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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231027 DOCKET: C70259
Fairburn A.C.J.O., Lauwers and Miller JJ.A.
BETWEEN
His Majesty the King Respondent
and
G.S. Appellant
Counsel: Robert Sheppard, for the appellant Jim Clark, for the respondent
Heard: April 19, 2023
On appeal from the convictions entered by Justice Michael R. Gibson of the Superior Court of Justice, sitting with a jury, on October 13, 2021, and the sentence imposed on January 6, 2022.
Fairburn A.C.J.O.:
Overview
[1] The appellant worked at his parents’ bakery at the same time as the young complainant, D.A. Over 20 years later, D.A. disclosed to her husband that, starting when she was 13 years old, she was sexually assaulted by the appellant multiple times. Her husband encouraged her to report the matter to the police, which she did. Charges ensued.
[2] Following his trial before a judge and jury, the appellant was found guilty on five counts: two counts of sexual assault, one count of sexual interference, and two counts of sexual exploitation. The sexual interference and exploitation charges were stayed, pursuant to R. v. Kienapple, 1974 SCC 14, [1975] 1 S.C.R. 729. The appellant was sentenced to a five-and-a-half-year custodial term, concurrent on the second count.
[3] This is an appeal from both conviction and sentence.
[4] The appellant raises two grounds of appeal against conviction. First, he maintains that the trial judge erroneously permitted the trial Crown to re-examine the complainant on prior consistent statements from her testimony at the preliminary inquiry. Second, he contends that, even if the complainant was properly examined on those statements, the trial judge erred in his instructions as to the use that could be made of them.
[5] The appellant also seeks leave to appeal his sentence, which he challenges on two grounds. First, he says that the trial judge erred by failing to take the principle of restraint into account. Second, he argues that the sentence is demonstrably unfit.
[6] For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence and allow the sentence appeal but only to the extent that the lifetime order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), is reduced to 20 years.
Factual Background
[7] The appellant’s and complainant’s families were friends.
[8] When D.A. was 13 years old and for a few years after, she worked at the appellant’s family’s bakery. At that time, the appellant was 37 years old. He worked as a delivery driver for the bakery. D.A. considered the appellant to be her “boss”.
[9] D.A. testified that the appellant sexually assaulted her on three separate occasions. The first two occasions took place in the bakery’s delivery van, which was driven by the appellant.
[10] She testified at trial that, in the first incident, which happened when she was working, the appellant told her to come to the van. When she arrived, the appellant was in the back of the van pulling his pants down. He asked her to get into the van. He started taking her clothes off and then instructed her to remove her pants. After removing her clothing, the appellant had sexual intercourse with her, a 13-year-old, 100-pound child laying on the floor of the van. She testified that she remembers the divots on the van floor poking into her back while the appellant pushed himself against her and how she cried the whole time. When it was over, the appellant told her not to tell anyone and to get cleaned up.
[11] According to her trial testimony, the second incident occurred when she was 15. The appellant told her to get into the back of the van when they had finished making some deliveries in Toronto. He told her to take her pants off, which she did, believing that she had no choice. There was no one there to help her and she believed that she could not run away. He again had sexual intercourse with her. She, again, cried the whole time.
[12] She testified at trial that the final incident occurred around the time of the appellant’s father’s death, which was about a year after the second van incident, when she was 16. She and her family went to a gathering in honour of the appellant’s deceased father. While she was there, the appellant asked her to go with him to his parents’ home so that he could get something. Once there, the appellant went upstairs and then called her to come up. When she arrived upstairs, the appellant was putting on a condom and said: “one last time.” He told her to remove her clothes. The appellant then had brief sexual intercourse with her. When asked why she had complied, she testified “I was 16, I had no idea.”
[13] The appellant testified, denying that he ever engaged in any sexual activity with the complainant.
Analysis
(1) Issue #1 – Did the trial judge err in allowing the Crown to re-examine the complainant on prior consistent statements?
(a) Overview
[14] D.A. spoke about the conduct that formed the subject of the indictment on three occasions: (i) in her initial statement to the police, over 20 years following the incidents; (ii) in her testimony at the preliminary inquiry; and (iii) in her testimony at trial.
