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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

1. (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

CITATION: R. v. B. A., 2008 ONCA 556

DATE: 20080711

DOCKET: C46733 C46690

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SIMMONS and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent (Appellant by way of cross-appeal)

And

B. A.

Appellant (Respondent by way of cross-appeal)

Howard L. Krongold for the appellant, respondent by way of cross-appeal

David Friesen for the respondent, appellant by way of cross-appeal

Heard: June 2, 2008

On appeal from the convictions entered by Justice W.J. Lloyd Brennan of the Superior Court of Justice on October 24, 2006, and from the sentence imposed on January 29, 2007.

MOLDAVER and SIMMONS JJ.A.:

[1] Following a trial before Brennan J., B.A. was convicted of sexual assault, sexual exploitation, assault with a weapon, assault, unlawful confinement and uttering a death threat. He was sentenced to a conditional sentence of imprisonment of two years less one day plus three years’ probation. B.A. appeals against conviction. The Crown applies for leave to appeal sentence and, if successful, appeals against sentence.

[2] B.A. raises three issues on his conviction appeal:

i. The trial judge improperly used prior consistent statements made by the complainant to “self-corroborate” her testimony;

ii. The reasons for judgment are inadequate because they do not permit B.A. to know why he was convicted and because they do not show that the burden of proof was properly applied; and

iii. The trial judge failed to address material inconsistencies in the complainant’s evidence.

[3] The Crown raises two issues on the sentence appeal:

i. On the authority of R. v. Fice (2005), 2005 SCC 32, 196 C.C.C. (3d) 97 (S.C.C.), a conditional sentence was not available in this case because the effective sentence imposed exceeded two years’ imprisonment; and

ii. The sentence was outside of the appropriate range and was manifestly unfit, having regard to the gravity and seriousness of B.A.’s offences.

[4] For the reasons that follow, we would dismiss the conviction appeal, grant leave to appeal sentence, and allow the sentence appeal.

I. THE CONVICTION APPEAL

i) Background

[5] In early 2003, the complainant, K.F., began spending weekends at B.A.’s home with her friend, B.M. Both girls were twelve years old at the time. B.A., who was in his mid-fifties, was a close friend of B.M.’s mother, E.M. He had known B.M. from birth and over time had assumed a parental role. B.M. stayed at B.A.’s home on most weekends because her mother was at work. In January 2003, B.M. asked B.A. if the complainant could join her in staying at his home.

[6] After B.A. obtained permission from the complainant’s mother, the complainant began regularly spending weekends at B.A.’s home. B.A., who lived on a pension, paid the two girls for doing chores and getting good grades. He also took them out to restaurants and by his own reckoning may have spent as much as $800 to $1000 on clothes for each girl in 2003 and 2004, including sixty pairs of underwear for the complainant.

[7] The complainant’s pattern of regular weekend visits to B.A.’s home continued until the summer of 2003 and then resumed in the fall of 2003 when the girls started grade eight. In November 2003, the complainant accompanied B.A. and B.M. on a trip to Toronto. Around the end of May or the beginning of June 2004, the complainant spent between five and fourteen days at B.A.’s home after her family was evicted from the farm where they were living.

[8] However, the complainant and B.A. got into a fight in June 2004 and did not see each other again until November 2004, when the complainant accompanied B.A. and B.M. on a second trip to Toronto. There was no dispute at trial that B.A. occupied the same room as the two girls during that trip. B.A. testified that following that trip, he told the complainant she was no longer welcome at his home.

[9] The complainant gave a videotaped statement to the police on December 15, 2004, which was admitted at trial under s. 715.1 of the Criminal Code. She gave a second statement to the police a week later on December 22, 2004. In her first statement on December 15, the complainant said that B.A. began abusing her following “a very weird discussion about [what] age you have sex at and stuff like that.” In cross-examination at trial, she said that B.A. first did something sexually inappropriate to her sometime before March 15, 2003.

[10] The essence of the complainant’s allegations at trial can be summarized as follows:

(a) B.A. forced the complainant and B.M. to take showers nightly. After the showers, he “inspected” the girls separately. According to the complainant, following these inspections, he rubbed lotion or powder on her and either digitally penetrated her or performed oral sex on her.

