



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. R.B., 2017 ONCA 74

DATE: 20170126

DOCKET: C59056

Weiler, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

Jill D. Makepeace, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 9, 2017

On appeal from the conviction entered on June 10, 2014
    and the sentence imposed on October 16, 2014 by Justice R. Dan Cornell of the Superior
    Court of Justice.

ENDORSEMENT

[1]

Following a successful severance application the appellant underwent two
    separate trials. On March 6, 2014 he was found guilty of sexual assault in
    relation to K.O. (see C58815), the companion appeal, and sentenced to 28 months
    imprisonment. For the reasons given we have dismissed that appeal.

[2]

In this appeal, the appellant was also found guilty of sexual assault
    and invitation to touching a person under the age of 14 for a sexual purpose.
    The sexual assault conviction was conditionally stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. The focus of the submissions on this
    appeal is the appellants sentence which is four years to run consecutively to
    his 28 month sentence for the sexual assault in C58815.

[3]

The appellant was in a relationship with the complainants mothers best
    friend, Krista. The complainant, who was three years old at the time, told her
    mother that on occasions when they slept over at the apartment of Krista and the
    appellant, the appellant would take the complainant into the bathroom and pee
    in [her] mouth at night when everyone was asleep. He would angrily tell her to
    swallow it which she sometimes did to make him happy. This happened on
    approximately ten occasions over a seven month period. The appellant denied the
    allegations.

(1)

Conviction appeal

[4]

On the conviction appeal, the appellant relies on his factum. In it, the
    appellant submits that the trial judges reasons for conviction were
    insufficient because the trial judge failed to acknowledge that the claimant
    had recanted her allegations and also recanted allegations she made against
    others.

[5]

He also asserts that the trial judge misapprehended the evidence by
    mischaracterizing certain issues as peripheral. This included the claimants
    evidence on the distance from the sofa bed to the bathroom, the appellants
    attire and the improbability of a sexual assault while the claimants mother
    was sleeping in such close proximity to the location of the assaults.

[6]

Deficiency in reasons is not a free-standing ground of appeal. They must
    be so deficient as to foreclose meaningful appellate review:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 25. That is not this case. The trial
    judges reasons fulfilled their function of explaining why the appellant was
    convicted.

[7]

The submission that the trial judge did not give consideration to the
    complainants recantation of her allegation of sexual assault is not borne out
    by the trial judges reasons. The reasons do refer to the fact that the
    complainant told her mother that she was joking about the sexual assault that
    allegedly took place in May 2010. The recantation took place about a week after
    the mother confronted the appellant and his girlfriend with the allegation and
    the appellant convinced the mother it was false. At trial, the mother testified
    that her three year old daughter did not understand the concept of a joke at
    that time. In August 2010, the complainant was in the back seat of a vehicle
    with her mother and step-father in front and spontaneously handed up a drawing
    of a penis. A few days later, the appellant delivered a wall unit and
    television to the complainants mother. Upon seeing the appellant she became frightened
    and hid behind her mother. After the appellant left, she told her mother, I
    have to tell you something Mommy, its something bad. The mother called her
    common law husband to sit down and the complainant said to them both, It is
    not a joke, mommy, Uncle Rolly did pee in my mouth. Following this, the
    complainant steadfastly maintained her allegation. The fact the trial judge did
    not comment further on the alleged joke is indicative that, insofar as he was
    concerned, the evidence of the joke did not have a material impact on the
    complainants credibility. Having regard to the context, we agree that the
    trial judge was not required to consider it further.

[8]

As for the statement the claimant made to the police that her stepfather
    had flicked her and that she had seen her fathers bum on one occasion,
    neither is an allegation in the real sense. The father was never asked about
    the flick; the stepfather acknowledged that when he was stepping out of the
    shower on one occasion he had dropped his towel within sight of his
    step-daughter. The fact that the complainant denied making these allegations
    at trial did not rise to a level of significance that required comment by the
    trial judge. Similarly, the distance to the bathroom from where the complainant
    and her mother slept was peripheral.

[9]

The appellant testified that when he was at home he always changed into
    a t-shirt and he either wore jeans or, since 2003, a pair of knee length purple
    shorts with white flowers on them and that he had never worn pyjamas. The
    complainants evidence as to the appellants attire was conflicting and
    inconsistent. The trial judge acknowledged the conflict in the evidence and
    that this aspect of the complainants evidence was unreliable. He also
    addressed a number of other problematic aspects of the complainants evidence
    such as the improbability of the complainant being sexually assaulted with her
    mother in close proximity. A trial judge may accept all, some or none of a
    witness testimony. The trial judge explained in detail why he accepted the
    complainants allegation against the appellant, addressed the appellants
    evidence and explained why he rejected it. The trial judges reasons are
    entitled to deference and do not disclose error.

