Court File and Parties

Court of Appeal for Ontario Date: 2024-12-05 Docket: COA-24-CR-0321

Judges: Zarnett, Coroza and Favreau JJ.A.

Between: His Majesty the King Respondent

And: K.G. Appellant

Counsel: Winfield Corcoran, for the appellant Katie Doherty, for the respondent

Heard: November 27, 2024

On appeal from the conviction entered by Justice John Krawchenko of the Superior Court of Justice, sitting with a jury, on December 4, 2023, and from the sentence imposed on February 29, 2024.

Reasons for Decision

Introduction

[1] The appellant was found guilty by a jury of one count of sexual interference and one count of sexual assault. The victim was the appellant’s niece. According to her evidence, she was repeatedly abused by the appellant for over 11 years, continuing until shortly after she turned 16. The appellant’s conduct included fondling the complainant’s chest, buttocks and vagina, penetrating her vagina using sex toys, and having sexual intercourse with her.

[2] The trial judge imposed a global sentence of 9 years, 7 years on the sexual interference count and 2 years on the sexual assault count. He also made ancillary orders.

[3] The appellant challenges both the convictions and the sentence. For the reasons that follow, the conviction appeal is dismissed, leave to appeal sentence is granted, and the sentence appeal is dismissed.

Analysis

[4] The appellant raises three arguments against his convictions.

[5] First, the appellant submits that the trial judge erred in restricting his counsel’s ability to cross-examine the complainant and make submissions to the jury about the complainant’s delay in reporting and whether the complainant could have avoided the appellant and his abusive behaviour. He also submits the trial judge erred in his instructions to the jury on these topics.

[6] The complainant gave evidence that the abuse occurred when she visited her mother. It began when she was very young, and continued for over 11 years until, at the age of 16, she disclosed what had been taking place to a great aunt. She initially did not “know any better” than to think what the appellant was doing with her was a “game”. She eventually realized that it was not a game and that it did not seem normal. But up until she told her great aunt about it, she had not wanted to say anything as she did not want to lose the ability to see her mother. She had also continued to interact with the appellant because she considered that they had a strong relationship and he was not really a bad person, although the part of him involved in sexual abuse “isn’t really that good”.

[7] During cross-examination, appellant’s counsel sought to ask: “[Y]ou reached a point in your relationship and your life where you realized that your relationship with your – sexual encounters were not normal. It was not a game, yet you allowed it to continue.” The trial judge upheld the Crown’s objection to that question, on the basis that the question, especially its suggestion that the complainant “ allowed it to continue”, engaged the myth that there was a duty on the complainant to resist or report immediately. Later in cross-examination, the trial judge upheld a Crown objection to a line of questions that suggested to the complainant that she had an option to sleep with her mother instead of in the bed where the appellant was “mounting” her. The trial judge rejected the appellant’s argument that the questions were justified because the complainant had given evidence that she would sometimes sleep in a different room to avoid sleeping with the appellant. He held that questions suggesting the complainant could have avoided the appellant and his abuse were improper.

[8] The trial judge gave a mid-trial instruction to the jury about the relevance of the timing of disclosure, quoting from the Supreme Court of Canada’s decision in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65: “In assessing the credibility of a complainant, the time of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.” He also instructed the jury that lack of avoidant behaviour by a complainant could tell them nothing about a sexual assault allegation, citing R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 39, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. The trial judge limited the defence submissions to the jury, and gave his closing instructions to the jury, consistent with these principles.

[9] We did not call on the Crown to respond to the appellant’s arguments about these rulings and instructions. In oral argument, the appellant did not focus his complaint on the ruling and instruction about delay in reporting. The timeline of the complainant’s disclosure was in evidence, and the appellant was allowed to, and did, refer to it as one factor to consider. The focus of the challenge was the trial judge’s ruling and instruction about avoidant behaviour. There is no merit to that argument. Exploring why the complainant did not do more to avoid the appellant could shed no light on whether the sexual abuse occurred. Nor could it be properly considered in assessing her credibility, since it would impermissibly seek to measure her behaviour against that of a stereotypical abuse victim. Indeed, during the argument of the appeal appellant’s counsel (who was also trial counsel) was unable to identify any relevant evidence that could have been elicited in response to the questions that were ruled improper. By his own admission, he had sought to engage in a fishing expedition.