(b) On one occasion, B.A. pushed the complainant when she refused to get in the shower, causing her to cut her leg. The complainant said B.M. observed this.

(c) On several occasions, the complainant performed oral sex on B.A. and manually stimulated him (the terms “blowjob” and “handjob” were used at trial).

(d) B.A. had sexual intercourse with the complainant on one occasion during the extended period of time she lived with him in May or June 2004 after her family was evicted.

(e) On a few occasions, B.A. tied the complainant up in the basement with a bathrobe tie, stripped her, and hit her bare buttocks with a fly swatter.

(f) Beginning around grade eight, B.A. forced the girls to stand back-to-back in the living room and quizzed them about their schoolwork. If either girl gave the wrong answer, B.A. hit her with a fly swatter.

(g) B.A. made various threats to the complainant about what he would do if she told anyone about the abuse – he would prevent her from being able to get into college, shoot her between the eyes or tamper with her mother’s car.

[11] The complainant testified that B.M. was also being abused. She said she saw B.M. being hit during the quizzes and on one occasion walked in on B.A. and B.M. and saw B.A. sexually abusing her. In addition, the complainant said that B.M. told her about being abused.

[12] In cross-examination, the complainant testified that she kept returning to B.A.’s home because he threatened her, because he paid her for doing chores and bought her things, and because she did not want to leave B.M. alone with him.

ii) Evidence concerning disclosure by the complainant

[13] In addition to the complainant, several Crown witnesses gave evidence at trial concerning disclosures by the complainant and how the allegations came to light.

[14] According to one witness, C.D., the complainant told her about the abuse during the summer of 2004, but asked C.D. not to tell anyone. The two discussed the abuse again in October 2004 after C.D. brought it up. The complainant also disclosed to her friend A.H. sometime in the fall of 2004. At the complainant’s request, A.H. told a former teacher, M.E.G., who in turn contacted a child welfare agency. During the fall of 2004, the complainant also disclosed to her cousin, M.K., and to another friend, M.F., while the three were outside their school at lunchtime.

[15] Defence counsel at trial (not Mr. Krongold) cross-examined A.H. concerning the content of the complainant’s disclosure to her. Later, defence counsel indicated that he would not object to Crown counsel leading evidence from M.K. and M.F. concerning the content of K.F’s disclosure to them.

iii) The defence evidence

[16] B.A., B.M. and E.M. all testified for the defence. B.A. said he was 58 years old, divorced and had no criminal record. He was not working because of a disability arising from army injuries. He testified that he never physically or sexually abused either of the girls.

[17] B.M. testified that B.A. never physically or sexually abused either her or the complainant. In particular, she said that she had never seen the complainant being abused and that the complainant had never complained to her about abuse.

[18] E.M. testified that B.M. never expressed any reservations about spending time with B.A. and never had any injuries, other than once when she hurt herself sliding down a tree. In addition, she said that B.M.’s behaviour improved after she started spending weekends with B.A.

iv) The trial judge’s reasons

[19] Early in his reasons, the trial judge identified the contradictory evidence of the complainant and B.M. as “[a] unique and troubling feature of this case.” However, he said he was “convinced [B.M.’s] interest in [B.A.’s] acquittal, renders her evidence suspect”, referring to B.M.’s hopes that her mother and B.A. would marry, as well as her fears about testifying.

[20] After describing how the complainant began spending time at B.A.’s home and some difficulties in her life, the trial judge set out his conclusions about her evidence. He found the complainant’s “statement evidence and the core of her evidence at trial entirely credible.” In addition, he said that “[a]lthough she was cross-examined skillfully and at length, the essential elements of the offences are made out in her evidence, beyond reasonable doubt.”

[21] After stating these conclusions, the trial judge indicated that he had carefully considered the evidence of B.A. and B.M. and the circumstances of the complainant’s disclosures. He said that although he recognized that he could not use “prior consistent statements of a complainant to determine whether her sworn testimony is credible … her demeanor and the circumstances and consistency of her communicating what she said was happening to her, are properly the subject of observation in the search for truth.”

