



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    the complainant or a witness shall not be published in any document or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. D.M., 2012
    ONCA 894

DATE: 20121220

DOCKET: C52632

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.M.

Appellant

Timothy E. Breen, for the appellant

Catherine Mullaly, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on March 31, 2010
    and the sentence imposed on November 10, 2010 by Justice John R. McIsaac of the
    Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

overview

[1]

The appellant, D.M., was convicted of eight counts of sexually molesting
    his step-daughter, E.  The molestation took place over an eight-year period,
    when E was between 11 or 12 and 20 years old.  The acts of molestation
    consisted of sexual touching and digital penetration, but not intercourse.

[2]

On numerous occasions, the appellant acknowledged his acts of wrong
    doing  to his step-daughter directly, to a Childrens Aid Society (CAS)
    worker, in a statement to police, which was admitted at trial after a
voir
    dire
, and in his trial testimony.  However, he sought to minimize his
    culpability by admitting only to a few isolated acts of sexual touching.  Thus
    the trial was mainly about the frequency and the intrusiveness of the
    appellants wrongdoing.

[3]

In convicting the appellant, the trial judge found that the episodes of
    molestation were almost unrelenting and occurred many, many times over the
    course of eight years.  He sentenced the appellant to five years imprisonment.

[4]

The appellant appeals both his conviction and sentence.  On his
    conviction appeal he makes two submissions.  First, the trial judge erred in
    ruling that his statement to the police was voluntary.  Second, the trial judge
    erred in the way he evaluated Es credibility.  On his sentence appeal, the
    appellant submits that his sentence exceeds an appropriate range.

[5]

For the reasons that follow, I would dismiss the conviction appeal, but
    would allow the sentence appeal and reduce the appellants sentence from five to
    four years imprisonment.

B.

background facts

(1)

The Family

[6]

The victim, E, was born in 1984.  She is the oldest of her mothers
    eight children.  She and her older brother were fathered by another man.  When E
    was seven years old, Es mother and the appellant married.  They had six
    children together.  All the children lived together as a family in several
    small Ontario communities.  For most of the time the children were homeschooled,
    mainly by their mother.

[7]

At the time of trial, the appellant was 48 years old.  He was a university
    professor, though his job has been terminated because of his conviction. E had
    willingly accepted the appellant as her father, and continued to do so despite
    his sexual molestation of her.  However, after she reported the abuse she left
    the family home, and has been ostracized by her mother and estranged from her
    siblings.  At the time of trial, E was beginning graduate work at a Canadian
    university.

(2)

The Appellants Acts
    of Sexual Molestation

[8]

E reported the appellants abuse of her to the police in September
    2007.  The appellant was charged with five counts of sexual assault (counts 1,
    3, 5, 7 and 9) and five counts of sexual touching (counts 2, 4, 6, 8 and 10). 
    He was found guilty on counts 1 to 6 and counts 9 and 10, and not guilty on
    counts 7 and 8.  The following is a brief summary of Es evidence about the
    appellants sexual abuse of her, which the trial judge almost entirely accepted.

[9]

Counts 1 and 2
. E testified that when she
    was young, the family would gather together on Friday nights to watch movies. 
    She recalled lying with the appellant on the couch covered by a blanket.  She
    testified about three incidents before her thirteenth birthday when the appellant
    touched her inappropriately under the blanket.  On the first occasion he
    touched her breasts; on the other two occasions he put his hand down her pants
    and touched her vagina.  On each occasion the touching was very brief.

[10]

Counts 3 and 4
.  On her thirteenth birthday, in June
    1997, E went camping with her parents and siblings in a provincial park.  E
    shared a tent with her four-year old sister L.  During the night L started
    crying and the appellant came into the tent to settle her down.  The appellant
    then opened up Es sleeping bag and laid down next to her.  He removed her
    nightgown, put his legs between her legs, touched her breasts and digitally
    penetrated her.  After he stopped he still remained in the tent overnight.

[11]

Counts 5 and 6
.  The next night on the camping trip, the
    appellant slept with E and L in their tent.  E testified that the same thing
    happened.  The appellant took off her nightgown, touched her breasts, moved his
    legs between her legs, and touched her clitoris.

