R. v. H.A.E., 2018 ONSC 5690

Court File and Parties

COURT FILE NO.: 150/17 DATE: 2018/09/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. H.A.E.

BEFORE: Justice I.F. Leach

COUNSEL: Robert Sheppard, for the appellant H.A.E. Christopher Heron, for the respondent Crown

HEARD: June 29, 2018

Endorsement

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Introduction

1H.A.E, appeals from his conviction in the Ontario Court of Justice (“OCJ”) on August 22, 2017, on a charge of sexual assault contrary to s.271(1) of the Criminal Code of Canada, (“the Code”).

2H.A.E. also appeals from the corresponding sentence imposed upon him in the OCJ on October 16, 2017; a sentence which included a six month conditional sentence, (with a curfew rather than house arrest), followed by one year of probation, and an order requiring H.A.E. to comply with the provisions of the Sex Offender Information Registration Act, (or “SOIRA”), for a period of 10 years.

Background

3In addition to the conviction and sentencing reasons of the trial judge, I have reviewed and considered all of the evidence presented at trial in detail, and the necessarily incomplete summary that follows should not suggest otherwise.

4However, by way of overview, background to the underlying conviction and sentence includes the following:

• At the time of the events in question, the appellant was approximately 70 years old, and was living separately from his wife and the couple’s two adult children. He held a doctorate in chemistry. In addition to being a university professor, he operated a business that included his organization of international scientific conferences held in various countries. Having immigrated to Canada from a country in the Middle East, English was not his first language.
• At the time of the events in question, the complainant was approximately 24 years old, and was living with her husband and the couple’s young baby. She too was of Middle-Eastern descent. She was employed in the service industry, but also had a background in English studies, including partial completion of a Bachelor’s degree in English.
• The appellant patronized a restaurant operated by the complainant’s father, with whom the appellant enjoyed a friendly relationship. The complainant also worked in that restaurant from time to time. Through her father and other restaurant employees, the complainant came to understand that the appellant sometimes hired administrative assistants to help with his work activities.
• The complainant offered to work for the appellant, and the appellant thereafter employed her repeatedly. Although the complainant had asked about the possibility of receiving an advance payment of $11,000, that was not acceptable to the appellant. The complainant instead worked for the appellant on an hourly basis. The appellant also continued to employ other administrative assistants from time to time.
• Over the course of the parties’ working relationship, they communicated regularly through text messaging, and occasional telephone conversations, in addition to direct interaction. The text exchanges included occasional references to matters of a more social nature, (e.g., feelings about work tasks, reference to interactions with family, and travel plans), as well as occasional tensions and disputes about the complainant’s availability for work and/or desire for more work. The text exchanges also included discussion of occasional arrangements to meet directly; e.g., to discuss work-related matters and resolve such disputes. In the course of such exchanges, the appellant voiced concern about the possible implications of being seen dining in public with the complainant, (as he was concerned about gossip and the potential reactions of his separated spouse), and expressed a preference for meeting in his office. The complainant nevertheless indicated a preference for meeting in public places, (e.g., at restaurants), emphasizing that the purpose was “strictly professional” and that the parties were “not going on a date”. In the result, the parties met occasionally at restaurants within the city of London.
• Text messages exchanged between the parties in January and February of 2016 indicate renewed tensions and possible misunderstandings between the parties. They included indications by the appellant that he might no longer employ the complainant, and indications by the complainant that she wanted to resolve such issues and do further work for the appellant. Those communications culminated in exchanges wherein:
  • The complainant asked the appellant to meet in person, and suggested that the meeting take place at a certain restaurant in London.
  • The appellant agreed to meet, but indicated his preference for a 30 minute drive to a “nice restaurant in the country areas”. In that regard, the appellant emphasized that he was very stressed and in need of change, was “sick and tired of the city”, wanted to meet in his “preferred way for a change”, was “not prepared to [meet in] the city”, and that the complainant should accept his proposal to drive into the country as he previously had agreed to her proposals to meet within the city.
  • The complainant just as repeatedly indicated her preference to meet within the city, and her reluctance to travel into the countryside. In that regard, she emphasized that she travelled into the countryside with her husband and father, that she now did so only with her husband, that doing so was “very intimate” for her, that doing so with the appellant made her “uncomfortable”, that there was “plenty to do” in the city with “good company”, and that she was grateful for the “generous offer” to travel into the country but asked for the appellant’s understanding.
  • The complainant nevertheless eventually indicated her agreement to join the appellant on his contemplated “road trip”.
• There is no dispute that the appellant thereafter met the complainant on the afternoon of March 5, 2016; that the appellant drove the complainant to a rural restaurant outside of London, from which the parties left a short time later without having eaten; that the appellant then drove the complainant to a restaurant in London; and that, although the parties entered the restaurant together, the complainant departed shortly thereafter on her own after speaking with the restaurant manager, leaving the appellant behind.
• At trial, testimony from the complainant about the events of March 5, 2016, included indications:
  • that she eventually agreed to go along with the appellant’s suggestion of a drive to a rural restaurant outside London because she feared loss of further work from the appellant if she continued to refuse the appellant’s invitations in that regard;
  • that she felt she could “handle” herself during the contemplated road trip, (e.g., as the appellant was an older man), but still felt nervous and therefore kept her cellular phone to hand, (as suggested by her husband);
  • that she used the cellular telephone to record her initial interactions with the appellant on the way to the rural restaurant, but turned it off when the topics of conversation seemed innocent and she felt more comfortable with the situation;
  • that the parties left the rural restaurant almost immediately after arriving there, as the appellant said it was not to his liking;
  • that the complainant then renewed her suggestion of dining at the London restaurant she had suggested;
  • that, during the drive from the rural restaurant to the restaurant in London:
    • the appellant took hold of the complainant’s left hand, such that the parties’ joined hands came to rest on the purse the complainant had in her lap;
    • the appellant asked the complainant to move her purse off her lap, for the stated reason there was a hard object in it, before shoving the purse aside himself;
    • the complainant once again felt nervous, and resumed her recording of the parties’ conversation;
    • the appellant directed the conversation towards sexual matters and his attraction to the complainant; and
    • the appellant, despite repeated objections and protests from the complainant, progressively moved his hand to her thigh and vaginal areas, and proceeded to rub her vagina and clitoris through her clothing.
  • that, after arriving at the London restaurant:
    • the complainant was relieved to be getting out of the vehicle and entering a public place;
    • the complainant initially entered the London restaurant with the appellant, but shortly thereafter went to the ladies room to compose herself and communicate with a friend, and then informed the appellant that she needed to excuse herself again to smoke a cigarette;
