R. v. Mandip Sandhu, 2015 ONSC 1679

CITATION: R. v. Mandip Sandhu, 2015 ONSC 1679

COURT FILE NO.: CR-13-70000059-00AP

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MANDIP SANDHU

Appellant

John McInnes, for the Respondent

Alan D. Gold and Melanie J. Webb,

for the Appellant

HEARD: December 9, 2014

B. P. O’Marra, J

REASONS FOR JUDGMENT

[ON appeal from the judgement of j. moore, J. of the ontario court of justice dated february 19, 2013 and sentence imposed april 30, 2013]

OVERVIEW

1On June 3, 2010 the complainant performed oral sex on the appellant. She claimed that she was forced to do so. The appellant claimed it was consensual. The appellant was on the job when the sexual act occurred. He was a member of the Toronto Police Service.

2On November 4, 2010 the appellant was charged with sexual assault. He was found guilty as charged and sentenced to 15 months’ imprisonment followed by two years’ probation. Ancillary orders were made in accordance with the Sexual Offender Information Act. He was also ordered to provide a sample of his DNA.

3Three witnesses testified at the three-day trial after several days of pre-trial motions. The only issue to be determined at trial was whether or not the Crown had proven that the complainant did not consent.

THE COMPLAINANT’S VERSION OF EVENTS

4The complainant worked as a licensed masseuse in Toronto. On the morning of June 3, 2010 she was at work with another woman who also worked as a masseuse. Late that morning, a man appeared on the security system monitor outside the door and rang the bell. The complainant had never seen the man before but later provided investigators with a detailed physical description. She assumed he was a customer and let him in. After briefly discussing prices for a massage the man offered her $100.00 and then $120.00 if she would “do more”. She declined. The man then identified himself as a police officer and flashed his badge. He told her that he wanted to check her licence and asked how many “girls” were working there. She said that there were two and took him to the office where the other female was located.

5The complainant showed the man her licence and watched as he wrote down information in a notebook. He appeared to check the licence but did not record information from it. As the man walked out of the office he asked the complainant, “What is upstairs for?” She replied, “It is the same” (meaning massage rooms). The man asked her to show him upstairs to the second floor. She thought nothing of this since she assumed he was continuing to check out the licensing of the premises. She led him upstairs. The man looked in one of the two massage rooms along the hallway and then proceeded to another upstairs massage room.

6The complainant followed the man into the second room and was surprised to see that he was sitting on a bed. She could now see his side-holstered gun through his open jacket and she asked him whether that was a gun. The man said it was. The man told her to bend down. She asked why. The man pushed her down by her shoulders into a kneeling position. He then unzipped his trousers, took his penis out and told her to perform oral sex on him while grabbing her head by the back of her hair and saying, “Quickly, quickly do the blow job”. She said these words were uttered in a mean and forceful manner. The complainant closed her eyes and performed oral sex on the man until he ejaculated in her mouth. She spit out on a towel and went to the adjoining washroom to rinse her mouth out.

7The complainant then went downstairs. The man was in the hallway and told her not to call the police or anybody to which she said okay. The man then left the premises. The complainant looked out the window and saw him get into a car that was parked outside. She could see the licence plate number and copied it down on a business card.

8The discarded towel, the business card with the plate number on it and the security video for the building were subsequently seized by police and held for investigative purposes.

THE APPELLANT’S VERSION OF EVENTS

9The appellant had been a member of the Toronto Police Service for 11 years prior to this incident. In the two months prior he had worked in plainclothes. His duties included checking on licences for premises such as massage parlours and bars. His work as a plainclothes officer did not include undercover work for which he had no specific training.

10On June 3, 2010 his assigned partner was not available as he had to attend court on an unrelated matter. The appellant was several days behind in the notes in his police issued memo book but he decided to do some inspections on his own. He was in plainclothes and had a holstered firearm clipped to his belt. He had a pen and a police issued notebook.

11At 10:43 a.m. he went to another spa premise and knocked on the door. Nobody answered. He left and recorded that attendance in his notebook.

12He then went to the spa where the incident took place.

