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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-01-26

Docket: C59056

Judges: Weiler, Pepall and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

R.B. Appellant

Counsel:

• Jill D. Makepeace, for the appellant
• Philippe G. Cowle, for the respondent

Heard: January 9, 2017

On appeal from: the conviction entered on June 10, 2014 and the sentence imposed on October 16, 2014 by Justice R. Dan Cornell of the Superior Court of Justice.

Endorsement

[1] Background

Following a successful severance application the appellant underwent two separate trials. On March 6, 2014 he was found guilty of sexual assault in relation to K.O. (see C58815), the companion appeal, and sentenced to 28 months imprisonment. For the reasons given we have dismissed that appeal.

In this appeal, the appellant was also found guilty of sexual assault and invitation to touching a person under the age of 14 for a sexual purpose. The sexual assault conviction was conditionally stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729. The focus of the submissions on this appeal is the appellant's sentence which is four years to run consecutively to his 28 month sentence for the sexual assault in C58815.

The appellant was in a relationship with the complainant's mother's best friend, Krista. The complainant, who was three years old at the time, told her mother that on occasions when they slept over at the apartment of Krista and the appellant, the appellant would take the complainant into the bathroom and "pee in [her] mouth" at night when everyone was asleep. He would angrily tell her to "swallow it" which she sometimes did to make him happy. This happened on approximately ten occasions over a seven month period. The appellant denied the allegations.

(1) Conviction Appeal

[4] On the conviction appeal, the appellant relies on his factum. In it, the appellant submits that the trial judge's reasons for conviction were insufficient because the trial judge failed to acknowledge that the claimant had recanted her allegations and also recanted allegations she made against others.

[5] He also asserts that the trial judge misapprehended the evidence by mischaracterizing certain issues as peripheral. This included the claimant's evidence on the distance from the sofa bed to the bathroom, the appellant's attire and the improbability of a sexual assault while the claimant's mother was sleeping in such close proximity to the location of the assaults.

[6] Deficiency in reasons is not a free-standing ground of appeal. They must be so deficient as to foreclose meaningful appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 25. That is not this case. The trial judge's reasons fulfilled their function of explaining why the appellant was convicted.

[7] The submission that the trial judge did not give consideration to the complainant's recantation of her allegation of sexual assault is not borne out by the trial judge's reasons. The reasons do refer to the fact that the complainant told her mother that she was "joking" about the sexual assault that allegedly took place in May 2010. The recantation took place about a week after the mother confronted the appellant and his girlfriend with the allegation and the appellant convinced the mother it was false. At trial, the mother testified that her three year old daughter did not understand the concept of a joke at that time. In August 2010, the complainant was in the back seat of a vehicle with her mother and step-father in front and spontaneously handed up a drawing of a penis. A few days later, the appellant delivered a wall unit and television to the complainant's mother. Upon seeing the appellant she became frightened and hid behind her mother. After the appellant left, she told her mother, "I have to tell you something Mommy, it's something bad." The mother called her common law husband to sit down and the complainant said to them both, "It is not a joke, mommy, Uncle Rolly did pee in my mouth." Following this, the complainant steadfastly maintained her allegation. The fact the trial judge did not comment further on the alleged "joke" is indicative that, insofar as he was concerned, the evidence of the "joke" did not have a material impact on the complainant's credibility. Having regard to the context, we agree that the trial judge was not required to consider it further.

[8] As for the statement the claimant made to the police that her stepfather had "flicked" her and that she had seen her father's bum on one occasion, neither is an allegation in the real sense. The father was never asked about the "flick"; the stepfather acknowledged that when he was stepping out of the shower on one occasion he had dropped his towel within sight of his step-daughter. The fact that the complainant denied making these "allegations" at trial did not rise to a level of significance that required comment by the trial judge. Similarly, the distance to the bathroom from where the complainant and her mother slept was peripheral.

[9] The appellant testified that when he was at home he always changed into a t-shirt and he either wore jeans or, since 2003, a pair of knee length purple shorts with white flowers on them and that he had never worn pyjamas. The complainant's evidence as to the appellant's attire was conflicting and inconsistent. The trial judge acknowledged the conflict in the evidence and that this aspect of the complainant's evidence was unreliable. He also addressed a number of other problematic aspects of the complainant's evidence such as the improbability of the complainant being sexually assaulted with her mother in close proximity. A trial judge may accept all, some or none of a witness' testimony. The trial judge explained in detail why he accepted the complainant's allegation against the appellant, addressed the appellant's evidence and explained why he rejected it. The trial judge's reasons are entitled to deference and do not disclose error.