[15] At trial, during cross-examination, D.A. was confronted with inconsistencies between what she had told the police during her initial statement and her testimony at trial. Crown counsel raised the concern that while there were inconsistencies between the complainant’s trial testimony and her police statement, her evidence at the preliminary inquiry was the same as her trial evidence. Accordingly, the Crown sought and was granted permission to re-examine the complainant on the consistencies between her preliminary inquiry and trial evidence. It is this ruling that forms the subject of the first ground of appeal.
[16] For the reasons that follow, I see no error in permitting the Crown to elicit evidence about the prior consistent statements from the preliminary inquiry.
(b) The prior inconsistent statements
[17] During cross-examination, D.A. was asked about inconsistencies between her trial testimony and what she had told the police about each of the three incidents. The principal areas of contention are as follows:
First Incident D.A. told the police that, during the first incident, the appellant was fully naked when she approached the van. She said that he was lying “naked” in the van and told her to “come on in.”
At trial, she testified that, when she approached the van, the appellant only had his pants lowered and his underwear was still on. It was only once she was inside the van and he had shut the door that he took his pants and underwear off.
During cross-examination, D.A. acknowledged the inconsistency between her police statement and evidence at trial. While she endeavoured to explain why her memory had changed on this point, the trial judge stopped her, saying that her answers had to be responsive to questions put and that the Crown could pursue any explanation she may have in re-examination.
Second Incident D.A. told the police that the appellant got into the back of the delivery van when he and the complainant were making a delivery in Toronto. She said that he directed her to the back and then he took her shirt off and touched her breasts. She also said that he took her pants off, but not completely.
At trial, she testified that the appellant did not take her shirt off and that both the appellant’s and her shirts stayed on. She also testified that the appellant had started undoing her pants, and then she took them fully off after he told her to.
She again acknowledged the inconsistencies between her police statement and trial testimony.
Third Incident D.A. told the police that the appellant had removed her clothing after he called her up to the bedroom in his parents’ home and that she could not recall if there had been full intercourse during the third incident.
At trial, she testified that she had removed her own clothing at the appellant’s direction and that there was brief intercourse.
Like she had for the other incidents, D.A. also acknowledged these inconsistencies between what she had told the police and what she testified to at trial.
[18] D.A. was confronted with one other matter during cross-examination. During her trial testimony, she said that she started working at the bakery in 1998. In challenging her on this date, defence counsel presented her with a copy of her resume which suggested that she worked at the bakery from 1999 to 2002. She explained that while her resume said she started working at the bakery in 1999, it was simply what she “remember[ed] at [that] time.” She explained that she had a better recollection of dates at trial and, quite simply, her resume was wrong.
(c) The Crown raised an objection during cross-examination
[19] Outside of D.A.’s presence, Crown counsel raised a concern about the way the cross-examination was unfolding. Specifically, Crown counsel expressed concern about the fact that defence counsel was confronting D.A. with inconsistencies between her police statement and trial evidence, and leaving unaddressed the fact that D.A.’s preliminary inquiry evidence was entirely consistent with her trial evidence. The trial Crown was clear that if the cross-examination continued along this path, the Crown would seek to put the prior consistent statements from the preliminary inquiry to the complainant in re-examination. The Crown said that this would be the only way to “be fair to the witness.”
[20] The defence disagreed with the Crown’s position, claiming that any attempt to raise the prior consistent statements during re-examination would breach the rule against admitting such statements.
[21] The trial judge agreed with the Crown position. He said that to only allow the prior inconsistent statements to be put to the complainant on points upon which she had previously been consistent would risk leaving a “skewed or distorted view of the evidence”. He said the Crown would be permitted to pursue the matter in re-examination.
[22] Accordingly, from that moment on, the defence was on notice that continuing to focus upon the inconsistencies between the police statement and trial evidence, without reference to the consistencies between the preliminary inquiry evidence and the trial evidence, would risk a re-examination focussed upon the complainant’s prior consistent statements.
(d) The final ruling on prior consistent statements
[23] Despite being put on notice, the defence continued to cross-examine D.A. only on the inconsistencies between her police statement and trial evidence. The cross-examination continued to emphasize that the complainant said something different in her police statement than what she “told the court today”.
