W A R N I N G

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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

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

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

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

CITATION: R. v. C.B., 2008 ONCA 486

DATE: 20080619

DOCKET: C43763

COURT OF APPEAL FOR ONTARIO

GILLESE, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

C. B.

Appellant

Jennifer A.Y. Trehearne for the appellant

Greg Skerkowski for the respondent

HEARD: February 28, 2008

On appeal from the conviction entered on February 19, 2004 and the sentence imposed on June 29, 2004 by Justice A. Paul Dilks of the Superior Court of Justice.

GILLESE J.A.:

[1] Following a jury trial, the appellant was convicted of two counts of sexual assault, one count of sexual interference and one count of sexual exploitation for acts involving his niece. The convictions were for incidents that occurred while the complainant was between approximately twelve and sixteen years of age. The appellant was sentenced to three years in prison, less two months credit for pre-trial custody. He appeals from conviction and seeks leave to appeal sentence.

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

BACKGROUND

[3] The Crown led the evidence of the complainant, GS; Ms. Adshade, a Catholic Children’s Aid Society (CCAS) worker to whom the appellant made substantial admissions about the matters in question; and that of Constable Monk, a police officer to whom the appellant also made admissions.

[4] The appellant did not testify and no evidence was led on his behalf. The defence consisted largely of attacking the complainant’s evidence on the basis of her continued consensual contact with the appellant over the years and the fact that disclosure of the allegations occurred at a time when the complainant and her family had bad feelings toward the appellant because he had broken up his marriage to the complainant’s Aunt R.

The complainant’s evidence

[5] GS was 20 years of age at the time of trial. She was born in the Philippines and lived there until she was ten years old, at which time she moved with her family to Canada. The appellant was married to her mother’s sister, R.

[6] In 1996, when the complainant was about twelve years old, the appellant and his son D. moved from the Philippines to Canada. At that time, the two families began to share a two-bedroom condominium owned by the complainant’s parents. The complainant and her parents shared one bedroom; the appellant and D. shared the other. R. lived at the home of her employer but would return to the condominium on the weekends.

[7] The complainant testified that her father would leave the condominium early in the morning to drive her mother to work. The complainant would remain in the condominium in the bedroom that she shared with her parents. The appellant would be home in the condominium because he worked the afternoon or evening shift. He would go into the bedroom where the complainant was, close the door, turn on loud music and take the complainant’s clothing off. He would put one hand over her mouth and use the other to touch her breasts and then penetrate her digitally. The appellant would pull his shorts halfway down, get on top of her and the complainant would feel something going inside of her. Afterwards, as he put her clothes back on, the complainant would cry and the appellant would tell her to not tell anyone what had happened. He would also tell her that no one would believe her, it would ruin the family and R. would never speak to her again. At some point, the appellant also threatened to hurt R.

[8] The complainant testified that the appellant sexually abused her 3-4 times a month during the one and a half year period that the two families lived in the shared condominium.

[9] After the appellant and his family moved to another unit in the same building, the appellant would sexually abuse the complainant when she was at his home babysitting D. The abuse followed the same pattern as that which occurred when the two families lived together.

[10] In 1998, the complainant and her family moved into a house and she no longer babysat D. The complainant testified to a further single sexual assault by the appellant in the summer of 2000. While home alone one day, GS heard someone knocking at the door. She looked outside and saw the appellant, who said he needed something from the house. She let him in. In the course of conversation, the appellant told her she should learn how to masturbate. He then began to masturbate in front of her. After that, he went behind the complainant, put his hand on her mouth and began to rub her shoulder and stomach. When he attempted to touch her breast area, she went to the kitchen and got a knife. She told the appellant to leave or she would tell everyone or call 911. The appellant then left.

[11] After a contested voir dire, the complainant was permitted to testify also about the sexual abuse she had experienced at the hands of the appellant when she lived in the Philippines. The admissibility of that evidence is not questioned on appeal.

