Court of Appeal for Ontario

Date: 2025-08-08

Docket: COA-22-CR-0124 & COA-23-CR-0592

Panel: Fairburn A.C.J.O., Trotter and Harvison Young JJ.A.

Between

His Majesty the King Respondent

and

R.S. Appellant

Counsel

R.S., acting in person

Richard Litkowski, appearing as duty counsel on the conviction appeal (COA-22-CR-0124)

Brian Snell, for the appellant on the sentence appeal (COA-23-CR-0592)

Kevin Pitt, for the respondent

Heard: July 16, 2025

On appeal from: the conviction entered by Justice Gillian E. Roberts of the Superior Court of Justice on August 5, 2022, sitting with a jury, and the sentence imposed on August 9, 2022, with reasons reported at 2022 ONSC 4604.

Reasons for Decision

A. Introduction

[1] The appellant was found guilty of the following offences against his daughter: sexual assault (Criminal Code, R.S.C. 1985, c. C-46, s. 271); invitation to sexual touching (s. 152(a)); and incest (s. 155). He was sentenced to 11 years' imprisonment.

[2] With the assistance of duty counsel, he appeals his convictions. Represented by counsel, he also appeals his sentence. The following reasons explain why we dismiss both appeals.

[3] The complainant testified that the appellant repeatedly sexually abused her between November 1, 1998, and February 26, 2002, when she was between the ages of 8 and 12 years old. It started out with kissing and touching her chest and progressed to more invasive contact, including touching her vagina and oral sex. The Crown also alleged that the appellant engaged in sexual intercourse with the complainant on two occasions. In 2017, when she was in her late 20's, the complainant reported the abuse to the police after she discovered that the appellant had a daughter with another woman.

[4] The appellant's theory at trial was that the complainant fabricated the allegations because of her animosity towards the appellant as a result of his multiple marital infidelities. He testified that, if this abuse went on to the extent claimed by the complainant, others would have noticed, but no one did.

B. The Conviction Appeal

(1) The Crown's Jury Address

[5] The appellant submits that the Crown's closing address was inflammatory and rendered the trial unfair. Duty counsel draws our attention to the following passages in the closing address, which he says invited the jury to engage in propensity reasoning:

We also heard from [the appellant] himself. And I would submit to you that he was argumentative, he was evasive, and he was angry. But what was he angry about? He was angry because over 2 years ago, after [the victim's mother] found out that he had been living a double life, sired a child with another woman that he was in a relationship with, that [the victim's mother] came and keyed his car. He was angry about that still, over 20 years later. And you recall him saying he had to swallow his pride when that happened because he knew he was in the wrong. That's what stuck with him.

What else stuck with him? The trials and tribulations in [the appellant's son] health when he was born. Going back and forth to the hospital …. Although not necessarily asked about these events, [the appellant] went into great detail about [his son's] conditions. [M.] was his son, his first-born son. And much of his evidence related to [his son], I suggest to you because [the appellant] didn't view [the complainant] as his daughter. He viewed [the complainant] as a sexual object, something for gratification. Like the other elements in his life that he talked about, he would want to go in, get what he wants, and leaves. Just like he said his relationship at [his former address] and [the complainant's mother], what that was like. He would go in, do what he wants to do, be around as long as he wants to be around, and then he would leave. And he knew [the complainant's mother] didn't know what was going on, so he could continue on that way until, I submit to you, until he kind of lost control, it got too out of hand, and then it stopped.

But where the details come flooding in is when [the appellant's] talking about how mad he was about [the complainant's mother] keying the car, how upset he was about [his son's] health condition when he was a baby, almost brought to tears about it. Both of those circumstances arose from the double life he was living and that, I would submit to you, that he was quite successful at concealing, certainly from [the victim's mother].

Recall, [the complainant's mother] only found out about [the appellant's son] by happenstance. There was some emergency with [the appellant's son] medically and [his son's mother] leaves a voicemail saying, you've got to come to the hospital quickly. That is how [the victim's mother] found out. It wasn't because of a misstep from [the appellant], Again, [the appellant] was hiding in plain sight. He was carrying on a relationship with another woman. And this, this isn't about moral judgments. This is about what he was able to effect while he was living at [his former address]. Carrying on a relationship, [his son's mother] gets pregnant, still no one knows. And then they only find out by happenstance.