[24] During another break, the trial judge raised the issue of prior consistent statements, asking the Crown to clarify the purpose for which she sought to use them. She responded that it was “regarding trial fairness, regarding the witness” because the complainant had been contradicted on a few aspects of her evidence, and the suggestion had been left to the jury that it was only at trial that she was saying different things. As the Crown put it, the implicit suggestion embedded in the cross-examination was that these points were “just coming to her” at trial. In fact, that was not true, since the complainant had said the same things in both her trial testimony and her testimony at the preliminary inquiry. The trial Crown concluded by reiterating that if the defence was not going to put the prior consistencies to her on these very points, then the Crown should be entitled to pursue the matter in re-examination.
[25] The trial judge expressed the view that the Crown objection was really rooted in a complaint about an allegation of recent fabrication. The defence disagreed with that suggestion, claiming that they had never raised recent fabrication. To the contrary, it was the defence position that the complainant had been lying ”from the very beginning”.
[26] Ultimately, the trial judge concluded that the defence had implicitly raised an allegation of recent fabrication in D.A.’s evidence at trial: R. v. O’Connor (1995), 25 O.R. (3d) 19 (C.A.), at pp. 27-28, leave to appeal refused, [1995] S.C.C.A. No. 460. By this, I take the trial judge to mean that the defence was implicitly suggesting that the complainant’s version of events at trial had been recently fabricated by her for the first time on the trial date.
[27] As it turned out, the trial judge’s view of the defence position was not far off the mark. Indeed, it accords precisely with what the defence suggested in closing. When recounting the complainant’s evidence about the first incident, defence counsel reviewed what the complainant had told the police and then suggested that she had changed her story to make it sound “more plausible” at trial:
She says that her memory of the incidences from 20 years got better over time and that she now remembers that he wasn’t naked that he was just sitting there about to unbutton his pants and got her in the van and then shut the door and then got naked, which sounds like a more plausible story than having someone just completely naked sitting there hoping that it's her that comes up . She made that change and that was just the first incident . [Emphasis added.]
[28] In these closing remarks, defence counsel suggested that D.A. had, for the first time at trial, fabricated material parts of her evidence to make it sound “more plausible” to the jury that the conduct had occurred. I will return to the impact of these closing remarks on the legal issue.
[29] Ultimately, the trial judge ruled that the complainant could be re-examined on the prior consistent statements from the preliminary inquiry. He said that he would then explain to the jury the purposes for which the statements could and could not be used.
(e) The re-examination
[30] During re-examination, D.A. confirmed that she recalled testifying at the preliminary inquiry, which took place more than 18 months after she gave her police statement. She testified that, by the time that the preliminary inquiry was held, she had had sufficient time to think about what she had been actively attempting to forget for over two decades. That process led to clearer memories of the events. She testified:
I think burying it for so long after 20 years and then going into the police station and they’re like look give me details, at that point I was all very vague in my mind. Um, but between my statement and the preliminary hearing, I had a lot of time to think about it and a lot of flash backs actually … as I keep thinking about things, it becomes more clear and … everything keeps flooding back and I just keep remembering little details of things.
[31] The trial Crown started by refreshing the complainant’s memory on the inconsistencies she had acknowledged between her police statement and trial testimony. The Crown then asked the complainant if she recalled testifying about each of those matters at the preliminary inquiry, which she confirmed. The trial Crown then read parts of the complainant’s preliminary inquiry testimony relating to some of the points upon which she had been inconsistent with what she had told the police. The complainant confirmed that the preliminary inquiry transcript on these points, which was consistent with her trial evidence, accurately reflected what she had previously testified to at the preliminary inquiry.
[32] The re-examination was followed by a mid-trial instruction about the permitted and prohibited uses of prior consistent statements. I will address these instructions under the second issue.
(f) The re-examination was proper
(i) Overview
[33] The appellant argues that the trial judge erred by permitting re-examination on the prior consistent statements from the preliminary inquiry. He maintains that his use of prior inconsistent statements to challenge D.A.’s credibility in cross-examination did not constitute an allegation of recent fabrication. To the contrary, the defence position was always that the complainant was lying from the very outset. Therefore, the appellant contends that the focus upon recent fabrication had no proper place in this trial. In his view, allowing the re-examination to proceed as it did created a real unfairness to him, because the only use the jury would have made of the preliminary inquiry evidence was to improperly bolster the complainant’s credibility.