[12] The complainant further testified that, in the summer of 2002 after the appellant and R. had separated, she told her family what the appellant had done. The Crown then asked the complainant if she had ever before told anyone about the appellant’s actions. The complainant replied that she had told her friend C. in 1996 and her friend L. at the end of grade eight.

[13] Defence counsel objected, saying she was unsure of the admissibility of the evidence that GS had told her friends previously about the abuse and that in pre-trial discussions, the Crown had indicated she would not lead L. and C.’s evidence through the complainant.

[14] Crown counsel replied that she had undertaken to not elicit, from the complainant, details of the statements. However, her undertaking did not extend to the fact the complainant had made the statements. She explained that she wanted the evidence before the jury in case the complainant was cross-examined on delayed disclosure, in which event she could call the friends as witnesses to confirm that the statements had been made and to rebut any suggestion that the complainant had fabricated her evidence about having made the prior statements to her friends.

[15] The trial judge stated that the fact of disclosure to the friends was something that could be led in chief but without the details of what had been disclosed: “it’s the details that might be perceived to lend some sort of credibility as a prior consistent statement, but you can certainly say who you might have told.”

[16] On cross-examination, defence counsel elicited evidence from the complainant that the break-up between the appellant and R. was “bad” because the appellant had caught R. cheating on him, R. was in court on the day of trial, the complainant was still very close to R., and the complainant’s family did not want R. to get back together with the appellant. In respect of the timing of the disclosure to the complainant’s family, trial counsel also elicited that disclosure took place at the home of the complainant’s Aunt C. and that Aunt C. called the Children’s Aid Society when the appellant found out that R. was cheating on him.

The evidence of the CCAS Meeting

[17] In addition to the complainant’s evidence, the Crown tendered the evidence of Lori Adshade, an intake worker at the CCAS. Ms. Adshade testified about admissions the appellant made when confronted with allegations that he had sexually abused the complainant. Ms. Adshade’s testimony on the admissions was held admissible following a contested voir dire.

[18] On July 5, 2002, Ms. Adshade was an intake worker at the CCAS. On that day, Ms. Adshade was assisting her co-worker and fellow intake worker, Nickey Mina. Ms. Mina was to meet with the appellant that day in the CCAS offices. Ms. Mina had been working with the appellant and his family on an unrelated matter and Ms. Mina had to serve the appellant with a document in the unrelated matter. She had previously spoken to the appellant about getting a lawyer in the unrelated matter.

[19] Ms. Mina told Ms. Adshade that during the course of investigating the unrelated matter, a young woman related to the appellant’s family had come forward and alleged that the appellant had been sexually assaulting her since she was a young child. Ms. Mina explained that these allegations were included in the document that she was to serve on the appellant.

[20] When the appellant arrived for his meeting with Ms. Mina, Ms. Mina told him that she had received allegations that the appellant had been sexually abusing his niece. She also told him the police had been contacted about the allegations and that he was not to have any contact with his family. According to Ms. Adshade, the appellant became visibly upset and was “sort of crying”. He said he did not think his family would forgive him now that they knew “about what happened with” the complainant and that he had a “horrible problem” but had been praying to God for help. He admitted touching the complainant but denied having intercourse with her. He described that “sometimes it happened at her home when she was there alone”. The appellant then became very emotional and said he had been thinking about committing suicide and that having his own daughter had made him feel guilty “about what he had been doing” to the complainant.

[21] Ms. Adshade was concerned about the appellant’s threats of suicide so she left the meeting and called 911. When she returned to the meeting, the appellant said he had never asked the complainant not to tell anyone what was happening nor had he threatened her. He also said he wanted a second chance with his family and that he was willing to move back into the house and look after the children and let his wife get a job. Ms. Adshade testified that she told the appellant that “under no circumstances would [they] consider it safe for him to be at home with his children” and that she thought he needed “quite a lot of help” before that could happen. The police then arrived.

