COURT FILE NO.: CR-23-0056-AP DATE: 2024-05-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.L. Appellant

Mr. R. Sinding, for the Appellant

- and -

His Majesty the King Respondent

Ms. C. Down, for the Respondent Crown

HEARD: via Zoom on January 16th, 2024, at Thunder Bay, Ontario

Madam Justice H.M. Pierce

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 of the Criminal Code of Canada.

Reasons on Appeal

Introduction

[1] On February 13, 2023, Justice J. Hoshizaki found D.L. (“the appellant”) guilty of one count of sexual assault, contrary to section 271 of the Criminal Code, and one count of being in a position of trust or authority toward D.L., a young person, and touching her with his penis for a sexual purpose, contrary to section 153(1)(a) of the Criminal Code. The appellant was sentenced to imprisonment for 18 months for sexual assault, and two years less a day for sexual exploitation, to be served concurrently, followed by three years’ probation on terms, and ancillary orders.

[2] The appellant appeals both convictions and sentence. He submits that the trial judge:

1. misapplied the W.(D.) formula, [^1] leading to errors in assessment of credibility, and an unreasonable verdict;
2. gave inadequate reasons;
3. relied on demeanour evidence;
4. sentenced the appellant as though the Crown had proceeded by way of indictment, as a worst-case offender; and
5. failed to stay the lesser charge of sexual assault contrary to rule in Kienapple. [^2]

[3] The respondent submits that:

1. the case involved credibility, and the trial judge’s findings of fact are entitled to deference;
2. the reasons for judgment sufficiently canvassed the issues at trial and allowed effective appellate review;
3. the trial judge was entitled to consider the demeanour of witnesses as well as other evidence when assessing credibility;
4. the sentence imposed was in accordance with the direction of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, paras. 120-154 (“Friesen”), recognizing that the Crown proceeded summarily; and
5. with respect to the application of the Kienapple principle, the appellant failed to show how the two charges shared a factual nexus in accordance with R. v. Williams, 2014 ONSC 1762, at para. 28.

Standard of Review on Appeal

[4] Section 686 of the Criminal Code describes when an appeal court can intervene and overturn a conviction:

686(1) On the hearing of an appeal against conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any other ground there was a miscarriage of justice.

[5] It is settled law that the trial judge must be correct in their interpretation of the law. However, because the trial judge is in the best position to see and hear witnesses and to assess credibility, their findings of fact are entitled to significant deference, unless they made a palpable and overriding error or made findings of fact, including inferences of fact, that are clearly wrong, unreasonable or unsupported by the evidence. See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, paras. 1, 8, 10, and 23.

[6] In R. v. L.L., 2022 ONCA 50, at para. 18, the Court of Appeal for Ontario described the scope of appellate review of a trial judge’s reasons:

Appellate review requires a functional and contextual reading of a trial judge’s reasons, reading them in context and as a whole, in light of the live issues at trial, and without finely parsing the reasons in a search for error. [Citation omitted.]

[7] In R. v. Sinclair, 2011 SCC 40, [2011] 3 SCR 3, at para. 56, the Supreme Court of Canada commented on the limitations of a trial judge’s misapprehension of evidence, as follows:

Even if I were prepared to accept, for the sake of the argument, that the trial judge agreed with the Crown’s theory that Mr. Sinclair had been involved in a plan to commit a robbery, it would nonetheless be my view that the misapprehension was not materially linked to the inference she drew with respect to Mr. Sinclair’s presence at the crime scene. For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based. As Binnie J. correctly stated in Lohrer, the standard described by Doherty J.A. in Morrissey is a stringent one. In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground. [Citations omitted.]

The Evidence

[8] Some of the evidence at trial is set out in the parties’ factums. However, the appellant’s summary of evidence is selective and largely argument and therefore not helpful to understanding the appeal. While the Crown has added some detail in its responding material, it has not filled in the gaps left by the appellant.

[9] I have therefore summarized the evidence as it appears in the appeal record and factums, and have omitted the argument which I will deal with in the discussion of the grounds for appeal.

Background

[10] The background and circumstances of D.L. (“the complainant”) and her family, are not controversial. The appellant is D.L.’s father. D.L. is the eldest of three siblings. She was 16-years-old at the time of the allegations. Her sister is the middle child, and their brother is two years more junior. At the time of the trial, D.L. was 18-years-old.

[11] D.L. has special needs. She suffered from an eating disorder and was hospitalized at a mental health facility in southern Ontario for about a year, followed by 6 months of aftercare in Kanata, Ontario. Her parents were separated when D.L. returned to her father’s home and rejoined her siblings in November 2020.

[12] The allegations deal with the period between January 1, 2021, and April 27, 2021.

[13] The family lived in a four-bedroom home. The father had a bedroom on the main floor, opposite the living room. The bathroom and kitchen were also located on the main floor.

[14] There was no door at the entrance to the bathroom that contained a sink. Beyond that, there were doors that locked off the inner washroom that housed a vanity, sink, toilet, tub and shower. The inner door opened to a staircase leading to the children’s bedrooms on the second floor.

[15] D.L.’s bedroom door upstairs had no doorknob. She preferred to sleep on a reclining chair in the living room. She wore the same clothing each day, pyjama pants and a sweater.

[16] The appellant kept six cats and a dog, Bella, who would bark when she wanted in or out.

[17] In January 2021, Child and Family Services assigned Tara Johnson, a social worker, to come into the home to assist D.L. in socializing, eating, hygiene and other life skills. D.L. was not in school. Ms. Johnson often cooked for the children when their father worked evening shifts.

[18] Ms. Johnson visited the home a few times a week. She understood that D.L. was autistic, with a cognitive profile of a 6 – 8-year-old. She had difficulty reading, could not do basic mathematics, and had difficulty interpreting social situations, idioms, and figures of speech.

[19] When Ms. Johnson first met D.L., the child was not communicative. There were only a few phrases she would say.

[20] The appellant and his three children attended a family wedding on April 20, 2021. Ms. Johnson drove the family to and from the wedding. Some of the allegations arise from the evening after the wedding.

Ms. Johnson’s Evidence-in-Chief

[21] Tara Johnson, testified for the Crown. The trial judge found her a credible witness. Some of her evidence is uncontroversial and has been summarized above.

[22] When Ms. Johnson first worked with D.L., the child rarely left her reclining chair in the living room. It was covered in blankets. The dog, Bella, hovered around her.

[23] Ms. Johnson never saw D.L. use the washroom. She became aware that D.L. was urinating in her chair. In March 2021, Ms. Johnson began working on a toileting routine with her. She described D.L, as very thin, with hair so matted that it couldn’t be brushed. She refused to shower or clean herself and she smelled. She wore the same clothes every day.