    • the complainant then approached and spoke with the London restaurant’s manager, (after confirming she could not be seen by the appellant in that location), indicating that she had been sexually assaulted and intended to leave, but wanted restaurant staff to wait at least 15 minutes before advising the appellant she was not returning; and
    • declining an offer from the restaurant manager to call the police, (as she did not want to create a scene at the restaurant), the complainant then went to a nearby store to telephone her husband and wait for his arrival and transportation away from the scene.
• At trial, testimony from the appellant about the events of March 5, 2016 included the following indications:
  • that the complainant kissed and hugged the appellant in the parking lot of the rural restaurant;
  • that none of the complainant’s “body language” during the drive back to London seemed resistive or defensive;
  • that the complainant was the one who took hold of the appellant’s hand as the parties were driving;
  • that the complainant then started squeezing the appellant’s hand in a massaging motion, and leaning towards him;
  • that the complainant moved her purse off her lap to make her thigh and genital regions more accessible;
  • that the complainant, while still holding the appellant’s hand, then moved the parties’ joined hands to her thigh area before he then engaged in further sexual touching between the complainant’s legs, which the complainant enjoyed; and
  • that while the complainant admittedly had told him a number of times to stop touching her, her “body language” and intermittent laughter were indicating that she actually welcomed and consented to such activity.
• At trial, testimony from the manager of the London restaurant about the events of March 5, 2016, included the following indications:
  • that while the complainant seemed “upbeat” and “lively” when she entered the restaurant with the appellant that afternoon, she returned to speak with the manager alone, approximately five minutes after she and the appellant had been seated in the restaurant;
  • that the complainant’s demeanour had “completely changed”, as she had “broken down” and was crying in front of the manager;
  • that the complainant indicated she had been sexually assaulted by the appellant, needed to leave, and wanted the manager to inform the appellant that she had left the restaurant to deal with a family emergency;
  • that the complainant declined an offer by the manager to call the police, as her husband would take care of that; and
  • that the complainant then left the building.
• At trial, there was no dispute that:
  • the complainant had indeed used her cellular phone to make an audio recording of things that were said by the parties during portions of the drive to and from the rural restaurant;
  • that the complainant had sent text messages to a friend at various points during the afternoon in question; and
  • that surveillance video from the London restaurant included a visual recording of certain things that happened when the parties arrived there.
• The audio recording made by the complainant during the drive from the rural restaurant to the restaurant in London included a number of exchanges, wherein the appellant indicated his interest in sexual contact with the complainant, the complainant responded with express indications that she would not and did not consent to sexual touching by the appellant, and indications that the appellant nevertheless persisted in such touching. For example:
  • The appellant brought up the topic of sex, stating “I love sex” a number of times, followed by an indication to the complainant that he had his “eyes on” her from the first time he saw her two years earlier. Moments later, he said “I love this” several times, and the complainant’s immediate responses were: “You can’t touch me”, “You can’t touch me like that” and “I’m loyal to my husband”, punctuated by “No’s” and “ahhs” from the appellant.
  • A further exchange immediately thereafter included the following comments:
    • Complainant: “I do not believe in cheating or any of that stuff. It is one thing if someone [is] single, right? Anything goes.”
    • Appellant: “I’m horny now.”
    • Complainant: “Yeah, touching my leg.”
    • Appellant: “Yeah, I know. I know. I know. I will kiss you after drink, I have to tell you. I will kiss you. And I hope…
    • Complainant: “I don’t…”
    • Appellant: “I hope you, you will allow…”
    • Complainant: “No, I can’t. There’s no way. I need you to take your hands off me, please.”
    • Appellant: “Yeah.”
    • Complainant: “Please…”
    • Appellant: “I’m going to please…”
    • Complainant: “I need you – ah, no I can’t. I need you to take your hands off me. You are so touchy.”
    • Appellant: “I know because…”
    • Complainant: “Because…”
    • Appellant: “I cannot resist you. I cannot resist you.”
    • Complainant: “I know, but we made an agreement.”
    • Appellant: “I cannot resist you. Yeah, believe me, I cannot resist you. I cannot resist you.”
  • Shortly thereafter, there was this exchange between the parties:
    • Appellant: “What is that…”
    • Complainant: “I’m not comfortable. Sorry.”
    • Appellant: “Can you…”
    • Complainant: “Can I what?”
    • Appellant: “Put your hand there.”
    • Complainant: “No.”
    • Appellant: “Please.”
    • Complainant: “There’s no way. There’s no… That’s very pornographic.”
  • Still later, there was this exchange:
    • Appellant: “Uhh. I touch this one. Then I (inaudible).
    • Complainant: “Ha, ha-ha”.
    • Appellant: “I will ejaculate everything…”
    • Complainant: “Ejaculate?”
    • Appellant: “Yes. Oh, God. Ohhh.”
    • Complainant: “I’m – yeah, I’m not comfortable. I’m sorry. I wish I could tell you I was. I just – I feel bad.”
  • Shortly thereafter, the appellant asked the complainant if she loved sex, and told her she looked sexy, to which the complainant responded that she liked sex with her husband. The appellant persisted with further questions about how many times a day she had sex, and her preferred sexual position, to which the complainant responded by saying “That’s really personal.”
  • Almost immediately thereafter, there was this exchange between the parties:
    • Appellant: “Ohhh.”
    • Complainant: “You realize you’re touching my privates right now?”
    • Appellant: “I know. I know. I know. I know.”
    • Complainant: I need, please need, you [to] just…”
    • Appellant: “I have experience. Before anything else I read the sexual map of a woman.”
• Outgoing text messages sent by the complainant to her female friend on March 5, 2016, between the time of messages sent by the complainant to the appellant at 1:47pm, (indicating her arrival at their agreed meeting point and that she was walking towards the appellant), and a message sent by the complainant to the appellant at 4:14 pm after they had parted at the London restaurant, (indicating that she “didn’t appreciate the sexual touching” or the offer of sex, did not want to see the appellant at her father’s restaurant again, did not need the appellant’s work anymore, and that the appellant made her “sick”), included the following:
  • “Beginning of car ride”, (sent at 1:46pm);
  • “Driving too far out”, (sent at 2:22pm);
  • “I’m frightened”, (sent at 2:22pm); and
  • “40 min out of London”, (sent at 2:22pm).
• The surveillance video from the London restaurant depicted the area near its entrance, and showed, inter alia:
  • the parties arriving together at 3:29 pm, at which point they were directed by the manager to an area of the restaurant to the left of the reception desk;
  • the complainant returning to the entrance area at 3:46 pm, (as the manager was behind the reception desk speaking on the telephone);
  • the complainant turning to look back towards the area of the restaurant where the parties had gone, before crossing to the far side of the reception desk where she waited for the manager to end his telephone conversation; and
  • the complainant stepping behind the reception desk to speak in close proximity with the manager, before then exiting the restaurant.

Proceedings and Decisions Below

5The matter proceeded to trial on February 23, 2017. However, the matter could not be completed that day within the time allotted. The trial resumed on July 31, 2017, (with the appellant having retained new counsel), at which time the presentation of evidence was completed, and counsel made their submissions.

