



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Shilling, 2021 ONCA 916

DATE: 20211220

DOCKET: C68825

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hubert Nathanial Shilling

Appellant

Lynda Morgan and Laura Metcalfe, for
    the appellant

Michael Dunn, for the respondent

Heard: December 16, 2021

On appeal from the convictions entered by
    Justice Vanessa V. Christie of the Superior Court of Justice on August 28, 2019,
    with reasons at 2019 ONSC 5038, and from the sentence imposed on January 31,
    2020, with reasons at 2020 ONSC 1193.

REASONS FOR DECISION

I.

INTRODUCTION

[1]

The trial in this judge-alone proceeding was not
    complex. It took less than a full day of court time and turned on whether the
    trial judge accepted the complainants evidence. The trial judge delivered her
    reasons the day after trial. After finding the complainant both credible and
    reliable, the trial judge convicted the appellant of two counts of sexual
    interference. He was sentenced to four and a half years in prison. He appeals
    from conviction and seeks leave to appeal sentence. He also brings a fresh
    evidence motion in support of his sentence appeal.

[2]

At the conclusion of the oral hearing of the
    appeal, we advised the parties that the motion and the appeals were dismissed,
    with reasons to follow. These are the promised reasons.

II.

BACKGROUND IN BRIEF

[3]

The appellant and the complainants mother were
    in a romantic relationship. The complainant moved in with the appellant in
    April or May 2015; her mother and two siblings moved into the appellants
    residence in June 2015. The family moved out in October 2016, at the
    appellants request, in part because of the complainants behaviour and her
    disobedience in following the appellants house rules, including doing chores.

[4]

Around December 2016, the complainants mother
    and the appellant became friends again. The family began visiting at the
    appellants house and, at times, the children were left with the appellant when
    the complainants mother went to work.

[5]

The complainant said that two incidents of
    sexual assault occurred while she, her mother, and her siblings lived with the
    appellant. The first incident happened under the blankets on a bed in the
    appellants bedroom while her siblings were sitting on the floor watching a
    movie in the same room. The second occurred on the couch while her mother was
    at work and her siblings were at the park. The complainant disclosed the incidents
    to her mother in the summer of 2017.

[6]

At trial, the only issue was whether the events
    actually occurred, a matter which turned on the credibility and reliability of
    the complainants testimony. The trial judge found that, despite some minor
    inconsistencies in the complainants testimony and recollection: she was an
    honest witness; her testimony was detailed in many respects; she considered her
    answers when she was unsure of them; she admitted when she did not remember
    something; and, she was not shaken in cross-examination in any significant way.
    After noting that corroboration is not required, the trial judge found that
    parts of the complainants testimony were corroborated by her mothers evidence.

[7]

There are two aspects of the defence position at
    trial that are relevant to this appeal. The first was the defence suggestion that
    the complainant had a motive to fabricate the incidents  she did not want to return
    to the rules and chores of the appellants household and was concerned that the
    family was slipping back into that routine. The second was that the
    complainants account of the assaults was inherently implausible.

[8]

The trial judge rejected the suggestion that the
    complainant was motivated to lie because she was concerned about having to move
    back with the appellant and she did not like the house rules. When the
    complainant disclosed the incidents to her mother, there was no suggestion that
    she would have to live with the appellant again because the relationship
    between her mother and the appellant at that time was simply a friendship.

[9]

The trial judge also rejected the defence
    suggestion that the incidents were improbable or impossible. The evidence about
    the couch and those involved made that incident neither improbable nor
    impossible. In terms of the bedroom incident, the trial judge found that the
    appellant could hold the complainant down with his arm and pull down both her
    pants and his. She also found that he tried to cover up the activities by placing
    a blanket over them. She further found that the other children in the room, who
    were only seven or eight years of age, were on the floor looking in the other
    direction while watching a movie, and there was no significant noise that would
    have attracted their attention.

III.

THE CONVICTION APPEAL

[10]

The appellant submits that the trial judge erred
    in:


i.

failing to properly consider the complainants
    motive to lie;


ii.

assuming the appellants guilt and relying on
    unsupported assumptions when assessing how the risk of detection impacted the
    complainants credibility (the circular reasoning argument); and


iii.

finding the mothers evidence corroborated the
    complainants testimony.

[11]

In our view, the trial judge committed none of
    the alleged errors.

IV.

ANALYSIS

Proper Consideration of the Complainants
    Motive to Lie

[12]

The appellant contends that the trial judge used
    a purely objective analysis to decide whether the complainant had a motive to
    lie. We see nothing in this contention.

[13]

The trial judge did not use words associated
    with an objective analysis, such as the reasonable person. Her reasons are
    grounded in her findings of fact about what was happening in the complainants
    life at the time that she disclosed the incidents to her mother. We also note
    that the suggestion that the complainant lied because she did not want to
    return to the appellants home because of his rules was never put to the complainant.
    And, in any event, as the trial judge found, at the time of disclosure there
    was no suggestion that the complainant would have to live with the appellant
    again.