[22] The trial judge then observed that one such circumstance was that the police interview resulted from a report to child protection authorities by M.E.G., a teacher who taught the girls in grade seven from mid-April 2004 to the end of the school year. He noted that M.E.G. had observed the complainant crying on the floor at school on two occasions; that M.E.G. felt the complainant’s knowledge of sexual matters was more advanced than normal; and that M.E.G. had sensed the complainant was resentful of B.A. The trial judge noted that M.E.G. called child protection authorities based on information she received from A.H., who was the complainant’s friend.

[23] After describing the complainant’s testimony that the abuse began with B.A. rubbing lotion on her after forcing her to shower and then progressed to fingering and touching her vagina, the trial judge stated that he believed her evidence on that point and that it was sufficient to support a conviction for sexual assault. In so concluding, he noted that B.M.’s evidence that B.A. insisted the girls shower every night supported the complainant’s credibility.

[24] The trial judge then referred to the complainant’s disclosures to C.D., M.K. and M.F. He described four features of her disclosure to M.K. and M.F.: i) being hit with a fly swatter while being quizzed; ii) being tied in the basement and struck with a fly swatter while strung up to the ceiling; iii) being made to “do stuff” to B.A., which the trial judge interpreted as referring to acts of masturbation and fellatio; and iv) being forced into the shower when she did not want to go. The trial judge stated, “The consistency helps me conclude she was truthful, and I prefer her evidence to that of B.A. and B.M.”

[25] Finally, the trial judge reviewed the aspects of the complainant’s evidence that supported findings of guilt with respect to the remaining counts on the indictment. In relation to the unlawful confinement charge, the trial judge concluded that a green bathrobe tie found by police in B.A.’s home was the tie the complainant said B.A. used to tie her to the basement ceiling.

v) Analysis

a) Did the trial judge improperly use the complainant’s prior consistent statements to “self-corroborate” her testimony?

[26] B.A. acknowledged in oral argument that it was open to the trial judge to accept C.D.’s evidence that the complainant disclosed the abuse to C.D. during the summer of 2004 and to use that finding to rebut the suggestion that the complainant fabricated her allegations because B.A. told her she was no longer welcome at his home after the November 2004 trip to Toronto. B.A. also acknowledged that it was open to the trial judge to use M.F.’s evidence that the complainant told M.F. and M.K. that B.A. made her “do stuff” to him to rebut the suggestion that the complainant fabricated her allegations of masturbation and fellatio during the second videotaped statement to the police on December 22, 2004.

[27] However, B.A. submits that the trial judge was not entitled to use the remaining details of the complainant’s prior statements to M.K. and M.F. for other impermissible purposes. Moreover, he contends that the following portion of the trial judge’s reasons demonstrates that he used the complainant’s prior statements to M.K. and M.F. to improperly self-corroborate her testimony:

It was after the start of school, in her grade nine year, that she told other friends, outside the school, in an area where some of them went to smoke. Her cousin [M.K.] testified to four features of the disclosure [the complainant] made to her and [M.F.] She told of being struck with a flyswatter for failing to know the correct answers when being quizzed by [B.A.]. She told of being tied in the basement of his house and struck with a flyswatter, while strung up to the ceiling. She said, he made her “do stuff” to him, which I take to refer to the acts she described in her evidence, including, masturbating him and fellating him and she said, “he forced her into the shower when she did not want to go.” These are consistent with [the complainant’s] statement taken by the police and with her trial evidence. The consistency helps me to conclude that she was truthful, and I prefer her evidence to that of [B.A.] and [B.M.]. [Emphasis added.]

[28] We do not accept B.A.’s submissions. It was B.A.’s overall position at trial that the complainant’s evidence was a product of recent concoction. In that context, defence counsel at trial mounted a scathing attack on the complainant’s credibility by cross-examining her on numerous inconsistencies in detail between her evidence at trial, her evidence at the preliminary inquiry, and her two prior statements to the police.

[29] One specific element of this attack related to the complainant’s claim in her second statement to the police that she performed oral sex on B.A. and stimulated him manually, and her failure to mention this claim in her initial statement to the police. Given this particular attack, we agree that it was open to the trial judge to rely on the specifics of the complainant’s disclosure to M.K. and M.F. in the fall of 2004 to rebut the suggestion that she fabricated her allegations of “blowjobs” and “handjobs” in her second statement to the police. See David Paciocco & Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) at 446-47; R. v. Kozodoy (1957), 117 C.C.C. 315 (Ont. C.A.) at 318.

