WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

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

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. C.K., 2015 ONCA 747

DATE: 20151105

DOCKET: C59693

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.K.

Appellant

John K. Lefurgey, for the appellant

Gavin MacDonald, for the respondent

Heard: October 9, 2015

On appeal from the conviction entered by Justice Anne Tucker of the Superior Court of Justice on May 6, 2014, and from the sentence imposed on July 30, 2014.

Pardu J.A.:

[1] C.K. appeals from his convictions for sexual assault of his two grandsons, DL. and DD. He submits that the trial judge erred in admitting similar fact and bad character evidence. He also appeals the ten year sentence imposed by the trial judge. His appeal was dismissed following argument for reasons to follow. These are those reasons, on behalf of the panel.

[2] The appellant’s two grandsons allege that the appellant sexually abused them over a period of approximately ten years, beginning when DL. was about five years old and DD. was a few years older. The acts of sexual abuse included touching, masturbation, oral sex, and anal sex.

A. Nature of the Appeal

[4] The appellant advances three grounds on appeal.

[5] First, the appellant argues that the trial judge erred by admitting the evidence of R.L. and A.G. The complainants’ father, R.L., a former son-in-law of the appellant, and A.G., a former babysitter for the appellant’s children, both testified to separate sexual encounters with the appellant. The trial judge admitted their testimony as similar fact evidence. The appellant submits that the trial judge misapprehended the evidence of R.L. and A.G., misapplied the framework set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, and improperly admitted their evidence.

[6] Second, the appellant argues that the trial judge erred by admitting the evidence of K.C. K.C. testified about an encounter where the appellant made inappropriate sexual remarks to K.C. The appellant submits that this evidence was “bad character” evidence and was tendered without any legitimate purpose.

[7] Third, the appellant seeks leave to appeal the sentence imposed. The appellant submits that the trial judge imposed a sentence that is harsh and excessive in light of his age and health, did not give appropriate weight to the absence of violence or threats, and improperly relied on the allegations of A.G. and R.L.

B. FACTS

[8] The complainants testified that the appellant began to sexually abuse them when DL. was five or six years old and DD. was perhaps nine. The abuse continued until their mid-teens. At the time, neither knew about the other’s abuse. DL. reported it to the police in 2007 and DD. came forward two years later.

[9] According to the complainants’ testimony, the sexual abuse began with fondling or touching. Over time, the sexual abuse progressed to masturbation, oral sex, and anal sex, performed both upon them by the appellant and by them on the appellant. The assaults occurred in the appellant’s home (usually in the basement), in the appellant’s car, and in a tour bus that the appellant drove. They also testified that their grandfather showed them pornography and that they received money, gifts, and cigarettes from him. He called each his “buddy” and both felt that they were special to him. The appellant told them that what had occurred was “[their] little secret”, and they both had the same “secret handshake” that they did with their grandfather after sexual activity.

(1) Evidence of R.L.

[10] R.L. testified that, for an eight year period, beginning when he was about 20, he engaged in sexual activity with the appellant, his father-in-law.

[11] The first sexual encounter occurred while R.L. and the appellant were drinking in the basement of the latter’s home. The appellant put on pornography, and then asked R.L. if the appellant could perform oral sex on him. R.L. agreed.

[12] Thereafter, R.L. engaged in occasional sexual activity with the appellant. R.L. was often in difficult financial circumstances and needed to ask the appellant for assistance to help R.L.’s family stay afloat. Whenever he asked the appellant for money, the appellant would demand sexual favours in return. R.L. testified that the encounters left him feeling disgusted; however, he had nowhere else to turn, and so he continued returning to the appellant for financial assistance.

[13] The sexual activity between R.L. and the appellant progressed to R.L. performing oral sex on the appellant, and then to mutual anal sex. R.L. testified to a number of sexual encounters, some of which occurred in the basement of the appellant’s home, while his wife was upstairs, as well as in the appellant’s car.

[14] Like the complainants, R.L. did not have a relationship with his biological father. The relationship between his own mother and step-father ended when he was 17, shortly after he began dating the appellant’s daughter.