[22] Constable Monk was one of the police officers who arrived at the CCAS offices as a result of the 911 call. According to Constable Monk, immediately on his arrival into the interview room where the appellant sat, the appellant said, “Sorry for touching my niece.” Constable Monk then cautioned the appellant who replied, “I want to go to the hospital. I don’t want to live.” The appellant was then arrested for sexual assault and given his right to counsel.

The ruling on the disreputable conduct evidence

[23] The defence objected to the evidence given by Ms. Adstade of the circumstances in which the statements had been made, resulting from the appellant having been involved with the CCAS on an “unrelated matter”. The impugned evidence is set out below but, for convenience sake, it will be referred to as the “discreditable conduct evidence”. A mistrial was requested on the basis that the discreditable conduct evidence was prejudicial and amounted to expert evidence.

[24] The trial judge dismissed the application. He began by rejecting the notion that Ms. Adshade was reading from her will say statement, stating that he was not convinced that she was simply regurgitating or parroting the statement.

[25] Next, he rejected the submission that he ought to instruct the jury that if the jury thought Ms. Adshade had given opinion evidence, they should ignore the evidence. The trial judge was not of the view that Ms. Adshade had given inadmissible opinion evidence. He noted that the impugned testimony was simply Ms. Adshade’s lay observations, that anyone could have offered the same opinions, that there was no need for special qualifications or experience in order to form such observations, and that Ms. Adshade had not been qualified as an expert.

[26] In relation to the discreditable conduct evidence, the trial judge stated:

As for mentioning the family and to use [defence counsel’s] expression “intertwining” that information with the other, there had to be some reason, some plausible reason given to the jury for calling him in [to the CCAS offices]. The witness is bound to tell not only the truth but the whole truth, so she had to give the other reason [sic] which was done as inoffensively as possible by saying that it was to give him some papers in an unrelated matter.

I am of the view that none of that has prejudiced the accused in any way. It is, of course, always possible that this Court could give a warning to the jury with respect to those matters which defence counsel found objectionable, but I rather think that any warning would simply highlight the matter in the jury’s mind … .

THE ISSUES

[27] The appeal from conviction rests on two grounds. The appellant submits that the trial judge erred in: (1) admitting the discreditable conduct evidence and in failing to provide the jury with a limiting instruction on the proper use of that evidence; and (2) admitting the complainant’s evidence that she told her two friends of the abuse and incorrectly instructing the jury on the proper use to be made of that evidence and the disclosure by the complainant to her family (the “prior consistent statements”).

THE DISCREDITABLE CONDUCT EVIDENCE

[28] The appellant alleges that the trial judge admitted evidence of discreditable conduct when he permitted Ms. Adshade to testify that:

• on the date of the interview with CCAS, the appellant was attending on an “unrelated matter”;

• it was during the course of the investigation into the “unrelated matter” that the complainant in this case came forward and advised that the appellant had been sexually assaulting her;

• the information relating to the complainant’s allegations “had to” be included in the document pertaining to the “unrelated matter”;

• a police investigation into the allegations of the complainant was underway and, in the meantime, the appellant was not to have any contact with his family members;

• the appellant was told a court date would be set with regard to the “unrelated matter”;

• the appellant had already been spoken to by CCAS about getting a lawyer;

• the appellant was not living with his wife and children at the time;

• the appellant wanted to move back into his home but Ms. Adshade felt that under no circumstances would the CCAS consider it safe for the appellant to be at home with his children and that CCAS thought the appellant needed quite a lot of help before he could resume living with his children.

[29] Any analysis of this ground of appeal must begin with the observation that the appellant does not question the admissibility of the substantial admissions made by the appellant, as recounted by Ms. Adshade, when confronted with the allegations of abuse. Counsel takes issue only with some of the evidence that was adduced in Ms. Adshade’s recounting of those admissions and not with the admissions themselves. Nor does counsel for the appellant challenge the admissibility of Constable Monk’s evidence which, again, amounted to a confession by the appellant that he had been sexually abusing the complainant. In light of those admissions, I find it hard to conceive of how the impugned evidence could be prejudicial.