[24] Ms. Johnson didn’t notice marks on D.L. when she took the children swimming in late March.

[25] Ms. Johnson was shocked at the state of the appellant’s house. She described dirty, smelly, unkempt conditions, including in the bathroom. She said there were dirty dishes everywhere, leftover food sitting out, and dirty clothes all over the floor. Often, there was not much food in the house.

[26] Ms. Johnson described D.L.’s room upstairs as being crammed with stuff and in disarray. She found it odd that there was no doorknob on the door, but a padlock on the outside of the door.

[27] In the weeks leading up to the April 20, 2021, wedding, D.L. told Ms. Johnson that she was concerned for her safety because her father commented that he found Ms. Johnson and another social worker attractive. D.L. told her that she did not want her father to sit in the front seat of the car close to Ms. Johnson.

[28] On the day of the wedding, Ms. Johnson went to the house to help D.L. get ready and to drive the family. D.L. did not want to put on a dress but allowed her sister to help her dress. D.L. was uncomfortable when her father repeatedly told her during the day that she looked like a model and she would say, “No, stop. No, stop.” Ms. Johnson did not hear the appellant make similar compliments to D.L.’s sister.

[29] A few days after the wedding, D.L. told Ms. Johnson that the evening of the wedding was the “worstest,” her father had done to her at that point and that her father had tried to put his wiener in her. Gradually, she volunteered more details to Ms. Johnson.

[30] Ms. Johnson reported D.L.’s disclosures to the child protection staff at Child and Family Services, and D.L. was subsequently interviewed by police on April 27th, 2021. All three siblings were then placed in a receiving home. The two younger children were returned home a few days later, while D.L. was placed in Ms. Johnson’s home on April 29th where she remained at the time of trial.

[31] With respect to D.L.’s evidence at court, Ms. Johnson explained said there are certain words she won’t say. The only thing they practiced for trial was D.L. saying “penis” and “vagina.” Ms. Johnson commented that she wasn’t present when D.L.’s statements were given, so she didn’t know what her evidence was.

Ms. Johnson’s Evidence in Cross-Examination

[32] It was the defence theory that D.L. had fabricated the allegations so that she could go to live at Ms. Johnson’s house. Ms. Johnson explained that since she had children of her own at home and other work assignments, it was not ideal to have a child with special needs placed in her home. She added that the arrangement was always intended to be temporary.

[33] Ms. Johnson denied there was a script to practice D.L’s evidence at trial. She stated that she gave life skills guidance to D.L. about how to talk about past trauma privately, instead of at a family dinner. She stated that no one asked her to help D.L. provide a better statement to the police.

[34] She heard the appellant tell D.L. on the day of the wedding that she looked like a model, “5, 6, 7, a number of times” but she did not hear him make similar comments to his other children. She did not remember who sat in the front seat of the car when she drove the family that day. She did not notice any marks on D.L.’s body.

[35] Ms. Johnson agreed that she was called to a police interview with D.L. when she was having a tantrum and was inconsolable. Until that time, she had never seen that type of behaviour from her.

The Complainant’s Evidence-in-Chief

[36] D.L. gave the police two video statements dated April 27, 2021 and May 5, 2021 that were played at trial. She adopted each statement as true and added more information to each statement. Each statement was ruled admissible by the trial judge for the truth of its contents.

The April 27th Statement

[37] The salient portions of the April 27 statement are as follows.

[38] D.L. described an encounter with her father late in the evening after the family wedding. She was sleeping on the couch in the living room when her father woke her up. Her siblings were sleeping in their rooms upstairs. She described this encounter as being the worst because it went on longer and more things happened. She asked her father to stop. She also expressed her fear that the police would talk to her father, explaining that he would “get mad” and it will get “worser.”

[39] D.L. explained that she returned to her father’s home in late November, and he began doing “gross stuff” after Christmas, with the number of times varying. She explained that the things she described began a long time ago, after her mother left the home.

[40] D.L. expressed that her father and the younger children watched pornography which she found “gross.”

[41] She indicated that she would go into her father’s room sometimes to retrieve laundry or to visit the cats. At times when they were at a former residence, he would ask her to join him in his bedroom when he was smoking marijuana.

[42] She expressed fear that her father would find out what she told the police and that she would be sent away again. D.L. suggested that if she had a doorknob on her door, she could lock the door and sleep there. She also said she didn’t want to get her father in trouble.

[43] When asked whether she was worried that this “gross stuff” might be happening to her sister, D.L. responded, “Sort of but I feel like it’s not.” She explained,

Cause I’m easy….Yeah, ‘cause people know I already have problems and like, like people always think that I like sometimes so then that’s why he does me ‘cause it’ll be harder for people to believe me.

[44] D.L. stated that she didn’t tell her sister about things that happened to her because she didn’t want her to be afraid of their father and she wanted her sister to feel safe in their house.

[45] The police officer reviewed body parts with D.L. as part of her statement. D.L. said that the penis didn’t touch her. When the officer told D.L. that she would have to talk to D.L.’s father, she became distraught, and the interview terminated.

Adding to the April 27th Statement

[46] At trial, D.L adopted the April 27th statement as truthful and asked to add to it, saying that she could now say the words, “vagina” and “penis.” She also clarified that the “gross stuff” she referred to was her father touching her vagina.

[47] At trial, D.L. added that on the night of the wedding, her father picked her up in the living room and took her to his bedroom, put her on the bed and took her pants off. She stated that she was scared, kicked and ran. She described the blanket on her father’s bed as being red, gold, black and white.

[48] D.L. also stated that her dog, Bella, would sometimes stop the sexual abuse by barking.

The May 5th Statement

[49] The May 5, 2021, statement was adopted by D.L. at trial and was accepted by the court for the truth of its contents. At the time this statement was taken, D.L. was living at Ms. Johnson’s home and her siblings had returned to their father’s home.

[50] In this statement, D.L. described how she was sleeping in the living room at her father’s home. She said she didn’t feel safe sleeping in her bedroom upstairs because there’s no lock on the door. She didn’t want her siblings to know what her father was doing to her because she didn’t want them to be afraid of their father.

[51] During the interview, D.L. commented that she didn’t like it when she had her period and had to wear a pad because it reminded her of when her father would touch her with his hands “where she pees.” She described her father inserting his hands in her pants and touching her private parts. She added that sometimes her father would remove her pants, an event that mostly happened in his bedroom.