[15] R.L.’s relationship with the appellant, before their sexual activity began, was uneven. Initially, the relationship was not particularly warm; however, it improved over time. R.L. moved to another city with the appellant’s family when he was 18. Before the move, the appellant took R.L. on a number of trips to that city to help him find work; the appellant paid for their rooms and meals during these trips. R.L. moved in with the appellant and his family after the move. The appellant hired R.L. to work at a store where the appellant worked as a supervisor. R.L.’s relationship with the appellant and his family was “settled” and “supportive” at this time. Though there was a period of estrangement when R.L. and the appellant’s daughter eloped, any estrangement ended with the birth of their first son.

[16] The sexual encounters between R.L. and the appellant ended when R.L. told his wife J.L. about his sexual relations with her father. Their marriage likewise ended at that point.

(2) Evidence of A.G.

[17] A.G. first met the appellant when he was 10 years old. Their families lived close by at the time. When A.G. was 12 or 13 years old, he was asked by the appellant to babysit his two children on a few occasions. According to A.G., the appellant sexually assaulted him on three occasions while he was babysitting the appellant’s children.

[18] At the time of the first assault, the appellant’s wife was in the hospital. A.G. had been babysitting the appellant’s children and had fallen asleep in a chair. When he woke up, the appellant was lying on a couch with his pants undone and his genitals exposed. The appellant asked A.G. to touch his penis. A.G. complied for about five seconds.

[19] A similar incident occurred within a week of the first assault. After this second incident, the appellant paid him an extra 50 cents and told him that what had occurred was “[their] little secret.”

[20] The third incident occurred shortly thereafter. A.G. slept over at the appellant’s home while babysitting. The appellant woke him up and brought him into a bathroom, where he pulled down A.G.’s pants and performed oral sex on A.G. for a couple of minutes. The appellant gave him six dollars and told him that what had occurred was their “secret”.

[21] A.G. testified about his family’s circumstances at the time of the sexual assaults. His father had left when A.G. was about 12 years old, and his mother was raising six children on her own. A.G. testified that his family was broke and he was excited to spend the six dollars paid to him by the appellant to buy milk, bread, and cigarettes for his mother.

(3) Evidence of K.C.

[22] K.C. testified that, in the summer of 1999 and when he was 17 years old, he met the appellant while at work. K.C. and the appellant were having a conversation when the appellant told him that “he had a cigar that spits.” K.C. understood the appellant’s statement as referring to the appellant’s penis. Later on the same day, the appellant brought up pornography as a topic of conversation. Finally, when K.C. was leaving, the appellant gave K.C. his card with his phone number on it and suggested that they should get together.

[23] K.C. testified that he felt uncomfortable and awkward after his encounter with the appellant. He reported the appellant to his employer, who then called the police.

C. ground #1: Similar fact Evidence

[24] At trial, the Crown applied to admit the evidence of each complainant as similar fact evidence for the counts involving the other. The Crown also applied to admit as similar fact evidence the testimony of R.L. and A.G. The trial judge allowed the application and admitted the evidence.

[25] Before this court, the appellant does not challenge the decision to admit the evidence of both complainants as similar fact evidence; however, the appellant maintains his challenge to the evidence of R.L. and A.G.

(1) Trial judge’s decision on similar fact evidence

[26] The trial judge looked at the evidence of R.L. and A.G. in the context of the analysis set out in Handy for the admission of similar fact evidence.

[27] The trial judge noted that, as a starting point, similar fact evidence based on discreditable conduct of an accused is inadmissible. However, the evidence is admissible if the Crown can prove sufficient similarities between the acts the accused is charged with and the offered evidence in relation to a live issue in the trial. She also noted that that the Crown must prove that the probative value of the evidence outweighs any prejudicial effect.

[28] The trial judge concluded that the issue in question, in support of which the similar fact evidence was being proffered, was the actus reus of the alleged offences and whether the appellant’s expected blanket denial was credible.

[29] The trial judge then examined the probative value of the evidence in light of the factors identified in Handyand made the following findings:

(1) Proximity: The sexual contact between R.L. and the appellant was proximate in time to the assaults against the complainants. A.G.’s allegations were not.

(2) Similarity in details: Both complainants and A.G. were children at the time of the alleged acts and the appellant was a father-figure to all three. The appellant also assumed a father-figure role towards R.L. The assaults all began with fondling, and progressed to oral and then anal sex in the case of the complainants and R.L. The assaults occurred in the appellant’s home in the case of all four witnesses and also in public places in the case of the complainants and R.L. The assaults were numerous in the case of both complainants and R.L. The three children were all told that what had occurred was a secret. Money was always involved. The assaults took place over a long period of time, except in the case of A.G.