[30] However, in our view, the trial judge was not required to restrict his consideration of the complainant’s prior statement to M.K. and M.F. to the portion that referred to B.A. making her “do stuff” to him. The overall tenor of defence counsel’s attack was that the complainant “rarely gave the same version of events on consecutive occasions about any core allegation.” Further, in his submissions, defence counsel noted that the complainant did not tell anyone about the abuse as it was occurring and that she never told an adult about the abuse. All of this was designed to advance the defence position that the complainant’s evidence was a product of recent concoction.

[31] Although defence counsel conceded that “every person would be expected to forget certain things” and “there would be some inconsistency regarding allegations of this nature”, he submitted that there were “serious inconsistencies” with respect to “each and every series or set of allegations” made by the complainant.

[32] In our view, the essence of the defence position at trial was that the complainant had a motive to fabricate and that she could not keep her story straight because she was making things up as she went along. Viewed in that context, we think it was open to the trial judge to consider the overall consistency between the complainant’s disclosure to her friends, her statements to the police, and her trial evidence to rebut the allegation of recent concoction and lend general support to her credibility.

[33] Although we agree that it would have been preferable had the trial judge explained in a more fulsome way that he was using the complainant’s statements in response to the attack mounted by the defence, in our view, that is apparent from reading his reasons as a whole.

[34] Earlier in his reasons, the trial judge instructed himself correctly when he said, “I have recognized that I cannot use the content of prior consistent statements to determine whether her sworn testimony is credible.” In our view, when the trial judge’s reasons are read as a whole and are considered in the context of the evidence and submissions at trial, it is apparent that he was aware that he could not use the complainant’s prior consistent statements to prove the truth of their contents, and that he used them as a response to the defence attack of recent concoction.

[35] Accordingly, we would not give effect to this ground of appeal.

b) Are the trial judge’s reasons for judgment inadequate?

[36] B.A. contends that the trial judge’s reasons for judgment are inadequate because they do not permit him to know why he was convicted and because they do not show that the burden of proof was properly applied. In particular, B.A. submits that the trial judge failed to conduct any meaningful review of his evidence and to provide any explanation of why his evidence and B.M.’s evidence did not raise a reasonable doubt. Further, B.A. contends that the reasons include several statements which indicate that the trial judge misapplied the burden of proof:

▪ After reviewing the complainant’s evidence, the trial judge proceeded directly from a finding that the complainant was credible to a finding of proof beyond a reasonable doubt when he made statements such as:

I find the statement evidence and the core of her evidence at trial entirely credible…. Although she was cross examined skillfully and at length, the essential elements of the offences are made out in her evidence, beyond reasonable doubt.

I believe her evidence on this point and it is sufficient to establish his guilt on count one.

▪ The only conclusions the trial judge expressed in relation to the evidence of B.A. and B.M. were:

I am convinced [B.M.’s] interest in [B.A.’s] acquittal renders her evidence suspect.

I prefer the complainant’s evidence to that of [B.A.] and [B.M.].

[37] We agree that it would have been preferable had the trial judge explicitly stated that he rejected the defence evidence and provided a meaningful explanation for concluding that the defence evidence failed to raise a reasonable doubt. Nonetheless, we do not accept B.A.’s submissions for two reasons.

i) The burden of proof was correctly applied

[38] First, we are satisfied the trial judge did not misapply the burden of proof. In particular, we note that the trial judge specifically instructed himself on the principles set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), and that, later in his reasons, he said that his task was to “determine that [B.A.] is guilty beyond a reasonable doubt or acquit him of [a particular] count.”

[39] Perhaps more importantly, immediately following one of the impugned passages in his reasons, the trial judge explicitly stated that he had considered the defence evidence in reaching his conclusion that the essential elements of the offences were made out:

I find the statement evidence and the core of [the complainant’s] evidence at trial entirely credible. Such inconsistencies as the number of times certain incidents occurred did not weaken the essential accounts she gave in her original statement and in her evidence. Although she was cross examined skillfully and at length, the essential elements of the offences are made out in her evidence, beyond reasonable doubt.

In reaching that conclusion, I have considered carefully the evidence of [B.A.] and [B.M.].