[12]

Count 7 and 8
.  In September 1998, E went camping in Algonquin
    Park with the appellant, her sister L and her brother P.  They all stayed in
    one large tent.  E testified that after L went to sleep, the appellant undid
    her nightgown, touched her breasts and clitoris and digitally penetrated her. 
    The trial judge found that this abuse probably took place, but had a
    reasonable doubt because of certain inconsistencies in Es evidence.

[13]

Counts 9 and 10
.  E and L shared a bedroom until early
    2001, when L moved into another room.  E testified that the appellant came into
    her bedroom in the middle of the night  both before and after L moved out 
    hundreds of times, and sexually molested her.  The appellant massaged her legs,
    touched her clitoris and occasionally digitally penetrated her.  The appellant
    never spoke to E and she pretended to be asleep.

[14]

The
    trial judge had a reasonable doubt about whether the incidents occurred while L
    shared the bedroom because of Ls evidence that she would have been able to
    detect the abuse.  However, the trial judge had no doubt that the abuse
    occurred after L moved out of the bedroom.

[15]

In
    addition to molesting E in the bedroom, the appellant also began touching her
    breasts and pressing his body against her while she was studying, working on
    the computer or playing the piano.

(3)

The Appellants
    Acknowledgements of Wrong Doing

(a)

Before trial

[16]

Before
    trial the appellant acknowledged at least five times that he had sexually
    molested E  three times to E directly, once to the CAS, and once to the
    police.  These acknowledgements of molestation, though qualified in frequency
    and intrusiveness, were as follows.

[17]

May 2001
.  One day in May 2001, L (Es younger sister) said
    that she woke up with hands all over her.  L was eight years old at the
    time.  E became upset because she felt that she had failed to protect her
    sister.  E told her mother that she thought what L said was true because the
    same thing had happened to her.  This was the first time that E told anyone in
    her family about the abuse.

[18]

This
    conversation led to a meeting between E and her parents.  The appellant told E that
    he knew what he did was wrong.  He said that he was sorry and it would not
    happen again.  But, it continued for another four years.

[19]

April 2005
. In late April 2005, E disclosed the abuse to
    the minister of a church where she went for bible study.  The minister reported
    the abuse to a CAS representative and E, too, told the CAS representative that
    the appellant had sexually molested her.

[20]

The
    CAS representative then came to the appellants home and advised him that E had
    reported he had touched her inappropriately.  The appellant acknowledged Es
    complaint and admitted that he had touched her inappropriately.

[21]

The
    CAS allowed the appellant to remain in the home on condition he go for
    psychometric testing and seek counselling.  He agreed to do so.  During the
    testing he again admitted that he had touched E inappropriately.

[22]

June 2005
.  In June 2005, the appellant gave a statement
    to the police in which he admitted that about four years earlier he had touched
    E five or six times.  This statement was admitted after a
voir dire
and is the subject of one of the grounds of appeal, which I will deal with
    shortly.

[23]

July 2005
.  In July 2005, after E had moved out of the
    house, she received an email from the appellant, which said:

I have said this before and I am willing to say it again: Ive
    hurt you. I was wrong.  I am sorry.  I have always loved you, however sometimes
    my actions were [inappropriate].  I hope you can also remember all the many
    good things I have done for you.

[24]

February 2007
.  In February 2007, E received a care
    package from her family, which included a letter from the appellant.  The
    letter began:

Dear E, I miss you  we all do.  I look forward to the day when
    we can be together as a family.  That is Gods desire and I have faith that he
    will see it to completion.  It starts with repentance and forgiveness.  As I
    have said to you before, and written to you before, I am very sorry.  I hurt
    you and it was wrong.  I wish I could undo it, but I cant.  But the past is
    past, and long over.

(b)

The appellants trial
    testimony

[25]

The
    appellant gave evidence about all the counts in the indictment.  He admitted to
    a few incidents of sexual touching of E in respect of counts 9 and 10. 
    Otherwise he denied that he had sexually molested his step-daughter.

[26]

On
    counts 1 and 2 he agreed that the family occasionally watched movies on Friday
    nights and several times he and E laid on the couch together.  The appellant
    acknowledged that during these occasions he may have inadvertently touched Es
    breasts.

[27]

On
    counts 3 and 4, the appellant agreed that the family went camping in June 1997. 
    He also agreed that he came into the tent E and L slept in to calm L down when
    she started crying.  However, he said that he stayed only 15 minutes and did
    not molest E.

