



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

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

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.K., 2015 ONCA 747

DATE: 20151105

DOCKET: C59693

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.K.

Appellant

John K. Lefurgey, for the appellant

Gavin MacDonald, for the respondent

Heard: October 9, 2015

On appeal from the conviction entered by Justice Anne
    Tucker of the Superior Court of Justice on May 6, 2014, and from the sentence
    imposed on July 30, 2014.

Pardu J.A.:

[1]

C.K. appeals from his convictions for sexual assault of his two
    grandsons, DL. and DD. He submits that the trial judge erred in admitting
    similar fact and bad character evidence. He also appeals the ten year sentence
    imposed by the trial judge. His appeal was dismissed following argument for
    reasons to follow. These are those reasons, on behalf of the panel.

[2]

The appellants two grandsons allege that the appellant sexually abused
    them over a period of approximately ten years, beginning when DL. was about
    five years old and DD. was a few years older. The acts of sexual abuse included
    touching, masturbation, oral sex, and anal sex.

[3]

At trial, the Crown brought an application to admit similar fact
    evidence. The Crown sought the admission of: (a) the evidence of DD. and DL.
    across counts; (b) the evidence of R.L., the complainants father, as extrinsic,
    uncharged similar fact evidence; and (c) the evidence of A.G. as further
    extrinsic, uncharged similar fact evidence. The latter two witnesses testified
    to separate sexual encounters with the appellant in the past. The trial judge
    admitted all of the evidence in question as similar fact evidence. The Crown
    also called a witness, K.C., who testified to an encounter with the appellant
    during which he made inappropriate sexual remarks. The trial judge convicted
    the appellant of eight counts of sexual assault, sexual interference, and
    sexual exploitation. She sentenced him to ten years on each count, to be served
    concurrently.

A.

Nature of the Appeal

[4]

The appellant advances three grounds on appeal.

[5]

First, the appellant argues that the trial judge erred by admitting the
    evidence of R.L. and A.G. The complainants father, R.L., a former son-in-law
    of the appellant, and A.G., a former babysitter for the appellants children,
    both testified to separate sexual encounters with the appellant. The trial
    judge admitted their testimony as similar fact evidence. The appellant submits
    that the trial judge misapprehended the evidence of R.L. and A.G., misapplied
    the framework set out in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, and improperly admitted their evidence.

[6]

Second, the appellant argues that the trial judge erred by admitting the
    evidence of K.C. K.C. testified about an encounter where the appellant made
    inappropriate sexual remarks to K.C. The appellant submits that this evidence
    was bad character evidence and was tendered without any legitimate purpose.

[7]

Third, the appellant seeks leave to appeal the sentence imposed. The
    appellant submits that the trial judge imposed a sentence that is harsh and
    excessive in light of his age and health, did not give appropriate weight to
    the absence of violence or threats, and improperly relied on the allegations of
    A.G. and R.L.

B.

FACTS

[8]

The complainants testified that the appellant began to sexually abuse
    them when DL. was five or six years old and DD. was perhaps nine. The abuse continued
    until their mid-teens. At the time, neither knew about the others abuse. DL.
    reported it to the police in 2007 and DD. came forward two years later.

[9]

According to the complainants testimony, the sexual abuse began with
    fondling or touching. Over time, the sexual abuse progressed to masturbation,
    oral sex, and anal sex, performed both upon them by the appellant and by them
    on the appellant. The assaults occurred in the appellants home (usually in the
    basement), in the appellants car, and in a tour bus that the appellant drove.
    They also testified that their grandfather showed them pornography and that
    they received money, gifts, and cigarettes from him. He called each his buddy
    and both felt that they were special to him. The appellant told them that what
    had occurred was [their] little secret, and they both had the same secret
    handshake that they did with their grandfather after sexual activity.

(1)

Evidence of R.L.

[10]

R.L.
    testified that, for an eight year period, beginning when he was about 20, he
    engaged in sexual activity with the appellant, his father-in-law.

[11]

The
    first sexual encounter occurred while R.L. and the appellant were drinking in
    the basement of the latters home. The appellant put on pornography, and then
    asked R.L. if the appellant could perform oral sex on him. R.L. agreed.