6As noted above, the trial judge rendered his initial decision, finding the appellant guilty of sexual assault, on August 22, 2017.

7The matter then was adjourned to October 16, 2017, at which time the trial judge received sentencing submissions, and then proceeded immediately with his sentencing decision. In particular, the trial judge imposed a sentence whereby:

a. the appellant received a custodial sentence of six months, to be served in the community, (i.e., a conditional sentence), on terms and conditions that included the following: i. a requirement to keep the peace and be of good behaviour; ii. a requirement to report to a supervisor before leaving the courthouse and thereafter as required; iii. a requirement that the appellant remain in his residence each evening from 8:00pm to 6:00am, (subject to exceptions for emergency medical treatment for himself or any immediate family member, and occasions when he “needs to be out of his office for purposes of employment”), and present himself at the door of his residence for compliance checks when requested to do so by police; iv. a requirement that the appellant not communicate directly or indirectly with the complainant, or attend at any of the complainant’s known residences, places of employment or places of educational training; v. a requirement that the appellant abstain from the purchase, possession or consumption of alcohol or controlled substances, except in accordance with a medical prescription; vi. a requirement that the appellant actively participate in assessment, treatment, counselling or rehabilitative programs recommended by his supervisor, sign any corresponding release forms required by his supervisor to monitor attendance and completion of such programs, and provide any proof of program attendance required by his supervisor; b. the appellant thereafter would be subject to a period of probation, (the duration of which was not specified in the transcript of the sentencing reasons, but was agreed by the parties to be one year), on terms similar to those governing his conditional sentence but without the curfew requirement; c. the appellant was subjected to an order, (pursuant to s.490.011 of the Code), requiring his compliance with SOIRA for a period of 10 years; and d. the appellant was required to pay the $200 victim surcharge mandated by s.737 of the Code.

8I have examined and reflected on the conviction and sentencing reasons of the trial judge in considerable detail, and my failure to replicate those reasons here, or refer to any portion thereof during my analysis below, should not suggest otherwise. To the extent necessary, they should be deemed incorporated into these reasons.

9However, I do intend to make reference to certain aspects of those reasons in my assessment below.

Standard of Review

10Before proceeding to an assessment of whether the appeal against conviction and/or sentence should be allowed on the basis of any of the issues raised by the appellant, I note the applicable standards of review and burdens which govern this appeal.

Appeals Against Conviction – General Principles

11Pursuant to s.686(1)(a) of the Code, on the hearing of an appeal against a conviction, the appellate court has a broad jurisdiction to allow the appeal where it is of the opinion that:

i. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or iii. on any ground there was a miscarriage of justice.

12Those powers are qualified to some extent by s.686(1)(b)(iii) and (iv) of the Code. Subsection 686(1)(b)(iii), in particular, provides that, notwithstanding an appellate court’s opinion that an appeal might be decided in favour of the appellate on any ground mentioned in s.686(1)(a)(ii), the appellate court may dismiss the appeal where it also is of the opinion that no substantial wrong or miscarriage of justice has occurred.

13As explained by our Court of Appeal in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), while s.686(1)(a) provides three distinct bases upon which the appellate court may quash a conviction, each shares the same underlying rationale: a conviction which is the product of a miscarriage of justice cannot stand. In that regard:

• subsection 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice; i.e., a conviction which no reasonable trier of fact, properly instructed, could have returned on the evidence adduced at trial;
• subsection 686(1)(a)(ii), read along with s.686(1)(b)(iii), presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty;
• subsection 686(1)(a)(iii) addresses all other miscarriages of justice not caught by the preceding two subsections; and
• while the Crown bears the burden of demonstrating that the error did not result in a miscarriage of justice where the error is one of law alone, the appellant bears the burden of demonstrating a miscarriage of justice in all other cases.

14The appellant in this case did not specify the specific provisions of s.686(1)(a) upon which he was relying. In my view, however, the issues raised on appeal effectively centre on the more focused instances of miscarriages of justice contemplated by ss.686(1)(a)(i) and 686(1)(a)(ii).

15Where the issue is whether the verdict should be set aside pursuant to s.686(1)(a)(i) of the Code, on the ground that it is unreasonable or cannot be supported by the evidence:

• The test is whether the verdict is one that a properly instructed jury, acting judicially, reasonably could have rendered. [1]
• Although expressed in terms of a verdict reached by jury, the test is equally applicable to the judgment of a judge sitting at trial without a jury. [2]
• The test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, judicially could have arrived at, and in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. [3]
• However, appellate courts also are to exercise appropriate caution and restraint. In particular:
  • While the review countenanced by s.686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction, it also does not permit a de novo assessment of the evidence. The section is a protection against perverse or unsafe convictions, not a means of bringing trial verdicts in line with appellate courts’ estimations of the merits of individual cases. [4] The question of whether a verdict is unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently. [5]
  • This applies equally to a review of a decision by a trial judge, sitting without a jury. The appeal judge must not try the case de novo, or simply substitute his or her views for those of the trial judge. He or she must instead only determine whether the verdict was unreasonable; i.e., whether the trial judge reasonably could have reached the conclusion that the accused was guilty beyond a reasonable doubt. [6] In that regard, it must also be remembered that a judge’s failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s.686(1)(a) of the Code. [7]
  • In deciding whether a trier has exceeded the bounds of reasonableness, the court must give due deference to the advantageous position of the trier, who actually saw and heard the witnesses. [8] While it is open to an appeal judge to conclude that a verdict based on credibility findings is unreasonable, if the appeal judge takes into account the fact that a trial judge had the advantage of seeing and hearing the witnesses give evidence, the reviewing court should show “great deference” to the trial judge’s findings of credibility. Where the verdict essentially turns on credibility findings, the appeal judge’s power to interfere should be exercised sparingly. [9] Indeed, instances where a trial judge’s assessment of credibility cannot be supported on any reasonable view are “rare”. [10]
  • A “vague unease, or a lingering or lurking doubt based on its own review of the evidence”, does not by itself provide a proper basis for appellate court interference with the verdict below. [11]
  • More generally, it should be kept in mind that our system of justice and appellate review is not premised on any suggestion that appellate court judges are somehow smarter than trial judges, and thus capable of reaching a better result. In reviewing the decision of a trial judge, the role of appellate courts is not to write better judgments, but to review the reasons provided, in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge. [12]

16Where the issue is whether the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, pursuant to s.686(1)(a)(ii) of the Code, the standard of review is correctness. [13]

Appeals Against Sentence – General Principles

17Pursuant to s.812 and s.813(a) of the Code, H.A.E. also has the right to appeal to this court against the sentence passed on him.