13He parked his unmarked police vehicle in front of the building where the spa was located. He was aware that the rear licence plate of the car would be visible to someone looking out from inside the premises. He rang the doorbell and the female complainant answered and let him in. She had a smile on her face and was wearing what he described as skimpy clothes. As he entered he noticed that there was a security camera in the vestibule of the building. She asked him if he was there for a massage. He said he was. He denied that this was undercover work that required specific training. She said the cost would be $40.00 for one-half hour. He then asked her whether she offered anything else. He testified that he had been instructed to ask this question in such circumstances while pretending to be a customer. He claimed that she responded that she would provide a “blow job” for $120.00 but “I give you $100.00”.

14He then produced his police badge and identified himself as a police officer. He says that she tried to hug him and he pushed her away. He was considering whether to lay a charge under a municipal bylaw or the Criminal Code based on what had occurred. He asked to see the licence for the spa as well as the masseuse licence for the complainant and the other female who was present. He recorded some personal information in his notebook related to the name and date of birth of the complainant. He only noted her information as she was the one who might possibly be charged. Those were the only notes that he made for the 10 to 15 minutes that he remained on the premises.

15The appellant claimed that he then told the two women that he was going to look around and check the rooms. He said that this was to see if there were other customers present and whether there were further possible infractions of the bylaw. He took the stairs to the second floor. The complainant on her own accord followed him. He looked into a couple of rooms and ultimately entered a third room where he observed a massage table.

16The appellant testified that at this point as he stood there checking out the room with his pen and notebook in hand he was approached by the complainant who got on her knees and said “I give you”. She then undid his pants and performed oral sex. He ejaculated in her mouth and she then spat onto a towel that was nearby.

17The appellant says that what the complainant did was unexpected and left him shocked. He did not stop her due to a lapse in judgment. The sexual act took between one and one-and-a-half minutes.

18The appellant then left the building and went to the station. He sat there doing nothing for between two and two-and-a-half hours. He booked off work at 3:00 p.m. While he was at the station he put a line through the brief notes that he had made as to the name and personal information of the complainant. He could not explain why he did that.

19The appellant said that the sexual act performed by the complainant was of her own free will. He says he never showed her his firearm and had no reason to believe that she saw the firearm. However he said that she would have been able to see the handle of the firearm as it was attached to his belt.

20The appellant indicated that while he had an assigned partner, he had worked alone on other occasions. The appellant agreed that he had grounds to possibly charge the complainant with soliciting, assault, sexual assault, attempting to obstruct justice, or a bylaw infraction based on what had occurred at the massage parlour.

THE CONVICTION APPEAL

21The following grounds of appeal were advanced:

1. That the trial judge erred in determining that the appellant’s memo-book notes were afforded no Charter protection as an instrument of crime and part of the actus reus of sexual assault.

2. That the trial judge erred in finding that the appellant’s memo-book did not constitute “notes” as contemplated by provincial legislation and regulation.

3. That the trial judge erred in not finding that there was material falsehood and non-disclosure to the issuing judge on the DNA warrant.

4. That the trial judge erred in placing excessive weight on his finding that the appellant had not followed police directives and in drawing negative inferences therefrom.

5. That the trial judge failed to properly analyze inconsistencies in the complainant’s evidence.

6. That the trial judge erred in adopting factual and credibility findings from the voir dire to the trial proper.

USE OF THE NOTES IN SUPPORT OF THE INFORMATION TO OBTAIN (ITO) AND AS EVIDENCE AT TRIAL

22This part of the analysis relates to grounds 1 – 3 inclusive against conviction.

23The appellant testified that on June 3, 2010, before the sexual act occurred, he made notes of the particulars of the complainant as to name, date of birth and address. When he returned to 31 Division he crossed out those particulars. Later that day the Special Investigations Unit (SIU) assumed control of the investigation.

24On June 4, 2010 the appellant was designated as the “subject officer”. Detective Sergeant Morse of the Toronto Police Service seized four notebooks and a steno-pad from the appellant’s desk at 31 Division.