[12]

Thereafter,
    R.L. engaged in occasional sexual activity with the appellant. R.L. was often in
    difficult financial circumstances and needed to ask the appellant for
    assistance to help R.L.s family stay afloat. Whenever he asked the appellant
    for money, the appellant would demand sexual favours in return. R.L. testified
    that the encounters left him feeling disgusted; however, he had nowhere else to
    turn, and so he continued returning to the appellant for financial assistance.

[13]

The
    sexual activity between R.L. and the appellant progressed to R.L. performing oral
    sex on the appellant, and then to mutual anal sex. R.L. testified to a number
    of sexual encounters, some of which occurred in the basement of the appellants
    home, while his wife was upstairs, as well as in the appellants car.

[14]

Like
    the complainants, R.L. did not have a relationship with his biological father.
    The relationship between his own mother and step-father ended when he was 17,
    shortly after he began dating the appellants daughter.

[15]

R.L.s
    relationship with the appellant, before their sexual activity began, was
    uneven. Initially, the relationship was not particularly warm; however, it
    improved over time. R.L. moved to another city with the appellants family when
    he was 18. Before the move, the appellant took R.L. on a number of trips to that
    city to help him find work; the appellant paid for their rooms and meals during
    these trips. R.L. moved in with the appellant and his family after the move. The
    appellant hired R.L. to work at a store where the appellant worked as a
    supervisor. R.L.s relationship with the appellant and his family was settled
    and supportive at this time. Though there was a period of estrangement when
    R.L. and the appellants daughter eloped, any estrangement ended with the birth
    of their first son.

[16]

The
    sexual encounters between R.L. and the appellant ended when R.L. told his wife
    J.L. about his sexual relations with her father. Their marriage likewise ended
    at that point.

(2)

Evidence of A.G.

[17]

A.G.
    first met the appellant when he was 10 years old. Their families lived close by
    at the time. When A.G. was 12 or 13 years old, he was asked by the appellant to
    babysit his two children on a few occasions. According to A.G., the appellant sexually
    assaulted him on three occasions while he was babysitting the appellants
    children.

[18]

At
    the time of the first assault, the appellants wife was in the hospital. A.G.
    had been babysitting the appellants children and had fallen asleep in a chair.
    When he woke up, the appellant was lying on a couch with his pants undone and
    his genitals exposed. The appellant asked A.G. to touch his penis. A.G.
    complied for about five seconds.

[19]

A
    similar incident occurred within a week of the first assault. After this second
    incident, the appellant paid him an extra 50 cents and told him that what had
    occurred was [their] little secret.

[20]

The
    third incident occurred shortly thereafter. A.G. slept over at the appellants
    home while babysitting. The appellant woke him up and brought him into a bathroom,
    where he pulled down A.G.s pants and performed oral sex on A.G. for a couple
    of minutes. The appellant gave him six dollars and told him that what had
    occurred was their secret.

[21]

A.G.
    testified about his familys circumstances at the time of the sexual assaults.
    His father had left when A.G. was about 12 years old, and his mother was
    raising six children on her own. A.G. testified that his family was broke and
    he was excited to spend the six dollars paid to him by the appellant to buy milk,
    bread, and cigarettes for his mother.

(3)

Evidence of K.C.

[22]

K.C.
    testified that, in the summer of 1999 and when he was 17 years old, he met the
    appellant while at work. K.C. and the appellant were having a conversation when
    the appellant told him that he had a cigar that spits. K.C. understood the
    appellants statement as referring to the appellants penis. Later on the same
    day, the appellant brought up pornography as a topic of conversation. Finally,
    when K.C. was leaving, the appellant gave K.C. his card with his phone number
    on it and suggested that they should get together.

[23]

K.C.
    testified that he felt uncomfortable and awkward after his encounter with the
    appellant. He reported the appellant to his employer, who then called the
    police.

C.

ground #1: Similar fact Evidence

[24]

At
    trial, the Crown applied to admit the evidence of each complainant as similar
    fact evidence for the counts involving the other. The Crown also applied to
    admit as similar fact evidence the testimony of R.L. and A.G. The trial judge allowed
    the application and admitted the evidence.

[25]

Before
    this court, the appellant does not challenge the decision to admit the evidence
    of both complainants as similar fact evidence; however, the appellant maintains
    his challenge to the evidence of R.L. and A.G.