[30] Even if the impugned evidence amounts to discreditable conduct, there was no error in admitting it. Evidence of discreditable conduct may be admissible where it provides narrative required to provide some context to the evidence directly relevant to the charges before the court and the probative value of the impugned evidence outweighs its prejudicial effect.[^1]

[31] In the present case, it was essential that some evidence of the circumstances in which the admissions were made was before the jury in order for the jury to determine what weight it should give to those admissions. I draw from the jurisprudence on confessions in so concluding. In deciding what weight, if any, to attach to a confession, the jury must be told to take into consideration all the circumstances leading up to and surrounding the making of the confession.[^2] Similarly, the discreditable conduct evidence was necessary to give the jury the circumstances in which the admissions were made so that it could determine the reliability of such admissions.

[32] In terms of the assessment of prejudicial versus probative value of the impugned evidence, I begin by noting that the Crown took reasonable steps to adduce only sufficient narrative to provide context as to how the admissions came to be made. The involvement of the appellant with the CCAS was referred to only as an “unrelated matter” and no evidence was led to suggest the nature of that matter.

[33] Further, and most significantly, any prejudicial effect the impugned evidence might have had was greatly outweighed by the overwhelming probative value of the confession. The jury could hardly be concerned with an unspecified “unrelated matter” when that skeletal piece of contextual evidence was juxtaposed with nothing less than the appellant’s admission that he “touched” the complainant while denying he had intercourse with her, sometimes the touching occurred while she was at her home alone, he had a “horrible problem”, and he felt guilty about what he had been doing to the complainant. In addition, shortly thereafter through Constable Monk’s evidence, the jury heard evidence of the further admission by the appellant that he was “sorry for touching my niece”. And, from the complainant’s evidence which preceded that of Ms. Adshade, the jury had heard evidence that the appellant had sexually abused the complainant when she was a young child living in the Philippines.

[34] In the circumstances, it is fanciful to imagine that the jury would have become preoccupied with speculating about the “unrelated matter” when, in short order, the witness testified that the conversation resulted in the appellant confessing to the offences before the court.

[35] In respect of the submission that the charge was deficient as it failed to give a limiting instruction on the discreditable conduct evidence, this court has held that such an instruction is not necessary in every case.[^3] This is one such case, as there were good reasons for not giving a limiting instruction. As previously noted, the prejudicial effect of the evidence was low as no information about the “unrelated matter” was disclosed. The impugned evidence of the surrounding circumstances had significant probative value because it provided the jury with a context in which to determine the weight to be given to the admissions. And, importantly, giving a limiting instruction would not have operated in the appellant’s interest as it would have drawn attention to the fact that the appellant was involved with the CCAS on an “unrelated matter”. As the trial judge stated when dismissing the mistrial application based on the impugned evidence, “any warning would simply highlight the matter in the jury’s mind”. Finally, the trial judge did instruct the jury in general terms that:

You must not speculate, however, about what evidence there might have been or permit yourselves to guess or make up theories without evidence to support them.

It would not be fair to discuss this case on the basis of information not adduced or tested by the parties in court and made part of the evidence at trial.

[36] Accordingly, I would dismiss this ground of appeal.

THE PRIOR CONSISTENT STATEMENTS

[37] As a general rule, prior consistent statements of a witness are inadmissible. There are two primary justifications for the exclusion of such statements: first, they lack probative value and second, they constitute hearsay when adduced for the truth of their contents: R. v. Dinardo, 2008 SCC 24 at para. 36. However, the fact of a prior complaint may be admissible under the narrative exception to the general rule. See Dinardo at para. 37; R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 at 472 to 476 (Ont. C.A.); and R. v. Henrich (1996), 1996 2057 (ON CA), 108 C.C.C. (3d) 97 at 105 (Ont. C.A.).