25On June 7, 2010 Detective Sergeant Morse advised Inspector Boyd of the Toronto Police Service that one of the notebooks contained the name, date of birth and home address of the complainant. Inspector Boyd relayed that information to the SIU lead investigator Dean Seymour. SIU Inspector Barry Millar had started drafting an ITO to obtain a warrant for the notebooks before the memo-book and its contents were provided to the SIU without warrant.

26In late October of 2010 Inspector Boyd ordered Detective Sergeant Morse to turn over the appellant’s memo-book to the SIU. Counsel for the appellant sent letters to the SIU requesting return of the memo-book alleging that it had been seized unlawfully. There was no response to those letters. The appellant never consented to the release of the memo-book or the information contained therein to the SIU.

27Due to DNA recovered at the scene of the sexual act SIU Inspector Barry Millar authored an ITO to obtain a warrant for the appellant’s DNA. The ITO included information contained in the memo-book. The DNA warrant was granted and the results were used as evidence against the appellant at trial. The memo-book and its contents were also admitted as evidence on the trial.

28On a pre-trial application the appellant sought to exclude the following evidence pursuant to ss. 7, 8 and 24(2) of the Charter:

i) the police-issued memo-book seized from the appellant’s desk;

ii) information written in that memo-book said to be written by the appellant; and,

iii) DNA evidence obtained pursuant to a DNA warrant which relied in part on the above items.

29The appellant argued that the memo-book and the information it contained were seized illegally and contrary to s. 9(3) of the Ontario Regulation to the Police Services Act O. Reg. 268/10 (the Regulation). He further argued that there was material non-disclosure on the ITO for the DNA warrant in that there was no reference to the alleged breach of the Regulation.

30Subsection 9(3) of the Regulation reads as follows:

A subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU. (underline added).

ANALYSIS

31A regulation pursuant to a provincial statute cannot empower criminal courts to exclude evidence obtained in violation of its terms. see Bisaillon v. Keable 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 at p. 109.

32To exclude the notes as evidence the appellant had to resort to the Charter and establish a breach of s. 7 or 8. If a breach was established the Court would then consider whether the evidence should be excluded pursuant to s. 24(2) in accordance with the principles in R. v. Grant 2009 SCC 32, 2009 SCR 32, [2009] 2 S.C.R. 353.

SECTION 8 OF THE CHARTER

33The Supreme Court of Canada has made it clear that the purpose of s. 8 of the Charter is to protect the citizens’ “reasonable expectation of privacy”. see Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 159.

34The appellant did not testify on the pretrial motion to exclude the notes and notebook as evidence at trial and in support of the ITO.

35There is a minimal expectation of privacy in a police officer’s notes bearing in mind that they are routinely produced to supervising officers, and both Crown and defence counsel. Such notes do not generally recount the type of information, the use of which would cause an affront to individual dignity. While they record the actions of an officer they do not normally record the private thoughts or opinions of an officer. In short, they do not deal with those aspects of individual identity that the right to privacy is intended to protect from the overbearing influence of the state. see R. v. Schertzer [2007] O.J. No. 3560 (S.C.J.), at para. 29 and 30; Thompson Newspapers Ltd. v. Canada (Director of Investigation and Research et al.) 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 at pp. 517-18.

36The content of notes made by a police officer related to his or her duty ranges from the mundane (i.e. the date and time his or her shift began and ended) to the significant (i.e. investigative information). The officer has a professional and personal interest in the notes. However, that does not mean that the officer has a privacy interest in the notes that attracts protection under s. 8 of the Charter. Notes of a police officer do not routinely contain personal information about themselves, other than information related to an investigation (i.e. notes of injuries sustained while on duty).

37The notes and notebooks do not belong to the officer. They belong to the respective police agency.

38Notes of an officer related to his or her duties cannot be equated to a personal diary or an aid-memoire for personal use only.

WAS THE SEIZURE/OBTAINING OF THE NOTES ILLEGAL?

39The notes were made before the sexual incident occurred. This was obviously before the SIU were involved and before the appellant was designated as a “subject officer”.

40The Regulation provides that the Toronto Police Service not hand over “the notes on the incident”. The incident had not yet occurred. Thus the Regulation was not operative in regard to the notes.