[34] As I will explain, the trial judge did not err in permitting the re-examination on prior consistent statements. Those statements were clearly admissible for purposes of lending a more complete context for the inconsistencies elicited during the cross-examination.
(ii) The admissibility of prior consistent statements
[35] I start with the well-known rule that prior consistent statements are generally inadmissible. Why? Because lies can be repeated just as easily as truths. Therefore, a witness’ evidence is not rendered more likely to be true simply because the witness has said the same thing on a prior occasion. In the normal course, these types of statements are entirely self-serving, superfluous and lack any probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. See also R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45; R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at paras. 19, 22.
[36] With that said, there are numerous exceptions to the general rule of exclusion.
[37] One such exception is that a prior consistent statement is admissible when an explicit or implicit suggestion is made to a witness that they have made a previously inconsistent statement about a particular point, when in fact they had previously made both inconsistent and consistent statements. In this context, depending upon the exercise of discretion by the trial judge, it is possible to elicit the fact of prior consistent statements in order to achieve contextual fairness.
[38] Therefore, where a witness’ credibility is attacked on the basis of prior inconsistent statements, the question becomes whether a prior consistent statement can assist the trier of fact in making a more accurate assessment of the witness’ credibility by taking away potentially erroneous impressions fostered by the incomplete picture of what the witness has previously said: R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 153; R. v. Royer (1995), 77 O.A.C. 309 (C.A.), at para. 11, aff’d 1996 SCC 197, [1996] 2 S.C.R. 169; and M.A.J., at para. 60. This rule allows for a balanced perspective on the witness’ prior statements and gives the jury a proper and accurate context in which to consider the defence attack upon the credibility and reliability of the witness based upon alleged prior inconsistencies: R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34-36.
(iii) It was necessary to admit the fact of prior consistent statements
[39] The trial judge repeatedly referred to the purpose of the admission as rebutting the allegation of recent fabrication. I would not have necessarily characterized the purpose for admissibility in this way, since the real issue at the time of cross-examination seemed to be the risk of presenting a distorted view of the evidence rather than recent fabrication. However, I understand the trial judge to have simply meant that the defence was attacking the complainant’s credibility on the basis that she had changed her story at trial on certain essential points ─ in other words, that her initial statement to police was a lie and she further fabricated or exaggerated her evidence at trial to make the lie seem more plausible for the jury. This fits the description provided by Finlayson J.A. in O’Connor: an allegation of recent fabrication is really just the making up of a false story “to meet the exigencies of the case”: at pp. 28-29.
[40] When set against the defence closing in this case, that is exactly what the defence was suggesting. As noted, the defence told the jury that they should reject the complainant’s credibility because she had only “now” – at the time of trial – recalled certain details, ones that she thought would make her story sound “more plausible”. In other words, at trial, she was inventing some of her evidence to “meet the exigencies of the case.”
[41] Clearly, the defence closing address alleged that the complainant was fabricating her evidence at the time of the trial on the spot to deceive the jury. This created a misleading and inaccurate picture of her evidence. The complainant had recalled those details in advance of the trial and committed them to the record in her preliminary inquiry testimony. Fairness demanded that the trier of fact understand that context.
[42] Therefore, there was no error in allowing the Crown to pursue this matter in re-examination.
[43] With that said, I wish to address one matter. While it did not form the basis upon which this ground of appeal was advanced, I would make the following observation.
[44] Even where an exception to the general rule of exclusion applies, trial judges must remain on high alert when dealing with prior consistent statements. This is because, even where an exception applies, a risk of prejudice can still flow from the admission of such statements, particularly when unaccompanied by strong jury instructions. Therefore, even after a finding of admissibility is made, it remains incumbent upon trial judges to consider limiting how the prior consistent statement is to be elicited. This includes assessing whether the full content of the statement, or just a part of it, needs to be elicited to achieve the purpose of admission. And, indeed, it includes determining whether it is sufficient to simply elicit the fact that a prior consistent statement was made, without actually placing the statement before the trier of fact: R. v. Hunter (2004), 182 C.C.C. (3d) 121 (Ont. C.A.), at para. 5.
[45] While there was no objection taken at trial or on appeal to the trial Crown having read some passages from the preliminary inquiry transcript aloud during the re-examination, it strikes me that in order to achieve the purpose for admission in this case, there was no need to read from the actual transcript. To place the matter in its proper context, what the jury needed to know was that D.A. was not recounting the impugned details for the first time during her testimony at trial. Accordingly, it would have been sufficient to simply elicit from D.A. that she had testified at the preliminary inquiry in a manner consistent with what she said at trial.