[52] On the day of the wedding, D.L.’s sister helped her dress, and then Ms. Johnson arrived to drive the family to and from the wedding. When she returned home, D.L. put her pyjamas on and returned to her normal place on the couch and fell asleep.

[53] D.L. described the events the day of the wedding as being “the worstest.” She was asleep when her father carried her to his bedroom and placed her on her back on the bed. She said that she didn’t know the time but said it was dark. He removed her pyjama pants and underwear and got on top, naked. This night, she wouldn’t let him take her top off but she said it is different every time.

[54] D.L. began kicking and crying and her father got mad and slapped her. He was trying to put his “wiener” in her privates where she pees. That was the first time he tried to do that. He didn’t touch her vagina because she was still kicking and “freaking out” and the dog was barking. Her father took Bella out and she locked herself in the bathroom until he was asleep; then she returned to get her clothing. Her sister was asleep upstairs.

[55] She described other occasions of sexual touching, in either the living room or her father’s bedroom. She said her father would touch her private parts with his hands, which hurt. He also would touch her chest.

[56] D.L. said that her father would ask her to touch his penis which she described as slimy. She said this happened most of the time when he would touch her. Depending upon the type of pants he’d be wearing, he would unzip, or pull them down, while her clothes were most often on. He would tell her to be quiet if she started to cry. She would ask him to stop. Most often these episodes would end when Bella started barking and growling and “freaking out.” She explained that her father would get mad and then stop.

[57] D.L. stated that these episodes began sometime after Christmas after she returned home. She said the episodes would happen “a lot,” especially when her siblings were at their mother’s house and she was home with her father. She said that it happened at least once a week but sometimes it didn’t happen in a week. The episodes left her feeling scared and disgusting and gross. She described other times when her father would touch her with his hands.

Adding to the May 5th Statement

[58] At trial, D.L. adopted the May statement and asked to add information. She said that when her father got mad, he would try harder with his “thing”, hurting her vagina.

The Complainant’s Evidence-in-Chief at Trial

[59] At trial, D.L. described the lay-out of the house in detail. She slept on the reclining loveseat in the living room. Her father’s bedroom was off of the living room.

[60] D.L. recounted the events of the wedding, indicating that she didn’t want Ms. Johnson to sit beside her father in the car because she was afraid that he was going to do to Ms. Johnson what he does to her.

[61] She recounted how she went to sleep on the couch around 8 – 9 p.m. that night. It was dark when her father picked her up, took her into his bedroom, and placed her on the bed. He tried to put his penis in her. Bella was in the room.

[62] She explained that she was upset at the end of the first statement because she was afraid they would send her back like they did the last time.

The Complainant’s Evidence in Cross-Examination

[63] The defence theory was that the complainant was emotionally disturbed making her evidence unreliable, that she lied, and that she was motivated to fabricate so she could live with Ms. Johnson.

[64] D.L. denied that she hears voices or that she gets confused about what is real. She stated that no one at the psychiatric hospital suggested that she had been sexually abused. She said that she had an eating disorder because she didn’t like how she looked. D.L. indicated that she takes melatonin to help her sleep but denied that it gave her strange dreams.

[65] Defence counsel put to D.L. that she was returned to her father’s house after the first statement because she didn’t describe anything bad happening. D.L. responded that she obviously wasn’t using the right words or providing enough detail.

[66] Defence counsel suggested to D.L. that her tantrum following the discussion about her father taking a lie detector test was because she feared it would indicate that she wasn’t telling the truth. She disagreed with this suggestion, indicating that she didn’t know how a lie detector worked.

[67] She added that she didn’t say that much in her April 27th statement because she was scared, and she didn’t want to be sent back to the psychiatric hospital or somewhere far away from her siblings. Although she was afraid of being sent back to her father’s house, D.L. said that she didn’t know that her statement to police would lead to her being removed from his house because she was not removed after her first interview with police. She reiterated that she was looking for a lock on her bedroom door.

[68] Following the April 27th statement, D.L. and her siblings were apprehended by Child and Family Services. The defence again suggested that D.L. fabricated the allegations so that she could live with Ms. Johnson. D.L. denied this, indicating that she didn’t know that she would be placed with Ms. Johnson. [^3]

[69] D.L. denied talking to her siblings about what her father was doing to her before she went to the police, but she agreed that she talked to them after they were removed from their father’s home by Child and Family Services.

[70] D.L. said that she told her sister that she didn’t know whether the sexual touching was a dream or not. She agreed in cross-examination that this was a lie but explained that it was the best explanation she could come up with because she didn’t want her sister to fear their father. She still feels protective of her sister but has now told her about the abuse she endured by their father.

[71] Defence counsel suggested to D.L. that Ms. Johnson helped her rehearse her evidence for trial. D.L. denied working with Ms. Johnson on what to say in her statement; however, she indicated that Ms. Johnson helped her get more comfortable saying the words “penis” and “vagina”. She denied there was a script for her evidence, adding, “She doesn’t tell me what to say.” D.L. explained that her second statement was different from her first because she felt safe, knowing that she would not be going back to her father’s house.

[72] Defence counsel put it to D.L. that she did not have a lock on her bedroom door so that her social workers and her father could ensure that she would not lock herself in and hurt herself. She responded that no one ever told her why the doorknob had been removed.

[73] On this point, the appellant testified while D.L. was hospitalized in southern Ontario, a friend stayed in D.L.’s room and who removed the doorknob; he said he did not know why the friend did this. Ms. Johnson could not account for the missing doorknob and found it peculiar.

[74] D.L. said that she was concerned that her father would improperly touch Ms. Johnson if he sat in the front seat of the car when Mr. Johnson drove them to and from the wedding. She warned Ms. Johnson that her father had made comments about her appearance.

[75] D.L. was also uncomfortable because her father made comments about her own appearance on the day of the wedding. He told her she looked like a model. In cross-examination, she agreed that her father may well have said that she and her sister looked beautiful in new dresses and that their brother looked handsome.

[76] D.L. stated that when she was in her father’s bedroom after the wedding, her pants were off but her father’s penis never actually touched her vagina. She denied the suggestion that anyone was completely naked that night. She added that her father sleeps naked.

[77] D.L. described how her father put his hand over her mouth sometimes. She added that he slapped her, although not that often. She said that the night of the wedding was the worst of it. She described that her pants were off and she was squirming and kicking when he put her on the bed, and he was hitting her wherever he could, including her arms.

[78] She said she was bruised all over her body, although not on her face, but she didn’t think the bruises were evident to anyone else because she wore long pants and big shirts. She explained that she did not show the police any bruises because she was scared and did not want to get her father in trouble. She “didn’t want [her sister] to have nobody, like I did.”