(1)

Trial judges
    decision on similar fact evidence

[26]

The
    trial judge looked at the evidence of R.L. and A.G. in the context of the
    analysis set out in
Handy
for the admission of similar fact evidence.

[27]

The
    trial judge noted that, as a starting point, similar fact evidence based on
    discreditable conduct of an accused is inadmissible. However, the evidence is
    admissible if the Crown can prove sufficient similarities between the acts the
    accused is charged with and the offered evidence in relation to a live issue in
    the trial. She also noted that that the Crown must prove that the probative
    value of the evidence outweighs any prejudicial effect.

[28]

The
    trial judge concluded that the issue in question, in support of which the
    similar fact evidence was being proffered, was the
actus reus
of the
    alleged offences and whether the appellants expected blanket denial was
    credible.

[29]

The
    trial judge then examined the probative value of the evidence in light of the
    factors identified in
Handy
and made the following findings:

(1)

Proximity
: The sexual contact between R.L. and the
    appellant was proximate in time to the assaults against the complainants. A.G.s
    allegations were not.

(2)

Similarity in details
: Both complainants and A.G. were
    children at the time of the alleged acts and the appellant was a father-figure
    to all three. The appellant also assumed a father-figure role towards R.L. The
    assaults all began with fondling, and progressed to oral and then anal sex in
    the case of the complainants and R.L. The assaults occurred in the appellants home
    in the case of all four witnesses and also in public places in the case of the
    complainants and R.L. The assaults were numerous in the case of both
    complainants and R.L. The three children were all told that what had occurred
    was a secret. Money was always involved. The assaults took place over a long
    period of time, except in the case of A.G.

(3)

Number of occurrences
: There were numerous sexual acts
    in the case of R.L., but not in the case of A.G.

(4)

Circumstances surrounding the acts
: All of the alleged
    victims were essentially fatherless. The appellant played the role of a
    father-figure in the case of all four, as the giver of money and affection and
    the one with whom the complainants and R.L. had a special bond. She noted that
    A.G. did not have a special bond with the appellant, but he respected his
    elders and did what he was told. The acts occurred where they could be
    discovered  in the basement, or, in the case of A.G., a bathroom of the appellants
    home, in the appellants car, in parking lots, and in his tour bus.

(5)

Distinctive features
: The alleged acts often occurred
    in public areas. The complainants and A.G. were told that the sexual acts were
    a secret. There was a financial benefit involved for all four, either cash or
    presents for the complainants, various forms of financial support for R.L., and
    money for A.G. The trial judge noted that the date and frequency of the sexual acts
    described by A.G were different from the conduct described by the complainants,
    and that R.L was older when the sexual activity began.

[30]

The
    trial judge found that the alleged events and the relationship described by R.L.
    were strikingly similar to those described by the complainants. Moreover, while
    A.G.s evidence was separated in time, there was clear similarity to the
    initial approach to the other three. The trial judge concluded that the Crown
    had proven on a balance of probabilities that the probative value of the
    evidence exceeded its prejudicial effect.

(2)

Appellants submissions

[31]

The
    appellant accepts that the Supreme Courts decision in
Handy
governs
    the admissibility of similar fact evidence. However, the appellant argues that
    the trial judge erred when applying the framework outlined in
Handy
.

[32]

Broadly
    speaking, the appellant makes three submissions. First, the trial judge erred in
    characterizing the issue to which the similar fact related too broadly. Second,
    the trial judge misapprehended the relevant evidence, and erred by focusing on
    generic similarities and ignoring differences between the evidence of the
    complainants on the one hand and R.L. and A.G. on the other. Third, the
    appellant submits that the evidence admitted was extremely prejudicial.

(3)

The trial judge did
    not characterize the issue too broadly

[33]

The
    trial judge identified the issue in question as the
actus reus
of the
    alleged offences in light of the appellants blanket denial that there was ever
    any inappropriate activity between him and his grandsons. As long as its
    probative value outweighs its prejudicial impact, similar fact evidence may be
    admitted for the purpose of proving the
actus reus
of the offence
    charged and to assess the credibility of a blanket denial:
R. v. Shearing
,
    2002 SCC 58, [2002] 3 S.C.R. 33, at para. 46.

