Publication Restriction 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(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.

Court of Appeal for Ontario

Date: 2024-05-31 Docket: COA-22-CR-0196 & COA-22-CR-0469

Judges: van Rensburg, Thorburn and Dawe JJ.A.

Between: His Majesty the King, Respondent/Appellant by way of cross-appeal and Selvin De Flores Bermudez, Appellant/Respondent by way of cross-appeal

Counsel: Chris Rudnicki and Theresa Donkor, for the appellant/respondent by way of cross-appeal Jacob Millns, for the respondent/appellant by way of cross-appeal

Heard: April 26, 2024

On appeal from the convictions entered on July 6, 2022, and on cross-appeal from the sentence imposed on December 1, 2022, by Justice Janet Leiper of the Superior Court of Justice.

van Rensburg J.A.:

[1] Mr. De Flores Bermudez was convicted of sexual assault, sexual interference and invitation to sexual touching. He was sentenced to three years’ imprisonment concurrent on the three convictions. Mr. De Flores Bermudez appeals his convictions. The Crown seeks leave to appeal the sentence. For the reasons that follow I would dismiss the conviction appeal and grant leave to appeal sentence. I would substitute a custodial sentence of four years for the sentence imposed at first instance.

[2] The offences were alleged to have occurred between April 2008 and April 2012, when the complainant was between the ages of five and nine, and when the complainant and her mother were living with Mr. De Flores Bermudez. The complainant went to the police when she was 14 years old, and she was 17 years old when she testified at the trial.

[3] There were four alleged incidents of sexual touching, all of which were denied by Mr. De Flores Bermudez.

[4] The defence did not challenge the complainant’s credibility. Rather, the defence argued that the complainant’s recollection of events was unreliable as it had been coloured by the violent and sexually charged environment in which she was living with her mother and Mr. De Flores Bermudez, which included the fact that they mostly slept in the same bed, where he and her mother would engage in sexual intercourse in the complainant’s presence.

[5] The trial judge found the complainant’s evidence to be both credible and reliable. She rejected Mr. De Flores Bermudez’s evidence and his denials. She accepted the complainant’s evidence and found beyond a reasonable doubt that Mr. De Flores Bermudez abused the complainant on four separate occasions when he touched her upper inner thigh for a sexual purpose, touched her vagina, licked her vagina, and had her touch his penis.

The Conviction Appeal

[6] There are two grounds of appeal, which I will discuss in turn.

(i) Alleged Error in Admission of Bad Character Evidence

[7] First, Mr. De Flores Bermudez contends that the trial judge erred in admitting bad character evidence without first conducting a voir dire to determine its admissibility. In particular, the trial judge permitted the complainant to testify about a video Mr. De Flores Bermudez had shown her when the two were in his car while her mother was being treated at the hospital. The complainant testified that he had shown her a pornographic video and asked if she liked it. Mr. De Flores Bermudez confirmed the incident; however, he said he had shown the complainant a music video that, while sexually suggestive, was not pornographic. The trial judge referred to the video as sexually suggestive or explicit.

[8] I would not give effect to this argument. While there is no dispute that the evidence about the video was bad character evidence and presumptively inadmissible, in the particular circumstances of this case the trial judge’s failure to hold a voir dire to determine its admissibility did not result in any prejudice to Mr. De Flores Bermudez.

[9] The Crown did not apply to admit bad character evidence in advance of the trial. At the outset of the trial the trial judge raised the issue of the admissibility of such evidence based on her review of the complainant’s police statement that the Crown proposed to introduce in evidence under s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46. The Crown and defence counsel confirmed that the only two pieces of anticipated bad character evidence were Mr. De Flores Bermudez’s physical abuse of the complainant’s mother and a reference to the complainant’s aunt having called him a “rapist”. They agreed that the trial judge should disregard this evidence.

[10] While the complainant was testifying in chief, Crown counsel elicited evidence about the video. In response to the Crown asking whether she had ever been alone with Mr. De Flores Bermudez, the complainant referred to the incident with the video. Crown counsel then invited the complainant to “tell us about what happened when you were [alone] in the car with [Mr. De Flores Bermudez]”, and the complainant described the incident. There was no objection from defence counsel, and no interruption by the trial judge.