18Pursuant to s.687 of the Code, where an appeal is taken against sentence, the appellate court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, either vary the sentence with the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal. General principles in that regard include the following:

• Despite the ostensibly wide powers of review conferred on appellate courts by s.687 of the Code, the Supreme Court of Canada has emphasized on many occasions that appellate courts may not intervene lightly in sentences imposed below, as trial judges have a broad discretion, confirmed by s.718.3(1) of the Code, to impose the sentence they consider appropriate within the limits established by law. [14]
• In particular, an appellate court with authority to “consider the fitness of the sentence appealed against” is not given free rein to modify a sentence order simply because it would have weighed relevant factors differently, feels a different order ought to have been made, or entertains a different opinion as to what objectives should be pursued and the best way to do so. Such differences generally do not constitute an error of law justifying an interventionist approach or interference. The formulation of a sentencing order is a profoundly subjective process, in respect of which the trial judge has the advantage of having seen and heard all of the witnesses, whereas the appellate court can only base itself upon a written record. Moreover, a sentencing judge usually is familiar with the circumstances in the district where he or she sits, and therefore with the particular needs of the community in which the crime was committed. Repetition of the exercise of judicial discretion by the trial judge, without any reason to think the second effort will improve upon the results of the first, is also a misuse of scarce judicial resources. For all these reasons, sentences imposed by trial courts accordingly are entitled to considerable deference from appellate courts. [15]
• Absent an error in principle, failure to consider a relevant factor, or an overemphasis of appropriate factors, an appellate court should only intervene to vary a sentence if it is demonstrably unfit, in the sense that the sentence is clearly unreasonable. [16]
• Moreover, while an error in principle, failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court, permit the appellate court to inquire into the fitness of the sentence, and replace it with a sentence the appellate court considers appropriate, not every such error will necessarily justify appellate intervention, regardless of its impact on the reasoning of the trial judge. To the contrary, such errors will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence imposed. [17]
• In assessing whether a sentence is “unreasonable” in the sense required:
  • It must be remembered that the choice of sentencing range, or of a category within a range, falls within the trial judge’s discretion and accordingly cannot in itself constitute a reviewable error. An appellate court therefore may not intervene on the ground it would have put the sentence in a different range or category. It may intervene only if the sentence imposed was “demonstrably unfit”. [18]
  • While it is possible for a sentence to be unreasonable even if the trial judge made no error in imposing it, a very high threshold must be met before appellate courts will intervene on that basis after reviewing the fitness of a sentence. The sentence imposed must be “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or represent a “substantial and marked departure” from the sentences customarily imposed for similar offenders committing similar crimes. The inquiry in that regard is focused on whether the sentence imposed constitutes an unreasonable departure from the fundamental sentencing principle of proportionality stated in s.718.1 of the Code, having regard to:
    • individualization, (i.e., taking into account the particular accused and particular offence committed);
    • parity of sentences, (i.e., comparison with sentences imposed for similar offences committed in similar circumstances); and
    • the sentencing objectives and principles outlined in ss.718 and 718.2 of the Code – bearing in mind that it is up to the trial judge to properly weigh those various objectives and principles and their relative importance, which inherently varies with the nature of the crime, and the circumstances in which it was committed. [19]
  • In relation to parity of sentencing, it must be remembered that a sentence falling outside an established range of sentencing is not necessarily unfit. In particular, sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant sentencing principles and objectives. They must not be considered “averages”, let alone “straightjackets”. They should instead be seen as historical portraits for the use of sentencing judges. There will always be situations that call for a sentence outside a particular range. [20]

Assessment

19With the above principles in mind, I turn next to an assessment of the issues raised by the conviction and sentencing appeals in this case.

20In that regard, I now have had considerable time to review and reflect upon the proceedings and evidence in the court below, the trial and sentencing decisions of the trial judge, and the submissions of the parties.

21Having done so, and applying the applicable standards of review set out above, I find no fault with the findings, reasons or conclusions of the trial judge that would warrant appellate intervention, pursuant to s.686(1)(a) of the Code, in relation to H.A.E.’s conviction. Nor am I persuaded that this is a case where this court should interfere with the sentence imposed on H.A.E. by the trial judge.

Conviction Appeal

22A central focus of H.A.E.’s appeal from conviction was an assertion that the trial judge erred in applying different levels of scrutiny in considering the evidence of the complainant and the evidence of H.A.E., thereby unfairly diminishing the appellant’s evidence as to his alleged honest but mistaken belief that the complainant was consenting to physical contact by the appellant.

23General principles relating to such “different level of scrutiny” or “different standards of scrutiny” arguments include the following:

• It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he or she could have said in assessing the respective credibility of the complainant and the accused, or that he or she failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [21]
• Such arguments are difficult to make successfully on an appeal, for two related reasons. First, credibility findings are the province of the trial judge, and attract a very high degree of deference on appeal. Second, appellate courts invariably view such arguments with skepticism, seeing them as a veiled invitation to reassess the credibility determinations made by the trial judge. [22]
• For an appellant to succeed with such an argument, he or she accordingly must be able to identify “something clear” in the trial judge’s reasons or in the record indicating that a different standard of scrutiny applied; something “sufficiently significant” such that the “heavy door of deference” is opened to the domain of the trial judge, where credibility is assessed. [23] Examples include cases where:
  • a trial judge repeatedly drew adverse inferences about the appellant’s credibility without doing so in relation to the complainant, despite repeated indications that the complainant was an unreliable witness;
  • a trial judge was overly critical of the appellant’s version of events, without making any meaningful attempt to reconcile or explain difficulties in a complainant’s evidence; and/or
  • a trial judge assigned inordinate value to considerations which actually lent little or no corroborative value or strength to a complainant’s testimony. [24]
• However, where an appellate court is satisfied that the trial judge did indeed subject defence evidence to a higher or stricter level of scrutiny than Crown evidence, the conduct of the trial judge constitutes an error of law. Where such an error is established, the deference normally owed to the trial judge’s credibility assessment is generally displaced. [25]

24In my view, the appellant has failed to identify any clear or significant indication in the reasons of the trial judge, in the sense required, to support the suggestion that the trial judge in this case applied different standards of scrutiny to the testimony of the appellant and the testimony of the complainant.

