



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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.O., 2015 ONCA 814

DATE: 20151125

DOCKET: C57676

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.O.

Appellant

Erika Chozik, for the appellant

Lucy Cecchetto, for the respondent

Heard: May 7, 2015

On appeal from the conviction entered by Justice Linda Walters
    of the Superior Court of Justice, sitting with a jury, on August 7, 2013, and from
    the sentence imposed on September 26, 2013.

Tulloch J.A.:

FACTS

[1]

The appellant appeals against his conviction on one count of sexual
    assault and one count of sexual interference, following a six-day trial by a
    judge and jury. He also appeals his sentence of seven years incarceration.

[2]

The charges arise from allegations by the complainant of a prolonged
    period of sexual abuse that occurred between May 2002 and October 2008, when
    she was 7 to 13 years of age. The complainant was the stepdaughter of the
    accused. The abuse began with touching over the complainants clothing and
    escalated to intercourse and oral sex.

[3]

After the appellant and the complainants mother separated in 2006, the
    complainant moved between their homes. In 2007, the complainants brothers were
    both living with the appellant when the complainant asked to join them. By the
    fall of 2007, all four of the appellants children and stepchildren were living
    with him. They lived together until October 2008.

[4]

At trial, the complainant testified that after the appellant and her
    mother separated, the appellant would supply drugs and alcohol to her, her
    older brother, and her step-sister. She was allowed to do whatever she wanted,
    which included skipping school, drinking alcohol, and smoking drugs. The
    complainant was described as defiant and out of control by her mother and the
    appellant.

[5]

The complainants evidence was to some degree corroborated by her
    brother, who testified that the appellant supplied him and the complainant with
    drugs and alcohol, and that the complainant would routinely sleep in the
    appellants bed. The complainants brother also described that, on at least one
    occasion, he observed what he determined to be inappropriate sexual behaviour
    between the two.

[6]

Eventually, the complainant disclosed the sexual assaults to her mother
    and a report was made to the police. On November 4, 2008, police seized a used
    condom from the appellants bedroom in his home. The appellants semen and the
    complainants DNA were present on the condom.

[7]

The appellant raises four grounds of appeal:

1)

The trial was rendered unfair due to the admission of evidence of
    discreditable conduct. The limiting caution given in relation to this evidence
    was insufficient to cure the prejudice caused.

2)

The trial judge erred by allowing the Crown to invite the jury, in the
    absence of expert evidence, to infer that the complainants allegations of
    abuse were corroborated by her behaviour.

3)

The exhortation given by the judge to the jury was improper.

4)

The sentence of seven years is excessive due to the trial judges
    failure to appropriately take into consideration the five years he spent on
    strict bail conditions.

ANALYSIS

(1)

Was the trial rendered unfair due to the admission of evidence of
    discreditable conduct? Was the limiting instruction given in relation to this
    evidence sufficient to cure any resulting prejudice?

Positions of the Parties

[8]

The appellant submits that the jury heard a significant amount of
    evidence about his bad character. This included irrelevant details about his
    relationship with the complainants mother, that he had a 19-year old
    girlfriend, kept his house in a poor state, neglected his youngest child, sold
    drugs, and was alleged to have assaulted his sister when they were young. The
    appellant argues on appeal that his character and lifestyle were clearly put on
    trial. This was not relevant to the sole issue at trial  whether he had
    committed the sexual abuse alleged by the complainant. The admission of this
    evidence was improper and rendered the trial unfair.

[9]

The appellant further submits that the risk associated with evidence of
    disreputable conduct is so great that the jury might have misused the evidence
    and convicted the accused unfairly even if given proper instructions. In this
    case, the caution by the trial judge was insufficient.

[10]

The
    Crowns position is that the evidence of drug and alcohol use and the living
    conditions at the appellants home were necessary and relevant to establish the
    nature of the relationship between the appellant and the complainant, explain
    why she did not complain, and explain why she wanted to continue to live with
    the appellant, despite the abuse. This evidence was also relevant to the
    appellants attack on her credibility. The state of the house was relevant to
    the circumstances in which the condom was found.

[11]

The
    Crown submits that the bad character evidence went in as part of a strategic
    decision by defence counsel. In fact, it was the appellant who caused it to be
    introduced. His strategy was to depict the complainant as out of control,
    addicted to drugs and alcohol supplied by others, and as a person who made
    false allegations against people. No issue about the competence of trial counsel
    has been raised. Finally, the jury instruction on the evidence was adequate and
    approved by defence counsel.