[10] The appellant’s second ground of appeal against his convictions is that a new trial is required because, during her trial evidence, the complainant revealed that she had psychiatric treatment. He says that given the timing of that disclosure, he did not apply to obtain the records related to that treatment which might have disclosed a medical reason for making the complaint.

[11] We did not call on the Crown to respond to this point. There is no suggestion that the police or Crown were aware of the psychiatric treatment before the complainant mentioned it during her testimony. The appellant could have sought an adjournment of the proceedings and brought a mid-trial application under s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46 for production of records, but did not. Although appellant’s counsel describes this as his mistake, that does not get this submission out of the starting gate, as nothing has been put forward to suggest that such an application could have succeeded.

[12] Pursuant to s. 278.2(1) of the Criminal Code, in a prosecution for sexual interference or sexual assault (among other offences), a record of a complainant’s psychiatric or therapeutic counselling (if it exists) is not producible to an accused unless an order under s. 278.3 is obtained. [2] The fact that a record exists, relates to psychiatric treatment, therapy or counselling the complainant has received or is receiving, may relate to the incidents that are the subject-matter of the charge, or may relate to the credibility of the complainant, are not sufficient on their own to justify a s. 278.3 order: s. 278.3(4). The appellant’s bald assertion that because the complainant was seeing a psychiatrist, grounds exist for production finds no basis in the statutory test as explained in the case law: see R. v. K.C., 2021 ONCA 401, 157 O.R. (3d) 161, at para. 24; R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 21-23.

[13] The appellant’s third ground of appeal from his convictions is that the trial judge erred in not staying one of the convictions under the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, and that this alleged error had an effect on the sentence imposed. He relies on the fact that the indictment alleged the same facts for both charged offences.

[14] We disagree. In order to determine whether the convictions for sexual interference and sexual assault were for the same “delict”, the trial judge had to consider the factual findings implied by the jury’s verdicts and, to the extent they were ambiguous on this question, make his own findings as long as they were not inconsistent with the jury’s conclusions: Criminal Code, ss. 724(2)(a) and (b); R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-17. The trial judge found that the same acts did not ground each conviction; the sexual interference conviction rested on the appellant’s abuse of the complainant before she turned 16, and the sexual assault conviction rested on the appellant’s abuse of the complainant, without her consent, after she turned 16. We see no error in his approach or conclusion.

[15] Finally, the appellant asks that his sentence be reduced. In our view there is no basis to do so. Appellate interference with a sentence is permitted only where the sentencing judge has committed an error in principle which had an effect on the sentence, or where the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44, 51.

[16] The appellant primarily argues that the sentence offends the parity principle when it is compared to that imposed in R. v. G.B., 2023 ONSC 5081, where sentences of four years, running concurrently, were imposed for convictions for sexual interference and invitation to sexual touching. G.B. is readily distinguishable. The offending conduct in that case took place over a period of 5-7 years, rather than 11 as in this case. The victim in G.B. was older than the complainant when the offending conduct began. And the conduct in the case at bar was more severe than in G.B., consisting not only of inappropriate touching but also of vaginal intercourse.

[17] The appellant engaged in repeated sexual abuse of his niece, the complainant, while she was visiting her mother at her grandmother’s home. He abused a position of trust against a vulnerable victim for over 11 years until after she turned 16. The trial judge identified the applicable sentencing principles, including the requirement that primary consideration be given to the objectives of denunciation and deterrence: Criminal Code, s. 718.01. He considered the totality principle. He reviewed the aggravating and mitigating factors. He considered the sentences imposed in comparable cases, including R. v. A.K., 2022 ONCA 508; and R. v. A.P., 2022 ONCA 818. Both were cases of offences involving repeated sexual abuse over many years. In A.K., a global sentence of 8 years was upheld. In A.P., a global sentence of 9 years was imposed.

[18] The trial judge’s conclusion that a 9 year sentence was proportionate to the gravity of the offences and the degree of responsibility of the appellant is not the product of any error in principle. Nor is the sentence unfit.

Conclusion

[19] The appeal against conviction is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

“B. Zarnett J.A.” “S. Coroza J.A.” “L. Favreau J.A.”

Footnotes:

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The application, to be successful, must clear two stages: (i) disclosure to the judge (s. 278.5) and (ii) production to the accused (s. 278.7).