25Without limiting the generality of the foregoing:

• In relation to both the appellant and the complainant, the trial judge assessed the credibility of their respective accounts by cross-references to more objective contemporaneous evidence; e.g., text messages exchanged between the parties, text messages being sent by the complainant to others at the time of the incident, the audio recording made by the complainant while she was in the appellant’s vehicle, and the surveillance video depicting what happened after the parties arrived at the restaurant in London. The results of that even-handed approach to the testimony of the parties may have resulted in different conclusions, (e.g., as the appellant’s testimony was at odds with the parties’ confirmed communications, whereas the complainant’s account was consistent with and in large measure corroborated by the text messages, audio recording and video recording), but in my view that does not detract from the reality that the trial judge approached the parties’ testimony in the same equitable manner.
• In my view, it cannot be said that the trial judge relied on irrelevant considerations when assessing party credibility. Nor did the trial judge give any inordinate weight to the evidence by which the appellant’s testimony was contradicted or the complainant’s evidence was corroborated, (e.g., the text messages, audio recording and surveillance recording), having regard to its objective and largely indisputable nature.
• While the trial judge noted failings in the appellant’s testimony, he did not ignore, or fail to address with adequate reasons, suggested concerns about the complainant’s testimony. For example:
  • The trial judge noted that the complainant had laughed at times during the audio recording of what transpired in the appellant’s vehicle. However, having listened to that recording, the trial judge also accepted the complainant’s characterization of those responses as “nervous” laughter resulting from the difficult situation in which she found herself. That assessment of the evidence was reasonably open to the trial judge in the circumstances, and in my view should not be second-guessed on appeal.
  • The trial judge also addressed the appellant’s reliance on the complainant’s failure to report the alleged sexual assault immediately to the police, accepting the complainant’s “perfectly understandable” explanation that she would take a short time to “reach out to a friend for advice, remove herself from the area, and then telephone her husband”. In my view, that finding was entirely reasonable, and consistent with the Supreme Court of Canada’s guidance and reminders, in cases such as R. v. D.C., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, that there is no inviolable rule as to when victims of sexual assault may report an incident, that there are recognized reasons why a report may be delayed, and that a delay in disclosure, standing alone, will never give rise to an adverse inference regarding the credibility of the complainant.

26The appellant also suggested that the trial judge erred by relying unduly on the demeanour of the complainant and the appellant in assessing credibility.

27In considering such submissions, I bear in mind the following:

• Our courts now recognize that the demeanour of witnesses is of limited value to the assessment of credibility; e.g., because demeanour and its interpretation can be affected by many factors, (such as cultural backgrounds, stereotypes and different reactions to the artificial pressures of a courtroom), and sincerity may easily be misinterpreted as truthfulness. [26]
• For such reasons, our courts have indicated the need for a cautious approach to demeanour in the assessment of credibility, and that findings of credibility based solely on demeanour are purely arbitrary. In particular, although it is settled law that a trial judge is entitled to consider the demeanour of a witness, the demeanour of a witness cannot become the exclusive determinant of his or her credibility, or the reliability of his or her evidence. [27]

28In my view, there is no merit to the suggestion that the trial judge erred through any reliance upon witness demeanour in his reasons for conviction.

29Without limiting the generality of the foregoing:

• A review of the reasons in their entirety reveals little or no reference to witness demeanour in the trial judge’s assessment of the evidence. At most, the trial judge made a passing reference to the appellant as being “evasive and argumentative” in his testimony. In my view, those characterizations are focused more on the substantive content of the appellant’s testimony, (e.g., his refusal to answer certain questions directly, or his overt attempts to convince the judge that laughter of the complainant should be interpreted by the court in a certain manner), rather than the appellant’s physical appearance or manner of speaking while in the witness box.
• In any event, the trial judge clearly relied upon numerous considerations besides demeanour in making his credibility assessment. As noted above, those considerations included the extent to which the competing testimony of the parties was consistent or inconsistent with an abundance of objective evidence, (e.g., text messages, audio recordings, video surveillance and testimony from the restaurant manager), relevant to the relationship between the parties and what transpired on the afternoon in question. While the trial judge was entitled to rely on witness demeanour, in making his credibility assessments, he clearly did not do so to the exclusion of other considerations.

30More generally, the appellant argued that the trial judge erred in finding that the defence of honest but mistaken belief in consent did not negate a finding of culpability in this case.

31In particular, it was submitted that the trial judge failed to adequately consider the appellant’s testimony and arguments that, although the complainant repeatedly voiced objections to his sexual touching, her simultaneous actions indicated consent, such that the appellant was not reasonably required, in the circumstances, to seek a specific express consent. Nor did the reasons of the trial judge engage in further examination of the appellant’s contention that the complainant had embarked on a deliberate plan of entrapment.

32On a related note, appellant counsel raised concern over the trial judge’s failure to make any express reference to R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), with particular regard to the need for triers to remember that, even if the testimony of an accused is not believed, it may still be capable of leaving the trier with a reasonable doubt. It accordingly was argued that the trial judge failed to consider whether the appellant’s testimony about the complainant physically indicating consent while purporting to say “no”, although disbelieved, might still have left the trial judge with reasonable doubt in that regard.

33However, I find no error in the approach, reasoning or conclusions of the trial judge in relation to such matters.

34In that regard, I bear in mind the following:

• Sexual assault is a crime of general intent, and an accused may challenge the Crown’s evidence of the requisite mens rea by asserting an honest but mistaken belief in consent. [28]
• In order to cloak the accused’s actions in moral innocence, the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question. A belief by a male accused that a female complainant in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. [29]
• For the purposes of mens rea analysis in relation to sexual assault, where the accused has asserted an honest but mistaken belief in consent, the question generally is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions. [30]
• However, not all beliefs upon which an accused might rely will exculpate him. In particular:
  • Parliament has made clear, through s.273.2 of the Code, that it is not a defence to a charge of sexual assault that an accused believed a complainant consented to the activity forming the subject matter of the charge in circumstances where the accused’s belief arose from “reckless or wilful blindness”, or “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. [31]
  • For example, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence. [32]
  • Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. [33]
  • Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists. Nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. An accused who, due to wilful blindness or recklessness, believes that a complainant consented to the sexual activity at issue, is precluded from relying on a defence of honest but mistaken belief in consent. [34]

35In this case, the trial judge came to a reasoned conclusion, available to him on the evidence, as to why he did not believe the appellant’s testimony suggesting the complainant had engaged in various forms of flirtation and enticement, was intent on entrapment, and/or engaged in various physical behaviours indicating she actually was consenting to sexual contact despite her repeated verbal statements to the contrary.

36For the reasons outlined above, in my view the trial judge committed no error, in coming to that conclusion, which warrants appellate intervention.

37As for the appellant’s concern about the trial judge failing to make any express reference to R. v. W.(D.), supra, and its “second branch” of assessing whether disbelieved testimony of an accused is sufficient to raise a reasonable doubt:

• As the Supreme Court of Canada has emphasized, trial judges are presumed to know the law, and are not required to expound in detail on well-settled legal principles to demonstrate to the parties, much less to an appellate court, that he or she was aware of and applied those principles. [35] In my view, it accordingly was not incumbent on the trial judge to make express reference to such a well-known authority as R. v. W.(D.), supra, and the reminders therein of the alternative ways in which reasonable doubt may be established, even if the testimony of an accused is not believed.
• Moreover, in this particular case, I think it abundantly clear from the reasons of the trial judge that he was entirely mindful of what is colloquially described as the “second branch” of R. v. W.(D.), supra. In the concluding sentence of para. 33 of his reasons, assessing the credibility of the appellant, the trial judge said this: “I do not believe his evidence, nor does his evidence raise a reasonable doubt with respect to what transpired.” [Emphasis added.] In my view, that was a clear reference, in all but name, to the second branch of the approach mandated by R. v. W.(D.), supra.

