole that he was alive to the risk of prejudice and considered it in the course of his analysis: see Blacklaws, at para. 52. Deference is owed to his ultimate conclusion.

[41] Finally, I do not agree with the appellant that the application judge relied on evidence of alleged collusion to support the viability of the Crown’s similar fact application. Rather, when the application judge’s reasons are read in context, it is clear that he relied on the allegation of collusion among C.A., A.R., and C.K. as a characteristic distinguishing those charges from the charges in respect of N.H., where there was no allegation of collusion. The application judge used this distinction to support severing that charge from the others.

[42] Therefore, in my view, the application judge did not err in concluding that the Crown had a viable similar fact application at the time of the severance application.

(ii) Prejudice

[43] The appellant submits that the application judge erred in his assessment of prejudice on the severance application in three ways.

[44] First, the appellant submits that the application judge erred in relying on the similarity of the allegations in concluding that “there is nothing unduly prejudicial about trying the [three] cases together.” The appellant asserts that the “similarity of the allegation is precisely what creates prejudice in the circumstances”.

[45] I disagree with the contention that the application judge erred in considering the similarity of the allegations. In this case, that similarity supported the viability of the similar fact application. Such an application, if ultimately granted at trial, would specifically permit the jury to consider the evidence of all three complainants across counts. Where a proposed similar fact application is viable at the time of the severance application, this may provide a sufficient reason for deciding to deal with potential prejudice at a later stage of the proceedings, including through appropriate jury instructions: see Waudby, at para. 8.

[46] Second, the appellant submits that the application judge erred in his assessment of prejudice because he did not address any of the specific types of prejudice discussed by the Supreme Court in Last — i.e., the risk that the complainants’ credibility would be impermissibly bolstered, the risk that the appellant’s credibility would be impermissibly undermined, and the risk that the jury would engage in propensity reasoning. The appellant makes the same argument in relation to the application judge’s conclusion about the viability of the similar fact application.

[47] As I stated above, it was not necessary for the application judge to go into further specifics about the sources of prejudice. He explicitly mentioned the risk of propensity reasoning and it is clear from his reasons that he was alive to the risk of prejudice generally and considered it in the course of his analysis. Deference is owed to his ultimate conclusion.

[48] Third, the appellant submits that the application judge erred in his assessment of prejudice because he misapprehended the evidence about the differences between the three cases. Specifically, the appellant takes issue with the application judge’s statement that the three complainants “were looking to the [appellant] for professional guidance and an initiation into their modelling careers, but what they got was an initiation into coerced sex ” (emphasis added). The appellant submits that this statement reveals a misapprehension of the evidence, because only C.A. and C.K. alleged non-consensual sexual intercourse.

[49] I disagree with this assertion. When read in the context of the severance decision as a whole, the reference here to “coerced sex ” included both sexual intercourse and vaginal touching. The application judge was well aware that only two complainants alleged sexual intercourse .

[50] I therefore conclude that the application judge did not act unjudicially in refusing severance. He did not err in concluding that the Crown had a viable similar fact argument or in concluding that trying the allegations pertaining to C.A., A.R., and C.K. together was not unduly prejudicial.

(iii) Alleged injustice based on how the trial unfolded

[51] Finally, the appellant asserts that the severance ruling caused an injustice based on how the trial unfolded. He claims that he was “forced to testify against all complainants”, such that “[a]ny impairment of his credibility against one complainant inevitably tainted his credibility against the other.”

[52] I would reject this claim. At the severance application, the appellant himself submitted that he planned to testify in defence to the charges involving C.K., A.R., and C.A., and argued that this was a reason to sever the charge involving N.H. The application judge severed that charge but refused to sever what remained. At trial, the appellant unsuccessfully opposed the similar fact application. Then, he chose to testify. In the circumstances, it cannot be said that he was “forced” to testify in his own defence, when he had previously announced that he planned to testify and then decided to do so based on how the trial unfolded. Moreover, the jury acquitted the appellant of the charge involving C.A., despite the admission of the similar fact evidence of C.K. and A.R., which suggests that the jury did not engage in forbidden propensity reasoning, and did not assume that the appellant was unbelievable with respect to all of the allegations just because he was unbelievable with respect to some of them.

