WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.M., 2012 ONCA 894

DATE: 20121220

DOCKET: C52632

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.M.

Appellant

Timothy E. Breen, for the appellant

Catherine Mullaly, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on March 31, 2010 and the sentence imposed on November 10, 2010 by Justice John R. McIsaac of the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A. overview

[1] The appellant, D.M., was convicted of eight counts of sexually molesting his step-daughter, E. The molestation took place over an eight-year period, when E was between 11 or 12 and 20 years old. The acts of molestation consisted of sexual touching and digital penetration, but not intercourse.

[2] On numerous occasions, the appellant acknowledged his acts of wrong doing – to his step-daughter directly, to a Children’s Aid Society (“CAS”) worker, in a statement to police, which was admitted at trial after a voir dire, and in his trial testimony. However, he sought to minimize his culpability by admitting only to a few isolated acts of sexual touching. Thus the trial was mainly about the frequency and the intrusiveness of the appellant’s wrongdoing.

[3] In convicting the appellant, the trial judge found that the episodes of molestation were “almost unrelenting” and occurred many, many times over the course of eight years. He sentenced the appellant to five years imprisonment.

[4] The appellant appeals both his conviction and sentence. On his conviction appeal he makes two submissions. First, the trial judge erred in ruling that his statement to the police was voluntary. Second, the trial judge erred in the way he evaluated E’s credibility. On his sentence appeal, the appellant submits that his sentence exceeds an appropriate range.

[5] For the reasons that follow, I would dismiss the conviction appeal, but would allow the sentence appeal and reduce the appellant’s sentence from five to four years imprisonment.

B. background facts

(1) The Family

[6] The victim, E, was born in 1984. She is the oldest of her mother’s eight children. She and her older brother were fathered by another man. When E was seven years old, E’s mother and the appellant married. They had six children together. All the children lived together as a family in several small Ontario communities. For most of the time the children were homeschooled, mainly by their mother.

[7] At the time of trial, the appellant was 48 years old. He was a university professor, though his job has been terminated because of his conviction. E had willingly accepted the appellant as her father, and continued to do so despite his sexual molestation of her. However, after she reported the abuse she left the family home, and has been ostracized by her mother and estranged from her siblings. At the time of trial, E was beginning graduate work at a Canadian university.

(2) The Appellant’s Acts of Sexual Molestation

[8] E reported the appellant’s abuse of her to the police in September 2007. The appellant was charged with five counts of sexual assault (counts 1, 3, 5, 7 and 9) and five counts of sexual touching (counts 2, 4, 6, 8 and 10). He was found guilty on counts 1 to 6 and counts 9 and 10, and not guilty on counts 7 and 8. The following is a brief summary of E’s evidence about the appellant’s sexual abuse of her, which the trial judge almost entirely accepted.

[9] Counts 1 and 2. E testified that when she was young, the family would gather together on Friday nights to watch movies. She recalled lying with the appellant on the couch covered by a blanket. She testified about three incidents before her thirteenth birthday when the appellant touched her inappropriately under the blanket. On the first occasion he touched her breasts; on the other two occasions he put his hand down her pants and touched her vagina. On each occasion the touching was very brief.

[10] Counts 3 and 4. On her thirteenth birthday, in June 1997, E went camping with her parents and siblings in a provincial park. E shared a tent with her four-year old sister L. During the night L started crying and the appellant came into the tent to settle her down. The appellant then opened up E’s sleeping bag and laid down next to her. He removed her nightgown, put his legs between her legs, touched her breasts and digitally penetrated her. After he stopped he still remained in the tent overnight.

[11] Counts 5 and 6. The next night on the camping trip, the appellant slept with E and L in their tent. E testified that the “same thing” happened. The appellant took off her nightgown, touched her breasts, moved his legs between her legs, and touched her clitoris.

[12] Count 7 and 8. In September 1998, E went camping in Algonquin Park with the appellant, her sister L and her brother P. They all stayed in one large tent. E testified that after L went to sleep, the appellant undid her nightgown, touched her breasts and clitoris and digitally penetrated her. The trial judge found that this abuse “probably took place”, but had a reasonable doubt because of certain inconsistencies in E’s evidence.

[13] Counts 9 and 10. E and L shared a bedroom until early 2001, when L moved into another room. E testified that the appellant came into her bedroom in the middle of the night – both before and after L moved out – hundreds of times, and sexually molested her. The appellant massaged her legs, touched her clitoris and occasionally digitally penetrated her. The appellant never spoke to E and she pretended to be asleep.