38More generally, reading the reasons of the trial judge in their entirety, I think it clear why the trial judge did not engage in a more detailed explanation, beyond his already adequate reasons, for accepting the complainant’s version of events over that of the appellant.

39In that regard, the trial judge prefaced his explanation for that decision, (i.e., relating to credibility), with a reasoned explanation for his broader view that the credibility assessment, even if resolved entirely in the appellant’s favour, would not alter the trial judge’s conclusion that the “honest but mistaken belief” defence could not succeed in the circumstances. In particular, the trial judge said this:

Even if I were to accept the evidence of H.A.E., I find that the evidence would establish that the only basis upon which H.A.E. could have had a mistaken belief in consent was through recklessness or wilful blindness. He would have ignored the very clear and repeatedly spoken words of [the complainant] in which she indicated that she wanted him to stop his advances, and relied instead upon his interpretation of what he says he regarded as conflicting signals through body language. Therefore, in my view, even if I accepted his evidence, s.273.2 of the Criminal Code would require a conviction to the charge. [Emphasis added.]

40The contention of appellate counsel that the trial judge erred by proceeding on the basis of a “blanket, absolute rejection of the appellant’s evidence” is simply not accurate.

41In fact, the trial judge expressly considered what the proper outcome should be if all credibility findings were resolved in favour of the appellant, and came to a reasoned conclusion why the defence of honest but mistaken belief would fail in any event.

42I find no error in this. To the contrary, I agree with the views of the trial judge in that regard.

43The appellant did not dispute, (and based on the audio recording could not dispute), that the complainant repeatedly voiced objections to sexual touching by the appellant, and asked him to stop what he was doing.

44The appellant’s testimony and position at trial was that the complainant, despite her express and repeated words indicating a lack of consent, actually was engaging in physical behaviour, (outlined above in my overview of the appellant’s testimony at trial), indicating that sexual contact was in fact welcome and consensual.

45Even on a view of the evidence most favourable to the accused, (i.e., accepting all of his factual assertions about the alleged behavior of the complainant indicating consent “through her body language”, to use the words of the appellant in his own testimony), the clear and unmistakeable divergence between the words and actions of the complainant at the time of the alleged sexual assault made her conduct ambiguous and equivocal.

46In particular, as the appellant himself indicated and acknowledged during the course of cross-examination, the complainant was, even by the appellant’s own account of events, giving him “two opposing signals”.

47As noted above, the Supreme Court of Canada has made it clear that, in such circumstances of “ambiguous” or “equivocal” conduct, where an accused continues to engage in sexual contact even after a complainant has said “no”, without obtaining a clear and unequivocal “yes”, the conduct of the accused must be regarded as “reckless” and the defence of honest but mistaken belief in consent cannot succeed. [36]

48For the reasons outlined above, I find no miscarriage of justice, in relation to the conviction of H.A.E., warranting appellate intervention pursuant to s.686(1) of the Code.

Sentencing Appeal

49In relation to the sentencing appeal, it was argued that the trial judge erred in law, and imposed an unreasonable sentence. In that regard, appellate submissions focused primarily on:

• a suggested failure to give adequate consideration to the “very real punitive and perhaps career-ending effect that the conviction itself would visit upon the appellant”;
• a suggested failure to give effect to the principle of restraint reflected in s.718.2(d) of the Code, (which requires a sentencing court to take into consideration that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”); and
• a suggested failure to consider that sexual assault convictions do not necessarily require a custodial sentence -- with a related implicit if not explicit suggestion that the trial judge made a marked departure from parity of sentencing by imposing a conditional sentence for a sexual assault in the nature of that committed by the appellant.

50In my view, none of those suggestions warrant this court’s intervention in the sentence imposed by the trial judge.

51The trial judge undoubtedly was mindful of collateral impacts the appellant had experienced and might experience as the result of the criminal proceedings and sentencing. In particular:

• During the course of his sentencing submissions, defence counsel made specific and express references to the “enormous impact” the criminal proceedings had and would have on the appellant’s business activities. In particular, it was noted that his ability to travel had been restricted; that he already had been obliged to forego attendance at a number of conferences; that his ability to cross borders in the future would likely be affected by a SOIRA order; that his continued university association might be in jeopardy; and that he would be “severely damaged professionally and economically going forward”.
• During the course of his sentencing submissions, Crown counsel expressly acknowledged that H.A.E. was a “successful business person”, who had “definitely experienced collateral consequences” from negative stigma in the eyes of the public and business loss.
• When the trial judge embarked on oral delivery of his reasons for sentence, immediately after receipt of oral submissions from counsel, the above comments concerning the collateral impact of conviction and sentencing on the appellant would have been fresh in his mind – and he did not ignore them. To the contrary, the trial judge expressly acknowledged such concerns and their importance with the following remarks: “In his articulate submissions, [defence counsel] points to all of the consequences which have flowed from the fact that these charges and now this conviction. There will be significant impact on his client’s life; significant consequences of any court imposed sentence. The impact of the conviction will significantly impact his business, his professional standing and people’s view of him, and have significant financial impact on him quite likely, given the nature of his business”.

52Similarly, the trial judge expressly acknowledged and recognized that, prior to the conviction under consideration, H.A.E. had lived a very positive, successful and pro-social life, with no criminal record; i.e., that the appellant was a first time offender. The trial judge also expressly returned to H.A.E.’s “lack of record” when indicating why he felt a conditional sentence limited to six months was appropriate.

53It is true that the trial judge’s repeated references to H.A.E.’s status as a first time offender were not accompanied by any express reference to the principle of restraint. However:

• As noted above, trial judges are presumed to know the law, and are not required to expound in detail on well-settled legal principles to demonstrate to the parties, much less to an appellate court, that he or she was aware of and applied those principles. [37] Moreover, where a phrase in the reasons of a trial judge is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law. [38]
• In this case, the trial judge repeatedly recognized and emphasized, in the course of his sentencing reasons, his consideration of the important fact that H.A.E. had no criminal record. Moreover, the trial judge did so in the context of setting out numerous mitigating considerations, and as an express reason for limiting the duration of the conditional sentence imposed to six months.
• In my view, reading the sentencing reasons as a whole, and with an appreciation of the purpose for which they were delivered, the trial judge clearly was mindful of the need for a measure of restraint in relation to the sentencing of a first time offender.

