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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
COURT OF APPEAL FOR ONTARIO DATE: 20231004 DOCKET: C70279
Hourigan, Thorburn and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
R.K. Appellant
Counsel: Richard Litkowski, for the appellant Emily Bala, for the respondent
Heard: September 26, 2023
On appeal from the order of Justice Steve A. Coroza of the Superior Court of Justice, dated May 23, 2018, with reasons reported at 2018 ONSC 3221, and from the conviction entered by Justice E. Ria Tzimas of the Superior Court of Justice, dated October 15, 2019, with reasons reported at 2019 ONSC 5877, and from the sentence imposed on November 16, 2020, with reasons reported at 2020 ONSC 6979.
Thorburn J.A.:
A. OVERVIEW
[1] The appellant R.K. appeals his conviction on a charge of sexual interference contrary to s. 151 of the Criminal Code, R.S.C.1985, c. C-46, and his eight-year sentence. [^1]
[2] The instances of sexual interference were held to have occurred frequently over a period of six years, from the time the complainant L.C.M. was six years old until she was twelve. The allegations of sexual abuse were very serious.
[3] The complainant is the appellant’s daughter.
[4] The complainant was the only Crown witness at trial. The appellant and his mother-in-law were the only witnesses for the defence. The defence theory was that the complainant fabricated the allegations because she disliked the appellant and that the appellant did not, and did not have the opportunity to, engage in any sexual misconduct.
[5] As the trial judge noted, “the outcome [of the trial] turns on the credibility of the parties who are implicated.”
[6] The trial judge found that the appellant’s evidence was “riddled with contradictions” and his mother-in-law’s evidence was “dubious at best” and provided a “negative and humiliating depiction of her granddaughter.” She held that the defence evidence was unbelievable and did not leave her with reasonable doubt about the appellant’s guilt. She found the complainant’s evidence however, to be both credible and reliable: she noted that the complainant provided detailed accounts of the assaults, some of her evidence was corroborated by the defence witnesses, and the inconsistencies in her testimony were minor. The trial judge therefore rejected the defence theory that the complainant fabricated the allegations and convicted the appellant of sexual interference. He was found guilty and received an eight-year sentence.
[7] The appellant raises nine grounds of appeal. He claims that: (i) the application judge erred in refusing production of the complainant’s diary (a third party record), on the grounds that it was not “likely relevant”; (ii) the trial judge erred in holding that the complainant’s diary entries about the sexual interference “enhanced her credibility,” after the application judge had held that the diary was not “likely relevant”; (iii) the trial judge misapprehended the appellant’s evidence as to whether he was home when the complainant showered and sexually assaulted her thereafter; (iv) the appellant was improperly cross-examined on evidence of bad acts unrelated to this offence which the trial judge improperly relied on to find he was not credible; (v) the trial judge erred in overvaluing the complainant’s demeanour as a hallmark of truth; (vi) the trial judge improperly concluded that the complainant’s account was “corroborated” by peripheral details and improperly relied on those peripheral details to assist in convicting the appellant; (vii) the trial judge improperly relied on the complainant’s apparent lack of motive to come forward as corroborative of the truth of her allegations; (viii) the trial judge unfairly subjected the appellant and his mother-in-law’s evidence to stricter scrutiny than the complainant’s; and (ix) the sentence imposed was “crushing, harsh, and excessive” given the circumstances of the offence and the offender.
[8] After hearing oral submissions, the appeal was dismissed with reasons to follow. These are those reasons.
[9] I have analyzed the grounds of appeal in the order in which they are set out above.
B. ANALYSIS OF THE ISSUES RELATING TO CONVICTION
I. Whether the application judge erred in concluding that the diary was not likely relevant
[10] The appellant claims that the application judge erred in concluding that the diary was not likely relevant and therefore refusing to order it to be produced to the appellant.
[11] On an application to produce a third party record under s. 278.3 of the Criminal Code, the applicant has the onus to establish that the record is “likely relevant” to an issue at trial or to the competence of a witness to testify, and that production of the record is necessary in the interests of justice: R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, at paras. 53-54. If the answer to both questions is “yes”, the application judge reviews the record: Criminal Code, ss. 278.5- 278.6. If the application judge remains satisfied that the record is likely relevant and that its production is necessary in the interests of justice, the judge may order the record produced to the applicant: Criminal Code, s. 278.7.