And this, of course, was how he was able to conceal what he was doing to [the complainant] as well. He knew what he was doing.

[The complainant] wasn't treated as his daughter. [The complainant] was treated as the object of his sexual gratification when the opportunity presented itself. [Emphasis added by duty counsel.]

[6] Duty counsel submits that the underscored passages from the closing address invited propensity reasoning in two ways. First, by repeated reference to his infidelities, the Crown invited the jury to consider the appellant as a man who viewed all women as sexual objects. Second, the Crown suggested that the appellant was capable of perpetrating the sexual abuse and hiding it because he was the kind of person capable of carrying out this kind of long-term deception.

[7] The respondent submits that the closing address did not invite propensity reasoning. Instead, the trial Crown was attempting to achieve two goals. First, to draw attention to the fact that the appellant treated the complainant and his son from another relationship differently. Second, to confront the defence position at trial that, if this abuse actually occurred, others would have known about it. The Crown emphasized that, because the appellant successfully concealed his other relationships with women from the victim's mother, he would have been able to conceal his abuse of the complainant from her mother.

[8] We are not persuaded that the Crown's closing undermined the fairness of the trial. Although there was some rhetorical flourish in the trial Crown's closing address, his comments concerning the appellant's secret relationships were responsive to a key element of his defence that, if the abuse occurred in the manner described by the victim, others would have noticed.

[9] In his submissions, duty counsel acknowledged that the trial judge provided a propensity warning. Referring to the evidence concerning one of his infidelities, the trial judge instructed the jury:

However, you must not rely on this evidence to conclude that [the appellant] is more likely to have committed the very serious offences alleged against him or to decide to convict him because you do not like him as a person. People are tried because of what they are alleged to have done, not who they are.

[10] Duty counsel submits that this instruction did not go far enough to neutralize the Crown's remarks. We disagree. Trial counsel did not object to the Crown's address, nor did he object to the charge. A failure to object is not determinative on appeal. However, in these circumstances, the failure to object was important because defence counsel was well-placed to gauge the impact of the Crown's closing address on the fairness of the trial.

[11] We do not give effect to this ground of appeal.

(2) The Verdict on the Incest Count

[12] The appellant submits that his conviction on the incest count was unreasonable and unsupported by the evidence. He contends that it was not proved beyond a reasonable doubt that he had sexual intercourse with the complainant. We do not accept this submission.

[13] Incest is the only remaining offence in Part V[2] of the Criminal Code that requires proof of penetration. Section 155 provides:

155 (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.

[14] In language from a bygone era, s. 4(5) of the Criminal Code defines "sexual intercourse" as follows:

(5) For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.

[15] At trial, the Crown alleged that the appellant penetrated the complainant twice. The complainant testified about an incident when she stayed overnight at her grandparents' house along with the appellant. They slept in the same bed. The appellant was on top of her. She felt pressure in her vaginal area. She explained:

And he was saying he would go slow. I felt pressure, and I said – I told him that I felt like I have – I'm so sorry, but I said, I feel like I have to poo, and he said – he said, that's normal.

[16] The complainant recounted a second incident during which the appellant was on top of her while she was on her stomach. She said the situation was the most "intense" of all of the incidents. The appellant was very aggressive. The complainant did not specifically describe being penetrated. When it was over, the appellant was crying. He apologized to the complainant and said he would speak to a priest.

[17] The complainant's allegation of having been penetrated by the appellant was, perhaps inadvertently, solidified by the following exchanges in cross-examination, when defence counsel asked:

Q.: As it relates to the second night where you indicated that there was some sort of penetration on the part of your father, do you recall that?

A.: Yes.

Q: And then as it related to the second night at your grandparents' place, where you alleged there was a full on penetration, I'm going to suggest that also never happened.

A: Incorrect.