WAS THERE MATERIAL NON-DISCLOSURE ON THE ITO TO OBTAIN THE DNA WARRANT?

41This argument is premised on the failure to include in the ITO any reference to obtaining the notes and the notebooks allegedly in contravention of the Regulation.

42Even without any reference to the notes there was an abundance of information on which the DNA warrant could have been granted. The issuing Justice W. J. Blacklock of the Ontario Court of Justice in his endorsement indicated there was “no arguable basis to deny the warrant”. Aside from reference to the notes the ITO included the following information:

1. The complainant produced to investigators a facecloth that was used by her immediately after she was forced to perform oral sex.

2. The Centre of Forensic Sciences developed a male profile from substances found on the facecloth.

3. The complainant said the suspect was a police officer.

4. The complainant and another witness wrote down the vehicle plate of the car the suspect drove away in.

5. The vehicle was registered to the Toronto Police Service, Major Crime Unit.

6. The appellant was working that day in the Major Crime Unit and was assigned to that car.

7. One of the Toronto Police Service investigators who knew the appellant personally watched a video of the suspect leaving the premise where the incident occurred and advised that she was “95 percent sure” it was the appellant.

43Even if the reference to the notes is redacted from the ITO there remained a clear basis on which the authorizing justice could have issued the DNA warrant. see R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at p. 1452; R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992 at page 1017 and 1019; and R. v. Bisson 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097 at para. 1098.

44As stated earlier in these reasons I do not agree that there was a violation of the regulation related to the notes. Thus there was not material non-disclosure in that regard.

SECTION 7 OF THE CHARTER

Did the admission of the notes and notebook at trial infringe the principle against self-incrimination that is subsumed in the rights guaranteed by s. 7 of the Charter?

45In R. v. Schertzer several police officers were charged with offences related to the administration of justice, including making fake notes. The defence in that case submitted that their notes and notebooks were inadmissible at trial. Justice Nordheimer made the following observations on the issue of self-incrimination:

1. The defendants were required to make notes in police issued memorandum books regarding actions they took in the exercise of their duties as police officers. They were required to do so by the policies and procedures of the police service. Failure to follow those policies and procedures constituted a disciplinary offence punishable under the provisions of the Police Services Act of Ontario.

2. No one is compelled to become a police officer. Persons who decide to become police officers surely know their actions as police officers will be subject to scrutiny in a variety of ways by their supervisor, their fellow officers, by the public, by the media and by the courts. Their training to become police officers fully informs them regarding their duties and obligations as such.

3. The requirement to make notes is not an obligation imposed on the officer through the denial of free and informed consent between the state and the individual. The mere possibility that the information recorded in their notebooks may later be used in an adversarial proceeding does not mean that the state is guilty of coercing those individuals to incriminate themselves.

4. Police officers are given broad and extensive powers over their fellow citizens. It is important that an accurate record of the use of those powers be made so that, among other things, the manner in which they exercised those powers can be reasonably assessed at any later date. The requirement to make notes seems to protect both the officer and the citizen by requiring a contemporaneous record to be made of the events in which the officer is involved. The notes also assist in the proper prosecution of criminal and other offences because they are intended to provide a reliable and timely record of the events underlying those offences.

5. In the normal course, the notes are not made when the officer and the state are adversaries. Rather, they are made at a time when the officers and the state are expected to be allies in the investigation and prosecution of possible criminal offences.

6. The potential for an adversarial relationship between a police officer and the state (or internal disciplinary proceedings) does not necessarily mean that the principle against self-incrimination must be applied. The starting point is that there is not such an adversarial relationship.

7. The principal purpose of requiring notes to be made is not for investigating the actions of police officers. It is an incidental effect of the requirement to make notes that possible misconduct by an officer may be revealed.

8. The remote possibility that the relationship may turn adversarial does not weigh in favour of the application of the principle against self-incrimination.

see R. v. Schertzer at paras. 2-22; Police Complaints Commissioner v. Kerr and Wright (1997) 96 (O.A.C.) 284 at para. 12; and R. v. Bentley 2013 BCSC 1124 at para. 19-20.