[12] “Likely relevance” under s. 278.5 means there is a reasonable possibility that the record contains information that is logically probative to an issue at trial or the competence of a witness to testify. Issues at trial includes material issues to the unfolding of events which form the subject-matter of the proceedings, as well as evidence probative to credibility of witnesses and reliability of other evidence, including, for example material with potential impeachment value: R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, at para. 45; R. v. K.C., 2021 ONCA 401, at paras. 29-32, 47 per Jamal J.A. dissenting in the result, at paras. 103-104 per Fairburn A.C.J.O.; R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at paras. 72 and 75.
[13] In this case, the diary was written after the alleged assaults had taken place, while the complainant was in foster care. There are references to sexual assault in the diary. When the complainant’s foster mother read the diary, she called the hospital and the doctor then notified police.
[14] In her police statement, the complainant said she had written about the sexual abuse in her diary. After she recounted the allegations of sexual assault, the officer left the room. When the officer returned, she told the complainant to “Keep that diary. It seems to be helping writing down everything.” The officer then asked: “Did you look into your diary and see if you missed anything?” The complainant replied that she had, but said she had nothing more to add. The appellant claims this suggests that in preparing for her interview, the complainant refreshed her memory by reviewing her diary.
[15] Defence counsel at trial (not Mr. Litkowski) took the position that the diary was likely relevant as it would establish that the complainant lied about recording the sexual assaults in her diary and her foster mother discovering the entries. According to defence counsel, if the diary disclosed sexual assaults, the foster mother would have immediately called police. Defence counsel also argued that if an entry did exist, there could be impeachment value if it differed from the complainant’s police statement.
[16] The application judge dismissed the application as he concluded that the diary was not “likely relevant”. He held that the existence of the diary entry could be confirmed through witness testimony, without production of the diary itself. Moreover, the diary could not be used by the Crown as (i) establishing likely relevance based on the assertion that the diary may contain a prior inconsistent statement is explicitly prohibited by s. 278.3(4) of the Criminal Code; and; (ii) the diary had no impeachment value as (a) the complainant’s failure to disclose the allegations of sexual abuse when she first spoke to police (when she made allegations of physical abuse against her mother) and the fact that the complainant’s foster mother did not immediately disclose the allegation of sexual abuse to police after reading it in the diary were uncontested facts that could be confirmed through witness testimony and (b) the level of detail about the allegations in the diary as compared to the complainant’s police statement was not relevant for impeachment value, as the level of detail in a diary entry varies from person to person.
[17] Deference is owed to the application judge’s exercise of discretion and, for the reasons that follow, I see no reason to interfere with his decision to dismiss the application.
[18] First, the application judge was correct to note that simply asserting that the diary may contain a prior inconsistent statement is not sufficient to establish likely relevance: Criminal Code, s. 278.3(4); see also R. v. D.M. (2000), 37 C.R. (5th) 80 (Ont. S.C.), at paras. 37-43. Second, the appellant chose not to lead evidence from the foster mother on the application, or call her as a witness at trial. Third, the fact that the complainant did not disclose sexual abuse when she first spoke to police is only evidence of delayed disclosure, which on its own is not significant to her credibility: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. D.P., 2017 ONCA 263, at paras. 28-31, leave to appeal refused, [2017] S.C.C.A. No. 261.
[19] As such, on the evidence before him and the submissions made, the appellant did not satisfy his onus to establish that the diary was likely relevant to an issue at trial.
[20] The appellant now raises a new argument for the first time on appeal: that the diary is likely relevant as the complainant had the diary in the interview room when she was first interviewed by the police. The appellant claims the complainant’s diary is likely relevant as it is impossible to know how much her statement to police and/or her testimony regarding the incidents of sexual abuse, were refreshed by what she had written in her diary and if so, how the diary entries could have affected what she said. The appellant therefore claims that the application should have proceeded to the second stage and thereafter, been produced to the appellant.
[21] The argument that the diary may have refreshed the complainant’s memory was never raised before the application judge. The failure to find a document was likely relevant cannot therefore be a reversible error on the part of the application judge given the application’s onus and the fact that the issue was not raised before him.
[22] In any event, as noted by counsel for the respondent in her submissions, it is not clear on this record that the complainant did, in fact, refresh her memory by reviewing her diary before giving her account of the sexual interference to the police. The interview was recorded and there is no indication at the outset that the complainant had reviewed her diary entries. After she recounted the sexual assaults by the appellant, the police officer left the room for a few moments and the complainant looked through her diary. When the officer returned and asked her, “Did you look into your diary and see if you missed anything?” she advised that she had nothing to add.