[28]

On
    counts 5 and 6, the appellant denied that he slept in the girls tent on the second
    night of the camping trip.

[29]

On
    counts 7 and 8, the appellant agreed that he and E went camping in Algonquin
    Park, but again he denied molesting her.

[30]

On
    counts 9 and 10, the appellant acknowledged that he touched E inappropriately
    four to seven times between February and May 2001.  He recalled three or four
    instances when he went into her bedroom while she was asleep and touched either
    her vagina or breasts or both.  He denied digitally penetrating her.  He also
    admitted that once or twice he touched Es breasts under her blouse while she
    was studying at her desk, and once he touched her breasts while she was sitting
    at the piano.

C.

the conviction appeal

(1)

Did the trial judge err in ruling that the appellants statement to the
    police was voluntary?

[31]

After
    a
voir dire
, the trial judge ruled that the appellants statement to
    the police in June 2005 was voluntary and therefore admissible at trial.  The
    appellant submits that the trial judge erred in his ruling.  He contends that
    as he was a suspect in a criminal investigation, for his statement to have been
    voluntary he had to have been aware of the consequences of speaking to the
    police.  He maintains that he was not advised of and was not aware of these
    consequences.  He argues that had he been aware of the consequences of speaking
    to the police he may have said nothing.  He also argues that once his statement
    to the police was ruled admissible, he was forced to testify, and
    acknowledge, though in a limited way, his wrong doing.

(a)

Circumstances giving
    rise to the appellants statement

[32]

In
    late April 2005, following Es report to the CAS, Constable Sheryl Sutton of
    the Criminal Investigation Bureau of the South Simcoe Police, was asked to
    investigate the alleged sexual abuse.  She contacted E, who refused to make a
    formal complaint to the police.  Sutton acknowledged that though she lacked
    grounds to lay a charge, she wanted to speak to the appellant.  In mid-May she
    phoned his home and was told that he was out of the country.  She left a message
    that she wanted to speak to him.  He did not return the call.

[33]

About
    a month later, at 7:30 p.m. one evening, the appellant was stopped by another
    police officer for speeding.  At the time Sutton was on duty at the police
    station and heard the radio call concerning the traffic stop.  She told the
    other officer to ask the appellant to come to the station to meet with her.

[34]

The
    appellant arrived at the police station at 7:50 p.m.  Sutton took him to a
    small interview room.  She testified that she told the appellant that he was
    not obliged to see her or remain at the station, and that he did not need to
    answer any of [her] questions.  As she did not believe that there were
    sufficient grounds to lay a charge or that the appellant was detained, she did
    not advise him of his right to counsel.  She did, however, acknowledge that she
    was investigating an allegation of sexual assault and hoped to obtain a
    confession from the appellant.

[35]

The
    interview lasted 25 minutes.  It was videotaped but the tape has been destroyed
    in accordance with a policy to retain tapes for only one year if charges have not
    been laid.  Sutton, however, made three pages of notes summarizing significant
    portions of the interview.

[36]

Sutton
    testified on the
voir dire
that she told the appellant E had reported
    inappropriate touching to the CAS but had not made a complaint to the police.  The
    appellant said that about four years previously he had touched E five or six
    times.  He also said that the family had addressed the matter and that the
    police did not need to be involved.  Sutton asked the appellant where he had
    touched E.  The appellant refused to provide any detail; he said that he did
    not see why he needed to answer her questions.  At the end of the interview,
    Sutton told the appellant that the investigation was closed, but that if E
    changed her mind and gave a statement to the police, he would be charged.

[37]

The
    appellant also testified on the
voir dire
.  He said that he did not
    want to meet with Sutton and found the interview to be intimidating.  He denied
    Sutton had told him that he was not obliged to meet with her or answer her
    questions.  He did acknowledge telling Sutton that four years previously he had
    touched E five or six times.  He testified that he made these statements to
    Sutton because he believed the police investigation was related to the CAS
    complaint, and it was in his best interests to cooperate and be consistent.

(b)

The trial judges
    ruling

[38]

The
    trial judge ruled that the appellants statement to Sutton was voluntary and
    admissible.  In so ruling, he made the following findings:

·

The interview was not conducted in an atmosphere of oppression,
    as the appellant was permitted to attend and leave the station on his own.