[46] With that said, even if there had been an objection on appeal to the manner in which the re-examination was conducted, this objection could not have succeeded, given the strength of the jury instructions that followed, which instructions I will address next.
(2) Issue #2 – Were the jury instructions sufficient?
(a) Overview
[47] The appellant argues that both the mid-trial instructions and the charge to the jury, as it relates to the prior consistent statements, were, at best, confusing. In particular, the appellant contends that, by referencing recent fabrication, the instructions injected confusion into the situation, leaving the jury ill-equipped to understand how to properly approach those statements. The appellant maintains that the jury instructions would have left the jury thinking that they could use those statements to assess the complainant’s credibility.
[48] I do not accept these submissions.
(b) The instructions
[49] The trial judge gave mid-trial instructions immediately after the re-examination of D.A. was complete. He started with instructions on the use of prior inconsistent statements, carefully explaining how they could be used to assess the complainant’s credibility. There is no objection to this part of the charge.
[50] That instruction was followed with the instruction on prior consistent statements. The jury was instructed on both the prohibited and permitted uses of prior consistent statements. With respect to prohibited uses, the jury was told the following:
Just because a person has said the same thing about the same event more than once, in this case both before and at this trial, does not make what she said about it more likely to be true. Repetition and accuracy or truthfulness are not the same thing. If a statement is concocted, it remains a concocted statement no matter how many times a person who has made it has repeated it. You must not use evidence of what [the complainant] said before trial about the same events about what she said the same or similar things here in evidence in this trial as evidence of the truth of the contents of what she said out of court.
Now, I appreciate this is a subtle distinction, but it’s very important for you to understand this. In other words, the previous out of court account, the transcript from the preliminary inquiry that you were shown, is not evidence for the purpose of this trial and you must not use it as evidence much less proof of what actually happened.
[51] The trial judge then went on to instruct the jury on the purpose for which they could use the prior consistent statements:
The only purpose for which you may use what [the complainant] said on the preliminary inquiry is to rebut an allegation of recent fabrication. That is to say, if it was implied in the defence questions that she had made up her evidence at this trial, you have to consider what she said before only for the very limited purpose of whether it’s a recent fabrication . What she said on the preliminary inquiry is not evidence of its truth. [Emphasis added.]
[52] The trial judge then reinforced that the prior consistent statements could not be used to “enhance the credibility of [the complainant]”.
[53] In his charge to the jury, the trial judge repeated his instructions relating to the permitted and prohibited uses of prior inconsistent and consistent statements. As it relates to prior consistent statements, the trial judge reinforced that repetition and accuracy or truthfulness are not the same thing and that a concocted statement will remain concocted no matter how many times it is repeated.
[54] The trial judge also reinforced that the prior statements could not be used for a hearsay purpose and could not stand as evidence of what happened. Nor could the statements be used to “bolster” the complainant’s credibility. As he said: “repetition of what is said to have happened does not lend truth to her account, nor does the repetition act as independent evidence of what occurred. You may not infer that the complainant was telling the truth or that the alleged events happened simply because she has said the same thing on previous occasions.”
[55] The appellant takes no objection to any of those instructions. Nor could he. This jury charge, combined with the mid-trial instructions, was strong and covered the field when it came to prohibited uses of prior consistent statements.
[56] The sole objection on appeal is directed at what the trial judge said during the charge about the permitted uses of the prior consistent statements. The charge on this point was as follows:
The only purpose for which you may use what [D.A.] said at the Preliminary Inquiry about the incidents in 1998 to 2001 is to rebut any allegation of recent fabrication, to show that she had been previously consistent on a particular matter. The consistencies are relevant solely to enable you, as the trier of fact, to assess whether the relevant statements made by the complainant, [D.A.], in her statement to police in 2019 is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in details should have on the overall credibility and reliability of [the complainant] as a witness.
