



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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.C., 2015 ONCA 59

DATE: 20150202

DOCKET: C55755

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

Erika Chozik, for the appellant

Christine Tier, for the respondent

Heard: December 5, 2014

On appeal from the convictions entered on April 17, 2012
    and the sentence imposed on June 26, 2012 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting without a jury.

Pardu J.A.:

A.

Overview

[1]

The appellant, C.C., was accused of repeatedly sexually touching a young
    girl and having intercourse with her over a period of approximately four and a
    half years, beginning when the complainant was around seven years old and
    continuing until she was 11. The last incident of intercourse she described
    occurred on July 17, 2009 or the early morning hours of July 18, 2009. A
    complaint was made soon afterwards. A vaginal swab taken on July 20, 2009 found
    a sperm cell inside the girls vagina, just beyond the hymen. The complainant
    also testified that the appellant sometimes showed her images on his computer
    of adults having sex with young girls. Police found those kinds of images on
    computers used by the appellant in his home.

[2]

The appellant appeals from convictions for sexual assault, sexual
    interference and possession of child pornography. He also seeks leave to appeal
    from the six-year sentence imposed, and seeks leave to admit fresh evidence
    that he says undermines the factual findings upon which the convictions were
    based.

[3]

For the following reasons, I would dismiss the conviction appeals, grant
    leave to appeal sentence but dismiss the sentence appeal, and dismiss the
    application to introduce fresh evidence.

B.

Background

[4]

The appellant was formerly married to the complainants mother, S.T. They
    had two children together, C.C. and M.C., aged 24 and 21 at the time of trial. S.T.
    subsequently had two other children: the complainant, aged 11, and K.N., aged 7
    at that time. The complainant and K.N. often spent time at the appellants
    home. He testified that he treated the complainant like his own daughters, C.C.,
    who lived with him, and M.C., who lived with her mother S.T.

[5]

On July 17, 2009, S.T. asked the appellant if he would look after the
    complainant and K.N. that evening, as well as a friend of the complainant, L.A.,
    then nine years old. He agreed and all three girls were dropped off at his home
    around 11:00 p.m. At first, the girls stayed upstairs to watch a movie, but then
    they lost interest in it, and went downstairs to watch something else. The
    complainant went back upstairs, and according to L.A., had been gone for 20 or
    30 minutes when L.A. went upstairs to look for her. L.A. saw the complainant
    get a drink in the kitchen and both girls returned to the basement.

[6]

The complainant told her friend L.A. that the appellant was touching her
    and trying to have sex with her, and that her older half-sister M.C. would also
    do bad things to her. The complainant told L.A. not to tell anyone, and that
    she had a knife and would hurt L.A.s brother if she told.

[7]

The complainants mother S.T. returned to the appellants home around
    3:00 a.m. to pick L.A. up and take her home to her own mother. The complainant
    was awake, but K.N. was asleep and S.T. left them at the appellants home.

[8]

Later that weekend, L.A. told her mother what the complainant had
    described to her. L.A.s mother and the complainants mother, S.T., began
    exchanging text messages. The messages from L.A.s mother described the
    complainant touching L.A. and K.N. under their panties, and threatening them if
    they told anyone. L.A.s mother subsequently told S.T. that the complainant had
    also told L.A. that the appellant had touched her.

[9]

S.T. invited L.A. and her mother, as well as the appellants daughters,
    M.C. and C.C., over to her house. S.T. told M.C. and C.C. before they arrived
    at S.T.s home that there was an allegation that their father had sexually
    interfered with the complainant. When everyone had arrived, S.T. sought to
    question the complainant in the living room. She asked M.C. and C.C. to leave
    the room. S.T. asked the complainant if the allegations that the appellant had
    touched her were true. The complainant initially denied them, but quickly
    started to cry and said they were true.

[10]

S.T.
    took her daughter to the Hospital for Sick Children where she was examined and
    samples were taken. She was interviewed by police and a Childrens Aid Society
    worker.