[53] In conclusion, I see no basis to impugn any aspect of the severance ruling.

(2) Did the trial judge err in granting the Crown’s cross-count similar fact evidence application?

(a) Applicable principles for admitting cross-count similar fact evidence

[54] Similar fact evidence is presumptively inadmissible. To make it admissible, the Crown bears the burden of showing on a balance of probabilities that the probative value of the similar fact evidence in relation to a particular issue at trial outweighs its potential prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[55] An aspect of the presumptive rule against admitting similar fact evidence is that evidence on one count cannot be used to prove guilt on another count where the counts do not arise out of the same events: R. v. T.C., 2019 ONCA 898, at para. 42. This rule aims to prevent the jury from either: (1) placing more weight than is justified on the evidence of similar facts (known as “reasoning prejudice”); or (2) finding the accused guilty based on forbidden propensity reasoning (known as “moral prejudice”), that is, “reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count”: T.C., at para. 43; see also Handy, at para. 31.

[56] Absent an error of law, an unreasonable analysis, or a misapprehension of material evidence, a trial judge’s decision to admit similar fact evidence is entitled to substantial appellate deference: Handy, at para. 153; R. v. Arp, [1998] 3 S.C.R. 339, at para. 42; and R. v. J.H., 2018 ONCA 245, at para. 11.

(b) The trial judge’s similar fact evidence ruling

[57] At the close of its case, the Crown applied to have the similar fact evidence admissible across counts. The trial judge found that the acts sought to be used as similar fact evidence were similar for the following reasons:

The relationship of the respondent and complainants was one of professional fashion photographer and aspiring models. As the Crown has argued and the evidence supports, the complainants were all young (ages 18 to 21) and relatively inexperienced in modelling. The respondent portrayed himself and the complainants all viewed him as a significant fashion photographer in the industry, who had connections. The respondent, in all three cases, attempted to instill a sense of trust in the complainants such that they would be able to “perform” in front of the camera, attempted to relax them, again so that they would be able to pose as he wanted in front of the camera, began to raise sexual comments and continued to do so throughout, used sexual touching, purportedly for purposes of “relaxing” them prior to shoots, and told them that all models in the industry did that and/or that [K.R.] had done that and had become a good model. He touched them all in similar ways, caressing breasts with his fingers and touching their vaginal areas. He had all of them remove all of their clothing and wear robes, which he supplied, in order that there would be no clothing lines showing in photographs taken subsequently, then reached through robes to caress the models. He photographed them posed in the “CK” look, “implied” topless and topless.

[58] The trial judge found the similar fact evidence relevant and probative to prove the actus reus, to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged. She also found that the evidence was not being admitted to show bad character and that it was not tainted by collusion among the complainants. She therefore concluded that its probative value outweighed any potential prejudice and admitted it across counts.

(c) Application to this case

[59] The appellant asserts that the trial judge erred in her similar fact evidence ruling in three respects.

[60] First, the appellant contends that the trial judge relied on “generic” factors to establish the probative value of the similar fact evidence. He says that “it is not surprising that the complainants were young and inexperienced in modelling given that they were aspiring models, nor is it surprising that [he] attempted to instill trust in the complainants and relax them so that they would pose better”.

[61] I do not accept this submission. In my view, it was open to the trial judge to conclude that the similarities alleged here were more than merely generic. Her task was not to “add up similarities and dissimilarities and then, like an accountant, derive a net balance”, but rather to determine whether there was “a persuasive degree of connection between the similar fact evidence and the offence charged”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 48, 60; J.H., at para. 20. That is exactly what the trial judge did.