Discussion

[12]

I
    would first note that the admissibility of the evidence of discreditable
    conduct was not raised at trial. The trial judge was not asked to rule on the
    admissibility of any of this evidence, as there were no objections by counsel.

[13]

The
    failure to object to the admissibility of evidence at trial is not fatal to an
    appeal. However, it is more difficult for this court to undertake the required
    analysis based on a record where the defence chose not to litigate the
    admissibility of the evidence at trial. In
R. v. Bero
(2000), 137
    O.A.C. 336, Doherty J.A. commented, at para. 12:

Absent any suggestion of ineffective representation at trial,
    or some other adequate explanation for the absence of any objection to
    admissibility at trial, I would not give effect to an argument that comes down
    to the contention that an accused should receive a new trial on the ground that
    had he chosen to challenge the admissibility of evidence at trial he might have
    been successful.

[14]

Not
    only were there no objections to this evidence, the defence introduced and amplified
    much of it as part of its strategy to emphasize the bad character of the
    complainant and diminish the credibility of the complainant, her mother, and
    her brother.

The Evidence of Discreditable Conduct

[15]

Character
    evidence showing only that the accused is the type of person likely to have
    committed the offence in question is generally inadmissible. However, evidence
    of relevant discreditable conduct may be admitted for a variety of legitimate
    purposes, including providing narrative or context: see
R. v. G. (S.G.
),
    [1997] 2 S.C.R. 716.

[16]

The
    ultimate issue at trial was whether the appellant had committed the sexual
    abuse alleged by the complainant. Information about the family dynamic and the
    relationship between the complainant and the appellant was necessary for the
    narrative. The credibility of the complainant and the manner in which the
    appellant allegedly carried out the offences were also relevant to the main
    issue. Character evidence has been held to be admissible for these and similar purposes:
    see, for example,
R. v. F
.
(D.S.)
(1999), 43 O.R. (3d) 609
    (C.A.), at p. 616;
R. v. C.B.
, 2008 ONCA 486, 237 O.A.C. 387, at para.
    30. In this case, the impugned evidence was relevant and admissible.

[17]

During
    oral arguments, the appellant conceded the relevance of the evidence of drug
    and alcohol use and the evidence that he was supplying drugs and alcohol to his
    children and stepchildren. I agree that this evidence was pertinent to the
    nature of the relationship between the appellant and the complaint.

[18]

This
    evidence was also relevant to the evaluation of the complainants credibility.
    The theory of the defence was that the complainant made up allegations and
    fabricated evidence so that she could live with her mother in a beautiful, new
    home. This theory required the defence to attack the complainants credibility
    and character. She was accused of lying and being out of control. Evidence
    about the freedom the complainant enjoyed while living at the appellants home,
    the drug and alcohol use, and the supply of these substances was relevant. It
    went to the determination of the complainants credibility and to understanding
    the context in which the abuse occurred. It also helped explain why she did not
    complain about the abuse when she was living with him and why she continued to
    want to live with him. These two questions were central to the defences
    theory.

[19]

The
    testimony about the family breakdown, the appellants girlfriend, and the state
    of the living conditions, were part of the context of who was living where and
    why. The living arrangements at the time of the abuse, and why the complainant
    continued to live with the appellant, were issues at trial. The credibility of
    the complainants evidence that she wanted to live with the appellant because
    there were no rules was borne out in the testimony about the state of the
    appellants home.

[20]

Evidence
    about the appellants home provided the backdrop to the information that the complainant
    would often sleep in the appellants bedroom. The state of the house was
    connected to the partying and freedom that the complainant sought and enjoyed
    at the appellants place. Evidence about the home also helped explain the
    finding of the condom.

[21]

The
    two pieces of evidence that the appellant now argues were most prejudicial were
    introduced by the complainant during her cross-examination by the defence.

[22]

The
    complainants assertion that the appellant was selling drugs was made in
    response to counsels suggestion that the appellant was providing for his
    family and would not have had money to supply the complainant with drugs.

[23]

Defence
    counsel also elicited details of a conversation between the complainant and the
    appellants sister, in which it was mentioned that the appellant had raped his
    sister when they were young. The Crown elicited from the complainant that she
    had spoken to the appellants sister about the abuse. Defence counsel asked for
    details of the conversation in an attempt to impugn the complainants
    credibility. It was at this point that the comment about the assault on the
    appellants sister was made. This line of questioning by the defence also
    confirmed that the complainant and the appellants sister were heavily under
    the influence when the conversation occurred.