46I adopt the reasoning in Schertzer. The admission in evidence of the notes in this case does not violate the self-incrimination aspect of s. 7 Charter rights.

47My conclusions in regard to the notes and notebooks are as follows:

1. The obtaining of the notes and notebooks did not contravene the Regulation pursuant to the Police Services Act of Ontario.

2. If the obtaining of this evidence did contravene the Regulation the route for possible exclusion would rest on ss. 7, 8 and 24(2) of the Charter.

3. The failure to mention the alleged violation of the Regulation in the ITO for the DNA sample was not a material omission.

4. Even if reference to the notes and notebooks were redacted from the ITO, there remained a strong basis to issue the warrant.

5. The appellant did not have a reasonable expectation of privacy in the notes and notebooks. Thus he cannot resort to s. 8 to exclude the evidence.

6. The brief notes made and subsequently crossed out by the appellant were made when there was no adversarial relationship between the appellant and the state. His right against self-incrimination under s. 7 of the Charter was not engaged.

7. The notes and notebook were properly admitted as evidence at trial. They were relevant to the credibility of the complainant and the appellant as well as the unfolding of the narrative.

48The grounds of appeal related to the notes and notebooks are dismissed.

CREDIBILITY ASSESSMENT

49Grounds 4 and 5 of the appeal relate to how the trial judge dealt with the credibility of the complainant and the appellant.

50The appellant acknowledged that a sexual act occurred. The crucial issue to be decided at trial was whether the Crown had proven that the act was non-consensual.

51The appellant submits there were the following errors in the trial judge’s assessment of credibility:

i) Excessive weight was placed on the appellant’s failure to follow police procedures and unwarranted negative inferences were drawn therefrom.

ii) There was a failure to properly consider inconsistencies in the complainant’s evidence.

iii) There was a failure to apply the same standard of scrutiny to the complainant’s and the appellant’s evidence.

52In his judgment the trial judge referred to the following:

1. the onus of proof was on the Crown throughout,

2. there was no onus on the appellant to prove anything, and

3. since the appellant testified the principles in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 must be applied.

CREDIBILITY FINDINGS

53Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. In the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 20.

54In a case that turns on credibility the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt: see R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 49-50. Where credibility is a determinative issue, deference is in order and intervention will be rare. While the reasons must explain why the evidence raised no reasonable doubt, there is no general requirement that reasons be so detailed that they allow an appeal court to re-try the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answered each and every argument of counsel. see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 23, 26 and 30.

55The acceptance of conflicting evidence is a proper basis for rejecting the version offered by an accused. see R. v. Frank 2012 ONSC 6274, [2012] O.J. No. 5242 at para. 62.

56The outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for rejection of an accused’s evidence as is rejection based on a problem identified with the way an accused testified or the substance of that evidence. see R. v. D. (J.J.R.) (2006) 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53

EVIDENCE OF THE APPELLANT

57The trial judge was clearly alert to the principles applicable where an accused testifies. He ultimately rejected the evidence of the appellant in resounding terms, describing it as “preposterous, ludicrous and beyond belief.” If those had been mere conclusions without foundation they would be insufficient to support a finding of guilt. However, the trial judge had a basis on the evidence to flat out reject the appellant’s version of events.

58The failure of the appellant to follow police procedures related to note taking, working solo and working undercover in a different set of circumstances would be of little or no consequence. This evidence was not tendered as other acts of discreditable conduct. The combination and significance of that evidence related to an important issue in this case: how and why did the appellant, while on duty, end up alone with a masseuse in a second floor room where the sexual act took place?

59Officer Michael Tucker of TPS was the appellant’s partner in the Major Crime Unit in the months leading up to June 3, 2010. They both worked in plainclothes and their duties included checking licensed premises, including massage parlours. He testified that officers worked in pairs, primarily for officer safety. He had never carried out these duties alone. He was not aware that the appellant had ever worked alone when checking licences. On the morning of June 3, 2010 Officer Tucker was required to attend court.

60Detective Paul Dominey was the supervisor for TPS at the Major Crime Unit on June 3, 2010. The unit included officers who worked in plainclothes and others who also did undercover operations. He explained the different roles and training related to plainclothes and undercover work. He testified that the standard practice for members of his unit was to work in pairs for officer safety.