[34]

This
    case is distinguishable from
R. v. R.B.
(2003)
,
68 O.R. (3d)
    75 (C.A.), relied on by the appellant. As noted by Simmons J.A., at paras.
    52-54, the trial judge in that case had erred by framing the issue too widely
    as the credibility of the complainant and the accused. That, in turn, led to
    the threshold for admitting similar fact evidence being set too low. Here, the
    trial judge properly confined the issue in question to whether the
actus
    reus
of the offences had occurred.

(4)

The trial judge did
    not misapprehend the evidence or err when considering the
Handy
factors

[35]

As
    noted, the appellant submits that the trial judge misapprehended the evidence
    before her, and that she focused on generic similarities and ignored differences
    in the evidence of the complainants on the one hand and each of R.L. and A.G.
    on the other. I would reject the appellants arguments.

[36]

The
    crucial question when determining the admissibility of similar fact evidence is
    whether, in the specific context under consideration, the probative value of
    the [similar fact] evidence in relation to a particular issue outweighs its
    potential prejudice, thus [warranting] its reception:
R. v. J.M.
, 2010
    ONCA 117, 251 C.C.C. (3d) 325, at para. 89. The similarity may reside in the
    distinctive nature of the acts at issue or in the circumstances in which those
    acts occurred:
J.M.
, at para. 91. The degree of similarity required
    will depend on the issue to which the evidence is directed. This court has held
    that where the evidence is directed to the
actus reus
, the
    similarities do not need to amount to a signature for similar fact evidence
    to be admissible:
R. v. J.W.
, 2013 ONCA 89, 302 O.A.C. 205, at para.
    54.

[37]

As
    noted by this court in
R. v. Creswell
, 2009 ONCA 95, at para. 7, the
    ruling of a trial judge admitting similar fact evidence is entitled to
    substantial deference:

It is well-established that a similar fact ruling is entitled
    to a high degree of deference and that an appellate court will not intervene
    with the trial judges ruling unless the trial judges analysis is
    unreasonable, or is undermined bylegal error or misapprehension of material
    evidence. [Citations omitted.]

[38]

In
    effect, the appellants submissions ask this court to reinterpret the evidence
    and engage in a
Handy
-analysis afresh. The trial judge conducted a
    thorough and cogent analysis based firmly in the evidence. The appellant has
    not demonstrated a legal error in her analysis. Her conclusion, that the
    connecting factors between the accounts of the complainants on the one hand and
    those of R.L. and A.G. on the other were so strong that the probative value of
    the evidence outweighed its prejudicial effect, was reasonable and is entitled
    to deference. Contrary to the appellants assertions, the trial judge properly
    concluded that there was a considerable degree of connectedness between the
    evidence of R.L., A.G., and the complainants:

(1)

The appellant argues that he did not have a fatherly role with respect
    to R.L., but there was significant evidence to suggest that he had assumed that
    role over R.L. after the latter began dating the appellants daughter at age
    16.

(2)

The appellant also argues that he did not have a fatherly role towards
    A.G., but A.G. testified that he was very respectful of his elders. The trial
    judge clearly had this in mind when finding that the appellant played a
    fatherly role towards A.G., particularly given that she noted the absence of
    any special bond between them.

(3)

The appellant takes issue with the trial judges finding that the
    assaults all began with fondling and escalated from there. It is true that the
    sexual activity between the appellant and R.L. began with oral sex, not
    fondling. But this misstatement of the evidence was minor and immaterial. The
    point is that, in each case, the invasiveness of the acts increased over time.

(4)

The appellant asserts that there was no grooming in the case of R.L.
    However, there was an element of grooming, as R.L. (like the complainants) was
    shown pornography by the appellant.

(5)

Contrary to the appellants assertions, the trial judge did not ignore
    the dissimilarities between the evidence. She noted the discrepancies, but
    clearly did not consider them to be sufficiently disparate to make a material
    difference in the analysis. Her decision is entitled to deference.

(6)

The appellant argues that by focusing on the fact that sexual contact
    occurred in the appellants home and in public places, the trial judge focused
    on generic observations that did not disclose any similarity. However, I would
    reject that argument. The location where the sexual contacts occurred reveals
    that, in all cases, the appellant was not inhibited by the possibility that his
    acts might be discovered by his wife or a member of the public. At the same
    time, the appellant took advantage of opportunities for privacy in each case.