No Circular Reasoning

[14]

The appellant submits that the trial judge assumed
    his guilt in rejecting the defence argument that it would not make sense that
    the appellant would assault the complainant while her siblings were in the same
    room.

[15]

Again, we see nothing in this submission. The
    trial judge did not assume the appellants guilt. Rather, she explained why she
    accepted the complainants description of the assault in the bedroom, a summary
    of which can be found above. There is nothing circular in her reasoning; it is
    solidly grounded in the evidence.

No Error in the Use of the Mothers Evidence

[16]

The appellant submits that the trial judge fell
    into error when she said that the evidence of the complainants mother
    corroborated that of the complainant. We see nothing in this submission.

[17]

As already noted, the trial judge began by observing
    that corroboration was not necessary. And, the trial judge did not use the
    mothers evidence to bolster the complainants credibility. The trial judge summarized
    those parts of the mothers evidence that confirmed the complainants evidence
    on matters such as the complainants behaviours that led to her moving to the
    appellants home, the complainants dislike of the rules at the appellants home,
    that they all watched movies together, and the setup of the appellants home.

V.

THE FRESH EVIDENCE MOTION

[18]

The appellant moves to have fresh evidence
    admitted in support of his sentence appeal. Based on the fresh evidence, he asks
    this court to reduce his sentence from four and a half years to three years.

[19]

The fresh evidence relates to two matters that occurred
    while the appellant has been serving his custodial sentence. First, the
    appellant contracted COVID-19 in December 2020. His symptoms lasted for
    approximately four days and he spent that time in isolation in a cell. He says
    he experienced heightened anxiety as a result of the COVID-19 diagnosis and
    isolation. Later that month, he had a major anxiety attack. Second, in February
    2021, a psychodiagnostics assessment report (the Report) said the appellant had
    post-traumatic stress disorder (PTSD).

[20]

The fresh evidence consists of a short affidavit
    from a lawyer who works in the law firm that represents the appellant. The
    affidavit is based on the following documents, which were appended to the
    affidavit: media articles; a document from Correctional Services Canada dated
    May 25, 2021 regarding the status of COVID-19 in penitentiaries; four inmate
    communiques from December 2020 and January 2021 related to Joyceville
    Institutions response to COVID-19; a letter advising the appellant he had
    contracted COVID-19; and, the Report.

[21]

In our view, the proposed fresh evidence could
    not be expected to affect the sentence. Moreover, some of it  such as the
    media articles  is inadmissible because it constitutes untestable hearsay. The
    Report should not be admitted because it is not fresh  it simply confirms
    evidence already before the trial judge. An example of this is the information
    on the appellants difficult childhood. To the extent that the PTSD diagnosis
    is fresh, that diagnosis could have been provided prior to sentencing. The
    evidence on the appellants experience with COVID-19 could not be expected to change
    the sentence which must remain proportionate to the gravity of the offence and
    the moral blameworthiness of the appellant:
R. v. Morgan
, 2020
    ONCA 279, at paras. 10-11.

[22]

While COVID-19 was a collateral consequence for
    the appellant, it cannot be used to reduce the sentence to a point where it is
    no longer fit:
Morgan
, at paras. 9-11. For the reasons given on the
    sentence appeal, below, a change in sentence would render the sentence no
    longer fit.

[23]

The appellants specific evidence of contracting
    COVID-19 and any health-related problems that may arise from his incarceration
    are matters best dealt with by the Parole Board of Canada through the powers
    provided to it under the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20, s. 121(1):
R. v. Premji
, 2021 ONCA 721, at para. 10.

VI.

THE SENTENCE APPEAL

[24]

The appellant submits that the trial judge erred
    by failing to take into account the totality principle and his sentence is
    manifestly unfit.

[25]

We disagree.

[26]

In her reasons, the trial judge stated she was
    required to take totality into account when imposing sentence and it is evident
    on a reading of her reasons that she did so.

[27]

As for the fitness of sentence, we note the
    following. The appellant was in a position of trust in relation to the
    complainant, having taken on the role of a step-parent. He committed two
    separate, serious acts of sexual interference on the complainant when she was a
    child of between 11 and 14 years of age. And, he has a related criminal record,
    having a prior conviction for sexual assault. Mid-single digit penitentiary
    terms for sexual offences against children are normal: see
R v. Friesen
,
2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 5, 114. The sentence imposed here
    falls within that range.

VII.

DISPOSITION

[28]

Accordingly, the motion to admit fresh evidence and
    the conviction appeal are dismissed. While leave to appeal sentence is granted,
    that appeal is also dismissed.

E.E. Gillese
    J.A.

David Brown
    J.A.

S. Coroza J.A.