[10]

The Crown applied successfully to have the convictions and facts found
    in C58815 admitted as similar fact evidence in this trial. The similar fact
    evidence, which the trial judge accepted, corroborated the complainants
    evidence, although the trial judge indicated he would have come to the same
    conclusion without it. The appeal from conviction is dismissed.

(2)

Sentence appeal

[11]

We turn now to the sentence appeal. The appellant and respondent agreed
    that 1) the appellant was to be sentenced as a first offender; 2) the appellant
    had been sentenced to 28 months for the other offence; and 3) the totality
    principle applied.

[12]

The Crowns submissions on sentencing at trial were confusing. When
    defence counsel gave his submissions, he suggested to the trial judge that the
    Crown had been inconsistent, at times asking for 24-30 months consecutive, and
    at times submitting that the global sentence should be 5-6 years (which would
    be 32-40 months for the present offence). The trial judge responded:

I will call upon him again, but I asked him two or three times
    what an appropriate total sentence would be and he can correct me if Im wrong,
    but I clearly heard him say, on no less than three occasions, five to six years
    for these remaining three charges.
You have correctly
    pointed out that even on his own math, we dont get to six years, we get to
    approximately five years, so I will work with five years.
Thats what
    his position is, that if there had been one trial, a conviction on all three
    charges, that the Crown would have been asking for, for arguments sake, five
    years. I put the same question to you, if this had been one trial, and your
    client had been convicted on those three counts, what is your submission as to
    the proper length of the sentence? [Emphasis added.]

[13]

The position of the defence was that an appropriate sentence was 12
    months consecutive to the 28 months already given following the appellants
    other trial.

[14]

In his reasons for sentence, the trial judge reviewed the factual
    background and the position of the parties. In doing so, he stated, The Crown
    has submitted that the appropriate range of sentence in connection with both of
    the indictments that were before the Court is four to six years.

[15]

The trial judge then reviewed the jurisprudence and distinguished the
    cases on which the appellant relied, reviewed the victim impact statement, the
    fundamental purpose and principles of sentencing, the appropriate range of
    sentence for this type of crime, the aggravating and mitigating factors, and
    the totality principle. However, he ended up imposing a sentence of four years
    imprisonment to be served consecutive to the 28 months. This amounted to a
    global sentence of six years and four months. The defence had not been given notice
    that the trial judge intended to jump the Crowns submissions and accordingly
    made no submissions on such a sentence.

[16]

The appellant contends that in saying, I will work with five years
    during counsels submissions, the maximum global sentence available to the trial
    judge in the absence of notice was five years.

[17]

The appellants position on appeal is that a sentence of 24 to 30 months
    consecutive to the 28 months (which would result in a global sentence of 52-58
    months) is warranted.

[18]

The Crown submits that the trial judges comment did not bind him to
    five years. He submits that the trial judge was entitled to impose the sentence
    he did as the sentence only slightly exceeded the upper end of the range of six
    years the Crown mentioned.

[19]

While there is disagreement between counsel on the extent to which the
    Crowns submission as to a global sentence was exceeded, there is no question
    that the trial judge imposed a sentence that exceeded the Crowns position. A
    trial judges failure to provide the parties with an opportunity to make
    further submissions in such an instance is an error in principle. Ideally, if
    the trial judge does impose a sentence in excess of the Crowns position, the trial
    judge should explain the reason for doing so. Here he did not. See
R. v.
    Hagen
,

2011 ONCA
    749, at para.5;
R. v. Menary
,

2012 ONCA 706, 298 O.A.C. 108, at para. 3,
R. v. Grant
,

2016 ONCA 639, 351 O.A.C. 345,
    at paras. 164-167.

[20]

Clearly the error in principle resulted in procedural unfairness and
    also had an impact on the sentence such that appellate intervention is justified.
    See
R. v. Lacasse
[2015] 3 S.C.R. 1089. Having regard to the trial
    judges error in principle, this court is entitled to reassess the sentence
    imposed and to impose a fit sentence.

[21]

In
R. v. D.D.
(2002), 58 O.R. (3d) 788 (C.A.), at para. 44,
    Moldaver J.A., as he then was,

explained 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. In
    this case, the number of times the abuse occurred, namely, ten times, and the
    seven month period of time over which the abuse occurred in proportion to the
    little girls age, 36 months, is substantial. The nature of the offence was
    serious, invasive, and the degrading nature of the offence was added to by the
    appellants demand that she swallow his semen. Although the appellant, an adult
    of about 35 at the time, did not overtly threaten the little girl, he is a
    large man who used an angry tone towards her that was frightening. She was
    taught to refer to the appellant as uncle and he was in a position of trust
    towards her, albeit at the low end of the spectrum. In our opinion a fit
    sentence is a global sentence of six years.

[22]

Accordingly, we grant leave to appeal sentence, allow the appeal as to
    sentence, set aside the sentence imposed and substitute a sentence of 44 months
    consecutive.

Karen M. Weiler J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