·

Sutton did tell the appellant that he did not have to remain or
    answer her questions; therefore, when [the appellant] chose to answer the
    questions posed, he was well aware of his right to refuse to co-operate with
    this investigation.

·

The appellants statement to the police was not tainted by his
    previous statement to the CAS.  He decided to say the same thing both to the
    CAS and Sutton to appear consistent.

(c)

Discussion

[39]

The
    appellant submits that the trial judge took too narrow a view of the
    confessions rule.  He says that the voluntariness of a confession rests on
    two planks: knowing waiver of the right to silence; and knowledge of the
    consequences of speaking to the police.  Accepting the trial judges findings,
    the appellant was cautioned on his right to silence and knowingly waived that right. 
    However, he was not told and was not aware of the consequences of speaking to
    the police  that what he said could be used against him in a criminal
    prosecution.  He thought that the police interview was a continuation of the
    CASs investigation into the safety of his other children; he did not
    appreciate that his admissions to Sutton were made in the context of a criminal
    investigation of Es allegations against him.

[40]

When
    the appellant was interviewed by Sutton, he was not under arrest, nor was he detained. 
    His rights under the
Canadian Charter of Rights and Freedoms
were not
    triggered.  However, I agree with the appellant that when he was interviewed,
    he was a suspect, indeed, the target of a criminal investigation.  Therefore, the
    common law confessions rule, described by the Supreme Court of Canada in
R.
    v. Oickle,
2000 SCC 38, [2000] 2 S.C.R. 3, applies.  The confessions rule requires
    the Crown to demonstrate beyond a reasonable doubt that a confession made by a
    suspect to a person in authority, such as the admission in this case, was
    voluntary:
R. v. Oickle
, at para. 30.

[41]

The
    majority in
R. v. Oickle
stated, at paras. 25-27 and 68-69, that
    voluntariness is not only concerned with whether the accuseds confession was
    induced by threats or promises; it is a broader concept focused on the
    protection of an accuseds rights and fairness in the criminal process.  A
    court must, therefore, consider all the circumstances in which the accused
    spoke to determine whether a statement given to a police officer was made
    voluntarily:
R. v. Oickle
, at para. 68.

[42]

Because
    of the factual nature of a voluntariness determination, a trial judges finding
    that a confession was made voluntarily is owed deference on appeal:
R. v.
    Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17. If the trial
    judge applied the proper legal test and considered the relevant circumstances
    surrounding the confession, a court of appeal should only overturn the
    determination if a palpable and overriding error tainted the trial judges
    assessment:
R. v. Oickle,
at para. 71.

[43]

The
    appellant submits that the trial judge did not apply the proper test.  In
    finding the appellants statement voluntary he did not take into account that
    the appellant was not told and was unaware of the consequences of speaking to
    the police.  The trial judges ruling, therefore, cannot stand.  I do not
    accept this submission because I do not accept that the appellant was unaware
    of the consequences of speaking to the police.

[44]

I
    accept the trial judges finding that the appellant was cautioned about his
    right to silence.  However, the trial judge did not find that the appellant was
    told the police were conducting a criminal investigation.  There is some case
    law supporting the appellants position that not being aware of the
    consequences of speaking to the police is a relevant circumstance in assessing
    voluntariness.  Watt J., for example, made this point in
R. v. Worrall
,
    [2002] O.J. No. 2711 (S.C.), at para. 106 :

Voluntariness implies an awareness about what is at stake
    in speaking to persons in authority, or declining to assist them
.  Neither
    Detective Constable Chiasson nor Detective Scott told Joseph Worrall (after
    this disclosure) that what he said could be used in his prosecution for an
    offence arising out of his conduct in connection with the death of Brendan
    Carlin. [Emphasis added.]

[45]

Assuming
    that knowledge of the consequences of making a statement to the police is a
    relevant consideration in determining voluntariness, I have no doubt that this
    appellant was fully aware of the consequences of speaking to Sutton.  The
    appellant is an intelligent and highly-educated man.  Suttons line of
    questioning at the police station was not misleading; she confronted the
    appellant directly with Es allegations.  He knew what the police were
    investigating.