[18] During the pre-charge conference, the trial judge was of the view that there was no direct evidence of penetration, but there was circumstantial evidence from which it could be inferred. In her general instructions, she instructed the jury on the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[19] During their deliberations, the jury submitted a question to the trial judge:

Regarding count three, subpoint three, does sexual intercourse also include anal penetration as well as vaginal penetration? On page 34, paragraph four, it states intercourse is complete on penetration to even the slightest degree. Is this penetration only done by penis into vagina for this count to be considered?

The jury was told that either vaginal or anal penetration would suffice. No issue is taken with this instruction on appeal.

[20] In all of the circumstances, we are satisfied that there was evidence to support the verdict on the incest count. The Crown was only required to prove penetration "to the slightest" degree. The evidence of the complainant in her examination-in-chief supplied the foundation for this finding, particularly as it related to the first incident described above. This was bolstered somewhat by her answers given during cross-examination. Given that the incest count could be proved through either incident, the verdict was not unreasonable.

[21] We do not give effect to this ground of appeal.

C. The Sentence Appeal

[22] At the sentencing hearing, the Crown sought a global sentence of 10 to 12 years' imprisonment. Defence counsel sought a sentence of three to five years.

[23] At the time of sentencing, the appellant was 53 years old. In 1996, he was found guilty of sexual assault and sexual interference of a five-year-old girl who lived in his building. This child did not speak English. During the summer months of 1993, the appellant took her to his apartment, or to the downstairs laundry room, and penetrated her vaginally with his penis. He was sentenced to one year of imprisonment. The abuse of the complainant in this case started shortly after the appellant completed the custodial portion of this sentence.

[24] The trial judge provided thorough reasons for sentence. She noted the few mitigating factors in this case, such as the ongoing support the appellant receives from some members of his family. The trial judge also considered the many aggravating circumstances in this case, including the age of the complainant, the number of incidents of sexual abuse, the invasiveness of his conduct, and the serious breach of trust. She emphasized the appellant's previous conviction, at para. 78:

This little girl was about the same age as [the complainant] was at the time. She did not speak any English. [The appellant] was still subject to conditions in relation to the conviction for sexual assault, including a s. 161 order, at the time he began to sexually abuse [the complainant] around the fall of 1998.

[25] The trial judge sentenced the appellant to 11 years' imprisonment, broken down as follows: incest – 11 years; sexual assault – 8 years, concurrent; and invitation to sexual touching – 6 years, concurrent.

[26] The appellant submits that the trial judge erred in principle in finding that the appellant's conduct amounted to a breach of trust in relation to the complainant and her mother for the purposes of s. 718.2(a)(iii) of the Criminal Code. This section identifies as aggravating "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim." The Crown submits that the trial judge made no error. It relies on the broad definition of a "victim" in s. 2 of the Criminal Code.

[27] We do not accept the appellant's submission. Citing R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the trial judge referred to the "ripple effects" of sexual violence against children. In that case, Wagner C.J. and Rowe J. said, at para. 63: "The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers' trust in friends, family, and social institutions and leave them feeling powerless and guilty…." There was no error in the trial judge's approach.

[28] In terms of the fitness of the sentence, the appellant focuses on the 11-year sentence for incest, which he submits was demonstrably unfit. Being punishable by a maximum punishment of 14 years' imprisonment (s. 155(2)), sentences in the range imposed by the trial judge have generally been reserved for what the appellant describes as more serious offending over a lengthy period of time, involving multiple incidents, sometimes resulting in pregnancies and abortions.

[29] We do not accept this submission. The crime of incest is applicable to many different factual scenarios, involving victims of any age. In view of the complainant's young age when she was abused by the appellant, abuse that started while the appellant was still bound by the orders from the previous sentence he received for penetrating a five-year-old child with his penis, the overall sentence imposed was clearly warranted, including the sentence for incest.

D. Disposition

[30] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. We wish to acknowledge the very helpful submissions of counsel, including the attention paid by duty counsel to the conviction appeal.

"Fairburn A.C.J.O."

"Gary Trotter J.A."

"A. Harvison Young 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] Part V – Sexual Offences, Public Morals and Disorderly Conduct.