(3) Number of occurrences: There were numerous sexual acts in the case of R.L., but not in the case of A.G.

(4) Circumstances surrounding the acts: All of the alleged victims were essentially fatherless. The appellant played the role of a father-figure in the case of all four, as the giver of money and affection and the one with whom the complainants and R.L. had a special bond. She noted that A.G. did not have a special bond with the appellant, but he respected his elders and did what he was told. The acts occurred where they could be discovered – in the basement, or, in the case of A.G., a bathroom of the appellant’s home, in the appellant’s car, in parking lots, and in his tour bus.

(5) Distinctive features: The alleged acts often occurred in public areas. The complainants and A.G. were told that the sexual acts were a secret. There was a financial benefit involved for all four, either cash or presents for the complainants, various forms of financial support for R.L., and money for A.G. The trial judge noted that the date and frequency of the sexual acts described by A.G were different from the conduct described by the complainants, and that R.L was older when the sexual activity began.

[30] The trial judge found that the alleged events and the relationship described by R.L. were strikingly similar to those described by the complainants. Moreover, while A.G.’s evidence was separated in time, there was clear similarity to the initial approach to the other three. The trial judge concluded that the Crown had proven on a balance of probabilities that the probative value of the evidence exceeded its prejudicial effect.

(2) Appellant’s submissions

[31] The appellant accepts that the Supreme Court’s decision in Handy governs the admissibility of similar fact evidence. However, the appellant argues that the trial judge erred when applying the framework outlined in Handy.

[32] Broadly speaking, the appellant makes three submissions. First, the trial judge erred in characterizing the issue to which the similar fact related too broadly. Second, the trial judge misapprehended the relevant evidence, and erred by focusing on generic similarities and ignoring differences between the evidence of the complainants on the one hand and R.L. and A.G. on the other. Third, the appellant submits that the evidence admitted was extremely prejudicial.

(3) The trial judge did not characterize the issue too broadly

[33] The trial judge identified the issue in question as the actus reus of the alleged offences in light of the appellant’s blanket denial that there was ever any inappropriate activity between him and his grandsons. As long as its probative value outweighs its prejudicial impact, similar fact evidence may be admitted for the purpose of proving the actus reus of the offence charged and to assess the credibility of a blanket denial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 46.

[34] This case is distinguishable from R. v. R.B. (2003), 2003 CanLII 13682 (ON CA), 68 O.R. (3d) 75 (C.A.), relied on by the appellant. As noted by Simmons J.A., at paras. 52-54, the trial judge in that case had erred by framing the issue too widely as the credibility of the complainant and the accused. That, in turn, led to the threshold for admitting similar fact evidence being set too low. Here, the trial judge properly confined the issue in question to whether the actus reus of the offences had occurred.

(4) The trial judge did not misapprehend the evidence or err when considering the Handy factors

[35] As noted, the appellant submits that the trial judge misapprehended the evidence before her, and that she focused on generic similarities and ignored differences in the evidence of the complainants on the one hand and each of R.L. and A.G. on the other. I would reject the appellant’s arguments.

[36] The crucial question when determining the admissibility of similar fact evidence is whether, “in the specific context under consideration, the probative value of the [similar fact] evidence in relation to a particular issue outweighs its potential prejudice, thus [warranting] its reception”: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 89. The similarity may reside in the distinctive nature of the acts at issue or in the circumstances in which those acts occurred: J.M., at para. 91. The degree of similarity required will depend on the issue to which the evidence is directed. This court has held that where the evidence is directed to the actus reus, the similarities do not need to amount to a “signature” for similar fact evidence to be admissible: R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 54.

[37] As noted by this court in R. v. Creswell, 2009 ONCA 95, at para. 7, the ruling of a trial judge admitting similar fact evidence is entitled to substantial deference:

It is well-established that a similar fact ruling is entitled to a high degree of deference and that an appellate court will not intervene with the trial judge’s ruling unless the trial judge’s analysis is “unreasonable, or is undermined by…legal error or misapprehension of material evidence”. [Citations omitted.]