[11]

At
    trial, the complainants evidence was that the appellant had had intercourse
    with her on that weekend. She said it hurt and she asked him to stop, but he
    would not. She said that, on another occasion, he put gel on her vaginal area
    and used a vibrator on her. She said that he sometimes showed her videos of
    adults having sex with little girls. When she questioned him about why he was
    abusing her, he threatened to do the same to her little sister if she did not
    comply.

C.

The Conviction Appeal

[12]

The
    appellant argues that the trial judge erred in the following respects:

1)

He erred in his treatment of evidence of other sexual activity involving
    the complaint, more particularly:

a)

He refused to allow the defence to question the complainant about whether
    she sexually touched her seven-year-old sister K.N. and nine-year-old friend L.A.

b)

Although he allowed the defence to ask questions about an alleged sexual
    assault on the complainant by her older half-sister M.C., he erred in failing
    to consider whether a potentially false complaint about this assault by the
    complainant undermined her credibility.

2)

He failed to consider the evidence on the child pornography count
    separately from the sexual assault and sexual interference counts and did not
    deal with the moral prejudice which might flow from the association of these
    different offences on the indictment.

3)

He misapprehended the evidence regarding the appellants police
    statement and the use of his computers, and failed to consider potentially
    exculpatory evidence.

[13]

I
    now turn to each of the grounds of error said to justify setting aside the
    convictions.

(1)

The complainants alleged sexual activity with K.N. and L.A.

[14]

The
    appellant brought an application pursuant to s. 276 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, seeking to cross-examine the complainant about sexually touching
    her friend L.A. and her mothers other daughter K.N. He submitted to the trial
    judge that this evidence was relevant for two purposes:

1)

To show that the complainant might have acquired sexual knowledge from
    sources other than the appellant.

2)

To show that the complainant feared she might be in trouble for her own
    misconduct, and alleged sexual improprieties by the appellant to deflect
    attention from her own misbehaviour.

[15]

The
    evidence presented on this aspect of the s. 276 application was thin. L.A. said
    she once woke up to find the complainant in her bed, looking for her teddy
    bear. The complainant was touching L.A.s body and legs, specifically, her
    shin. There was also an allegation, conveyed through L.A., that the complainant
    touched K.N. on her arms and legs while at a pool.

[16]

The
    trial judge refused to allow the appellant to cross-examine the complainant on
    her alleged sexual touching of K.N. and L.A. He ruled:

In examining the nature of the alleged sexual touching reported
    by L.A. with respect to [the complainant] and herself and [the complainant] and
    [K.N.], there is nothing, in my view, that suggests the touching was of a
    sexual nature or it is in any way similar to the alleged sexual abuse by the
    applicant. The applicant in this instance shall not be permitted to
    cross-examine the complainant on that information. It does not import any
    reasonable inference as to the complainants level of sexual knowledge. There
    is no reasonable basis, on its face, of the prospect of the evidence assisting
    the Court in arriving at a just determination in this instance.

[17]

The
    trial judge was correct to dismiss this aspect of the s. 276 application for
    the reasons he gave. The nature of the alleged conduct does not support the
    inference that the complainant acquired sexual knowledge from someone other
    than the appellant. There is no suggestion that L.A. or K.N. imparted knowledge
    to the complainant about the kinds of sexual acts the appellant was alleged to
    have performed. The conduct attributed to the appellant is far different from what
    may or may not have occurred between the complainant, L.A. and K.N. Furthermore,
    given the nature of the conduct attributed to the complainant in the s. 276
    application  touching L.A. and K.N. while looking for a teddy bear and while
    at a pool, respectively  it is hard to believe that she would have fabricated such
    grave allegations against the appellant in order to distract from her benign
    conduct.

[18]

Defence
    counsel at trial had in their possession transcripts of the text messages
    exchanged between S.T. and L.A.s mother. In those messages, L.A.s mother
    described seeing the complainant mounting L.A., and related that L.A. alleged
    that the complainant fondled both her and K.N. under their panties and
    threatened them if they told anyone. Defence counsel did not support their s.
    276 application with this evidence, but reserved it for use in cross-examining
    S.T., after both the complainant and L.A. had testified.