[11] During cross-examination of the complainant, defence counsel elicited evidence about Mr. De Flores Bermudez’s physical abuse of her mother. In response to an interjection by the trial judge, defence counsel advised that he was making a “tactical shift” to no longer take issue with the admissibility of the bad character evidence that “came out during the course of the complainant’s evidence”. He explained that the bad character evidence would be used to support Mr. De Flores Bermudez’s narrative that the complainant feared him and that this affected “her perception and memory of what she [said] happened between her and the accused”. Defence counsel suggested that the bad character evidence could be used “for whatever purposes either side [wanted to use it]”. The trial judge then heard from Crown counsel, who submitted that “if there is a change in defence position, it should apply across the board [to all bad character evidence] or not at all”. Defence counsel agreed with the Crown, acknowledging that he might be “making a very bad decision”, but that he was “doing it intentionally”. The trial judge accordingly proceeded on that basis.

[12] In the balance of his cross-examination defence counsel continued to elicit evidence about Mr. De Flores Bermudez’s physical abuse of the complainant and her mother. Defence counsel also questioned the complainant about the video incident. He did the same in his direct examination of Mr. De Flores Bermudez, while also eliciting additional bad character evidence about Mr. De Flores Bermudez’s criminal record.

[13] In closing submissions defence counsel relied heavily on the evidence of Mr. De Flores Bermudez’s bad character to argue that the reliability of the complainant’s evidence was tainted by the violent and sexually charged environment in which she was raised, which led her to reconstruct events from her past. He pointed to the complainant’s evidence about the video incident, asserting that the complainant was effectively describing an attempt by Mr. De Flores Bermudez to groom her and that it was unrealistic that she would have had such a sophisticated understanding of the event. The Crown’s submissions responded to the argument that the complainant’s account of the video incident was too sophisticated to be believed and pointed to the video evidence as one of the many aspects of the complainant’s evidence that was corroborated by Mr. De Flores Bermudez.

[14] The trial judge, in concluding that the complainant’s evidence was reliable, specifically addressed this defence argument. She found that the complainant’s account of the video incident was not implausible, nor did it detract from her reliability as a witness.

[15] The evidence that Mr. De Flores Bermudez now challenges as inadmissible and prejudicial was specifically relied on by the defence at trial in support of the challenge to the complainant’s reliability. The defence did not object to the admission of such evidence, but elicited similar evidence from the complainant and from Mr. De Flores Bermudez.

[16] Mr. De Flores Bermudez’s counsel on appeal asserts that nothing should turn on the failure of defence counsel to object to the impugned evidence, or his use of the evidence at trial, because counsel was simply making the best of a bad situation. She relies on R. v. Fierro, 2013 BCCA 436, where the British Columbia Court of Appeal held that the trial judge erred in admitting bad character evidence. In that case, the appeal court rejected the Crown’s argument that impugned evidence was led without objection and relied on by the defence as part of its trial strategy, stating that “[i]t seems improbable that in a case in which credibility was the main issue, the appellant’s trial counsel would advance a defence based on derogatory statements painting him as a sexual predator [and] [i]t appears far more likely that, once [the impugned] evidence was admitted, the only choice open to the defence was to pursue and attack his statements in cross-examination and then respond to them through the evidence of the appellant and his wife”: at para. 20. The court held that the trial judge erred by failing to recognize the potential prejudice of the bad character evidence, and then relying on it in his assessment of credibility without cautioning himself as to its dangers: at para. 21.