[14] The trial judge had a reasonable doubt about whether the incidents occurred while L shared the bedroom because of L’s evidence that she would have been able to detect the abuse. However, the trial judge had no doubt that the abuse occurred after L moved out of the bedroom.

[15] In addition to molesting E in the bedroom, the appellant also began touching her breasts and pressing his body against her while she was studying, working on the computer or playing the piano.

(3) The Appellant’s Acknowledgements of Wrong Doing

(a) Before trial

[16] Before trial the appellant acknowledged at least five times that he had sexually molested E – three times to E directly, once to the CAS, and once to the police. These acknowledgements of molestation, though qualified in frequency and intrusiveness, were as follows.

[17] May 2001. One day in May 2001, L (E’s younger sister) said that she “woke up with hands all over her”. L was eight years old at the time. E became upset because she felt that she had failed to protect her sister. E told her mother that she thought what L said was true because the same thing had happened to her. This was the first time that E told anyone in her family about the abuse.

[18] This conversation led to a meeting between E and her parents. The appellant told E that he knew what he did was wrong. He said that he was sorry and it would not happen again. But, it continued for another four years.

[19] April 2005. In late April 2005, E disclosed the abuse to the minister of a church where she went for bible study. The minister reported the abuse to a CAS representative and E, too, told the CAS representative that the appellant had sexually molested her.

[20] The CAS representative then came to the appellant’s home and advised him that E had reported he had touched her inappropriately. The appellant acknowledged E’s complaint and admitted that he had touched her inappropriately.

[21] The CAS allowed the appellant to remain in the home on condition he go for psychometric testing and seek counselling. He agreed to do so. During the testing he again admitted that he had touched E inappropriately.

[22] June 2005. In June 2005, the appellant gave a statement to the police in which he admitted that about four years earlier he had touched E five or six times. This statement was admitted after a voir dire and is the subject of one of the grounds of appeal, which I will deal with shortly.

[23] July 2005. In July 2005, after E had moved out of the house, she received an email from the appellant, which said:

I have said this before and I am willing to say it again: I’ve hurt you. I was wrong. I am sorry. I have always loved you, however sometimes my actions were [inappropriate]. I hope you can also remember all the many good things I have done for you.

[24] February 2007. In February 2007, E received a “care package” from her family, which included a letter from the appellant. The letter began:

Dear E, I miss you – we all do. I look forward to the day when we can be together as a family. That is God’s desire and I have faith that he will see it to completion. It starts with repentance and forgiveness. As I have said to you before, and written to you before, I am very sorry. I hurt you and it was wrong. I wish I could undo it, but I can’t. But the past is past, and long over.

(b) The appellant’s trial testimony

[25] The appellant gave evidence about all the counts in the indictment. He admitted to a few incidents of sexual touching of E in respect of counts 9 and 10. Otherwise he denied that he had sexually molested his step-daughter.

[26] On counts 1 and 2 he agreed that the family occasionally watched movies on Friday nights and several times he and E laid on the couch together. The appellant acknowledged that during these occasions he may have inadvertently touched E’s breasts.

[27] On counts 3 and 4, the appellant agreed that the family went camping in June 1997. He also agreed that he came into the tent E and L slept in to calm L down when she started crying. However, he said that he stayed only 15 minutes and did not molest E.

[28] On counts 5 and 6, the appellant denied that he slept in the girls’ tent on the second night of the camping trip.

[29] On counts 7 and 8, the appellant agreed that he and E went camping in Algonquin Park, but again he denied molesting her.

[30] On counts 9 and 10, the appellant acknowledged that he touched E inappropriately four to seven times between February and May 2001. He recalled three or four instances when he went into her bedroom while she was asleep and touched either her vagina or breasts or both. He denied digitally penetrating her. He also admitted that once or twice he touched E’s breasts under her blouse while she was studying at her desk, and once he touched her breasts while she was sitting at the piano.

C. the conviction appeal

(1) Did the trial judge err in ruling that the appellant’s statement to the police was voluntary?