[38] In effect, the appellant’s submissions ask this court to reinterpret the evidence and engage in a Handy-analysis afresh. The trial judge conducted a thorough and cogent analysis based firmly in the evidence. The appellant has not demonstrated a legal error in her analysis. Her conclusion, that the connecting factors between the accounts of the complainants on the one hand and those of R.L. and A.G. on the other were so strong that the probative value of the evidence outweighed its prejudicial effect, was reasonable and is entitled to deference. Contrary to the appellant’s assertions, the trial judge properly concluded that there was a considerable degree of connectedness between the evidence of R.L., A.G., and the complainants:

(1) The appellant argues that he did not have a fatherly role with respect to R.L., but there was significant evidence to suggest that he had assumed that role over R.L. after the latter began dating the appellant’s daughter at age 16.

(2) The appellant also argues that he did not have a fatherly role towards A.G., but A.G. testified that he was very respectful of his elders. The trial judge clearly had this in mind when finding that the appellant played a fatherly role towards A.G., particularly given that she noted the absence of any “special bond” between them.

(3) The appellant takes issue with the trial judge’s finding that the assaults all began with fondling and escalated from there. It is true that the sexual activity between the appellant and R.L. began with oral sex, not fondling. But this misstatement of the evidence was minor and immaterial. The point is that, in each case, the invasiveness of the acts increased over time.

(4) The appellant asserts that there was no grooming in the case of R.L. However, there was an element of grooming, as R.L. (like the complainants) was shown pornography by the appellant.

(5) Contrary to the appellant’s assertions, the trial judge did not ignore the dissimilarities between the evidence. She noted the discrepancies, but clearly did not consider them to be sufficiently disparate to make a material difference in the analysis. Her decision is entitled to deference.

(6) The appellant argues that by focusing on the fact that sexual contact occurred in the appellant’s home and in public places, the trial judge focused on generic observations that did not disclose any similarity. However, I would reject that argument. The location where the sexual contacts occurred reveals that, in all cases, the appellant was not inhibited by the possibility that his acts might be discovered by his wife or a member of the public. At the same time, the appellant took advantage of opportunities for privacy in each case.

[39] In this case, the circumstances surrounding the acts bore a striking connectedness. The appellant exploited a privileged position over vulnerable young males – who had little to no relationship with their own fathers and who were in circumstances of financial disadvantage – for his own sexual gratification. Each received some material benefit from the appellant as a result of their sexual interactions with him. He was “the giver of money and affection” and he exploited this role for his own purposes. The present case is very similar to the decision in R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence.

(5) The probative value of the evidence outweighed any prejudicial impact

[40] The appellant submits that, as a result of the trial judge’s decision, extremely prejudicial testimony – in particular, evidence about a relationship between the appellant and his son-in-law, R.L. – was admitted into evidence. To the extent that this argument challenges the trial judge’s decision that the probative value of the similar fact evidence outweighed any prejudicial impact, I would reject it.

[41] The trial judge turned her mind to the prejudicial impact of the evidence. When it comes to similar fact evidence, the potential for prejudicial effect encompasses both “reasoning prejudice” and “moral prejudice.” This was a judge alone trial. In trials by judge alone, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened; J.M., at para. 88.

[42] The appellant’s defence was not prejudiced by the similar fact evidence. The Crown’s evidence was already complete by the time it made its similar fact evidence application. The trial judge was alive to the issue of prejudice and appropriately weighed it against the evidence’s probative value. She did not conflate the subject matter of the allegations between charged and uncharged conduct, nor did she use the evidence of R.L. and A.G. to assess the appellant’s character.

[43] The evidence of the two grandsons was powerful and compelling because of the distinctive behaviour, such as the “secret handshake” described by each. A.G.’s evidence described a far more limited and less invasive series of assaults. R.L.’s evidence described conduct that was not criminal. The risk of prejudice associated with their evidence was small. All of the trial judge’s references to the evidence were confined to her consideration of whether the abuse as alleged by the complainants, and as denied by the appellant, actually occurred.

D. Ground #2: Bad character evidence

(1) Appellant’s submissions

[44] The appellant submits that the testimony of K.C. served no purpose other than to paint him as the kind of man who makes off-colour suggestions to teenage boys and tries to encourage them to have a relationship with him, the inference being that he is also the kind of man who would abuse his grandsons. There was no legitimate purpose for the introduction of the evidence.

[45] As a result of the admission of the evidence, the appellant had to testify and be cross-examined on a matter that should not have been before the court in the first place, with potential adverse credibility findings as a result.