[17] Unlike the circumstances in Fierro, this was not a situation where defence counsel had no option but to work with the evidence that was improperly admitted. Rather, defence counsel was explicit about his strategy and the choice he was making. Defence counsel could have objected to the video evidence as inadmissible bad character evidence when it first came out during the complainant’s direct examination. He also could have taken a different position when the trial judge interrupted his cross-examination. Defence counsel could have asserted that the bad character evidence was not admissible and, consistent with their earlier discussion, that it should be ignored by the trial judge, and then refrained from asking any further questions that elicited or referred to such evidence. Alternatively, defence counsel could have identified the bad character evidence he considered to be admissible and objected to the other bad character evidence. In other words, defence counsel had the opportunity to object to the admission of the video evidence or to address its limited use during the complainant’s cross-examination. Instead, he communicated an unqualified acceptance of bad character evidence at the trial for use by the parties as they saw fit, and explicitly referred to a “tactical shift” in his position that he was making “intentionally”. In these circumstances, the approach of defence counsel confirmed that he was consenting to the admission and use of the bad character evidence.

[18] In the circumstances of this case the trial judge properly performed her gatekeeper function in respect of bad character evidence. In the face of what defence counsel advised was an intentional “tactical shift”, she permitted bad character evidence to be elicited for the purpose described by the defence – namely, as part of his challenge to the reliability of the complainant’s evidence that she had been sexually assaulted by Mr. De Flores Bermudez. There is no indication that the evidence was used by the Crown or relied on by the trial judge for any other purpose, in particular for propensity reasoning. As such, while the Crown should not have elicited the video evidence without a voir dire and should at least have referred to such evidence if there was an intention to bring it forward as potential bad character evidence when the trial judge raised the issue at the outset of the trial, the failure to address the admissibility of such evidence through a voir dire resulted in no prejudice to Mr. De Flores Bermudez.

(ii) Alleged Error in Approach to Emotional Response Evidence

[19] The second ground of appeal is that the trial judge erred in her approach to the complainant’s emotional response evidence, namely, by treating it as confirmatory of the complainant’s evidence. The complainant testified that in 2020, when she was 14 years old, she had received a message from Mr. De Flores Bermudez on Instagram saying “hi, how are you and your mom”. The complainant had responded “fuck off”, and Mr. De Flores Bermudez had replied “okay”.

[20] Mr. De Flores Bermudez asserts that the trial judge erred in referring to this evidence in support of her conclusion that the complainant’s evidence that he had sexually assaulted her was reliable. He contends that the complainant’s response was equally consistent with her recalling the volatile relationship he had with the complainant’s mother.

[21] I disagree. A trial judge’s determination that a piece of evidence is confirmatory of or supports a witness’ testimony, and the weight to be given to such evidence, is part of the trial judge’s credibility assessment and fact-finding, which are accorded deference in the absence of a palpable and overriding error: R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 71; R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at paras. 8, 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; and R. v. J.B., 2022 ONCA 214, at para. 34.

[22] No such error has been demonstrated here. This argument was not made at trial nor was the complainant cross-examined about the reason for her response to the message. As the trial judge said, “[h]er feelings of fear and discomfort were not the subject of challenge”. Nor did the defence at trial suggest that, at any time after the relationship ended, the complainant was angry or upset about Mr. De Flores Bermudez’s past abuse of her mother. Indeed, it was suggested in cross-examination of the complainant that on an occasion when she was 11 years old when she and her mother had encountered Mr. De Flores Bermudez, and contrary to her evidence that she was scared when he approached them, she had run up to his car, seeking his attention. In other words, the defence suggested that the complainant was not afraid of Mr. De Flores Bermudez but had initiated contact with him. Responding “fuck off” to Mr. De Flores Bermudez was inconsistent with the defence theories at trial (i.e., that the complainant was either seeking his attention, had no reason to be upset with him or was extremely fearful of him). The trial judge was not required to consider whether the evidence was also consistent with alternative theories that were not raised at trial and were indeed contrary to defence counsel’s position.

[23] It was open to the trial judge in the circumstances to conclude that the complainant’s “visceral” reaction was confirmatory of her testimony that she had been abused. She noted that the complainant’s strong response to an older adult who she had initially thought of as a “father figure” was at odds with her prior behaviour around him as a younger child, and that this was consistent with the complainant’s having come to understand what had happened to her, telling her mother and then her aunt, and leading eventually to the police disclosure just after this contact occurred.

[24] Accordingly, I would do not give effect to this ground of appeal.