[40] In our view, it is at least implicit in the trial judge’s reasons that he did not accept the defence evidence and that he was satisfied it did not raise a reasonable doubt. Although we agree that it would have been preferable had the trial judge expressed himself more clearly, based on our review of his reasons, we are satisfied that he understood and properly applied the burden of proof.

ii) The weaknesses of the defence evidence

[41] Our second reason for rejecting B.A.’s submissions on this ground is that, after reviewing the entire record, we are satisfied it is apparent why the trial judge found the defence evidence did not raise a reasonable doubt. In our view, when considered in the light of human experience and common sense, B.A.’s evidence is not believable. Further, in our view, B.M.’s evidence was too unreliable to give rise to a reasonable doubt.

[42] By way of example, in our view, B.A.’s claim of an innocent motive for his generosity toward and interest in the complainant does not make sense when compared with the harshness of his conduct in terminating their relationship in June 2004. As we have said, B.A. acknowledged in his evidence that, as he did for B.M. with whom he had a longstanding relationship, he allowed the complainant to stay at his home on weekends, paid her for doing chores and getting good grades, took her out to restaurants and spent as much as $800 to $1000 on clothes for her in 2003 and 2004, including sixty pairs of underwear. In addition, B.A. allowed the complainant to stay at his home on weekdays after her parents were evicted from their farm and drove her to baseball practice daily.

[43] B.A. testified that he terminated his relationship with the complainant and sent back a graduation dress and accessories he had purchased for her because she had a temper tantrum over a cancelled baseball practice and because he had concerns about her smoking and drinking. Yet B.A. acknowledged in his evidence that he had never seen the complainant either smoke or drink; that when confronted about smoking, the complainant admitted she had a package of cigarettes but said she was holding it for someone else; and that the complainant’s step-father told him that the vodka bottle B.A. found among the complainant’s clothing was a keepsake from her grandfather who committed suicide.

[44] The complainant came from a troubled home in which there was little parental supervision or apparent concern for her welfare. She endured the death of an older sister in March 2003, her alcoholic grandfather’s suicide shortly thereafter, and her grandmother’s death in the spring of 2004. Her step-father acknowledged that he was often drunk during this period. Particularly when viewed in this context, B.A.’s response to the relatively minor misconduct he described appears extremely harsh. In our view, his reaction simply does not accord with the existence of innocent or altruistic motives for the level of generosity and interest he showed in a vulnerable adolescent female.

[45] Further, having terminated his relationship with the complainant in the manner he did, in our view, it makes no sense that B.A. would allow her to return to his home and take her on a trip to Toronto in November of 2004 simply because B.M. asked if she could come. Portions of B.A.’s evidence concerning how this came about are contradictory. B.A. testified that when B.M. asked if the complainant could come to his home, he responded “only this once”. He claimed that he also said, “From now on, it’ll only be daytime. She will not be spending weekends.” Inexplicably, he then acknowledged that the complainant stayed overnight on that occasion and accompanied him, a friend and B.M. on a trip to Toronto. B.A. also acknowledged that he and the two girls stayed overnight together in a hotel room while they were in Toronto. In our view, when considered in the light of human experience and common sense, B.A.’s evidence is highly problematic and unbelievable. Although he did not say so explicitly, this would have been apparent to the trial judge and it explains why he rejected B.A.’s evidence.

[46] Turning to B.M.’s evidence, we note that it also suffered from many weaknesses. After she was sworn and before counsel began questioning her, she asked if she could say something. She apologized for crying and said she was “just really scared.” She explained that her cousin saw an e-mail in a chat-room the preceding year indicating her head would be cut off if she testified and that she was afraid that “might still stand”. In addition, B.M. said she was afraid of the Crown Attorney, the Children’s Aid Society and the police. She indicated that the police and the Children’s Aid Society told her mother that if she did not testify, they would send her mother to jail and place her in foster care. She also said that B.A. had been a part of her family since she was little and that she did not want her family to be broken up.

[47] Later in her evidence, B.M. expressed the hope that B.A. would someday marry her mother so that she would have “an actual family, with a dad”. She also testified that, apart from her mother, B.A. had been the only constant in her life since she was a young child. In addition, B.M. confirmed that she was concerned about dying when she talked to the police and she agreed that she had said, “I’m just always scared that it’s going to be the same and I’m going to get shot in the head or something.”