[79] She stated that normally, her father touched her sexually when her siblings were upstairs. The dog barked most of the time when D.L.’s father touched her. She said that on the night of the wedding, when her father was touching her, he stopped when the dog began to bark. He left the bedroom to let the dog out because the barking would wake the children upstairs.

[80] When asked why she didn’t cry loudly during that incident as she did when giving the April statement, she said that she didn’t want to wake her siblings because she didn’t want them to fear their father. She explained that they often don’t feel safe at their mother’s house, and she wanted them to feel safe somewhere.

[81] D.L. testified that after her father touched her on the night of the wedding, she locked herself in the bathroom and stayed there until her father fell asleep. Defence counsel challenged her evidence that her father did not attempt to enter the bathroom after she locked herself inside; however, the appellant did not testify that he did.

[82] D.L. testified that she didn’t use the toilet for as much as a week at a time, and that sometimes she urinates in her chair, although she clarified that she wasn’t doing it at that time.

[83] In re-examination, D.L. explained that the bathroom was divided into two parts. The sink area had no door while the adjacent shower/bath area was secured by a door with a lock. She would not tell anyone when she had toilet accidents in her chair and did not change her clothes after an accident.

The Appellant’s Evidence in-Chief

[84] The appellant testified. He denying that he had touched the complainant inappropriately at any time or that he had asked her to touch his penis.

[85] He agreed that D.L. would sit in the chair in the living room a lot of the time, saying that she would get up to use the bathroom, eat, or go for walks with him. He described playing basketball with her once and taking the children swimming. He was not definitive about when these activities took place. He denied knowing that she would go for days without using the bathroom.

[86] The appellant testified that he laundered D.L.’s clothes and blankets and that they didn’t smell. He stated that she was comfortable wearing her pyjamas and his t-shirts.

[87] When asked about the tantrum she displayed during her April video statement, he commented that these tantrums happened quite often after her return from southern Ontario when she didn’t get her way or didn’t want to eat certain foods, take medication, or when certain social workers would visit. He described how sometimes he would have to lock the doors and turn off the lights to pretend they weren’t home because D.L. didn’t like a certain social worker visiting, and coming into the house. He also observed such a tantrum at the psychiatric hospital.

[88] The appellant indicated that the wedding took place on April 20, 2021 around 2 or 2:30 p.m., D.L. did not want to put a dress on. Ms. Johnson drove them to and from the wedding and he sat in the front passenger seat.

[89] The appellant agreed that there was no doorknob on D.L.’s bedroom door. He said that a friend who lived at the house when D.L. was gone had removed it but he didn’t know the reason. He said that the friend had installed a padlock on the door.

The Appellant’s Evidence in Cross-Examination

[90] In cross-examination, the appellant testified that at the time of the alleged offence, his younger daughter was 16 and his son 14. He stated that, between January and April 2021, the house was messy at times but that he would clean the house and do the dishes and laundry when necessary. He agreed that he had six cats and a dog, Bella, who would bark when she wanted in and out.

[91] He agreed that the two younger children slept upstairs in their bedrooms while D.L. normally slept in “her spot” in the living room chair. He stated that he didn’t notice the smell of urine from D.L. or from her chair. He suggested that any smell came from the cats’ litter box, although he wasn’t sure.

[92] The appellant agreed that he told the children that he found Ms. Johnson attractive. He acknowledged saying once or twice on the day of the wedding that D.L. looked like a model but denied that he said it six or seven times. He disputed that D.L. sat in the front passenger seat of Ms. Johnson’s car, indicating that he sat in the front seat.

[93] The appellant stated that after they returned home from the wedding, he ordered pizza and the family ate. D.L. fell asleep on the couch in her spot, while the appellant stayed up late playing Lego Pirates on television with his younger daughter. He stated that they played until at least 4 a.m. The appellant agreed that the wedding took place on a Tuesday, a school night. He conceded that it was not appropriate to play games with his 13-year-old daughter until 4 a.m. on a school night; however, he said it was a chance to give his children his attention. He said that sometimes they would be up late playing games or watching TV.

[94] He denied waking D.L. up that evening and taking her to his bedroom, kicking and screaming. He also denied removing her pyjama bottoms and touching her vagina and vulva with his fingers and grabbing her breast. He denied he was attempting intercourse with her when the dog started barking. The appellant did not recall Bella barking that night.

[95] The appellant denied putting his hands down the front of D.L.’s pants numerous times between January and April 2021.

[96] The appellant work hours were from 11 a.m. to 7:30 p.m. He disagreed with the Crown’s proposition that his parenting style, including playing games until 4 a.m. and making comments about Ms. Johnson, was inappropriate. He admitted smoking marijuana in his bedroom although he said the children were asleep in their bedrooms and D.L. was sleeping on the couch when he did so. He also admitted watching pornography but only when the children were sleeping. This evidence was contradicted by D.L.

[97] He disputed that his house was quite messy compared to other people’s homes. He blamed the mess on his mother’s inability to come into the house to clean. Then he stated that he did his dishes and laundry at night when the kids were in bed. Finally, he conceded that the house was messy when Ms. Johnson would visit. He stated that he never noticed D.L. urinating in her chair and did not smell urine when he did laundry.

[98] Finally, the appellant stated that D.L. presented at trial as the same child who lived at his house between January to April 2021 and that D.L. liked living at his house.

Did the Trial Judge Misapply the W. (D.) Formula?

[99] The appellant submits that the trial judge misapplied the W. (D.) formula and made errors in credibility assessment resulting in an unreasonable verdict. I do not agree.

[100] In W. (D.), the Supreme Court gave trial judges the following instruction where credibility is a central or significant issue:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

This instruction has been refined by case law since it was issued, but the instruction still applies.

[101] The trial judge recognized that because credibility was in issue in this case, she had to apply the W. (D.) analysis and did so.

[102] It is settled law that the trial judge’s findings of fact are entitled to deference, absent a palpable and over-riding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 1, 8, and 10. The trial judge is not required to address, analyze and reject each piece of evidence.

[103] The first branch of the W. (D.) test requires the trial judge to determine whether she believes the evidence of the accused. The appellant’s counsel argues that the appellant was not shaken on his testimony in cross-examination and therefore should be believed. I do not agree.

[104] Implicit in the trial judge’s reasons for judgment is her conclusion that she did not believe the evidence of the accused, which was essentially a blanket denial of D.L.’s allegations.

[105] The appellant argues that the trial judge rejected the evidence of the accused without explaining why. He also contended that the trial judge placed uneven scrutiny on the appellant’s testimony. I disagree.