[57] Recall that this instruction came in the immediate wake of the defence closing, where defence counsel told the jury that the complainant’s testimony had “changed” and that she was only “now” saying that she remembered certain things so that her story would be “more plausible”. The charge also followed not long after the mid-trial instruction, where the jury had been told what the trial judge meant by an allegation of recent fabrication: “That is to say, if it was implied in the d efence questions that she had made up her evidence at this trial, you have to consider what she said before only for the very limited purpose of whether it’s a recent fabrication .”
[58] It is against that backdrop that the jury was provided with these instructions.
(c) The jury instructions were proper
[59] In my view, the instructions are correct and allowed the jury to decide the case in accordance with the law and evidence. The instructions explained to the jury that the consistent statements could only be used to assess whether the suggestion that the complainant was making up her evidence for the first time at trial was true and to assess the inconsistencies leaned on by the defence within their proper context.
[60] The fact that the defence did not object to the instructions goes some distance to demonstrating that there is no prejudice arising from the instruction. This is not a case where the defence may have simply overlooked an error in the instructions. To the contrary, the trial judge provided his draft charge to counsel and specifically drew their attention to the now impugned instructions, asking for input. Defence counsel had none.
[61] In the end, the trial judge’s concern was about making sure that the jury had the tools available to make a fair assessment of D.A.’s evidence in light of her prior statements. Taken together, the jury was provided with instructions that clearly and correctly set out both the prohibited and permitted uses of the prior consistent statements.
(3) Issue #3 – Should the appellant’s sentence be varied?
(a) Overview
[62] The appellant was sentenced to five-and-a-half years in custody. He argues that the trial judge failed to take the principle of restraint into account when he imposed sentence. The appellant also claims that the sentence is demonstrably unfit, given his age (61 at the time of sentencing), his struggles with depression since his arrest, and his wife’s dependency on him. Defence counsel suggests that, having regard to all of these factors, a four-year sentence is appropriate and would properly take into account the principle of restraint.
[63] For the reasons that follow, I would not interfere with the custodial sentence imposed.
(b) Applicable sentencing principles
[64] An appellate court will only intervene to vary a sentence where the trial judge has made an error in principle that has impacted the sentence or where the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 44.
[65] Deterrence and denunciation are the primary concerns when sentencing those convicted of sexual abuse of children: Friesen, at para. 101. As has always been and will always remain the case, children are inherently precious to society. Sexual predators who set their sights on children steal from them their right to innocence, their right to safety and their right to be free from the profound harm that will inevitably follow them long into adulthood. The sexual exploitation of children does deep harm to the child and deep harm to society. This is why mid-single digit penitentiary sentences are not unusual for offences of this nature: Friesen, at paras. 75-76, 114.
(c) The trial judge properly imposed an appropriate custodial sentence
[66] The trial judge took all proper factors into account when sentencing the appellant. He noted the long-term harmful consequences of the appellant’s actions on the complainant, something she continues to live with to this day. As an adult, a wife and a mother, D.A. still struggles with what the appellant did to her as she started her teen years. She refers to her ongoing condition as one involving “debilitating trauma”. The trial judge properly took this into account.
[67] He also took into account the fact that the appellant abused a position of trust and authority in relation to the then young complainant. And he took into account the repeated nature of the conduct.
[68] I disagree that the trial judge failed to take restraint into account. He specifically noted the principle of restraint in his sentencing reasons. He was also very much alive to the fact that he was sentencing a first-time offender and that this should work as a mitigating factor in the appellant’s favour. The fact of the matter is that there was no non-custodial option available in the circumstances of this case.
[69] The sentence was not demonstrably unfit. In most cases, a three- to five-year range for sexually abusing children in the context of a position of trust is too low: R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, at para. 66. The appellant had repeated sexual intercourse with the young teen while she worked at his parents’ bakery and while he was in his late thirties. He abused her in the bakery’s van and he abused her at his parents’ home. He breached his position of trust toward the complainant.
[70] I see no basis upon which to interfere with the custodial sentence imposed.
[71] I would though, on the consent of the Crown, set aside the lifetime SOIRA order and substitute a 20-year term: R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389.
Conclusion
[72] I would dismiss the conviction appeal. I would grant leave to appeal sentence and grant the sentence appeal only to the extent of the SOIRA order being set aside and substituted with a 20-year term.
Released: “October 27, 2023 JMF”
“Fairburn A.C.J.O.”
“I agree. P. Lauwers J.A.”
“I agree. B.W. Miller J.A.”