61The trial judge found that the notebook and working solo issues were relevant but had little bearing on the final outcome of the case.

62The defence at trial submitted that it was implausible that the appellant would commit such a serious crime while on duty with surveillance cameras and witnesses to implicate him. However, what the trial judge found implausible and indeed preposterous, was the picture that the appellant presented, being:

i) a larger, stronger, armed officer,

ii) working alone,

iii) making a bare minimum of notes (and later crossing those off),

iv) ends up alone with a masseuse,

v) in a second floor room, and

vi) he is rendered “helpless and hopeless” by a sexual act inflicted on him that he did not initiate, request or desire.

63The resounding rejection of the appellant’s evidence based on the W.D. analysis effectively wiped out the appellant’s version of events. That left the Court to consider, based on the evidence it did accept, whether the Crown had proven there was no consent. The only remaining evidence to consider was that of the complainant.

EVIDENCE OF THE COMPLAINANT

64There was independent confirmation of important aspects of the complainant’s version of events long before the appellant testified at trial and admitted there had been a sexual incident. This included the following:

1. the notes made by the appellant as well as the video surveillance and identification of the police vehicle that placed the appellant at the scene.

2. the DNA evidence that confirmed a sexual incident with the appellant.

65The Court rejected as speculation and without foundation suggestions that the complainant had a motive to lie and falsely implicate the appellant.

66There were inconsistencies in her evidence but the Court found them to be of little significance. In assessing them the Court was entitled to consider her limited facility in English.

67The trial judge did not apply a different standard of scrutiny to the appellant’s evidence. This was not a situation of simply comparing the evidence of the two critical witnesses. The rejection of the appellant’s evidence left the Court to consider the complainant’s evidence. The acceptance by the Court of her evidence on the crucial issue of consent was a factual matter that is entitled to appellate deference. see R. v. C.P. [2001] O.J. No. 342, (Ont. C.A.) at para. 13.

68These grounds of appeal are also dismissed.

ADOPTION OF VOIR DIRE FINDINGS ON THE TRIAL

69The appellant submits the following comment by the trial judge constituted an error:

In my decision on the Charter Application, I have already made findings of fact that will apply to the trial proper.

70The appellant submits that the trial judge should have reassessed the evidence from the voir dire in light of the evidence at trial. He goes on to submit that “those same facts require proof beyond a reasonable doubt on the trial proper”.

71The Crown is not obliged to prove individual pieces of evidence beyond a reasonable doubt. The burden of proof relates to the essential elements of the offence based on a consideration of all the evidence. see R. v. Morin 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at para. 33.

72Trial counsel had agreed that evidence on the voir dire was to be part of the trial evidence. The comments of the trial judge simply reflect that agreement. This ground of appeal fails.

RESULT

73The appeal against conviction is dismissed.

SENTENCE APPEAL

74The appellant does not dispute that a custodial sentence was appropriate based on the facts as found by the trial judge. However, he submits that the sentence should be served in the community.

75The Crown elected to proceed summarily in the Ontario Court of Justice. Had the Crown proceeded by indictment the appellant would not have been eligible for a conditional sentence.

Criminal Code, R.S.C. 1985, c-46, s. 742.1(f).

76The principles to be applied on an appeal from sentence were summarized by Doherty J. in R. v. Thurairajah 2008 ONCA 91, [2008] O.J. No. 400, at paras. 31 and 32.

An appellate court may vary a sentence imposed where the trial judge has erred in principle, failed to consider evidence relevant to sentence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit: R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42, 114 C.C.C. (3d) 436, at paras. 15-16; R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA)

A sentence is demonstrably unit when it falls outside the range of sentences that could reasonably have been imposed in the circumstances.

77The appellant was convicted of a crime involving sexual violence and an egregious abuse of public trust and authority. The length and manner of serving this custodial sentence do not reflect an error in principle, nor is the sentence demonstrably unfit.

RESULT

78The appeal from sentence is dismissed.

79I am grateful to both counsel for their helpful submissions and materials.