[62] Here, the alleged similar facts involved a consistent modus operandi of grooming young, vulnerable, and trusting women to normalize the sexual assaults for which the appellant was charged. While some of the similar facts alleged could perhaps be described as “generic” — that the models were all young and inexperienced and needed to relax before photoshoots — others were not, including the appellant’s alleged sexual touching to “relax” the complainants, his references to K.R. as a model who had succeeded under his guidance, and his encouraging topless implied-nude shots, even when not required.

[63] A trial judge’s conclusion that alleged similar facts are sufficiently similar rather than impermissibly generic is entitled to substantial deference, absent an error of law or principle or a misapprehension of the evidence. I see no such error.

[64] Second, the appellant asserts that the trial judge failed to assess the probative value of the similar fact evidence in relation to the specific issues in question at trial. He says that the only issue at trial was consent, and that the alleged similar touching with all three complainants was neither logically probative of that issue nor logically supportive of their credibility.

[65] I do not agree that the trial judge failed to assess the probative value of the similar fact evidence in relation to the issues at play at trial. Apart from being relevant to and probative of the actus reus, the trial judge permitted the similar fact evidence to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged. These were all live issues at trial.

[66] With respect to credibility in particular, the trial judge cited the admonition in Handy, at para. 115, that “[c]are must be taken not to allow too broad a gateway for the admission of propensity evidence”, because “[c]redibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence”. The trial judge went on to note that “[t]he probative value of similar fact evidence in a credibility case lies in the improbability of witnesses giving similar accounts of incidents unless the witnesses are telling the truth”, and as such, “the probative value of the evidence depends upon the similarity between the incidents”. She found, in this case, that the similar facts were “significantly similar” to justify admission across counts. Again, I see no error in the trial judge’s analysis or conclusion.

[67] Third, the appellant asserts that the trial judge erred in finding that there was no air of reality to the appellant’s allegation of collusion among the complainants. He notes that there was a delay of one to four years in reporting each of the allegations, and that before doing so each complainant was contacted by S.L., the appellant’s former photography colleague. The appellant asserts that this finding was also inconsistent with the trial judge’s jury charge, which left the theory of collusion with the jury.

[68] I disagree that the trial judge erred in how she dealt with the collusion allegation. Although the trial judge found evidence of opportunity for collusion, she concluded that there was no evidence of actual collusion. This conclusion was supported by the evidence on the application. I see no reason to disturb it.

[69] It is true that the trial judge stated in her reasons on the similar fact application that she found no air of reality regarding actual collusion. However, she then added that if she was wrong about this the evidence of collusion was insufficient to taint the evidence of similar facts, and collusion was ultimately an issue of fact for the jury to decide on the evidence:

If I am wrong as regards there being no “air of reality”, I nevertheless find that there is, on the evidence before the Court, no sufficient evidence of collusion for this Court to find that the similar fact evidence sought to be used among the five counts was tainted by collusion. Based on the foregoing, I find, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion.

For purposes of the trial, whether or not there was collusion, is ultimately a matter for the decision of the jury in this case, as with all findings of fact.

[70] Thus, the trial judge’s initial conclusion that there was no air of reality to the collusion theory, if read out of context, may seem inconsistent with her ultimately leaving this issue for the jury. I do not, however, read her reasons that way. She appears to have left collusion to the jury because she considered it in the alternative as having an air of reality in addressing the similar fact application. In any event, any error occasioned by this, if indeed there was one, inured to the appellant’s benefit, because collusion was ultimately left to the jury.

[71] For these reasons, I conclude that the trial judge did not err in granting the Crown’s cross-count similar fact evidence application.

(3) Did the trial judge err in her jury charge?

(a) Applicable principles for evaluating a jury charge

[72] An appellate court reviews the adequacy of a jury charge through a functional assessment. “The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence”: R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at para. 17; R. v. Calnen, 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 8.

[73] Such a functional assessment gives “significant weight to the position advanced by counsel at trial”, and “[t]o the extent the instruction tracks that position, it is likely to properly serve its functional purpose”: Badgerow, at paras. 18-19. “The jury instruction must be legally correct and fair, not perfect”: Badgerow, at para. 20; Calnen, at para. 9.