[46]

The
    appellant also appears generally knowledgeable about the potential legal consequences
    of his actions.  After he was interviewed by the CAS, for example, he consulted
    a lawyer.  And the most telling evidence that he was aware of the consequences
    of speaking to the police was his refusal to provide Sutton with details of the
    touching, instead telling her he did not see why he needed to answer her
    questions.  These reasons are sufficient to dispose of this ground of appeal.

[47]

There
    is, however, another basis for not giving effect to the appellants argument on
    the admissibility of his statement to the police.  Even if the trial judges
    ruling was in error, the error was harmless.  The appellants admission of
    wrong doing to Sutton added nothing to the acknowledgement of wrong doing that
    he had already made to E and especially to the CAS representative.  These
    acknowledgements were all admissible at trial.

[48]

I
    would not give effect to this ground of appeal.

(2)

Did the trial judge
    err in his evaluation of Es credibility?

[49]

The
    appellant submits that the trial judge erred in his assessment of Es
    credibility.  His argument has three prongs:

·

The trial judge erred by failing to consider Es motive to
    fabricate;

·

The trial judge erred by relying on the fact that E did not claim
    she had oral sex or intercourse to support her credibility;

·

The trial judge erred by failing to consider the significance of the
    contradictory evidence of Es younger sister, L.

(a)

Motive to fabricate

[50]

The
    appellant contends that Es evidence showed she had a motive to fabricate her
    allegations of abuse and that the trial judge failed to address this evidence. 
    The motive arose because of her feelings of ill will towards her family and
    their determination to ostracize and isolate her.  The appellant points out that
    E admitted to entertaining thoughts of revenge.  I do not accept the
    appellants contention for several reasons.

[51]

First,
    in the light of the appellants own admission of sexual abuse, E could hardly
    be said to have fabricated her allegations.  The most that the appellant can
    claim is that she exaggerated them.

[52]

Second,
    I do not see in the record any clear evidence of even a motive to exaggerate. 
    That E was upset with her family, even angry with her family, was to be
    expected.  They did not support her in coming to terms with her abuse, and she
    was estranged from them.  However, her motive in going to the police was simply
    to protect her sisters from abuse.  Although in cross-examination she candidly
    acknowledged she had feelings of anger toward her family and wanted to get back
    at them, she also testified that these feelings were as a fleeting thought,
    perhaps.

[53]

Third,
    in two passages germane to this ground of appeal, the trial judge carefully
    considered Es credibility and her motives in reporting the abuse to the police. 
    At the beginning of his assessment of Es credibility, the trial judge said:

I found the complainant to be an extremely impressive and
    credible witness.  She withstood a lengthy and probing cross-examination which
    included numerous references to the troubling process of her lengthy period of
    counselling.  I find it difficult to accept that she would expose herself to
    such disturbing questions which include references to two episodes of attempted
    suicide and multiple episodes of self-mutilation if she was prepared to
    exaggerate her complaints for the purpose of avenging herself on the family
    that has abandoned her.  This simply does not accord with normal human
    experience and I reject any suggestion that she has manufactured any of her complaints. 
    I accept that she threatened to go to the police in 2005 with her complaints
    but I am satisfied that she did so as a last resort effort to get her property
    out of the family home having been stonewalled in her efforts up to that
    point by the accused and her mother.

[54]

Then
    the trial judge addressed the process by which E eventually brought her
    allegations out in the open:

The complainant has given a reasonable explanation for not
    taking her allegations outside the family given her perception of the impact of
    doing so on her mother and, most importantly, the solemn promises from her
    molester father that he would not repeat his abuse.  In addition, I am not
    prepared to draw any adverse inference from the delayed and incremental
    disclosure of the extent of the invasiveness of the abuse in this case.  The
    numerous references in the counselling records disclosed at trial satisfy me
    that this was a long, torturing experience for the complainant before she was
    able to articulate these details.

[55]

These
    two passages show that the trial judge considered Es reasons for reporting the
    appellants abuse and that he rejected the notion that she had any motive to
    lie about or embellish her allegations.

(b)

Absence of
    allegations of oral sex or intercourse

[56]

In
    finding Es evidence credible, the trial judge said:

As well, it is noteworthy that, if the complainant was prepared
    to falsify and exaggerate her complaint against her stepfather, she did not
    play the trump cards of an allegation of penile penetration, fellatio or
    cunnilingus.