[23] For these reasons, I would dismiss the first ground of appeal.
II. Whether the trial judge’s use of the diary to enhance the complainant’s credibility, was improper
[24] The appellant claims that thereafter, and contrary to the application judge’s conclusion that it was not “likely relevant”, the trial judge held that the diary enhanced the complainant’s credibility. This, the appellant claims, is in stark contrast to the application judge’s ruling that the diary was not “likely relevant” even at the threshold production stage. The appellant therefore claims that it was “fundamentally unfair” and improper for the trial judge to rely on a document that was not disclosed to the defence, to enhance the complainant’s credibility.
[25] I disagree. The trial judge held that, “[T]he fact that [the complainant] recorded the incidents in her diary and could only reveal what she had experienced through her diary enhanced her credibility.” This reference was not improper. The trial judge was simply saying that the fact that the complainant felt she had no one to go to so she wrote about the assaults in her diary, enhanced the credibility of her explanation that she was ashamed and embarrassed and therefore did not come forward earlier. It thereby assisted her to refute the appellant’s assertion that the complainant had a motive to lie. This is a permissible use, particularly in the case of the testimony of a child: R. v. G.C., 2006 ONCA 577, at paras. 20-22.
[26] In other words, it was not what was in the diary, but the fact that the complainant kept a diary that suggests that her statement that she could not tell anyone, was more credible: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-38; R. v. Khan, 2017 ONCA 114, 345 C.C.C. (3d) 419, at paras. 30-32, leave to appeal refused, [2017] S.C.C.A. No. 139.
[27] For these reasons, I would dismiss the second ground of appeal.
III. Whether the trial judge erred by misapprehending the appellant’s evidence about whether he was home when the complainant showered
[28] The complainant said that on certain occasions, she was sexually assaulted just after taking her shower. The appellant claims that the trial judge misapprehended his evidence about whether he was ever home when the complainant showered.
[29] A misapprehension of evidence will amount to a miscarriage of justice where the mistake goes to the substance rather than the detail of the evidence, is material rather than peripheral to the trial judge’s reasoning, and plays an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2 and 8.
[30] The trial judge correctly noted that the complainant gave evidence that she showered upon coming home from school. In examination in chief, the appellant repeatedly said he was at work when the complainant came home after school to shower. She also correctly noted that in cross-examination, for the first time, the appellant agreed that he could not be certain he had never been home when she showered, but that other adults would have been at home at that time because he was never home alone with her. He also said that he knew about her hair washing routine because sometimes he was home when she showered. In re-examination, the appellant’s own counsel invited the appellant to clarify his evidence, noting that he “gave a couple of differing answers” on this issue.
[31] I therefore see no error in the trial judge’s articulation of the evidence on this point or her conclusion that:
[T]here was no reasonable basis for him to deny that he was ever at home when his daughter took her showers. Except that L.C.M. explained that when the first incident occurred, she had just come out of the shower and had a towel around her. Distancing himself from L.C.M.’s shower activities became an imperative for his defense. But in doing so, R.K.’s insistence that he was never home when L.C.M. showered was odd and incongruent with the rest of his time at the apartment.
Common sense would suggest that one or both parents are typically at home when their children shower. Somewhat ironically, R.K.’s mother in-law, who was called to support R.K.’s defence, hit the nail on the head when in response to a question concerning R.K.’s presence at the home during L.C.M.’s showers she asked spontaneously and rhetorically what was wrong with a father being at home when his daughter was taking a shower. Of course, nothing is wrong with a father being at home when his child is taking a shower. What E.C. did not know was that this idea originated with R.K.’s denial that he was ever at home.
[32] I would therefore dismiss this ground of appeal.
IV. Whether the appellant was improperly cross-examined on evidence of bad acts unrelated to this offence and whether the trial judge improperly relied upon this evidence to find that the appellant was not a credible witness
[33] The appellant claims the trial judge erred in permitting the appellant to be cross-examined on his guilty plea resulting in an assault conviction (involving his former wife), and on his involvement in having the complainant and her brother shoplift at Walmart.
[34] I disagree. These facts were first elicited by defence counsel in his cross-examination of the complainant. Thereafter, the Crown revisited these topics on the appellant’s cross-examination and, when an objection was raised, clarified that the intent was only to give the appellant the opportunity to respond to the evidence defence counsel had already elicited from the complainant about these events. The Crown stated that she did not intend to imply that any previous bad acts were relevant to whether or not the appellant was guilty of the sexual interference charge.