The Sentence Appeal

[25] An appellate court may intervene to vary a sentence if it is demonstrably unfit or where the sentence was impacted by an error in principle, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[26] The Crown appeals Mr. De Flores Bermudez’s sentence of three years in prison. The Crown asserts that the trial judge erred when, invoking s. 11(i) of the Charter (the right to lesser punishment), she declined to apply a sentencing range consistent with R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, and instead applied a sentencing range based on cases decided around the time that the offences were committed. The Crown argues that this error had a material impact on sentence, when the trial judge found that the applicable range was only 1.5 to 3.5 years. The Crown submits that a fit sentence is six years and that this is the sentence this court should impose in place of the three-year custodial sentence.

[27] Mr. De Flores Bermudez concedes that the trial judge erred in holding that Friesen does not apply to historical offences. He submits however that the trial judge’s error did not materially affect the sentence, which gave proper weight to the gravity and harm of his offences. Mr. De Flores Bermudez contends that Friesen endorsed sentencing principles articulated by this court in R. v D.(D.) (2002), 58 O.R. (3d) 788 (C.A.) and R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, and that the trial judge relied on four Ontario trial-level decisions decided after those cases to fix the applicable range of sentence at 1.5 to 3.5 years. In the alternative, Mr. De Flores Bermudez submits that three years remains a fit sentence.

[28] I agree that the trial judge erred and that her error had a material impact on the sentence she imposed. She explicitly stated that, had the offences been committed after the statutory maximum sentences were increased and after the Supreme Court’s decision in Friesen, she would have found that the offences ought to be sentenced according to a range of 4.5 to 6.5 years, and she instead relied on a range of 1.5 to 3.5 years based on cases decided around the time the offences were committed.

[29] Where, as here, the trial judge made an error in principle that had an impact on the sentence, the appellate court is required to perform its own sentencing analysis to determine a fit sentence. The court “will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: Friesen, at para. 27.

[30] The Crown submits that a sentence of six years in custody is fit, considering the statement in Friesen at para. 114, that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”. The Crown submits that a sentence of six years is proportionate to Mr. De Flores Bermudez’s moral blameworthiness and the gravity of the offences, which were heightened by many aggravating factors, including the age of the complainant, the significant harm caused to her, the presence of grooming behaviour (in showing her the sexually suggestive video), and the degree of physical interference.

[31] Mr. De Flores Bermudez asks that this court affirm his three-year sentence as fit. He asserts that the authorities referred to by the Crown, which involved sentences of five to seven years that were upheld by this court on appeal, for the most part involved a greater degree of physical interference and a higher frequency of abuse than occurred in this case. Mr. De Flores Bermudez relies on his strong family support as a mitigating factor and asks that the court take into consideration the collateral immigration consequences he will likely face because of the convictions.

[32] I have considered the circumstances of the offences, the nature of the sexual abuse, its duration and frequency, and its effect on the complainant. I have also considered the various authorities relied on by the parties. In my view the appropriate sentence for these offences and this offender is four years’ imprisonment. Although there are some aggravating factors, including Mr. De Flores Bermudez’s position of trust in relation to the complainant, I am not persuaded that there was evidence of grooming in this case, or that Mr. De Flores Bermudez’s dated criminal record for unrelated offences is an aggravating factor. Nor would I give much effect to the mitigating factors relied on by Mr. De Flores Bermudez. As this court stated in R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 37, “the focus of sentencing an adult who has exploited an innocent child should be on the harm caused to the child and the offender’s conduct; the effects of the sentence on the offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence”. And, because a substantial penitentiary term is warranted, the collateral consequences of Mr. De Flores Bermudez’s potential deportation are not relevant to his sentence.

Conclusion and Disposition

[33] For these reasons I would dismiss the conviction appeal, and I would grant leave to appeal sentence and allow the sentence appeal. I would substitute a sentence of four years’ imprisonment concurrent on all counts for the three-year sentence imposed by the trial judge, with no change to the ancillary orders imposed at first instance.

Released: May 31, 2024 “K.M.v.R.” “K. van Rensburg J.A.” “I agree. Thorburn J.A.” “I agree. J. Dawe J.A.”