[19]

When
    defence counsel raised the text messages during the cross-examination of S.T.,
    they submitted to the trial judge that they intended to use the transcripts for
    a limited purpose only: to have S.T. confirm the messages did not contain any
    mention of assaults by the appellant, and to thereby suggest S.T. fabricated
    the allegations against the appellant, or suggested them to the complainant. Defence
    counsel said they would not question S.T. about the complainants alleged
    sexual activity with L.A. and K.N.

[20]

The
    trial judge acceded to defence counsels proposal:

The court: I understand that. All right, I understand that its
    really whats not in there [that] is the thing of importance as far as the
    defence is concerned, and to that extent questioning will be permitted on these
    chats.

[21]

The
    trial judge confirmed he would disabuse himself of the evidence he heard in the
    s. 276 application about the complainants alleged sexual contact with L.A. and
    K.N.:

The court: Just  and in terms of it being filed, it having
    been made reference to, I can certainly disabuse myself of the contents that
    Ive already referred to in light of the nature of the information referred to
    in my earlier ruling. So its not  we dont have a problem of excising because
    of the presence of a jury in this trial.

[22]

The
    appellant now submits that the trial judge ought to have revisited his ruling
    on the s. 276 issue in light of these text messages, which were not in the
    Crowns possession, and were produced for the cross-examination of S.T. The
    trial judge was not asked to revisit his ruling. L.A. and the complainant had
    already been cross-examined.

[23]

Given
    the position taken by defence counsel, he did not err.

[24]

The
    trial judges ruling did not prevent witnesses from being examined on the
    circumstances surrounding the disclosure of the complainants allegation of
    sexual touching, whether she was pressured to make that allegation, or whether
    she made the allegation to deflect attention from misconduct on her own part. Defence
    counsel went so far as to ask the complainant in cross-examination, in
    violation of the trial judges ruling, whether she had engaged in sexual
    touching of L.A. She denied it.

[25]

The
    trial judge did not err in his treatment of this issue.

(2)

The complainants alleged sexual activity with M.C.

[26]

The
    appellant sought to cross-examine the complainant under s. 276 regarding sexual
    activity with her half-sister M.C., for the same purposes:

1)

To show that the complainant had sexual knowledge from sources other
    than the appellant.

2)

To show that the complainant fabricated the allegations because she
    feared the consequences of her own sexual activity with M.C.

[27]

The
    complainant alleged that her half-sister M.C. put ice cream on her own vagina
    and made the complainant lick it off, and that M.C. made the complainant
    straddle her while M.C. gyrated against her in a sexual way.

[28]

The
    basis for the s. 276 application was that these allegations by the complainant were
    true. The defence argued that the complainant had sexual knowledge because of
    her prior sexual activity with M.C., and not because of any sexual contact with
    the appellant. This argument presupposes that the sexual activity with M.C. in
    fact occurred.

[29]

The
    trial judge allowed the complainant to be questioned about the alleged sexual
    contact between her and M.C., despite some dissimilarity between the conduct
    alleged to have been committed by M.C. on the one hand, and the appellant on
    the other. The evidence of M.C.s sexual touching could have some probative
    value on whether the complainant acquired sexual knowledge from someone other
    than the appellant.

[30]

Defence
    counsel examined M.C. at trial about the truth of these allegations and she
    denied them. The complainant reiterated her allegations.

[31]

However,
    in closing submissions, rather than taking the position that the allegations against
    M.C. were true, as had been advanced in the s. 276 application, defence counsel
    submitted that the complainants allegations about M.C. were false. On appeal,
    the appellant now argues that the trial judge erred in failing to consider the
    complainants possible false allegations against M.C. when he evaluated her
    credibility.