[57]

The
    appellant submits that the absence of more serious allegations of sexual abuse
    does not support the credibility of the allegations E did make.  Even if the
    appellant is correct, this brief passage from the trial judges reasons was not
    essential to his finding that Es testimony was credible.  This passage comes
    at the end of his assessment of her credibility, after he had already accepted
    her evidence.  Bearing in mind the significant deference accorded to a trial
    judges credibility findings, this one passage does not provide a basis for
    appellate intervention.

(c)

Ls contradictory
    evidence

[58]

The
    trial judge accepted that Ls contradictory evidence concerning the camping
    trip in Algonquin Park and the alleged abuse while she and E shared a bedroom
    raised a reasonable doubt about the appellants guilt on counts 7 and 8, and on
    part of the timeframe for counts 9 and 10.  The appellant submits that the
    trial judge erred because he failed to consider the effect of Ls evidence on Es
    overall credibility.

[59]

I
    do not agree with this submission.  A trier of fact, of course, is entitled to
    accept all, some or none of a witnesss evidence.  And even though the trial
    judge accepted Ls evidence in connection with some of the incidents, he still
    held that all these incidents probably took place given the compelling nature
    of Es testimony and the accuseds partial admission of criminal liability. 
    He also harboured lingering suspicion that [L] has been indoctrinated to
    support her father on these charges.  Taking into account these observations, and
    the trial judges finding that E was an extremely impressive and credible
    witness, it is inconceivable that Ls evidence would affect the trial judges
    assessment of Es overall credibility.

[60]

I
    would not give effect to this ground of appeal.

[61]

Accordingly,
    I would dismiss the conviction appeal.

D.

the sentence appeal

[62]

The
    trial judge sentenced the appellant to five years in the penitentiary.  The
    appellant submits that this sentence exceeds the proper range for these
    offences and this offender.

[63]

In
    assessing this submission, I begin with the trial judges reasons.  The trial
    judge correctly noted that the primary sentencing objectives were denunciation
    and deterrence.  He also correctly noted the several aggravating circumstances
    of these crimes.  They include:

·

The appellant committed a gross breach of parental trust by
    abusing his step-daughter.  Abuse of a position of trust toward a victim, and
    abuse of a person under age 18 are deemed by s. 718.2(a) of the
Criminal
    Code,
R.S.C., 1985, c. C-46, to be aggravating circumstances on sentence.

·

The appellants sexual molestation of his step-daughter occurred
    frequently, and at times was unrelenting.

·

The offences took place over a long period of time (eight years).

·

These offences have had a devastating impact on the victim, E. 
    Her entire well-being, but principally her emotional well-being, has been
    affected.  Twice she has attempted suicide.  Almost unimaginably to any
    right-thinking person, her entire family has turned on her for reporting the
    abuse, so that she is now almost completely isolated from her mother and her
    siblings.

[64]

The
    trial judge also referred to several of the mitigating circumstances
    surrounding these offences:

·

The appellant had no previous criminal record.

·

He sought professional help and counselling for what he had done.

·

He has a stellar professional reputation, and has done much to
    benefit society, including, for example, volunteering in developing countries.

·

He has shown some remorse, albeit limited.  However, I
    acknowledge that the trial judge found on a balance of probabilities the
    appellant was not genuinely remorseful for the abuse of E.

[65]

In
    the light of these circumstances and the nature of the offences, is a five-year
    penitentiary sentence excessive? Over 20 years ago, in
R. v. B.(J.)
(1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a
    person in a position of trust sexually abuses a child, and the abuse includes
    sexual intercourse, the range of sentence is three to five years in the
    penitentiary: para. 5.  In this case, the appellants abuse of E did not
    include sexual intercourse.

[66]

However,
    several decisions of this court in the last decade demonstrate that the range
    outlined in
R. v.

B.(J.)
is no longer appropriate.  We have
    recognized that sexual abuse of children by a person in a position of trust or
    authority now warrants more severe sentences, and where the abuse includes
    sexual intercourse, in most cases, a three- to five-year range is too low.  The
    trial judge referred to one of our decisions,
R. v. D.(D.)
(2002), 58
    O.R. (3d) 788, and cited Moldaver J.A.s oft-quoted statement that as a
    general rule, when adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms: para. 44.  See also:
R. v. D.M.
, 2012 ONCA 520,
    111 O.R. (3d) 721.