[38] The fact that the statements were made is admissible because it assists the jury in understanding the sequence of events from the alleged offence to the prosecution. That is, it enables the jurors to understand how the complainant’s story was disclosed and how the matter came to the attention of the proper authorities. The Crown can adduce narrative evidence in its case in chief, regardless of whether the defence has raised the issue of recent fabrication or the timing of the complaint.^4

[39] In the present case, there are two prior consistent statements that must be considered: the first is the complainant’s disclosure to her family in 2002 and the second is her disclosure that told her friends, L. and C, of the abuse before she told her family what had taken place.

[40] As the appellant concedes that the complainant’s disclosure to her family was admissible narrative evidence, nothing needs to be said about those prior consistent statements in terms of admissibility.

[41] In respect of the complainant’s evidence that she told her friends L. and C. about the appellant’s conduct in 1996 and 1998, respectively, it is my view that was also permissible narrative evidence. No details of the content of the statements to her friends was led. The complainant explained that she had difficulty telling her family about the assaults because she did not think her family would believe her and because the appellant had threatened to hurt R. if she disclosed his conduct. The fact of her disclosure to persons outside of her family fits with the narrative of her explanation for the difficulties in coming forward with the allegations and assists in filling in the gap between the assaults and disclosure to the authorities.

[42] I turn next to the appellant’s submission that the charge to the jury was deficient in respect of the prior consistent statements. The alleged errors are two-fold. First, it is said that the trial judge erred in telling the jury it could use the evidence of disclosure to the complainant’s family to assist in assessing her credibility as a witness. Second, the appellant submits that the trial judge erred in failing to give an instruction limiting the use the jury could make of the disclosures to the complainant’s family and friends.

[43] The first ground of complaint is based on the following part of the trial judge’s instruction to the jury:

Gentlemen, [the complainant] told you of the circumstances surrounding the time when she revealed to her mother that the inappropriate conduct on the part of Mr. B. had taken place. You can use that evidence if you wish to – we call it “disclosure” or “reporting” – to assist you in assessing her credibility as a witness. In doing so, please note that as a matter of law, it cannot be said that a complainant who is wronged will always complain at the first opportunity. In fact, there is no rule how victims of sexual abuse will behave. Reactions vary.

In deciding whether the complainant, Ms. S., acted after the incident in a manner consistent with her story, you should consider such factors as her state of mind at the time, her age and level of maturity, her sense of composure and confidence, the relationship which existed between her and Mr. B. and the relationship between her and her mother in the context of their cultural rules.

You will recall that Ms. S. told us that she felt closer to her Aunt R., Mr. B.’s wife, than she did to her own mother, although she felt close to her mother.

Ms. S. also testified that Mr. B. had told her not to tell anyone and that if she did, no one would believe her, that it would ruin the whole family and that her Aunt R. would never speak to her again.

She said that it was in the summer of the year 2002, when she first disclosed to the family in circumstances when she learned that Mr. B. had been telling family members that she was touching herself sexually. She said that she had previously told her two best friends, C. and L., as long ago as 1996.

[44] In Dinardo at paras. 37 – 38, Charron J., writing for the Court, explains:

Once admitted, the [prior consistent] statements may be used for the limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed. The challenge is to distinguish between “using the narrative evidence for the impermissible purpose of confirming the truthfulness of the sworn allegation” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility”. [Emphasis in original.] [Citations omitted.]

In R. v. G.C., 2006 18984 (ON CA), [2006] O.J. No. 2245 (QL), the Ontario Court of Appeal noted that the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness, particularly in cases involving allegations of sexual assault against children.