[32]

The
    trial judge did not err in failing to consider this evidence for that purpose. As
    indicated in
R. v. M.T.
, 2012 ONCA 511, 289 C.C.C. (3d) 115, at para.
    52, the argument that a complainant who accuses
two
persons of sexual
    impropriety occurring at different times and in different circumstances is more
    likely to be lying about either or both than a complainant who accuses only one
    person cannot be sustained (emphasis in original). The fact that a complainant
    made allegations of sexual abuse against another person is not admissible to
    suggest a pattern of false accusations, or to undermine a complainants
    credibility, unless those allegations were recanted or are demonstrably false:
R.
    v. Riley
(1992), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal
    refused, [1993] 2 S.C.R. x.

[33]

In
    this case, given the complainants and M.C.s contradictory testimony, there
    was no basis for concluding that the complainants allegation against M.C. was
    demonstrably false.

(3)

Use of child pornography evidence between counts

[34]

The
    appellant argues that the trial judge erred in failing to confine the evidence
    about child pornography to the count alleging possession of that material, and
    in failing to conduct a similar fact analysis of that evidence before using it
    on the counts of sexual assault and sexual interference. He submits that the
    trial judge erred in failing to expressly deal with the risk that a trier of
    fact might conclude that someone who possessed child pornography was a person
    of bad character who therefore likely committed the sexual assaults.

[35]

There
    is no indication that the trial judge used the child pornography evidence for
    any improper purpose. Even in the absence of the count of possession of child
    pornography, the child pornography evidence would have been admissible to
    confirm the complainants evidence that the appellant showed her those images
    in the course of the assaults. In addition, the complainant provided direct
    evidence that the appellant knew about the child pornography on his computer,
    and that it was there for his use. The evidence of the presence of child
    pornography was relevant to both the sexual assault and sexual interference
    counts, and to the possession of pornography count. In this judge-alone trial,
    the trial judge was not obliged to expressly warn himself about moral
    prejudice.

(4)

Misapprehension of evidence and failure to consider exculpatory evidence

(a)

Limewire evidence

[36]

The
    appellant submits that the trial judge erred in rejecting his explanation for re-installing
    Limewire software on his computer, after having previously deleted it. Limewire
    is a file sharing program that could be used to access files of various kinds,
    including child pornography or music. The trial judge rejected the appellants
    explanation that he used the program to access music because [h]e said he
    could download music but he did not play it afterwards. He never played music
    on his computer. The Crown acknowledges that while the appellant did not play
    music on his computer, he did say that he could play music on his iPod.

[37]

The
    trial judges misapprehension of the evidence  that the appellant could not
    listen to music downloaded through Limewire at all  was inconsequential in
    this trial because of the appellants own evidence about his use of his
    computer.

[38]

The
    appellant testified that, in January or February 2009, he noticed that the Limewire
    program was open and might have been actively downloading material. He looked
    in the file he had designated to store Limewire downloads and found files he
    thought were pornography, though he testified he was unsure of whether they
    were child pornography. However, the names of the files were highly suggestive
    of child pornography. He deleted those files and uninstalled Limewire. He
    testified that many other people visited his home and had access to his
    computer. Several months later, he reinstalled Limewire because he said there
    was a particular song he wanted to download. When the appellant learned from
    his daughters that the complainant was accusing him of sexual misconduct, he
    immediately went to his computer and deleted more files containing child
    pornography. This was before he knew that the complainant had alleged a connection
    between the viewing of child pornography and the sexual assaults. The appellant
    testified that he deleted the files to prevent police from finding them. He
    said that someone else must have downloaded the files between January 2009 and
    July 2009.

[39]

The
    trial judge could and did draw inferences about the appellants knowledge of
    the child pornography and its use in the commission of the sexual assaults from
    the appellants actions in deleting the files as soon as he learned of the
    complainants allegations. The trial judge characterized the deletion of the
    child pornography in July 2009 as an attempt to destroy evidence that [the
    appellant] knew would support what she said he had done. Furthermore, the
    trial judge rejected the appellants suggestion that he did not know the files he
    deleted in January or February were child pornography, given the highly
    suggestive titles the appellant agreed he had seen. Given the number of files,
    and their various creation dates, the trial judge rejected the appellants
    claim that some other person must have come into the home and downloaded the
    child pornography.