[39]

In
    this case, the circumstances surrounding the acts bore a striking
    connectedness. The appellant exploited a privileged position over vulnerable
    young males  who had little to no relationship with their own fathers and who
    were in circumstances of financial disadvantage  for his own sexual
    gratification. Each received some material benefit from the appellant as a
    result of their sexual interactions with him. He was the giver of money and
    affection and he exploited this role for his own purposes. The present case is
    very similar to the decision in
R. v. B.(C.R.)
, [1990] 1 S.C.R. 717,
    at p. 739, admitting similar fact evidence that demonstrated a pattern of
    behaviour in which the accused established a parental relationship with young
    girls before engaging in sexual activities with them. The similar fact evidence
    in this case was capable of raising the inference that the appellant had a
    situation-specific propensity to sexually exploit young males over whom he
    exerted financial or emotional influence.

(5)

The probative value
    of the evidence outweighed any prejudicial impact

[40]

The
    appellant submits that, as a result of the trial judges decision, extremely
    prejudicial testimony  in particular, evidence about a relationship between
    the appellant and his son-in-law, R.L.  was admitted into evidence. To the
    extent that this argument challenges the trial judges decision that the
    probative value of the similar fact evidence outweighed any prejudicial impact,
    I would reject it.

[41]

The
    trial judge turned her mind to the prejudicial impact of the evidence. When it
    comes to similar fact evidence, the potential for prejudicial effect
    encompasses both reasoning prejudice and moral prejudice. This was a judge
    alone trial. In trials by judge alone, the danger that a conviction will be
    rooted in either reasoning or moral prejudice is significantly lessened;
J.M.
,
    at para. 88.

[42]

The
    appellants defence was not prejudiced by the similar fact evidence. The
    Crowns evidence was already complete by the time it made its similar fact
    evidence application. The trial judge was alive to the issue of prejudice and
    appropriately weighed it against the evidences probative value. She did not
    conflate the subject matter of the allegations between charged and uncharged
    conduct, nor did she use the evidence of R.L. and A.G. to assess the
    appellants character.

[43]

The
    evidence of the two grandsons was powerful and compelling because of the
    distinctive behaviour, such as the secret handshake described by each. A.G.s
    evidence described a far more limited and less invasive series of assaults.
    R.L.s evidence described conduct that was not criminal. The risk of prejudice
    associated with their evidence was small. All of the trial judges references
    to the evidence were confined to her consideration of whether the abuse as
    alleged by the complainants, and as denied by the appellant, actually occurred.

D.

Ground #2: Bad character evidence

(1)

Appellants submissions

[44]

The
    appellant submits that the testimony of K.C. served no purpose other than to
    paint him as the kind of man who makes off-colour suggestions to teenage boys
    and tries to encourage them to have a relationship with him, the inference
    being that he is also the kind of man who would abuse his grandsons. There was
    no legitimate purpose for the introduction of the evidence.

[45]

As
    a result of the admission of the evidence, the appellant had to testify and be
    cross-examined on a matter that should not have been before the court in the
    first place, with potential adverse credibility findings as a result.

[46]

Even
    though the trial judge did not refer to K.C.s evidence or the
    cross-examination of the appellant on K.C.s evidence in her ruling on similar
    fact evidence or her final judgment, the appellant submits the introduction of
    the evidence might have influenced the outcome. Even where a trial judge
    indicates they are not going to give much weight to evidence, the impact of it
    cannot simply be ignored.

(2)

The evidence of K.C.
    did not prejudice the appellant

[47]

The
    Crown introduced the evidence of K.C. because it was concerned that it would be
    relevant to defences suggested in cross-examination of Crown witnesses but
    could not be called in reply because of the rule preventing the Crown from
    splitting its case.

[48]

Ultimately,
    the trial judge did not refer to K.C.s evidence in her ruling admitting the
    similar fact evidence or in her final judgment. The absence of any reference to
    the evidence is explained by the trial judges concerns about it. She
    explicitly questioned the propriety of the evidence and the use to which it
    could be put other than to blacken the accused. The trial judge noted the
    limited purpose for which the evidence had been led and stated that she had to
    be really cautious about using it at all.