[35] During further cross-examination on the appellant’s unrelated conviction for assaulting his spouse, both the Crown and the trial judge intervened to tell the appellant that he was not on trial for police calls, that the court would presume he was innocent, and that he should only answer questions he was asked.
[36] Furthermore, the trial judge did not use the appellant’s prior conviction for impermissible propensity reasoning. She simply referred to the assault charge in noting the appellant’s shifting characterization of the relationship between his wife and daughter.
[37] For these reasons, I would dismiss this fourth ground of appeal.
V. Whether the trial judge improperly considered the complainant’s demeanour in assessing her credibility
[38] The appellant claims that the trial judge erred in considering the complainant’s demeanour in assessing her credibility, noting her “stamina and confidence” in responding to questions.
[39] While reliance on the demeanour of witnesses should be approached with caution, it is not improper to consider demeanour in assessing credibility: R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89 and R. v. J.L., 2022 ONCA 271, at para. 6.
[40] In this case, the complainant’s demeanour was only one of many factors cited in support of the trial judge’s finding that the complainant’s evidence was credible, and the trial judge did not place undue weight on this factor. The trial judge was simply referring, in her comprehensive reasons, to the fact that the complainant, a 15-year-old girl, was unshaken over two days of testimony and had provided clear and consistent answers as to why she did not disclose the sexual abuse at the time it was happening, despite repeated suggestions that she had fabricated the allegations of sexual abuse by the appellant.
[41] I would therefore dismiss this ground of appeal.
VI. Whether the trial judge improperly concluded that the complainant’s account was “corroborated” by peripheral details and improperly relied on them to assist in convicting the appellant
[42] The appellant submits that the trial judge erred in relying on defence evidence that corroborated the complainant’s testimony on points that were not directly relevant to the allegation of sexual abuse. In particular, she referred to evidence that corroborated the complainant’s assertion that she did the laundry, that she and her brothers were asked by her parents to steal from Walmart, that her mother physically abused her, and that the appellant slept in the living room and was home every day.
[43] I see no error in the trial judge’s consideration of this evidence as confirmatory evidence need not directly confirm key allegations in order to be considered in assessing credibility. The evidence need only be “more consistent with the complainant’s version of events than with another version”: R. v. J.B., 2022 ONCA 214, at para. 37. Each point was logically relevant to assessing the complainant’s credibility, particularly given the appellant’s submission that the complainant was an untruthful witness: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462 and R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568.
[44] As such, I would dismiss this ground of appeal.
VII. Whether the trial judge improperly relied on the apparent lack of motive to fabricate as corroborative of the truth of the complainant’s allegations
[45] The appellant submits that the trial judge erred in her treatment of the defence theory of motive to fabricate.
[46] A lack of evidence of a complainant’s motive to lie may be relevant to credibility, particularly where motive to fabricate is raised by the defence: R.v. Gerrard, 2022 SCC 13, 413 C.C.C. (3d) 487, at para. 4. The risks lie in confusing an absence of evidence of motive to lie with evidence of no motive to lie; giving undue weight to an absence of evidence of motive to lie; moving directly from a finding of no apparent motive lie to the conclusion that a witness is telling the truth; finding a proven absence of motive to lie when the evidence does not support the finding; or placing an onus on the accused to prove the complainant had a motive to lie: Gerrard, at para. 4; R. v. A.E.S.P., 2022 ONCA 405, at para. 42; and R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 34-36, 51- 52, and 57-58, leave to appeal refused, [2021] S.C.C.A. No. 127.
[47] In this case, the defence theory was that the complainant had a motive to fabricate as she hated her father and asked at the end of her police interview: “So my dad’s going to get in trouble?”
[48] The trial judge rejected the defence theory and found an absence of evidence of motive to fabricate.
[49] The trial judge noted that the complainant did not deny that she hated her father for the last six years but rejected the suggestion that she wanted to get the appellant into trouble. She said “it was the officer who interviewed her that told her that what her father did to her was wrong. When pushed further on the issue of wanting to get her father into trouble, L.C.M. vehemently denied that suggestion ...” The complainant testified in cross-examination that "I did not really want him to get in trouble, but then at the end of the day [the officer] reminded me it is something that I don't have to worry about and it's out of my control."