[31] After a voir dire, the trial judge ruled that the appellant’s statement to the police in June 2005 was voluntary and therefore admissible at trial. The appellant submits that the trial judge erred in his ruling. He contends that as he was a suspect in a criminal investigation, for his statement to have been “voluntary” he had to have been aware of the consequences of speaking to the police. He maintains that he was not advised of and was not aware of these consequences. He argues that had he been aware of the consequences of speaking to the police he may have said nothing. He also argues that once his statement to the police was ruled admissible, he was “forced” to testify, and acknowledge, though in a limited way, his wrong doing.

(a) Circumstances giving rise to the appellant’s statement

[32] In late April 2005, following E’s report to the CAS, Constable Sheryl Sutton of the Criminal Investigation Bureau of the South Simcoe Police, was asked to investigate the alleged sexual abuse. She contacted E, who refused to make a formal complaint to the police. Sutton acknowledged that though she lacked grounds to lay a charge, she wanted to speak to the appellant. In mid-May she phoned his home and was told that he was out of the country. She left a message that she wanted to speak to him. He did not return the call.

[33] About a month later, at 7:30 p.m. one evening, the appellant was stopped by another police officer for speeding. At the time Sutton was on duty at the police station and heard the radio call concerning the traffic stop. She told the other officer to ask the appellant to come to the station to meet with her.

[34] The appellant arrived at the police station at 7:50 p.m. Sutton took him to a small interview room. She testified that she told the appellant that he was not obliged to see her or remain at the station, and that he “did not need to answer any of [her] questions”. As she did not believe that there were sufficient grounds to lay a charge or that the appellant was detained, she did not advise him of his right to counsel. She did, however, acknowledge that she was investigating an allegation of sexual assault and hoped to obtain a confession from the appellant.

[35] The interview lasted 25 minutes. It was videotaped but the tape has been destroyed in accordance with a policy to retain tapes for only one year if charges have not been laid. Sutton, however, made three pages of notes summarizing significant portions of the interview.

[36] Sutton testified on the voir dire that she told the appellant E had reported inappropriate touching to the CAS but had not made a complaint to the police. The appellant said that about four years previously he had “touched” E “five or six times”. He also said that the family had addressed the matter and that the police did not need to be involved. Sutton asked the appellant where he had touched E. The appellant refused to provide any detail; he said that he did not see why he needed to answer her questions. At the end of the interview, Sutton told the appellant that the investigation was “closed”, but that if E changed her mind and gave a statement to the police, he would be charged.

[37] The appellant also testified on the voir dire. He said that he did not want to meet with Sutton and found the interview to be intimidating. He denied Sutton had told him that he was not obliged to meet with her or answer her questions. He did acknowledge telling Sutton that four years previously he had touched E five or six times. He testified that he made these statements to Sutton because he believed the police investigation was related to the CAS complaint, and it was in his best interests to cooperate and be consistent.

(b) The trial judge’s ruling

[38] The trial judge ruled that the appellant’s statement to Sutton was voluntary and admissible. In so ruling, he made the following findings:

• The interview was not conducted in an atmosphere of oppression, as the appellant was permitted to attend and leave the station on his own.

• Sutton did tell the appellant that he did not have to remain or answer her questions; therefore, “when [the appellant] chose to answer the questions posed, he was well aware of his right to refuse to co-operate with this investigation.”

• The appellant’s statement to the police was not tainted by his previous statement to the CAS. He decided to say the same thing both to the CAS and Sutton “to appear consistent”.

(c) Discussion

[39] The appellant submits that the trial judge took too narrow a view of the confessions rule. He says that the “voluntariness” of a confession rests on two planks: knowing waiver of the right to silence; and knowledge of the consequences of speaking to the police. Accepting the trial judge’s findings, the appellant was cautioned on his right to silence and knowingly waived that right. However, he was not told and was not aware of the consequences of speaking to the police – that what he said could be used against him in a criminal prosecution. He thought that the police interview was a continuation of the CAS’s investigation into the safety of his other children; he did not appreciate that his admissions to Sutton were made in the context of a criminal investigation of E’s allegations against him.

[40] When the appellant was interviewed by Sutton, he was not under arrest, nor was he detained. His rights under the Canadian Charter of Rights and Freedoms were not triggered. However, I agree with the appellant that when he was interviewed, he was a suspect, indeed, the target of a criminal investigation. Therefore, the common law confessions rule, described by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, applies. The confessions rule requires the Crown to demonstrate beyond a reasonable doubt that a confession made by a suspect to a person in authority, such as the admission in this case, was voluntary: R. v. Oickle, at para. 30.