[40]

Here,
    the trial judges misapprehension of the evidence  his failure to understand
    that the appellant could play downloaded music on his iPod  was peripheral to
    his reasoning and did not play an essential part in the reasoning process
    resulting in a conviction: see
R. v. Bains
, 2012 ONCA 305, 291 O.A.C.
    135, at paras. 11-15, citing
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 541.  The force of the misapprehension pales in comparison to the
    inferences drawn from the appellants own evidence.

(b)

The police interview

[41]

The
    appellant also submits that the trial judge misapprehended the evidence when he
    concluded that the appellant had lied to police. The exchange in issue during
    the interview with police was as follows:

Officer: Okay, so this is completely way out of left field
    that, that, now which one of the girls is making the allegation?

[Appellant]: I dont know.

Officer: You dont know which one? Okay. Does it, it, this come
    way out of left field that one of them would say something like this?

[Appellant]: To me, yeah.

[42]

However,
    M.C. and C.C. told their father on the day before that the complainant was
    saying he had sexual contact with her. In other words, he knew that the
    complainant had made the allegations against him.

[43]

The
    trial judge concluded:

His response, I dont know was in reference to the question
    as to whether he knew which one had made the allegation. The officer confirmed
    his answer when he said, you dont know which one. His subsequent response,
    to me, yeah is responsive to the question with respect to whether the
    allegation came out of left field. His attempt to explain it otherwise in the
    trial was obvious prevarication.

[44]

This
    was the trial judges call to make and I see no basis to intervene.

[45]

There
    were several problems with the appellants credibility. He testified at trial
    on cross-examination:

Q. Now, in terms of your statement to the police, one of the
    other questions that you chose to answer was, when the police asked you: Are
    we going to find any child pornography on your computer?

A. Yes.

Q. And you answered them and you said: No.

A. Yes.

Q. And that is because you were confident that youd taken the
    step to delete LimeWire from your computer the night before, correct?

A. Um, yes.

[46]

Shortly
    afterwards, however, when asked whether the files he deleted in July 2009 had
    terms relating to sex and to children, he replied, Yes. Well, related to
    sex. Furthermore, as the trial judge observed, his previous claim that he did
    not know the files he deleted in January or February 2009 were child
    pornography was belied by the very explicit titles he said he saw and removed.

(c)

Failure to consider exculpatory evidence

[47]

The
    appellant also submits that the trial judge failed to give effect to
    exculpatory evidence, for example, the presence of DNA from at least four
    different males on the complainants pyjamas.

[48]

The
    forensic biologist testified at trial and indicated:

Q. All right. And in terms of what was analyzed coming from the
    pants

A. Correct.

Q.  you told us that you found a mixture essentially of D.N.A.
    from at least four males.

A. Correct.

Q. It might have been five. Its impossible to say?

A. Correct. And it could also be trace amounts of female
    D.N.A., but our male D.N.A. technology wont find that.

Q. And in terms of the sources of that D.N.A., theres a long
    list of possibilities obviously.

A. Yeah, because theres a small amount of D.N.A. present even
    sitting on a small amount of cellular material potentially could transfer to
    the pajamas and be the source, yes, from an external application.

Q. Right. And that list could cover possibilities from saliva
    to nasal secretions to trace amounts of blood not visible to the naked eye, to
    handling dandruff, to semen, impossible to be specific. Right?

A. Correct.

[49]

The
    trial judge recognized this evidence and gave it appropriate weight. He
    specifically acknowledged that the DNA from at least four males could have
    gotten on the complainants clothing through innocuous means.

[50]

The
    appellant also argues that the configuration of his computer and the child
    pornography files did not share the characteristics associated with a serious
    collector of child pornography. For example, the appellant did not control
    access to his computer with a password. He deleted material he thought
    inappropriate in January or February 2009, and again in July. The trial judge
    was not obliged to conclude from this that the appellant had nothing to do with
    the child pornography on his computer, especially in light of the appellants
    own evidence.