54For similar reasons, I think the trial judge, in his comments explaining and justifying his view that “this case does require a jail sentence”, clearly was mindful of the reality that various dispositions short of a jail sentence were possible in the circumstances.

55Although the trial judge specifically mentioned and rejected only the possibility of a discharge before imposing a conditional sentence, in my view a fair and contextual reading of the sentencing reasons does not justify any supposed concern that the trial judge was not alive to other possibilities – including that of a suspended sentence and probation. To the contrary, I think it clear that the trial judge simply intended to address defence counsel’s opening request, during sentencing submissions, that the trial judge specifically focus on achieving relevant sentencing goals through use of the discharge provisions, instead of a conditional sentence and probation or a suspended sentence and probation. [39]

56The trial judge therefore clearly considered the mitigating factors, emphasized by H.A.E. on appeal, which militated in favour of a more lenient sentence.

57He also considered the possibility of dispositions short of a jail sentence.

58On balance, however, the trial judge expressly found that a jail sentence – albeit a conditional sentence to be served in the community - was required in the circumstances, in order to recognize and adequately emphasize the various offsetting aggravating features the trial judge had previously identified, (including the power imbalance between the parties, the appellant’s use of that power imbalance to isolate the complainant, the prolonged and repeated nature of the sexual assault in the face of very clear objections from the complainant, and the “significant impact” the appellant’s conduct had on his victim); and to adequately address the principles of deterrence and denunciation, which generally are regarded as paramount in cases of this nature.

59Having regard to all the circumstances, I find nothing in the sentencing reasons of the trial judge to warrant any finding that he erred in principle, failed to consider a relevant factor, or overemphasized any appropriate factors

60In my view, the appellant essentially asks that I weigh the relevant aggravating and mitigating factors differently than the trial judge, find that the trial judge should have focused more on alternatives to denial of liberty than the objectives of denunciation and deterrence, and/or substitute my own views on the best way of addressing those competing objectives.

61Pursuant to the general principles outlined above, any different views I may have in that regard do not constitute errors of law by the trial judge justifying interference with his broad sentencing discretion.

62Nor do I think that the sentence imposed by the trial judge, without error, for this particular underlying sexual assault, otherwise meets the very high threshold for intervention on the basis of it being “clearly unreasonable”, “clearly excessive” or “demonstrably unfit”.

63In support of his contention that the sentence imposed on H.A.E. was unreasonable, counsel for the appellant cited a number of cases where first time offenders -- at least some of whom were younger than H.A.E. -- received more lenient sentences for sexual assault convictions involving sexual touching committed without violence and at the lower end of invasiveness; e.g., touching over clothing and/or without penetration. In particular:

• In R. v. Burton, [2012] O.J. No. 5187 (S.C.J.), the complainant was seated in the window seat of a transport bus when the 49-year-old offender then boarded, took the aisle seat next to her, and opened a newspaper that obstructed the view of his lap and the complainant’s right leg. As the vehicle travelled along a highway, the complainant felt the offender brush up against her leg, but initially believed it was accidental. When the complainant then felt the offender’s hand travel under her skirt and along her right leg, she screamed for the offender to get away, stood up and ran to the front of the bus. The driver pulled the bus over and waited for arrival of the police, at which point the offender was arrested and charged with sexual assault. The offender entered a guilty plea, which was supported by the agreed facts I have outlined. After receiving competing submissions, (during which the Crown sought imposition of a suspended sentence and probation, and the defence requested an absolute or conditional discharge), the provincial court judge granted an absolute discharge. The Crown’s sentencing appeal to this court was dismissed.
• In R. v. Alderman, [2013] O.J. No. 2085 (S.C.J.), the 69-year-old offender had kissed the complainant, while touching and groping her breast, during a function at a branch of the Royal Canadian Legion. He was arrested and convicted of sexual assault after trial. He was a first time offender. The trial judge found that a non-custodial sentence was reasonable, and effectively imposed a suspended sentence with two years of probation. That was accompanied by a requirement of 50 hours community service, and ancillary orders that included a s.110 weapons prohibition, a s.487.04 DNA order, a SOIRA order with a duration of 20 years, and the victim surcharge mandated by s.737.
• In R. v. Hilan, [2015] O.J. No. 2384 (C.A.), the offender took a seat beside the complainant on a public bus. Although the complainant did not see the offender’s hand move her skirt or touch her, sexual touching was reasonably inferred from the complainant’s description of what she felt and how her skirt moved up her leg. He was arrested and convicted of sexual assault after trial. He was a first time offender, of unspecified age, and had spent 13 days in presentence custody. Although the trial judge imposed a sentence of six months imprisonment and two years of probation, our Court of Appeal felt the sentence was “wholly disproportionate to the conduct at issue”. Having regard to all the circumstances, (and particularly the time spent by the offender in presentence custody), our Court of Appeal felt that a further jail sentence was not warranted. It instead imposed a suspended sentence, with two years of probation on the same terms as those imposed by the trial judge.

64However, as emphasized by the Supreme Court of Canada in R. v. M.(C.A.), [1990] 1 S.C.R. 500, sentencing is an inherently individualized process, frequently making the search for a single appropriate sentence for similar offender for a similar crime a fruitless exercise of academic abstraction.

65In this instance, closer examination of the precedents cited by appellant counsel confirms important distinctions between their underlying facts and the circumstances in this case, which in turn undermine arguments that the sentence imposed in this case should be viewed as overly harsh and unreasonable in comparison.

66For example, there are aggravating circumstances in the case of H.A.E. which were not present in the three precedents relied upon by appellate counsel. In particular:

• In all three of the precedents cited, the sexual assault in question took place in a public place where the complainant was free to take immediate steps to remove herself from the situation, and seek the assistance of others who were present at the scene. In contrast, H.A.E. effectively had taken steps to isolate his victim, placing her in a situation from which she had no safe means of quickly extricating herself or summoning rapid assistance. In particular, he sexually assaulted his victim in his private vehicle, which not only was in motion at the time, but also had been driven into the rural countryside at H.A.E.’s insistence -- notwithstanding repeated indications from the complainant that she not wish to drive there with any male but her husband.
• For related reasons, the sexual touching in each of the three precedents cited appears to have been fleeting, and of very short duration. In contrast, H.A.E. persisted in his sexual touching for a more extended period of time, and in spite of the complainant’s express indications that she was not consenting to the activity, and wanted the touching to stop.
• In the three cases relied upon by appellant counsel, the nature of the sexual touching was less invasive than that perpetrated by H.A.E., who rubbed his victim’s vaginal area and clitoris, (albeit through her clothing), for an extended period of time.
• The offenders in the three precedents cited by appellant counsel apparently engaged in crimes of opportunity, victimizing complete strangers on public transport or someone encountered at a public social function. The circumstances negate any suggestion that the offenders stood in any position of trust or authority vis-à-vis their victims. In contrast, H.A.E. was the employer of his victim. As the trial judge noted, the appellant was much older and more experienced, and the complainant was dependent on his continued favour for further work and remuneration. His effective abuse of that power-dynamic, and exploitation of his victim’s corresponding vulnerability, raise significant concerns not present in the precedents cited upon by appellant counsel.