[106] Particularly damaging to the appellant’s credibility in the mind of the trial judge was his refusal to admit the obvious: first, the unkempt, smelly condition of his house described by Ms. Johnson, as well as the uncared-for, smelly condition of his daughter that Ms. Johnson described when she first met the child. Ms. Johnson’s testimony about the child and her limitations was corroborated by D.L.’s presentation in her April video statement.

[107] Also damaging to the appellant’s credibility in the view of the trial judge was his refusal to acknowledge the contrast in D.L.’s appearance and newfound confidence when she gave a detailed statement in May, after being removed from his residence.

[108] The trial judge found the appellant’s evidence to be self-serving. I agree. For example, she did not accept his testimony that D.L. liked living at his house. The appellant testified that the girl who testified at trial was exactly the same as she was when she lived in his house between January and April of 2021. The trial judge drew an adverse inference about this testimony.

[109] The trial judge rejected the appellant’s testimony that he was up until 4 a.m. after the wedding, playing video games with his 13-year-old daughter. He justified the late-night games as an opportunity to show his children some attention.

[110] There was no evidence at trial as to the time of the alleged sexual assault on the night of the wedding. Thus, as the trial judge noted, the testimony of the complainant that her father sometimes played video games with her sister does not corroborate his evidence about that night.

[111] The trial judge drew adverse inferences about the appellant’s immature parenting choices: smoking marijuana when the children were home, making sexualized remarks about Ms. Johnson’s appearance to his children and making repeated inappropriate remarks to D.L. about her appearance on the day of the wedding, despite D.L. asking him to stop. He admitted watching pornography but denied watching it when the children were awake, despite D.L.’s evidence to the contrary.

[112] The trial judge also rejected the appellant’s explanation that when his friend stayed in D.L.’s room when D.L. was away, she removed the doorknob, saying that he didn’t know why this happened. This is yet another example of the appellant failing to admit the obvious, resulting in adverse credibility findings. In my view, these findings of the trial judge are reasonable on a review of the evidence as a whole and are entitled to deference.

[113] The trial judge also disbelieved the appellant’s evidence that he did not smell urine on D.L.’s clothing or her chair. She preferred the evidence of D.L. that D.L. didn’t use the washroom, and urinated in her chair, and the preferred Ms. Johnson’s evidence that the house reeked of urine. She rejected the appellant’s evidence that several cats in the house accounted for the smell.

[114] In my view, there is ample evidence to reject the evidence of the appellant, satisfying the first branch of the W. (D.) analysis, much of which was cited by the trial judge. I find no error in her analysis.

[115] On the second branch of W. (D.), the appellant argued that adverse credibility findings should have been made against the complainant for three reasons: 1) that there was no bruising observed on D.L.; 2) that she had a “melt-down” during the police discussion proposing a lie detector test; and 3) that she told her sister that she didn’t know whether her father’s sexual abuse was a dream or reality.

[116] The appellant submits that an adverse credibility finding should be made against D.L. because bruising was not observed on her body. He argued that Ms. Johnson should have seen bruising when she took the children swimming or when she helped D.L. dress for the wedding.

[117] The trial judge considered this argument and rejected it. She found that D.L. testified that she was bruised all over her body except for her face but added that the bruising did not always happen but when it did, it was most often when her father put her on his bed.

[118] There was no evidence about when Ms. Johnson took the children swimming and whether it was proximate to incidents causing bruising. Further, the evidence at trial was that D.L.’s sister helped her with her dress on the day of the wedding, not Ms. Johnson. D.L. testified, and the court found, that she usually wore long pants and baggy clothes, covering any bruising.

[119] The appellant argued that D.L.’s evidence was not credible because she had a “melt-down” when the police suggested that her father be subjected to a lie detector test.

[120] The trial judge described that D.L. presented as a “lost and terrified child” during the April statement, who did not want to get her father in trouble. She characterized her as follows:

She looked unkempt, dirty and dishevelled. She was wearing too large clothing. She kept her head down during the interview and frequently could not answer the questions or even look up at the police officer. She kept stating that she did not want the police to talk to her dad and all she wanted was a lock for her bedroom. She presented as a broken child.”

[121] It is evident that the trial judge did not accept the defence position that an adverse credibility finding was warranted in light of the emotional distress the complainant demonstrated throughout the entire first interview. She considered the manner in which D.L. testified in her second statement and at trial. I see no error in this conclusion.

[122] Finally, the appellant argued that D.L. was not credible because she was emotionally unstable and told her sister that she didn’t know whether her father’s sexual abuse was a dream or reality.

[123] The trial judge accepted D.L.’s explanation for the lie which she readily admitted in cross-examination: that she did not want her sister to fear their father such that she would have no safe place, emotionally.

[124] The second branch of the W. (D.) test did not leave the trial judge with reasonable doubt by the evidence of the accused, was grounded in the appellant’s evidence, read in context, and reading the reasons as a whole. I find no error in the trial judge’s assessment of the evidence of the appellant.

[125] I will now consider the third branch of the W. (D.) test. Assuming that the trial judge does not believe the evidence of the accused and is not left with reasonable doubt by it, she is required to determine whether, on the basis of the evidence which she does accept, if she is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[126] The trial judge stated that she preferred the evidence of the complainant and Ms. Johnson, an arm’s length witness, over the evidence of the appellant where their evidence conflicted.

[127] She found that Ms. Johnson was an honest and straightforward witness who had not coached D.L. She reasonably found that Ms. Johnson had no motive to expand her family, as suggested by the defence; instead, she found that Ms. Johnson’s strong parenting skills allowed D.L. to gain strength and confidence, as was apparent in her subsequent interviews with the police and her testimony at trial.

[128] The defence argued that D.L. fabricated her allegations so that she could live with Ms. Johnson. D.L. answered this by saying that the last time she had tried to make disclosures, she wasn’t believed because of her problems, and that she was returned to her father’s care. In fact, after the April statement, D.L. and her siblings were initially moved to a receiving home, not to Ms. Johnson’s home.

[129] The appellant also cross-examined D.L. about not telling her siblings about the abuse until after she went to the police. He submitted that D.L. lied when she told her sister that she didn’t know if her father’s sexual abuse was a dream. D.L. admitted that this was a lie.

[130] The appellant cited R. v. N.M., 2012 ONCA 296, [2012] O.J. No. 2043 (“N.M.”), in support of his argument that D.L.’s lie should have weighed against her credibility.

[131] The N.M. case dealt with a jury instruction about the impact of a witness’s lies and inconsistent evidence. In my view, the trial judge here was alive to the issue of the lie when assessing D.L.’s credibility. The court accepted her explanation that she lied because she wanted her siblings to feel safe somewhere and that she didn’t want to be sent away. In the context of the other evidence at trial, and from a frightened child’s perspective, the judge found the explanation credible. I see no error in her conclusion.