[67]

However,
    even taking account of our courts more recent jurisprudence, I agree with Mr.
    Breen that a sentence of five years imprisonment for the appellant exceeds an
    appropriate range.  I would reduce the appellants sentence from five years to four
    years in the penitentiary.  I would do so for two main reasons.

[68]

First,
    in those cases where this court has either upheld or imposed penitentiary
    sentences of five years or more, one or more of the following aggravating
    circumstances has been present:

·

Sexual intercourse (vaginal or anal)

·

Oral sex

·

Incest

·

More than one victim

·

Grooming of the victim

·

Other acts of physical violence or threatened physical violence
    to obtain compliance and keep the abuse secret

·

A previous criminal record for sexual abuse

[69]

Examples
    of these cases in recent years include
R. v. P.M.
, 2012 ONCA 162, 282
    C.C.C. (3d) 450;
R. v. Cloutier
, 2011 ONCA 484;
R. v. J.L.
,
    2009 ONCA 788;
R. v. D.G.F.
, 2010 ONCA 27, 98 O.R. (3d) 241;
R. v.
    W.Q.
(2006), 210 C.C.C. (3d) 398 (C.A.);
R. v. R.B.
(2005), 77
    O.R. (3d) 171 (C.A.).

[70]

In
    this case, not one of these aggravating circumstances is present.

[71]

Second,
    this court has either upheld or imposed sentences of less than five years for
    seemingly more egregious conduct:

·

In
R. v. I.F.
, 2011 ONCA 203, this court imposed a four-year
    sentence for a man who abused his three step-granddaughters over an eight-year
    period; the abuse included fondling, masturbation, oral sex, and acts of
    grooming.

·

In
R. v. C.B.
, 2008 ONCA 486, 237 O.A.C. 387, this court
    upheld a three-year sentence for a man who abused his niece when she was
    between 12 and 16 years old.  The abuse included fondling and digital
    penetration; the victim also reported that her uncle would get on top of her
    with his shorts pulled down and she would feel something going inside of her:
    para. 7.  At times, the abuse was accompanied by threats.

·

In
R. v. B.A.
, 2008 ONCA 556, 238 O.A.C. 198, this court
    imposed a three-and-a-half year sentence for a man who abused both a girl he
    watched while her mother was at work, and the girls friend.  The abuse
    included digital penetration, oral sex, one act of vaginal intercourse, and
    acts of violence and humiliation.

·

In
R. v. G.A.G.
(2006), 206 O.A.C. 131, this court
    upheld a sentence of four years and six months imprisonment for a man who
    abused his son over many years.  The abuse included mutual masturbation and
    oral sex.

·

In
R. v. A.G.
(2004), 190 C.C.C. (3d) 508, this court
    imposed a two-year sentence for a man who abused his 12 year old niece; the
    abuse included fondling, attempted fellatio, and attempted intercourse.  The
    victim struggled fiercely during the assaults.

[72]

Although
    in several of these cases the accused relied on mitigating factors not present
    in this appeal, these cases still demonstrate that sentencing the appellant to
    five years imprisonment would be inconsistent with the jurisprudence of this
    court.

[73]

However,
    the frequency and duration of the appellants sexual abuse demands a severe
    sentence.  The trial judge accepted Es evidence that this abuse occurred many,
    many times over an eight-year period.  The appellant often entered Es bedroom
    in the middle of the night, while she lay sleeping in her bed, to perpetrate
    the abuse.  His assaults continued despite Es disclosure to her mother and several
    conversations with the appellant about his behaviour.  The appellants
    acknowledgements, apologies, and promises to reform, followed as they were by
    renewed abuse, have undoubtedly contributed to Es trauma.  Notably, although
    the appellant professed contrition, he allowed E to become isolated from her
    family and chose to put her through a trial.

[74]

For
    these reasons, I would sentence him to four years in the penitentiary.

E.

conclusion

[75]

I
    would dismiss the conviction appeal.  I would grant leave to appeal sentence,
    allow the sentence appeal and reduce the appellants sentence from five years
    to four years in the penitentiary.

Released: Dec. 20, 2012

JL                                                                    John
    Laskin J.A.

I
    agree E.A. Cronk J.A.

I
    agree Alexandra Hoy J.A.