(b) Application to this case

[74] The appellant argues that the trial judge erred in her jury charge in three respects. While not determinative, it bears noting that at trial the appellant’s trial counsel (who was not appeal counsel) did not object to the jury charge.

[75] First, the appellant claims that the trial judge failed to explain that the real issue was consent, not whether the sexual encounters occurred. He highlights the trial judge’s jury instruction that “[t]he real issue for you to decide in this case is whether the offences alleged by each complainant or any of them actually took place” (emphasis added). He claims that the reference to “the offences” left the jury with the misunderstanding that he disputed sexual contact, when his position was that all sexual contact was consensual.

[76] I see no error here. The trial judge referred to sexual “offences”, not “encounters” — which highlighted that the issue was whether the offences occurred, not whether there were sexual encounters. Elsewhere in the charge, the trial judge explained the essential elements of the offence of sexual assault as including intentional touching, of a sexual nature, without consent, by an accused who knew that the complainant did not consent. Thus, the jury was left with no confusion about the appellant’s position.

[77] Second, the appellant contends that the trial judge failed to relate the evidence to the issues, especially to the issue of consent, and instead offered a witness-by-witness recitation of the evidence.

[78] I do not agree with this submission. I acknowledge that this court has observed that a witness-by-witness recitation of the evidence is almost always ineffective, because it tends to be unnecessarily detailed and, as a summary of the evidence, often bears no relationship to the issues in dispute: see R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 15-16.

[79] However, that is not a fair description of the trial judge’s jury charge in this case. For example, although the trial judge began with a detailed summary of the evidence of each of the five witnesses, including the three complainants, she went on to summarize again — though more succinctly — the relevant evidence as to consent. She stated:

The evidence as regards consent is as above set forth. The three complainants state that they did not consent to sexual touching by the accused. [The appellant] states that all complainants consented, and that he would never touch anyone without their consent. While he does not recall the words used by him to obtain consent, nor the words used by each complainant to give consent, he testified that he would not touch anyone without their consent.

[80] The trial judge addressed consent again when she instructed the jury on whether the appellant had the mens rea for sexual assault and summarized the evidence respecting consent and honest but mistaken belief in consent.

[81] Thus, in my view, read as a whole, the jury charge cannot be impugned for failing to relate the evidence to the issues.

[82] Third, the appellant asserts that the trial judge failed to give a proper jury instruction in accordance with W.(D.), at p. 758, namely:

(a) First, if you believe the accused’s evidence, you must acquit; (b) Second, if you do not believe the accused’s evidence but are left in reasonable doubt about his guilt, you must acquit; (c) Third, even if you are not left in doubt by the accused’s evidence, you must ask whether, based on the evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the accused’s guilt.

[83] The appellant acknowledges that the trial judge “included the standard W.(D.) instruction at the beginning of the jury charge”, but complains that she “did not instruct the jury that the W.(D.) analysis was to be applied to every element of the offence and did not relate the evidence to the W.(D.) analysis to be applied.”

[84] I would not give effect to this submission. A court need not take “a formulaic approach to the W.(D.) analysis”, but rather must ensure that the burden of proof never shifts from the Crown: R. v. Robinson, 2009 ONCA 626, 254 O.A.C. 171, at para. 25. The key question is thus whether the jury charge made this clear.

[85] In my view, the jury charge made this abundantly clear. As the appellant concedes, the trial judge did include a standard W.(D.) instruction at the beginning of her charge. She was not required to repeat that instruction when dealing with each and every element of the offence. The trial judge clearly instructed the jury that it could believe some, all, or none of each complainant’s evidence; repeatedly explained that the Crown bore the burden of proof and the appellant did not have to prove anything; and cautioned that the verdict must be based on all the evidence. Nothing more was required.

[86] I therefore conclude that the jury charge, read as a whole, properly equipped the jury to decide the case. Thus, I conclude that the jury charge easily passes muster under a functional assessment.