[10] The Crown applied successfully to have the convictions and facts found in C58815 admitted as similar fact evidence in this trial. The similar fact evidence, which the trial judge accepted, corroborated the complainant's evidence, although the trial judge indicated he would have come to the same conclusion without it. The appeal from conviction is dismissed.

(2) Sentence Appeal

[11] We turn now to the sentence appeal. The appellant and respondent agreed that 1) the appellant was to be sentenced as a first offender; 2) the appellant had been sentenced to 28 months for the other offence; and 3) the totality principle applied.

[12] The Crown's submissions on sentencing at trial were confusing. When defence counsel gave his submissions, he suggested to the trial judge that the Crown had been inconsistent, at times asking for 24-30 months consecutive, and at times submitting that the global sentence should be 5-6 years (which would be 32-40 months for the present offence). The trial judge responded:

I will call upon him again, but I asked him two or three times what an appropriate total sentence would be and he can correct me if I'm wrong, but I clearly heard him say, on no less than three occasions, five to six years for these remaining three charges. You have correctly pointed out that even on his own math, we don't get to six years, we get to approximately five years, so I will work with five years. That's what his position is, that if there had been one trial, a conviction on all three charges, that the Crown would have been asking for, for arguments sake, five years. I put the same question to you, if this had been one trial, and your client had been convicted on those three counts, what is your submission as to the proper length of the sentence? [Emphasis added.]

[13] The position of the defence was that an appropriate sentence was 12 months consecutive to the 28 months already given following the appellant's other trial.

[14] In his reasons for sentence, the trial judge reviewed the factual background and the position of the parties. In doing so, he stated, "The Crown has submitted that the appropriate range of sentence in connection with both of the indictments that were before the Court is four to six years."

[15] The trial judge then reviewed the jurisprudence and distinguished the cases on which the appellant relied, reviewed the victim impact statement, the fundamental purpose and principles of sentencing, the appropriate range of sentence for this type of crime, the aggravating and mitigating factors, and the totality principle. However, he ended up imposing a sentence of four years imprisonment to be served consecutive to the 28 months. This amounted to a global sentence of six years and four months. The defence had not been given notice that the trial judge intended to "jump" the Crown's submissions and accordingly made no submissions on such a sentence.

[16] The appellant contends that in saying, "I will work with five years" during counsel's submissions, the maximum global sentence available to the trial judge in the absence of notice was five years.

[17] The appellant's position on appeal is that a sentence of 24 to 30 months consecutive to the 28 months (which would result in a global sentence of 52-58 months) is warranted.

[18] The Crown submits that the trial judge's comment did not bind him to five years. He submits that the trial judge was entitled to impose the sentence he did as the sentence only slightly exceeded the upper end of the range of six years the Crown mentioned.

[19] While there is disagreement between counsel on the extent to which the Crown's submission as to a global sentence was exceeded, there is no question that the trial judge imposed a sentence that exceeded the Crown's position. A trial judge's failure to provide the parties with an opportunity to make further submissions in such an instance is an error in principle. Ideally, if the trial judge does impose a sentence in excess of the Crown's position, the trial judge should explain the reason for doing so. Here he did not. See R. v. Hagen, 2011 ONCA 749, at para. 5; R. v. Menary, 2012 ONCA 706, 298 O.A.C. 108, at para. 3; R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345, at paras. 164-167.

[20] Clearly the error in principle resulted in procedural unfairness and also had an impact on the sentence such that appellate intervention is justified. See R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Having regard to the trial judge's error in principle, this court is entitled to reassess the sentence imposed and to impose a fit sentence.

[21] In R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), at para. 44, Moldaver J.A., as he then was, explained 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." In this case, the number of times the abuse occurred, namely, ten times, and the seven month period of time over which the abuse occurred in proportion to the little girl's age, 36 months, is substantial. The nature of the offence was serious, invasive, and the degrading nature of the offence was added to by the appellant's demand that she swallow his semen. Although the appellant, an adult of about 35 at the time, did not overtly threaten the little girl, he is a large man who used an angry tone towards her that was frightening. She was taught to refer to the appellant as "uncle" and he was in a position of trust towards her, albeit at the low end of the spectrum. In our opinion a fit sentence is a global sentence of six years.

[22] Accordingly, we grant leave to appeal sentence, allow the appeal as to sentence, set aside the sentence imposed and substitute a sentence of 44 months consecutive.

Karen M. Weiler J.A.

S.E. Pepall J.A.

B.W. Miller J.A.