[50] The trial judge found, “L.C.M.’s express worry and fear about what would happen to her father when she gave her statement to the police to be sincere and to reflect a deep level of concern. In short, I found nothing in the evidence to question whether or not L.C.M. had any motivation to fabricate the allegations against her father.”
[51] The trial judge also agreed with the Crown that the complainant “had nothing to gain” by reporting the sexual abuse. Read in context, this is an acceptance of the complainant’s account of being reluctant to disclose her sexual abuse and of her deep shame and suicidal thoughts after doing so. This was a finding open to her on the evidence and in any event, was only one of many reasons that the trial judge found the complainant to be a credible witness.
[52] As such, I would dismiss this ground of appeal.
VIII. Whether the trial judge applied uneven scrutiny to the evidence
[53] The appellant also argues that the trial judge applied uneven scrutiny to the Crown and defence evidence.
[54] Uneven scrutiny is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied: G.F., at para. 99.
[55] The appellant has not pointed to anything clear and sufficiently significant in the record to displace the deference owed to the trial judge’s credibility assessment: G.F., at paras. 99-100.
[56] The trial judge found that the appellant’s evidence was “riddled with contradictions” which undermined his credibility, and that by contrast, the inconsistencies in the complainant’s evidence were minor and did not undermine her credibility. She noted that a theme in his testimony was that he had no opportunity to sexually abuse his daughter because he was rarely in the apartment, and found that this theme did not withstand cross-examination. She concluded that he was being untruthful.
[57] She also found the mother-in-law’s credibility “dubious at best,” noting her extreme assertion that she never left the apartment without the complainant and her attempts to cast blame on the complainant and favour the appellant. She observed that the mother-in-law’s evidence about the appellant’s comings and goings contradicted the appellant’s evidence that he moved out before she moved in.
[58] The trial judge found the complainant to be a truthful witness, noting that she readily admitted to facts that put her in a poor light, including shoplifting, seeing pornography, and sneaking Nutella while her parents were sleeping. She noted that the complainant’s descriptions of the sexual abuse in her police statement and at trial corresponded to her age and experience, and that inconsistencies in other details of her evidence were minor and did not undermine her testimony. She also noted that the defence witnesses corroborated much of the complainant’s evidence. The trial judge was struck by the complainant’s stamina, confidence, sincerity, and insight into the significant trauma she had experienced and how she had attempted to cope with it. She rejected the defence theory of fabrication, finding that on the contrary, the complainant’s account of when, how, and why she ultimately reported the sexual abuse enhanced her credibility.
[59] The trial judge was therefore satisfied beyond a reasonable doubt that the appellant sexually interfered with the complainant on multiple occasions over an extended period.
[60] I disagree that the trial judge engaged in uneven scrutiny of the evidence such that the appellant meets the very high threshold to succeed on a claim of uneven scrutiny. She provided a careful and detailed credibility analysis of the appellant, an adult, and the complainant, a 15-year-old testifying about her childhood, each of whom gave different evidence.
[61] For these reasons, I would dismiss this ground of appeal.
C. Whether the sentence is fit
[62] Lastly, the appellant claims his eight-year sentence is unfit and unduly harsh.
[63] In R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), at para. 44, this court held that upper single digit to low double digit penitentiary terms will generally be appropriate for regular and persistent sexual abuse of a child that, as here, includes intercourse and other physical violence and is perpetrated by an adult in a position of trust. More recently in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 114, the Supreme Court of Canada confirmed that upper-single digit penitentiary terms for sexual offences against children should be neither unusual nor reserved for rare or exceptional circumstances.
[64] The appellant was convicted of longstanding, extensive, aggressive sexual abuse of a young child by her own father over a period of six years. Moreover counsel for the appellant acknowledged that the sentence is within the range of sentences that have been imposed on similar offenders who committed similar crimes.
[65] As such, I see no reason to interfere with the sentence imposed.
D. CONCLUSION
[66] For the above reasons, I would dismiss the appeal.
Released: October 04, 2023 “C.W.H” “Thorburn J.A.” “I agree. C.W. Hourigan J.A.” “I agree. J. Copeland J.A.”
[^1]: We sought submissions from counsel with respect to whether these reasons could be published because s. 278.9 of the Criminal Code, R.S.C. 1985, c. C-46 imposes a publication ban relating to the complainant’s records. The parties advised, after the Crown had consulted the complainant, that they have no objection to the full publication of our reasons. We have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons, without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.