[45] Similarly, at para. 12 of R. v. Stirling, 2009 SCC 10, Bastarache J. writing for a unanimous court, states:

It is therefore not entirely accurate to submit, as the appellant contends, that prior consistent statements cannot be used to “bolster” or “support” the credibility of a witness generally. This argument attempts to insulate the impact of the prior consistent statements from the remainder of the credibility analysis and suggests that “general” credibility can somehow be hived off from the specific credibility question to which the statements relate. Such a fine parsing of the notion of credibility is impractical and artificial.

[46] The impugned instruction does not suggest that the jury could use the disclosure to the complainant’s family for the impermissible purpose of confirming the truthfulness of her allegations. Rather, it conveyed to the jury the notion that the narrative evidence could be used for the permissible purpose of showing the fact and timing of the complaint which might then assist the jury in its assessment of the truthfulness or credibility of the complainant. Accordingly, I see no error in the instruction that was given on the statements.

[47] I turn to the second alleged error in relation to these statements, namely, that the trial judge erred in failing to give an instruction limiting the use the jury could make of the disclosures.

[48] When the fact of a prior complaint is admitted as part of the narrative, the trial judge is generally obliged to give a limiting instruction indicating that the prior complaints are not admitted for the truth of their contents and that the jury is to consider only the fact that the complaints were made to assist them in understanding what occurred and why: R. v. F. (J.E.), supra, at 475.

[49] However, as this court held in R. v. Demetrius (2003), 2003 16618 (ON CA), 179 C.C.C. (3d) 26 at paras. 21-22:

Although limiting instructions are generally required in cases involving prior consistent statements, there are circumstances where a limiting instruction may not be required. The adequacy of a trial judge’s instructions must be assessed in the context of the particular case on a functional basis. In my view, a limiting instruction regarding the use to be made of the prior consistent statement was unnecessary in this case and, indeed, as the defence was relying on the prior statement to support its theory, a limiting instruction might well have been confusing.

It has been held by this court that the usual limiting instruction regarding a prior consistent statement may not be necessary where the defence itself relies on the prior statement, where it was clear to the jury that the prior statement was not offered as proof of the underlying facts, or where the concern about self-corroboration is simply not present. [Citations omitted.]

[50] I accept the Crown’s contention that a limiting instruction was not required in this case because of defence counsel’s use of the prior consistent statements at trial. The thrust of the defence position was that the complainant fabricated the allegations in 2002 because of animus on her part and that of her family generated by the circumstances surrounding his break-up with R. That is, the defence theory was that the complainant’s allegations were fabricated as part of the family’s collective retribution against the appellant. Trial counsel used evidence elicited through cross-examination of the complainant, including that of the circumstances surrounding the complainant’s disclosure to her family, to establish a motive to fabricate. The defence theory was apparent not only through the cross-examination of the complainant but also in defence counsel’s closing address to the jury. The message conveyed in that closing was that the complainant had much consensual contact with the appellant over the years and the disclosure in 2002 was suspect because it came at a time when she had a motive to fabricate.

[51] When the jury charge on the prior consistent statements is considered together with the defence’s attack on the timing and circumstances of the disclosure of the allegations, in my view, a limiting instruction in relation to the disclosures was not required. As explained in the above quoted extract from Demetrius, given the defence’s reliance on the prior statements to the complainant’s family to support its theory, a limiting instruction was not only unnecessary it may have been confusing. The fact that trial counsel did not request the limiting instruction proposed on appeal lends support to my view that there was no danger of impermissible reasoning in the circumstances of this case.

THE SENTENCE APPEAL

[52] At the time of sentencing, the appellant was thirty-six years of age. He had no prior criminal record and had been gainfully employed since 1997. Although the appellant and his wife were divorced, the appellant paid child support.

[53] The appellant submits that the sentencing judge erred by treating the appellant’s absence of insight into the effect of the offences on the complainant as an aggravating feature and by sentencing for events not proven beyond a reasonable doubt. The appellant asks that the sentence be reduced to time served.