[132] The trial judge considered the Crown’s evidence in detail and indicated why she accepted it.

[133] The appellant submits that D.L. was emotionally unstable as demonstrated by her emotional outbursts, and that her testimony was therefore unreliable. Oddly, this submission conflicts with the appellant’s argument that the trial judge placed too much weight on demeanour evidence.

[134] The appellant relies on R. v. Coristine, 2023 ONCA 517 (“Coristine”), citing the trial judge’s credibility assessment at para. 45.

[135] In his reasons in Coristine, the trial judge found the complainant credible because he testified in a “measured and generally understated fashion.” In Coristine, the accused was an adult; she was convicted of six counts of assault on her ex-husband. The factual background in Coristine is not at all comparable to the case at bar and not helpful, even if the trial decision were binding on this court, which it is not.

[136] In any event, the Court of Appeal evaluated the alleged errors in credibility, deferred to the trial judge’s credibility findings, and dismissed the appeal.

[137] In this case, the trial judge evaluated D.L.’s testimony through the lens of a child, as directed by the Supreme Court of Canada in R. v. B. (G.), [1990] 2 S.C.R. 30, 56 C.C.C. (3d) 200. She commented on the transformation from D.L.’s presentation during the first interview. The trial judge called her a “broken child.”

[138] The trial judge observed that the complainant would not make eye contact with the police officer during the first statement but insisted that she did not want the police to talk to her father. She also stated during that interview that she wanted a lock for her bedroom door so that she could feel safe. Given the nature of the allegations, this was a logical request.

[139] Firstly, the trial record demonstrates that D.L. was distraught only at the end of her first video statement, and not during her second statement or in her testimony at trial.

[140] The trial judge considered that D.L. has medical issues but rejected the defence contention that she has serious mental health issues and was therefore an unreliable witness. The trial judge observed that D.L. spoke clearly and logically and gave straightforward answers. She found D.L.’s evidence did not contradict her earlier evidence and that she did not falter despite vigorous cross-examination. The trial judge concluded that, “[a]ll of D.L.’s answers and actions made perfect sense to the court, considering the peril she faced in her own home and her inability to change it.”

[141] The trial judge carefully and accurately stated the evidence, weighed it in accordance with the W. (D.) formula, and explained why she did not accept the accused’s testimony when it conflicted with that of the Crown’s witnesses. Her conclusions do not demonstrate palpable and overriding error. They are therefore entitled to deference. This ground of appeal is dismissed.

Are the Trial Judge’s Reasons Insufficient?

[142] The appellant submits that the trial judge gave inadequate reasons to explain and reconcile her credibility findings about Ms. Johnson’s failure to notice bruising on D.L. He argues that if Ms. Johnson’s evidence supported a conviction, it was accepted, but if it did not support a conviction, it was ignored. The appellant contends that to ignore exculpatory evidence is an error of law.

[143] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para.15 (“R.E.M.”), the Supreme Court of Canada described the threefold purpose of giving reasons in criminal trials:

1. they tell the parties affected by the decision why the decision was made;
2. they provide public accountability for judicial decisions; and
3. reasons permit effective appellate review.

[144] At paras. 15-17 of R.E.M., the Supreme Court discussed the test for giving reasons. It held that a “functional context-specific approach” should be used, reading the reasons as a whole, “in the context of the evidence, the arguments and the trial.” The Supreme Court concluded that reasons will be sufficient if the reasons, “read in context, show why the judge decided as he or she did.”

[145] At para. 20 of R.E.M., the Supreme Court added that the trial judge need not “detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.”

[146] In R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 65 (“Wadforth”), the Court of Appeal noted that the evaluation of the reasons is case-specific. The court stated that, “[s]ometimes, for example, where the basis of the judge’s decision is patent from the record even without statement, less detail will be required.”

[147] The Supreme Court of Canada also dealt with sufficiency of reasons in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 25-27 (“Dinardo”). The Court held that, “[a]n appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review.”

[148] The Supreme Court emphasized that a trial judge’s perceptions of credibility should not be lightly overturned. In Dinardo, the Court quoted R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 26 (“Gagnon”), repeating:

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt.

The court then at para. 23 cautioned:

The requirement for sufficient reasons is not an invitation to an appellate court to substitute its perceptions of what should have been factual and credibility findings of the trial judge when a reasonable basis for the trial judge’s conclusion exists.

[149] The appellant submits that the finding that he was not credible because he did not smell urine in the home was not explained in the reasons and depended on the judge accepting D.L.’s testimony that she seldom used the bathroom, urinated in the same pants she wore, and in the same chair she occupied. This evidence arose in D.L.’s cross-examination.

[150] The trial judge accepted Ms. Johnson’s evidence as credible, corroborating D.L.’s testimony about her incontinence in several ways: that D.L. smelled; that the house was in disarray with dirty clothes scattered about; that she never saw D.L. use the washroom; and that she was aware of D.L. urinating in her chair, which she seldom left.

[151] Ms. Johnson also testified that she began dealing with toileting issues with D.L. in March and discussed hygiene with the three children when they were at the swimming pool. The trial judge also observed that D.L. was unkempt in her first video interview. Thus, there was ample evidence in the record to ground the trial judge’s finding on this point.

[152] The appellant also contends that the trial judge’s reasons do not meaningfully explain why she rejected the appellant’s evidence about the missing doorknob on D.L.’s door. The judge indicated in her reasons that she disbelieved the appellant’s evidence that he allowed a friend to stay in D.L.’s room and that she was the one who took the doorknob off, but he didn’t know why.

[153] Ms. Johnson noticed the missing doorknob and commented that it was odd. It was a subject for D.L.’s distress in her first video interview with the police. The evidence establishes that this was the appellant’s home and he was the adult in the house. Is it believable that he would not make inquiries about a missing doorknob?

[154] In any event, I agree with the respondent’s submission that the missing doorknob has no impact on the verdict and that neither the Crown nor the defence theory rests on the lack of a doorknob. It was entirely peripheral. If the evidence about the doorknob were removed from the trial record, the outcome would not be different.

[155] Finally, the appellant contends that the trial judge did not explain why she rejected the appellant’s evidence that he was playing video games with his younger daughter until 4 a.m. after the wedding.

[156] Respectfully, the trial judge did explain why she found this explanation incredible: it was a Tuesday night, and his 13-year-old daughter was required to go to school the next day. She also explained that the testimony was uncorroborated.