[48] When asked about the complainant’s scholastic abilities, B.M. volunteered that she had abilities the complainant did not have. She said she had the ability to see into people’s hearts and that she could tell if a person had a good heart by their actions. When asked if she believed B.A. had a good heart, B.M. answered in the affirmative. She also agreed that she would not want anything bad to happen to him and said that she “knew he wouldn’t hurt people, no matter what.”

[49] Even on a paper record, B.M. presents as an emotionally fragile witness with a clear interest in securing B.A.’s acquittal. It is obvious to us, as indeed it was to the trial judge, that her evidence was not sufficiently reliable to raise a reasonable doubt.

[50] Moreover, in our opinion, two aspects of B.M.’s evidence provided some confirmation of the complainant’s version of events. Although B.M. testified in-chief that B.A. did not force her and the complainant to take daily showers, she acknowledged that he encouraged them to take showers. Later, in cross-examination, she confirmed that it was important to B.A. that the girls take a shower every night. In addition, B.M. confirmed in cross-examination that when B.A. quizzed the two girls about their homework in the living room, they were standing back-to-back.

[51] In our view, B.M.’s evidence provided important confirmation of the complainant’s evidence, as did the discovery of a hook in the ceiling of B.A.’s basement that was capable of bearing weight along with the discovery of a green bathrobe tie at B.A.’s home similar to the tie the complainant said he used to tie her to the ceiling.

c) Did the trial judge err by failing to address material inconsistencies in the complainant’s evidence?

[52] B.A. did not make oral submissions on this issue. In his factum, B.A. acknowledges that the trial judge referred to inconsistencies in the complainant’s evidence but submits that the trial judge failed to resolve seven of the more problematic inconsistencies. He submits that this failure indicates that the trial judge was not sufficiently cognizant of the weaknesses in the complainant’s evidence.

[53] In contrast to B.A.’s position, the Crown argues that the alleged weaknesses identified by B.A. are either not true inconsistencies or weaknesses, or if they are, that they are adequately explained by other evidence.

[54] In our view, the trial judge’s reasons demonstrate that he was alive to the frailties in the complainant’s evidence and adequately explain why he accepted her evidence. A trial judge is not required to address each and every alleged inconsistency in a witness’s testimony. As B.A. acknowledged, the trial judge referred to inconsistencies in the complainant’s evidence in this case and explained why they did not undermine his confidence in her testimony. For example, he said:

[Defence counsel at trial] argued that there were important inconsistencies in [the complainant’s] evidence. One such inconsistency is that she said, in the December 22nd statement, that [B.A.] paid her for certain sex acts, something she did not say in the first statement. At trial she denied that she had been paid and admitted that the second statement was given when she was high on weed…. In my view, the matter of whether he was paying her for sexual favours is of no consequence, and this inconsistency does not lessen my confidence in her truthfulness. Neither am I less confident of her evidence because she gave different numbers of occasions on which certain acts took place. As an adolescent participant in this pattern of perversion she was not likely to be keeping count. One should not expect her first statement to police to be a comprehensive account with specific occasions, numbers and dates. She was an adolescent girl with a story spanning two years or more; from age 12 to 14. She was recounting embarrassing sexual events under the influence of a senior, in a relationship of dependency.

[55] We therefore do not accept the defence submissions on this point. We would not give effect to this ground of appeal.

iv) Disposition of Conviction Appeal

[56] Based on the foregoing reasons, the conviction appeal is dismissed.

II. CROWN APPEAL FROM SENTENCE

[57] Having convicted B.A. of all six counts in the indictment – sexual assault, sexual exploitation, assault with a weapon, assault, unlawful confinement and uttering a death threat – the trial judge sentenced him to a conditional sentence of two years less one day concurrent on all counts, plus three years’ probation. The trial judge also imposed several ancillary orders, none of which are at issue in this appeal. Rather, the appeal from sentence is directed solely at the imposition of a conditional sentence, a sentence which the Crown maintains is illegal, and in any event, wholly inadequate having regard to the gravity and seriousness of B.A.’s crimes.