[51]

No
    error has been demonstrated in the judges treatment of the evidence which
    would justify intervention.

D.

Fresh Evidence

[52]

The
    appellant also seeks to introduce fresh evidence. According to an affidavit
    sworn by the appellant, following the trial judgment, the appellant learned
    that his brother, who had had free access to the appellants home and computer,
    was accused of sexual offences by his own step-daughter. Furthermore, according
    to the appellants affidavit, the brother told the appellant he had used the
    appellants computer to watch and attempt to download pornography. There was
    other evidence the brother had an interest in adult pornography. The appellant
    submits that the proposed fresh evidence is capable of raising a reasonable
    doubt as to whether he downloaded the child pornography found on his computers.

[53]

According
    to the material filed by the Crown, the 17-year-old step-daughter S.R. and the
    brothers 16-year-old niece Y.R. alleged that they were sexually assaulted by
    both the appellant and the brother. S.R. subsequently recanted her allegations
    about the brother, but maintained that the only thing that was true in her
    statement to police was the allegation about the appellant. The brother pled
    guilty to common assault of Y.R. Both Y.R. and S.R. refused to cooperate with
    police investigating the appellants role in any assault.

[54]

It
    is difficult to see how this fresh evidence could be of any assistance to the
    appellant. Even if one were to accept that the brother downloaded some form of
    pornography on the appellants computer, that is not at all inconsistent with the
    appellant knowingly possessing child pornography on that computer. This
    evidence does not meet the cogency test for admission of fresh evidence. As
    indicated in
R. v. Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para.
    67:

The proffered evidence must be relevant to a potentially
    decisive issue; the evidence must be reasonably capable of belief; and the evidence
    must be sufficiently probative that when taken with the rest of the evidence
    adduced at trial, it could reasonably be expected to have affected the result.

[55]

As
    I discussed above, the conclusion that the appellant knew there was child
    pornography on his computer is inescapable from his own evidence at trial.

[56]

The
    proposed fresh evidence is not sufficiently probative that when taken with the
    rest of the evidence adduced at trial, it could reasonably be expected to have
    affected the result.

E.

The Sentence Appeal

[57]

Following
    conviction, the Crown sought a global sentence of five years: four and a half
    years for the sexual offences, and six months consecutive for possession of
    child pornography. The defence submitted that a global sentence of three years
    would be sufficient.

[58]

The
    trial judge imposed a global sentence of six years: five years for the sexual
    assault and sexual interference offences, and one year consecutive for
    possession of child pornography.

[59]

This
    was not a joint sentencing submission, so the factors that constrain a judge
    from departing from a joint submission do not apply.

[60]

Here,
    the sentence imposed was fit. The appellant was an adult offender, in a
    position of trust, who engaged in repeated sexual abuse of a young girl. He
    groomed her by showing her child pornography and threatened to abuse her sister
    if she told anyone. According to the trial judge, the victim suffered serious
    psychological and emotional trauma with the potential to scar her for life. Her
    family has been torn apart. She has lost her relationship with her older
    sisters. She was robbed of her childhood innocence, she now fears men and her
    future when and if she forms a relationship.

[61]

The
    trial judge expressly applied the sentencing principles set out in
R. v.
    D.D.
(2002), 58 O.R. (3d) 788 (C.A.), and reiterated in
R. v. Woodward
,
    2011 ONCA 610, 107 O.R. (3d) 81.

[62]

I
    do not accept the argument that he used the absence of remorse as an
    aggravating factor.

[63]

The
    sentence imposed was well within the range for offences of this nature and
    there is no basis to intervene.

F.

Conclusion

[64]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal sentence but dismiss the appeal from sentence, and dismiss the
    application to admit fresh evidence.

Released: (D.W.) FEB 02 2015

G. Pardu J.A.

I agree David Watt
    J.A.

I agree K. van
    Rensburg J.A.