[41] The majority in R. v. Oickle stated, at paras. 25-27 and 68-69, that voluntariness is not only concerned with whether the accused’s confession was induced by threats or promises; it is a broader concept focused on the protection of an accused’s rights and fairness in the criminal process. A court must, therefore, consider all the circumstances in which the accused spoke to determine whether a statement given to a police officer was made voluntarily: R. v. Oickle, at para. 68.

[42] Because of the factual nature of a voluntariness determination, a trial judge’s finding that a confession was made voluntarily is owed deference on appeal: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17. If the trial judge applied the proper legal test and considered the relevant circumstances surrounding the confession, a court of appeal should only overturn the determination if a palpable and overriding error tainted the trial judge’s assessment: R. v. Oickle, at para. 71.

[43] The appellant submits that the trial judge did not apply the proper test. In finding the appellant’s statement voluntary he did not take into account that the appellant was not told and was unaware of the consequences of speaking to the police. The trial judge’s ruling, therefore, cannot stand. I do not accept this submission because I do not accept that the appellant was unaware of the consequences of speaking to the police.

[44] I accept the trial judge’s finding that the appellant was cautioned about his right to silence. However, the trial judge did not find that the appellant was told the police were conducting a criminal investigation. There is some case law supporting the appellant’s position that not being aware of the consequences of speaking to the police is a relevant circumstance in assessing voluntariness. Watt J., for example, made this point in R. v. Worrall, [2002] O.J. No. 2711 (S.C.), at para. 106 :

Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them. Neither Detective Constable Chiasson nor Detective Scott told Joseph Worrall (after this disclosure) that what he said could be used in his prosecution for an offence arising out of his conduct in connection with the death of Brendan Carlin. [Emphasis added.]

[45] Assuming that knowledge of the consequences of making a statement to the police is a relevant consideration in determining voluntariness, I have no doubt that this appellant was fully aware of the consequences of speaking to Sutton. The appellant is an intelligent and highly-educated man. Sutton’s line of questioning at the police station was not misleading; she confronted the appellant directly with E’s allegations. He knew what the police were investigating.

[46] The appellant also appears generally knowledgeable about the potential legal consequences of his actions. After he was interviewed by the CAS, for example, he consulted a lawyer. And the most telling evidence that he was aware of the consequences of speaking to the police was his refusal to provide Sutton with details of the touching, instead telling her he did not see why he needed to answer her questions. These reasons are sufficient to dispose of this ground of appeal.

[47] There is, however, another basis for not giving effect to the appellant’s argument on the admissibility of his statement to the police. Even if the trial judge’s ruling was in error, the error was harmless. The appellant’s admission of wrong doing to Sutton added nothing to the acknowledgement of wrong doing that he had already made to E and especially to the CAS representative. These acknowledgements were all admissible at trial.

[48] I would not give effect to this ground of appeal.

(2) Did the trial judge err in his evaluation of E’s credibility?

[49] The appellant submits that the trial judge erred in his assessment of E’s credibility. His argument has three prongs:

• The trial judge erred by failing to consider E’s motive to fabricate;

• The trial judge erred by relying on the fact that E did not claim she had oral sex or intercourse to support her credibility;

• The trial judge erred by failing to consider the significance of the contradictory evidence of E’s younger sister, L.

(a) Motive to fabricate

[50] The appellant contends that E’s evidence showed she had a motive to fabricate her allegations of abuse and that the trial judge failed to address this evidence. The motive arose because of her feelings of ill will towards her family and their determination to ostracize and isolate her. The appellant points out that E admitted to entertaining thoughts of revenge. I do not accept the appellant’s contention for several reasons.

[51] First, in the light of the appellant’s own admission of sexual abuse, E could hardly be said to have fabricated her allegations. The most that the appellant can claim is that she exaggerated them.

[52] Second, I do not see in the record any clear evidence of even a motive to exaggerate. That E was upset with her family, even angry with her family, was to be expected. They did not support her in coming to terms with her abuse, and she was estranged from them. However, her motive in going to the police was simply to protect her sisters from abuse. Although in cross-examination she candidly acknowledged she had feelings of anger toward her family and wanted to get back at them, she also testified that these feelings were “as a fleeting thought, perhaps.”