[58] B.A. concedes that the conditional sentence cannot be sustained. He accepts that the trial judge ran afoul of the principle in R. v. Fice by impermissibly taking into account the 130 days that B.A. spent in pre-trial custody (65 days credited on a two for one basis) in determining that a sentence of two years less one day was within the appropriate range of available sentences, such that a conditional sentence could be considered as a sentencing option. The trial judge’s erroneous approach meant that B.A. effectively received a sentence of just over 28 months – a penitentiary term for which a conditional sentence was not available.

[59] Be that as it may, B.A. submits that 28 months reflects the length of sentence that the trial judge considered appropriate. Given that he has now successfully completed the better part of 18 months of his conditional sentence (in addition to the 65 days he spent in pre-trial custody) and that he is currently 60 years old and suffering from chronic back pain and thyroid cancer (as disclosed by the fresh evidence on appeal), B.A. submits that we should either dismiss the Crown’s appeal or craft a sentence that would relieve him from having to return to custody.

[60] We would not give effect to that submission. To the extent that the trial judge may have felt that 28 months was an appropriate length of sentence for the crimes committed by B.A., he was, in our respectful view, mistaken. Twenty-eight months does not begin to reflect the gravity and seriousness of B.A.’s crimes, nor the enormity of the harm he inflicted on the complainant.

[61] The complainant, to B.A.’s knowledge, was particularly vulnerable. She was emotionally fragile and came from a difficult home life. Money was scarce, living quarters were cramped and the family had recently experienced the death of the complainant’s older sister and her maternal grandparents. Under these circumstances, it is not surprising that the complainant found the prospect of spending time at B.A.’s home appealing. Needless to say, she looked to B.A. – who was almost five times her age and purportedly a man of good character – for guidance, affection and attention. However, what she hoped for and what she received were vastly different. In what can only be described as a gross breach of trust, B.A. abused the complainant physically, sexually and psychologically on a regular and persistent basis for a period of at least one and a half years. He did so by means of inducements, threats and demeaning and humiliating acts of violence. The details of his despicable conduct have been set out elsewhere; they need not be repeated.

[62] What is apparent is that without the slightest hint of remorse or compunction, B.A. was only too willing to place his deviant needs over the needs of an innocent child. In the process, as the complainant’s victim impact statement reveals, he robbed her of her innocence and left her psychologically and emotionally scarred and damaged for life.

[63] This court has made it clear in recent years that conduct of this nature will not be tolerated and when it is uncovered, it will be dealt with harshly. See R. v. D. D. (2002), 163 C.C.C. (3d) 471; R. v. G. A. G., [2006] O.J. No. 67; R. v. R. W. N. (2004), 181 C.C.C. (3d) 470.

[64] Here, in addition to the aggravating factors already mentioned, B.A. continues to maintain his innocence and shows no insight into the gravity and seriousness of his crimes and the harm he has caused the complainant. Specific deterrence therefore becomes prominent and must be considered alongside the other principles of sentencing that are paramount in cases of this nature – denunciation, general deterrence and, in some instances, separating the offender from society. Although the trial judge adverted to some of these principles and purported to recognize their prominence, it is apparent from his reasons that he did not give them the weight they deserved. Rather, the trial judge focussed on the needs of B.A. and his prospects for rehabilitation in fashioning a sentence that in our view was woefully inadequate.

[65] Taking into account B.A.’s age, his medical problems at the time of sentencing and the fact that he had no prior criminal record, we think an appropriate sentence at trial would have been five to six years in the penitentiary. At this juncture, given that he has completed the better part of 18 months of his conditional sentence and taking into account the further medical problem he has encountered, the time he has already spent in pre-trial custody, and the fact that he must now be re-incarcerated, we would impose a sentence of three and one-half years concurrent on all counts, commencing on the day that B.A. surrenders into custody or is apprehended and taken into custody.

[66] In view of that disposition, the probation order cannot stand and it is set aside. All other aspects of the sentence imposed at trial shall remain the same.

[67] In the result, leave to appeal sentence is granted, the appeal is allowed and the sentence below is varied in accordance with these reasons. If necessary, a warrant for B.A.’s arrest may issue.

RELEASED: July 11, 2008 “MJM”

“M. J. Moldaver J.A.”

“Janet Simmons J.A.”

“I agree Paul Rouleau J.A.”