[46] Even though the trial judge did not refer to K.C.’s evidence or the cross-examination of the appellant on K.C.’s evidence in her ruling on similar fact evidence or her final judgment, the appellant submits the introduction of the evidence might have influenced the outcome. Even where a trial judge indicates they are not going to give much weight to evidence, the impact of it cannot simply be ignored.

(2) The evidence of K.C. did not prejudice the appellant

[47] The Crown introduced the evidence of K.C. because it was concerned that it would be relevant to defences suggested in cross-examination of Crown witnesses but could not be called in reply because of the rule preventing the Crown from splitting its case.

[48] Ultimately, the trial judge did not refer to K.C.’s evidence in her ruling admitting the similar fact evidence or in her final judgment. The absence of any reference to the evidence is explained by the trial judge’s concerns about it. She explicitly questioned the propriety of the evidence and the use to which it could be put “other than to blacken the accused”. The trial judge noted the limited purpose for which the evidence had been led and stated that she had to be “really cautious about using it at all”.

[49] From these statements and the complete lack of reference to the evidence in her reasons, it is clear that it played no role in the trial judge’s credibility assessments and her decision to convict the appellant. As noted by McLachlin J. (as she then was) in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at pp. 415-416, trial judges will often hear evidence which turns out to be inadmissible; so long as the judge does not rely on the inadmissible evidence when arriving at her conclusion, “no unfairness can be said to arise, nor has there been a miscarriage of justice.” Furthermore, where a trial judge states that she will not rely on certain evidence, she is entitled to be taken at her word: R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 18. Therefore, in this case, K.C.’s evidence about the exchange between him and the appellant did not prejudice the appellant.

E. Ground #3: Appeal from sentence

(1) Appellant’s submissions

[50] The appellant submits that the trial judge imposed a sentence at the high end of the appropriate range. However, the appellant argues, she improperly took into account the allegations of A.G. and R.L. in imposing a sentence, even though they were not part of the charges and, in the case of R.L., even though the acts were not criminal. The trial judge also misunderstood the number of occurrences of anal sex and gave insufficient weight to the lack of violence or brutality, the lack of threats, and the appellant’s advanced age (72 years).

(2) The sentence imposed was fit

[51] Absent an error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, a trial judge’s sentence is entitled to deference: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90. An appellate court should vary a sentence only if it is clearly unreasonable, demonstrably unfit, or if it represents a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes: R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641, at para. 29.

[52] In R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, Charron J. held that, in the course of sentencing, a court may consider evidence establishing that the accused has committed another offence of which he has not been convicted. However, as noted at para. 32, these aggravating circumstances must be proven beyond a reasonable doubt and their use is carefully circumscribed:

If the extrinsic evidence is contested, the prosecution must prove it. Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt…The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence. In addition, the judge can and must exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender’s right to a fair trial is jeopardized. Finally, the court must draw a distinction between considering facts establishing the commission of an uncharged offence for the purpose of punishing the accused for that other offence, and considering them to establish the offender’s character and reputation or risk of re‑offending for the purpose of determining the appropriate sentence for the offence of which he or she has been convicted. [Emphasis in original.]

[53] Here the trial judge considered the appellant’s sexual acts in relation to A.G. and R.L. as aggravating factors, without making an express finding that the acts had been proven beyond a reasonable doubt. Absent such a finding and absent a finding that the behavior towards R.L. was criminal, that conduct should not have been treated as an aggravating factor.

[54] Despite this error, I would uphold the sentence on the ground that it was appropriate, without regard to the extrinsic misconduct.

[55] The sentence imposed was within the range identified by this court for offences involving prolonged and damaging sexual assaults of children by adults: R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 44; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 34. The appellant, in a position of trust, subjected two of his grandsons to prolonged sexual abuse over the course of nearly 10 years. This abuse included masturbation, oral sex, and anal sex. As is evident from the victim impact statements, the abuse caused incalculable damage to the complainants’ lives. The trial judge did not ignore the appellant’s age in sentencing, nor err in refusing to discount an otherwise appropriate sentence because of his age. She imposed a sentence that was fit in the circumstances of the offences.

F. Disposition

[56] Accordingly, for these reasons, the appeal from conviction was dismissed and leave to appeal sentence was granted but the appeal of sentence was dismissed.

Released: (AH) November 5, 2015

“G. Pardu J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree K.M. Weiler J.A.”