67Similarly, there are mitigating considerations in those other cases which find no direct counterpart in the circumstances of H.A.E.’s situation. For example:

• Mr Burton was still a “family man”, (i.e., with an extant corresponding support network and dependents), who apparently had “succumbed to a very spontaneous impulsive act”, and the court was provided with expert evidence confirming that he presented little risk of reoffending. In contrast, at the time of his offence H.A.E. was separated from his spouse, and his children were independent adults. Although the trial judge felt that “specific deterrence may not be a primary consideration” in relation to H.A.E., no supportive expert evidence was filed in that regard. Mr Burton also had the benefit of a guilty plea, which H.A.E. does not.
• Mr Alderman suffered from very serious health problems, including severe diabetes and a history of cancer. (In contrast, although the appellant had suffered from colon cancer in the past, his health concerns apparently were not as serious as those of Mr Alderman at the time of the sentencing hearing.) Mr Alderman also had an elevated and extended pro-social work history with the Canadian Armed Forces, for which the court in that case was inclined to give considerable credit. (I note that, by the time of his sentencing, Mr Alderman also already had experienced the important negative consequence, to him, of formal suspension from the Royal Canadian Legion.)
• Mr Hilan had spent a number of weeks in actual presentence custody, apparently in an institutional setting, whereas H.A.E. apparently spent no time in presentence custody.

68In relation to R. v. Burton, supra, I also note that the reviewing judge in this court expressly indicated that the sentence imposed in the court below was not one he would have granted, on the facts of the case. Indeed, he expressly acknowledged his personal disagreement with the imposition of an absolute discharge in the circumstances. However, the sentencing appeal was dismissed because the crime of sexual assault has “a very wide range of sentencing options”, an absolute discharge was an available option, and the exercise of the trial judge’s discretion was entitled to deference.

69Although the trial judge in this case imposed a more serious sentence than the one imposed in R. v. Burton, supra, and the other two precedents cited by the appellant, in my view the sentence chosen by the trial judge was not “demonstrably unfit” or “clearly unreasonable”, having regard to the additional and important aggravating considerations in this case. It similarly was one a sentence falling within the “very wide range of sentencing options” available in the circumstances. The trial judge’s exercise of discretion in that regard accordingly is entitled to similar deference.

Conclusion

70For the reasons outlined above, the appeal against conviction is dismissed, as is the appeal against sentence.

Justice I.F. Leach

Date: September 27, 2018

1See R. v. Yebes, [1987] 2 S.C.R. 168, at p.185.

2See R. v. Binaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.

3See R. v. Binaris, supra, at paras. 36-37.

4See R. v. Quercia, [1990] O.J. No. 2063 (C.A.), at para. 6.

5See R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 62.

6See R. v. Grosse, [1996] O.J. No. 1840 (C.A.), at para. 14; and R. v. G.W., [1996] O.J. No. 3075 (C.A.), at paras. 18-19.

7See R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.), at p. 199. This accords with the general rule that a trial judge does not err merely because he or she does not give exhaustive reasons for deciding one way or the other on problematic points.

8See R. v. Quercia, supra, at para. 6.

9See R. v. Burke, [1996] 1 S.C.R. 474, at paras. 5-6; R. v. G.W., [1996] O.J. No. 3075 (C.A.), at para. 18; and R. v. Beaudry, supra, at para. 63.

10See R. v. Burke, supra, at para. 7; and R. v. Beaudry, supra, at para. 63.

11See R. v. Binaris, supra, at paras. 38 and 41.

12See Housen v. Nikolaisen, supra, at para. 4; and R. v. Beaudry, supra, at para. 62.

13See, for example, R. v. Hinds, [1999] O.J. No. 1716 (S.C.J.), at para. 12; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; and R. v. Bradbury, 2004 NLCA 82, [2004] N.J. No. 420 (C.A.), at para. 12.

14See, for example: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46; and R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39.

15See, for example: R. v. Shropshire, supra, at para. 46; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123 and 125; R. v. Nasogaluak, supra, at para. 35; and R. v. Lacasse, supra, at paras. 40-41, 46 and 49.

16See R. v. Shropshire, supra.

17See R. v. Lacasse, supra, at paras. 43-44.

18See R. v. Lacasse, supra, at para. 52.

19See R. v. Lacasse, supra, at paras. 51-54.

20See R. v. Lacasse, supra, at paras. 57-58.

21See R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont.C.A.), at para. 59; and R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.), at para. 95.

22See R. v. Aird (2013), 2013 ONCA 447, 307 O.A.C. 183, at para. 39; and R. v. Rhayel, supra, at para. 97.

23See R. v. Rhayel, supra, at para. 98.

24See R. v. Rhayel, supra, at paras. 100-105.

25See R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; and R. v. Rhayel, supra, at para. 96.

26See R. v. Rhayel, supra, at paras. 85 and 89; and R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (C.A.), at para. 44.

27See R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-314; R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 (C.A.), at p.355; R. v. S.(N.), 2012 SCC 72, [2012] 3 SC.R. 726, at paras. 18 and 26; R. v. Rhayel, supra, at para. 86; R. v. A.(A.) (2015), 2015 ONCA 558, 327 C.C.C. (3d) 377 (Ont.C.A.), at para. 131; and R. v. Hemsworth, supra, at para. 45.

28See R. v. Pappajohn, [1980] 2 S.C.R. 120, at p.148; and R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 41-43.

29See R. v. Ewanchuk, supra, at para. 46.

30See R. v. Ewanchuk, supra, at paras. 46-47.

31See s.273.2(a)(ii) and s.273.2(b) of the Code.

32See R. v. M. (M.L.), [1994] 2 S.C.R. 3; and R. v. Ewanchuk, supra, at para. 51.

33See R. v. Ewanchuk, supra, at para. 51.

34See R. v. Esau, [1997] 2 S.C.R. 777, at para. 79; R. v. Ewanchuk, supra, at para. 52, and s.273.2(a)(ii) of the Code.

35See R. v. Morrissey, supra, at paras. 27-30.

36Again, see R. v. M. (M.L.), [1994] 2 S.C.R. 3; and R. v. Ewanchuk, supra, at para. 51.

37See R. v. Morrissey, supra, at paras. 27-30.

38See R. v. Morrissey, supra, at para. 27.

39The precise comments of the trial judge emphasize that intention: “In my view, despite [defence counsel] Mr Barry’s submissions – and I note that, as always, he is articulate and persuasive and to the point with respect to his submissions – I find that a discharge would not address all of the sentencing principles that are involved.”