[49]

From
    these statements and the complete lack of reference to the evidence in her
    reasons, it is clear that it played no role in the trial judges credibility assessments
    and her decision to convict the appellant. As noted by McLachlin J. (as she
    then was) in
R. v. Leaney
, [1989] 2 S.C.R. 393, at pp. 415-416, trial
    judges will often hear evidence which turns out to be inadmissible; so long as
    the judge does not rely on the inadmissible evidence when arriving at her
    conclusion, no unfairness can be said to arise, nor has there been a
    miscarriage of justice. Furthermore, where a trial judge states that she will
    not rely on certain evidence, she is entitled to be taken at her word:
R.
    v. OBrien
, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 18. Therefore, in
    this case, K.C.s evidence about the exchange between him and the appellant did
    not prejudice the appellant.

E.

Ground #3: Appeal from sentence

(1)

Appellants submissions

[50]

The
    appellant submits that the trial judge imposed a sentence at the high end of
    the appropriate range. However, the appellant argues, she improperly took into
    account the allegations of A.G. and R.L. in imposing a sentence, even though
    they were not part of the charges and, in the case of R.L., even though the
    acts were not criminal. The trial judge also misunderstood the number of
    occurrences of anal sex and gave insufficient weight to the lack of violence or
    brutality, the lack of threats, and the appellants advanced age (72 years).

(2)

The sentence imposed
    was fit

[51]

Absent
    an error in principle, a failure to consider a relevant factor, or an
    over-emphasis of appropriate factors, a trial judges sentence is entitled to
    deference:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 90. An
    appellate court should vary a sentence only if it is clearly unreasonable,
    demonstrably unfit, or if it represents a substantial and marked departure from
    sentences customarily imposed for similar offenders committing similar crimes:
R.
    v. Hall
, 2007 ONCA 8, 83 O.R. (3d) 641, at para. 29.

[52]

In
R. v. Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, Charron J. held
    that, in the course of sentencing, a court may consider evidence establishing
    that the accused has committed another offence of which he has not been
    convicted. However, as noted at para. 32, these aggravating circumstances must
    be proven beyond a reasonable doubt and their use is carefully circumscribed:

If the extrinsic evidence is contested, the
    prosecution must prove it. Since the facts in question will doubtless be
    aggravating facts, they must be proved beyond a reasonable doubtThe court can
    sentence the offender only for the offence of which he or she has been
    convicted, and the sentence must be proportionate to the gravity of that
    offence. In addition, the judge can and must exclude otherwise relevant
    evidence if its prejudicial effect outweighs its probative value such that the
    offenders right to a fair trial is jeopardized. Finally, the court must draw a
    distinction between considering facts establishing the commission of an
    uncharged offence for the purpose of punishing the accused
for that other
    offence
, and considering them to establish the offenders character and
    reputation or risk of re‑offending for the purpose of determining the
    appropriate sentence for
the offence of which he or she has been convicted
.
    [Emphasis in original.]

[53]

Here the trial judge considered the appellants sexual acts in relation
    to A.G. and R.L. as aggravating factors, without making an express finding that
    the acts had been proven beyond a reasonable doubt. Absent such a finding and
    absent a finding that the behavior towards R.L. was criminal, that conduct
    should not have been treated as an aggravating factor.

[54]

Despite this error, I would uphold the sentence on the ground that it
    was appropriate, without regard to the extrinsic misconduct.

[55]

The
    sentence imposed was within the range identified by this court for offences
    involving prolonged and damaging sexual assaults of children by adults:
R.
    v. D.D.
(2002),
58 O.R. (3d) 788
(C.A.), at
    para. 44;
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d) 81, at para.
    34. The appellant, in a position of trust, subjected two of his grandsons to
    prolonged sexual abuse over the course of nearly 10 years. This abuse included
    masturbation, oral sex, and anal sex. As is evident from the victim impact
    statements, the abuse caused incalculable damage to the complainants lives.
    The trial judge did not ignore the appellants age in sentencing, nor err in
    refusing to discount an otherwise appropriate sentence because of his age. She
    imposed a sentence that was fit in the circumstances of the offences.

F.

Disposition

[56]

Accordingly,
    for these reasons, the appeal from conviction was dismissed and leave to appeal
    sentence was granted but the appeal of sentence was dismissed.

Released: (AH) November 5, 2015

G. Pardu J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree K.M. Weiler
    J.A.