[53] Third, in two passages germane to this ground of appeal, the trial judge carefully considered E’s credibility and her motives in reporting the abuse to the police. At the beginning of his assessment of E’s credibility, the trial judge said:

I found the complainant to be an extremely impressive and credible witness. She withstood a lengthy and probing cross-examination which included numerous references to the troubling process of her lengthy period of counselling. I find it difficult to accept that she would expose herself to such disturbing questions which include references to two episodes of attempted suicide and multiple episodes of self-mutilation if she was prepared to exaggerate her complaints for the purpose of avenging herself on the family that has abandoned her. This simply does not accord with normal human experience and I reject any suggestion that she has manufactured any of her complaints. I accept that she threatened to go to the police in 2005 with her complaints but I am satisfied that she did so as a last resort effort to get her property out of the family home having been “stonewalled” in her efforts up to that point by the accused and her mother.

[54] Then the trial judge addressed the process by which E eventually brought her allegations out in the open:

The complainant has given a reasonable explanation for not taking her allegations outside the family given her perception of the impact of doing so on her mother and, most importantly, the solemn promises from her molester father that he would not repeat his abuse. In addition, I am not prepared to draw any adverse inference from the delayed and incremental disclosure of the extent of the invasiveness of the abuse in this case. The numerous references in the counselling records disclosed at trial satisfy me that this was a long, torturing experience for the complainant before she was able to articulate these details.

[55] These two passages show that the trial judge considered E’s reasons for reporting the appellant’s abuse and that he rejected the notion that she had any motive to lie about or embellish her allegations.

(b) Absence of allegations of oral sex or intercourse

[56] In finding E’s evidence credible, the trial judge said:

As well, it is noteworthy that, if the complainant was prepared to falsify and exaggerate her complaint against her stepfather, she did not play the “trump cards” of an allegation of penile penetration, fellatio or cunnilingus.

[57] The appellant submits that the absence of more serious allegations of sexual abuse does not support the credibility of the allegations E did make. Even if the appellant is correct, this brief passage from the trial judge’s reasons was not essential to his finding that E’s testimony was credible. This passage comes at the end of his assessment of her credibility, after he had already accepted her evidence. Bearing in mind the significant deference accorded to a trial judge’s credibility findings, this one passage does not provide a basis for appellate intervention.

(c) L’s contradictory evidence

[58] The trial judge accepted that L’s contradictory evidence concerning the camping trip in Algonquin Park and the alleged abuse while she and E shared a bedroom raised a reasonable doubt about the appellant’s guilt on counts 7 and 8, and on part of the timeframe for counts 9 and 10. The appellant submits that the trial judge erred because he failed to consider the effect of L’s evidence on E’s overall credibility.

[59] I do not agree with this submission. A trier of fact, of course, is entitled to accept all, some or none of a witness’s evidence. And even though the trial judge accepted L’s evidence in connection with some of the incidents, he still held that all these incidents probably took place “given the compelling nature of E’s testimony and the accused’s partial admission of criminal liability.” He also harboured “lingering suspicion that [L] has been indoctrinated to support her father on these charges”. Taking into account these observations, and the trial judge’s finding that E was “an extremely impressive and credible witness”, it is inconceivable that L’s evidence would affect the trial judge’s assessment of E’s overall credibility.

[60] I would not give effect to this ground of appeal.

[61] Accordingly, I would dismiss the conviction appeal.

D. the sentence appeal

[62] The trial judge sentenced the appellant to five years in the penitentiary. The appellant submits that this sentence exceeds the proper range for these offences and this offender.

[63] In assessing this submission, I begin with the trial judge’s reasons. The trial judge correctly noted that the primary sentencing objectives were denunciation and deterrence. He also correctly noted the several aggravating circumstances of these crimes. They include:

• The appellant committed a gross breach of parental trust by abusing his step-daughter. Abuse of a position of trust toward a victim, and abuse of a person under age 18 are deemed by s. 718.2(a) of the Criminal Code, R.S.C., 1985, c. C-46, to be aggravating circumstances on sentence.

• The appellant’s sexual molestation of his step-daughter occurred frequently, and at times was unrelenting.

• The offences took place over a long period of time (eight years).

• These offences have had a devastating impact on the victim, E. Her entire well-being, but principally her emotional well-being, has been affected. Twice she has attempted suicide. Almost unimaginably to any right-thinking person, her entire family has turned on her for reporting the abuse, so that she is now almost completely isolated from her mother and her siblings.

[64] The trial judge also referred to several of the mitigating circumstances surrounding these offences:

• The appellant had no previous criminal record.