[54] I see no basis on which to interfere with the sentence. The sentence was not manifestly unfit nor did the trial judge err in principle, fail to consider a relevant factor or overemphasize an appropriate factor.

[55] This court has repeatedly and consistently upheld upper reformatory to low penitentiary sentences in cases of sexual abuse by a person in a position of trust. In the recent case of R. v. G.A.G (2006), 206 O.A.C. 134, this court upheld a sentence of four and a half years imposed on a man for the sexual assault and sexual touching of his son. At para. 13, the court said:

A sentence of four years and six months was not manifestly unfit. The assaults against the appellant’s son continued over many years. The assaults progressed in gravity from fondling to mutual masturbation and fellatio, involved a serious abuse of parental authority and had a serious impact upon the victim. We agree with the respondent that they fell within the 3 to 5 year range identified in R. v. B.(J.) (1990), 36 O.A.C. 307 (C.A.).

[56] In the present case, the sexual assaults continued over a number of years, during a period when the complainant was a young and vulnerable child. The assaults involved digital penetration and were a serious abuse of the appellant’s position of trust. He was a mature adult who exploited the trust that the complainant and her family placed in him, perpetrating sexual assaults in the period that he and his son were permitted to reside in the family home and when the complainant babysat his child. The assaults had a devastating psychological impact on the complainant and her parents. Clearly, the sentence of three years was not manifestly unfit.

[57] The sentencing judge made no error in considering the pre-sentence report in which the author stated that the appellant accepted limited responsibility for the offences, did not appear to appreciate their seriousness and showed little or no insight into the effects of his behaviour had on the complainant. Lack of insight is a relevant factor in determining a fit sentence, both in relation to the need for specific deterrence and with respect to the prospect for rehabilitation. While continued protestations of innocence are not to be treated as an aggravating factor (see R. v. A.(K.) (1999), 1999 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.)), the sentencing judge did not use the appellant’s lack of insight as an aggravating factor. Instead, as is apparent on a reading of the reasons for sentence as a whole, the sentencing judge considered lack of insight when determining a fit sentence.

[58] Further, the sentencing judge was not obliged to treat the appellant’s admissions to Ms. Adshade in 2002, and his emotional state at that time, as indicative of insight on the appellant’s part as to the effects of his behaviour on the complainant. The upset that the appellant displayed can be attributable to a number of things, including the prospect that the allegations were a further impediment to his being re-united with his family. It is not necessarily equated with the appellant showing insight into the effects of his actions on the complainant. Even if it could amount to some such evidence, the sentencing judge was entitled to prefer the information given by the author of the pre-sentence report that, at the time of sentencing, the appellant presented as having little such insight.

[59] There is nothing in the submission that the appellant was sentenced for events not proven beyond a reasonable doubt. I reject the appellant’s submission that he ought to have been sentenced only for three incidents of sexual abuse. While the complainant’s evidence on count 4 related to a specific incident, her evidence on counts 1, 2 and 5 related to recurring abuse and not isolated incidents. A finding of three separate incidents is inconsistent with the implications of the jury’s verdict.

DISPOSITION

[60] Accordingly, I would dismiss the appeal, grant leave to appeal sentence and dismiss the sentence appeal.

RELEASED: June 19, 2008 (“E.E.G”)

“E.E. Gillese J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree R.A. Blair J.A.”

[^1]: R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 at para. 16 (Ont. C.A.).

[^2]: R. v. McAloon (1959), 1959 156 (ON CA), 124 C.C.C. 182 at 186 (Ont. C.A.); R. v. Main (1993), 67 O.A.C. 350 at 352.

[^3]: See, for example, R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 at paras. 113 – 114 (Ont. C.A.) and R. v. A.G (2004), 2004 36065 (ON CA), 190 C.C.C. (3d) 508 at para. 8 (Ont. C.A.).