[157] I conclude that the trial judge’s findings of fact, read as a whole and in context, sufficiently explains her verdict, including her credibility findings. Although they could have been more fulsome, the reasons permit effective appellate review. This ground of appeal is therefore dismissed.

Did the Trial Judge Place Undue Weight on Demeanour Evidence?

[158] The appellant submits another ground of appeal that the trial judge placed too much emphasis on the complainant’s demeanour evidence: R. v. P.R., 2013 ONCJ 322, [2013] O.J. No. 2776 (Ont. C.J.). This case is distinguishable on the facts, and it arises in the context of charges under the Highway Traffic Act, and was decided in the Ontario Court of Justice.

[159] The Crown submits that trial judges are not required to ignore demeanour evidence when assessing a witness’s testimony but “they can consider it in conjunction with their assessment of all the evidence and in the full context of the trial.”: see R. v. Boyce, 2005 ONCA 805, at para. 3.

[160] In this case, the judge remarked on the striking change in D.L.’s demeanour between the first statement when she looked like a “broken child”, and the second statement, a short time later, when she appeared much stronger, and after being cared for by Ms. Johnson.

[161] Finally, the trial judge compared D.L.’s presentation at trial, which she termed “a significant change.” D.L. was cared for and well-dressed. The trial judge added:

Over one year later, she presented closer to her age. She spoke clearly and logically. She looked directly into the video camera and appeared confident and secure. She did not falter on cross-examination. She was vigorously challenged on her statements. All of the answers were straightforward and clear. She did not contradict her earlier evidence. She appeared to be truthful and honest.

[162] In my view, the trial judge did not solely rely on this dramatic change in D.L.’s demeanour. She also considered the consistency of her evidence throughout the statements she gave to the police, and the internal logic of her evidence, even with respect to a lie that she admitted and her explanation for it. The trial judge also considered her responses to a vigorous cross-examination and considered the evidence of Ms. Johnson, whom she also found credible.

[163] She found that the other evidence at trial corroborated D.L.’s testimony about the lack of a doorknob; her sleeping in the chair downstairs; and the description of the timing of the assaults. She found that D.L. did not exaggerate and did not want to get her father in trouble.

[164] In my view, this ground of appeal has no merit.

Standard of Review for Sentence Appeals

[165] Neither counsel addressed the standard of review in sentence appeals.

[166] In R. v. S.W., 2024 ONCA 173, at para. 27 (“S.W.”), the Court of Appeal summarized the standard as follows:

This court owes significant deference to a sentencing judge’s decision. The court will only intervene where (1) the sentence imposed is demonstrably unfit or (2) where the sentencing judge committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and it appears from the decision that such an error had an impact on the sentence. [Citations omitted.]

[167] The Court of Appeal also determined that an appellate court should not interfere with a sentence because it would have imposed a different sentence or weighed relevant factors differently: at para. 28.

Appeal as to Sentence

[168] The Crown prosecuted this case by way of summary conviction. As I have said, the appellant was found guilty of one count of sexual assault contrary to s. 271 of the Criminal Code and one count of sexual exploitation pursuant to s. 153(1)(a) of the Code. He was sentenced to 18 months for sexual assault and two years less a day for sexual exploitation, to be served concurrently, followed by three years’ probation on terms.

[169] As well, the court made ancillary orders, including a DNA sample, registration with the National Sex Offender Registry for 10 years; non-communication with the complainant while in custody and a life-time weapons prohibition. As well, the court ordered a prohibition pursuant to s. 161 of the Criminal Code.

[170] The appellant argues that the judge erred by imposing the maximum sentence, as though he was the worst offender who had committed the worst offence. The appellant also submits that he was sentenced as though the Crown had proceeded by way of indictment rather than summarily. He contends that the trial judge considered irrelevant factors, such as treating his lack of remorse as an aggravating factor. He submits that a range of 12 – 15 months would be an appropriate sentence, to run concurrently.

[171] The respondent counters that because it proceeded summarily, the appellant already had the benefit of reduced penalties. Further, the respondent submits that the appellant did not file any case law to support its position, either at the sentencing hearing or on appeal. The respondent submits that the trial judge made no error in applying the principles enunciated by the Supreme Court in R. v. Friesen, 2020 SCC 9 at paras. 120–154.

[172] At the sentencing hearing, the Crown sought maximum penalties for each offence, based on the court’s finding that on the night of the wedding, the appellant removed D.L.’s pajama pants and underwear and attempted to touch her vagina with his penis, committing sexual assault contrary to s. 271 of the Criminal Code. The court described this as attempted penetration.

[173] D.L. also described her father as touching her body and her genitals with his hands and having her touch his penis at various other times, contrary to s. 153(1) of the Criminal Code.

[174] The child read her victim impact statement which indicated the intense pain and betrayal she suffers as a result of the assaults that have destroyed her relationship with her father, her late grandmother, and her siblings. Her statement described a profound sense of loneliness, mistrust of men, and self-loathing.

[175] She stated that she suffers from a functional neurological disorder (formerly known as conversion disorder), so that she cannot walk or carry out activities of daily life, such as bathing. She stated that this disorder is often caused by childhood trauma or extreme trauma and has led to frequent hospitalizations over the course of a year.

[176] The Crown had cited mitigating factors, such as the appellant’s positive work history, the support of his family and his absence of a criminal record. However, it also identified aggravating factors, such as the child’s age, (16 at the time of the offences), her vulnerability, the devastating effect of the conduct on the victim and her family and friends, and the escalating sexual touching culminating to attempted penetration.

[177] The Crown argued that the paternal relationship with the victim put the appellant in a position of trust and authority over the victim and was therefore aggravating. It cited s. 718.01 of the Criminal Code, emphasizing denunciation and deterrence for sentences involving abuse of children.

[178] In my view, the trial judge made no error in sentencing. She recognized that the sentence available was capped at a lower range because the Crown proceeded summarily. She considered that a mid-range, single-digit, penitentiary term would be normal for sexual offences against children where the Crown proceeded by indictment. However, she correctly applied s. 718.01 of the Criminal Code that required her to emphasize denunciation and deterrence where there were child victims.

[179] The judge considered the aggravating and mitigating circumstances. Although she noted that the appellant continued to deny his involvement, she did not identify this as an aggravating factor.

[180] The trial judge also considered the sentencing principles discussed by the Supreme Court in Friesen, for children who are victimized by sexual violence, as well as other case law provided by the Crown. She also considered the impact that sexual violence has on the child.

[181] In my view, the sentence is not demonstrably unfit. The judge did not err in principle in considering the relevant factors. The appeal against sentence is therefore dismissed.