• He sought professional help and counselling for what he had done.

• He has a stellar professional reputation, and has done much to benefit society, including, for example, volunteering in developing countries.

• He has shown some remorse, albeit limited. However, I acknowledge that the trial judge found on a balance of probabilities the appellant was not “genuinely remorseful” for the abuse of E.

[65] In the light of these circumstances and the nature of the offences, is a five-year penitentiary sentence excessive? Over 20 years ago, in R. v. B.(J.) (1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a person in a position of trust sexually abuses a child, and the abuse includes sexual intercourse, the range of sentence is three to five years in the penitentiary: para. 5. In this case, the appellant’s abuse of E did not include sexual intercourse.

[66] However, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.) is no longer appropriate. We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low. The trial judge referred to one of our decisions, R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, and cited Moldaver J.A.’s oft-quoted statement “that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms”: para. 44. See also: R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721.

[67] However, even taking account of our court’s more recent jurisprudence, I agree with Mr. Breen that a sentence of five years imprisonment for the appellant exceeds an appropriate range. I would reduce the appellant’s sentence from five years to four years in the penitentiary. I would do so for two main reasons.

[68] First, in those cases where this court has either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present:

• Sexual intercourse (vaginal or anal)

• Oral sex

• Incest

• More than one victim

• Grooming of the victim

• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret

• A previous criminal record for sexual abuse

[69] Examples of these cases in recent years include R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 450; R. v. Cloutier, 2011 ONCA 484; R. v. J.L., 2009 ONCA 788; R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241; R. v. W.Q. (2006), 2006 CanLII 21035 (ON CA), 210 C.C.C. (3d) 398 (C.A.); R. v. R.B. (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.).

[70] In this case, not one of these aggravating circumstances is present.

[71] Second, this court has either upheld or imposed sentences of less than five years for seemingly more egregious conduct:

• In R. v. I.F., 2011 ONCA 203, this court imposed a four-year sentence for a man who abused his three step-granddaughters over an eight-year period; the abuse included fondling, masturbation, oral sex, and acts of grooming.

• In R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, this court upheld a three-year sentence for a man who abused his niece when she was between 12 and 16 years old. The abuse included fondling and digital penetration; the victim also reported that her uncle would get on top of her with his shorts pulled down and she “would feel something going inside of her”: para. 7. At times, the abuse was accompanied by threats.

• In R. v. B.A., 2008 ONCA 556, 238 O.A.C. 198, this court imposed a three-and-a-half year sentence for a man who abused both a girl he watched while her mother was at work, and the girl’s friend. The abuse included digital penetration, oral sex, one act of vaginal intercourse, and acts of violence and humiliation.

• In R. v. G.A.G. (2006), 2006 CanLII 265 (ON CA), 206 O.A.C. 131, this court upheld a sentence of four years and six months imprisonment for a man who abused his son over many years. The abuse included mutual masturbation and oral sex.

• In R. v. A.G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508, this court imposed a two-year sentence for a man who abused his 12 year old niece; the abuse included fondling, attempted fellatio, and attempted intercourse. The victim struggled fiercely during the assaults.

[72] Although in several of these cases the accused relied on mitigating factors not present in this appeal, these cases still demonstrate that sentencing the appellant to five years imprisonment would be inconsistent with the jurisprudence of this court.

[73] However, the frequency and duration of the appellant’s sexual abuse demands a severe sentence. The trial judge accepted E’s evidence that this abuse occurred many, many times over an eight-year period. The appellant often entered E’s bedroom in the middle of the night, while she lay sleeping in her bed, to perpetrate the abuse. His assaults continued despite E’s disclosure to her mother and several conversations with the appellant about his behaviour. The appellant’s acknowledgements, apologies, and promises to reform, followed as they were by renewed abuse, have undoubtedly contributed to E’s trauma. Notably, although the appellant professed contrition, he allowed E to become isolated from her family and chose to put her through a trial.

[74] For these reasons, I would sentence him to four years in the penitentiary.

E. conclusion

[75] I would dismiss the conviction appeal. I would grant leave to appeal sentence, allow the sentence appeal and reduce the appellant’s sentence from five years to four years in the penitentiary.

Released: Dec. 20, 2012

“JL” “John Laskin J.A.”

“I agree E.A. Cronk J.A.”

“I agree Alexandra Hoy J.A.”