[87] For these reasons, I would dismiss the conviction appeal.

(4) Did the trial judge err in sentencing?

[88] After the jury found the appellant guilty of sexually assaulting C.K. and A.R., the trial judge sentenced the appellant to 51-months’ imprisonment, less credit for 13 days of pre-trial custody and three months for strict bail conditions during the first year.

[89] This sentence consisted of three years and three months for assaulting C.K., and one year for assaulting A.R., to be served consecutively. The trial judge noted that the crimes against each of C.K. and A.R. were separate and distinct, and that as a general principle, assaults that are separate, unrelated transactions should receive separate, consecutive sentences. The sentence imposed was roughly midway between the parties’ submissions: the Crown had sought six years and three months, while the defence argued for two years plus a day.

[90] The appellant claims that the trial judge erred in two respects.

[91] First, the appellant asserts that the trial judge erred in sentencing with respect to the offences committed against A.R. by considering an aggravating factor — digital penetration — that had not been proven beyond a reasonable doubt. Specifically, the appellant says that there was a discrepancy in the evidence on the extent of sexual touching of A.R.: she testified that the touching included digital penetration; he testified that it did not. The appellant argues that the jury’s verdict showed that it was satisfied that there was sexual touching without consent, but does not show what touching was proven beyond a reasonable doubt. The appellant submits that before the trial judge could rely on digital penetration as an aggravating sentencing factor, she should have made an independent determination of the facts: Criminal Code, ss. 724(3)(d) and (e); R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18.

[92] I disagree with the appellant’s claim that the trial judge considered digital penetration as an aggravating factor. The issue of whether the non-consensual touching of A.R. specifically included digital penetration was not explored in the parties’ sentencing submissions, which suggests that neither party considered it especially material to sentence. The trial judge’s reasons mentioned the alleged digital penetration in passing, but did not treat it as an aggravating factor. The specific aggravating factors she considered were the power imbalance that the appellant exploited to take “advantage of two young, inexperienced aspiring models who perceived him as experienced, trusted him as a professional and were deceived”; and “the ages of the victims, the fact that there were two victims and several incidents of sexual assault and further that the victims were significantly affected.”

[93] Second, the appellant claims that the trial judge violated the totality principle in imposing consecutive sentences, resulting in an “unduly long or harsh” combined sentence contrary to s. 718.2(c) of the Criminal Code. The appellant submits that a total sentence of 51 months for a first-time offender was demonstrably unfit because he has excellent prospects for rehabilitation.

[94] As is well known, trial judges have broad discretion in sentencing and are accorded significant deference on appeal. An appeal court can intervene only where the sentencing decision reveals an error of law or principle that has an impact on the sentence, or where the sentence imposed is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44.

[95] In my view, the 51-month total sentence imposed for these offences was not demonstrably unfit. The appellant was found to have violated the trust of two complainants through serious sexual misconduct, including forced penile penetration in one case, with profound psychological consequences for both complainants. While the appellant had no prior record, there were few other mitigating factors. The sentence for this misconduct against two complainants fell within the range of sentences for similarly-situated offenders, which, while involving somewhat different circumstances of abuse of trust, confirm the fitness of the combined sentence imposed here: see, for example, R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, at para. 18 (three-year sentence for a single count of sexual assault by a police officer with no prior criminal record who vaginally and anally penetrated a mentee who aspired to become a police officer); R. v. Wood, 2015 ONCA 337, at para. 4 (six-year sentence for a pastor convicted of sexual offences against three parishioners); and R. v. Clase, 2017 ONSC 2484 (five-year sentence for sexual assault involving vaginal penetration and choking). I therefore see no basis to disturb the sentence imposed.

[96] Accordingly, although I would grant leave to appeal sentence, I would dismiss the sentence appeal.

D. CONCLUSION

[97] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.

Released: March 3, 2020 (“K.F.”)

“M. Jamal J.A.”

“I agree. K. Feldman J.A.”

“I agree. A. Harvison Young J.A.”