The Kienapple Principle

[182] The rule in R. v. Kienapple, [1975] 1 S.C.R. 729 (“Kienapple”) is designed to prevent multiple convictions for the same act, where there is a factual and legal nexus between the offences. The court may then register a conviction on the more serious offence and enter a conditional stay on the less serious offence: see R. v. Williams, 2014 ONSC 1762, at para. 28.

[183] The appellant submits that the court erred by failing to stay the lesser offence of sexual assault in accordance with the Kienapple principle. The appellant contends that there is the same factual and legal nexus between the two charges, except that the charge of sexual exploitation has an added element, abuse of a position of trust, making up the elements of the offence.

[184] The appellant relies on R. v. R.A.J., 2010 BCCA 304, [2010] B.C.J, No. 1320 (“R.A.J.”), where the Court of Appeal for British Columbia accepted counsel’s joint submission that Kienapple precluded convictions for s. 271, (sexual assault), s. 153, (sexually touching a person who is a dependent when in a position of trust or authority) and s. 151, (touching a person under the age of 14 for a sexual purpose), leaving only a conviction on s. 271. The court held that the wording on the indictment indicated that the counts were intended to be alternates to the charge of sexual assault.

[185] In referencing the relevant authority, the Court of Appeal for British Columbia in R.A.J. cited the Court of Appeal for Ontario’s decision in R. v. M. (S.J.), 2009 ONCA 244, who in turn was referencing the Supreme Court of Canada’s decision in R. v. Prince, [1986] 2 S.C.R. 480.

[186] In contrast to the appellant’s position, the respondent submits that the appellant has failed to show how the two charges shared a factual nexus. I agree with this submission. I also note the comments of Corrick J. in R. v. B. (O.), 2016 ONSC 6861 (“B. (O.)”), where she discussed how an element of the offence under s. 153(1) – being in a position of trust or authority – distinguishes that offence from one under s. 271, which therefore does not preclude a conviction on each count:

6 The rule in Kienapple prevents an accused person from being convicted of multiple offences arising from a single criminal transaction where the elements of the offences are substantially the same. The scope of the rule was clarified by the Supreme Court of Canada in R. v. Prince. It applies only where there is both a factual and legal nexus between the offences. The factual nexus is satisfied if the same act of the accused person forms the basis of each of the offences. The legal nexus is satisfied "if there is no additional or distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle." [Footnotes omitted.]

7 The focus of the offence of sexual exploitation in s. 153 of the Criminal Code is the offender's abuse of a position of trust or authority for a sexual purpose. To obtain a conviction under s. 153, the Crown must prove that the offender was in a position of trust or authority towards the complainant. This is not an essential element of the offence of sexual assault. It is an additional element that goes to guilt on the sexual exploitation offences, and distinguishes sexual exploitation from sexual assault. Thus, the rule in Kienapple does not prevent convictions from being entered on all three counts, and an amendment to count 2 is unnecessary.

[187] In addition, an additional element in s. 153(1)(a) that applies to sexual touching of a young person by a person who is in a position of trust or authority distinguishes the charge from that of simple sexual assault, contrary to s. 271.

[188] In Prince, the Supreme Court of Canada clarified the principles developed in Kienapple. The court held that for the rule against multiple convictions to apply, there must be sufficient proximity between the facts, and between the offences that form the basis of the charges, which must be considered on an individual basis (as described in para. 20 of Prince).

[189] At para. 20 of Prince, the court explained this first step in the Kienapple analysis:

In most cases ... the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? Such difficulties will have to be resolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time and place … and whether the accused’s actions were related to each other by a common objective. [Citations omitted.]

[190] Once it has been established that there is a sufficient factual nexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves: Kienapple, at para. 22.

[191] At paras. 31-32, the Court also explained that sufficient proximity between the offences will not apply unless the element defining the offences is substantially the same:

It has been a consistent theme in the jurisprudence from Quon, through Kienapple and Krug that the rule against multiple convictions in respect of the same cause, matter or delict is subject to an expression of Parliamentary intent that more than one conviction be entered when offences overlap…. In Krug, La Forest J. was careful to explain that the presence of additional, distinguishing elements was in itself an expression of such an intent. No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender’s accounting to society, unless that element is substantially the same as or adequately corresponds to, an element in the other offence for which he or she has been convicted. [Citations omitted.]

The requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.

[192] In this case, there are two weaknesses with the appellant’s argument. First, the trial judge convicted him of sexual assault in relation to specific events on the evening of the wedding, which she characterized as “attempted penetration.”

[193] The trial judge also found him guilty of being a person in a position of trust and sexually exploiting a child. A close reading of their reasons show that the factual underpinnings of this charge are different in time and substance from the night of the wedding. For example, the complainant testified about other instances where her father touched her “private parts.” She described him as removing her clothing on some occasions; on others, he touched her over her clothing. She described him making her touch his penis. She testified that sometimes he slaps her or covers her mouth if she starts crying. She also stated that when the appellant got mad, he would do things harder causing more pain in her vagina.

[194] Thus, I find that the two charges do not share a factual nexus as they are not proximate in time.

[195] Second, as noted above in para. 186, Corrick J. explains in B. (O.) how the essential elements of the offence under s. 153(1)(a) are distinguishable from s. 271, and that the principle in Kienapple does not preclude a conviction on each count.

[196] I conclude that, in enacting this provision, Parliament intended specifically add a layer of legislative protection for young persons who may be subject to sexual violence from those who have control over them or upon whom they depend. The offence is focused on the relationship between the young person and the offender, which is at the heart of the offence: that young persons deserve to be protected from those they should be able to trust.

[197] This is a policy decision of Parliament and an example of an offender’s accounting to society that Chief Justice Dickson spoke of in Prince. It is an example of offences which have an additional and distinguishing element that Dickson C.J. described.

[198] I conclude that the two offences are not contemporaneous and do not share the same legal elements. The trial judge properly applied the rule in Kienapple when she refused to stay the sexual assault charge. This ground of appeal is dismissed.

Conclusion

[199] The appeal against conviction and sentence is dismissed. The sentence imposed by Justice Hoshizaki on June 12, 2023, is therefore reinstated.

“origianlly signed by”

The Hon. Madam Justice H.M. Pierce

Released: May 21, 2024

[^1] R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (“W. (D.)”). [^2] R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524 (“Kienapple”). [^3] In fact, as Ms. Johnson testified, D.L. and her siblings were placed at a receiving home for a few days after D.L. gave this statement. It wasn’t until a few days later that her siblings were returned to their father’s house and D.L. was moved to Ms. Johnson’s house.