[24]

In
    addition to being relevant to issues at trial, the probative value of evidence of
    discreditable conduct must exceed its prejudicial effect:
G. (S.G.)
,
    at para. 65;
F
.
(D.S.)
,

at p. 617.

[25]

As
    discussed, the lifestyle evidence was relevant and material. It was critical to
    the narrative of the relationship between the complainant and the appellant,
    went to the credibility and mental state of the complainant, and was part of
    the manner in which the appellant continued to carry out the offences. These
    were significant issues at trial, in particular because the defence theory was
    that the complainant had fabricated the allegations and possibly the evidence
    of the condom.

[26]

The
    prejudicial effect of evidence of extrinsic misconduct can impact a jury in
    three ways: i) the jury may assume, from its acceptance of the evidence of
    extrinsic misconduct, that an accused is a "bad person", thus likely
    to be guilty of the offences charged; ii) the jury may tend to punish the
    accused for the extrinsic misconduct by finding him or her guilty of the
    offences charged; and iii) the jury may become confused by the evidence of
    extrinsic misconduct, their attention deflected from the main purpose of the
    trial, the offences charged, and substitute their conclusion on the extrinsic
    misconduct for their verdict on the indictment they are trying:
R. v. J.A.T.
,
    2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52.

[27]

In
    this case, the primary concern is that the jury may have misused the bad
    character evidence by inferring guilt based on the character or disposition of the
    accused.

[28]

In
    my view, the most prejudicial evidence was about the drug use in the house and
    the appellants provision of drugs to members of his family. It was conceded
    that this was relevant to the narrative at trial, and in my view, the jury
    would not have improperly used this evidence to infer that the appellant was
    also guilty of sexually assaulting his stepdaughter when she was 7 to 13 years
    old. Though there was significant evidence about drugs and alcohol, I do not
    think the jury would have been distracted or overwhelmed by it.

[29]

Other
    issues, like the state of the appellants home and his finances, were not at
    all related to the appellants propensity to commit a sexual offence on a
    minor. Any prejudice that might have resulted was not significant. The same can
    be said about the alleged neglect of the appellants son on one day in October
    2008, which provided important context for the discovery of the abuse by the
    complainants mother. This evidence did not distract from the real issues at
    trial.

[30]

The
    evidence that the appellant had, at one time, a 19-year old girlfriend, was
    part of the context of the appellants move to Windsor. Though her age was not particularly
    relevant, I do not think it would have led to propensity reasoning. There is a
    significant difference between the sexual abuse of a family member aged 7 to 13
    and a legal relationship with a 19-year old.

The Jury Instruction

[31]

The
    trial judge brought up the need for an instruction on the bad character
    evidence. Counsel had a copy of the proposed charge and neither objected.

[32]

The
    trial judge gave a clear limiting instruction on the purpose for which evidence
    of discreditable conduct could and could not be used. The evidence could be
    used as context or background to the events that unfolded, to resolve
    discrepancies between the witnesses regarding what did and did not occur, and
    to help in assessing the credibility of various witnesses.

[33]

She
    stated that to use this evidence to reason that the appellant was the type of
    individual who would commit sexual assault was forbidden reasoning. Nor could
    the evidence be used to provoke hostility or bias against the appellant, or to
    indicate that he is deserving of punishment. In essence, the trial judge
    specifically instructed on the prejudicial effects of the evidence discussed
    above and negated any risk of prejudice.

[34]

Finally,
    a specific instruction on the complainants testimony about the appellants
    sister would have highlighted the comment. In
R. v. Beausoleil
, 2011
    ONCA 471, 283 O.A.C. 44, this court held that a limiting instruction on bad
    character evidence is not necessary in every case: para. 20. One of the
    circumstances mentioned was the likelihood that such an instruction would
    unnecessarily draw attention to the discreditable conduct. In my view, this consideration
    applies to the hearsay evidence about the appellants sister.

[35]

In
    all of the circumstances, the evidence of discreditable conduct was admissible
    and the limiting instruction was appropriate.

(2)

Did the trial judge err by allowing the Crown to invite the jury, in the
    absence of expert evidence, to infer that the complainants allegations of
    abuse were corroborated by her behaviour?

Positions of the Parties

[36]

The
    appellant submits that Crown counsel improperly invited the jury to infer that
    the appellants out of control behaviour could confirm her claim of sexual
    abuse by the appellant, and that the escalation of her bad behaviour corresponded
    to an escalation in the sexual abuse. There is no basis on which to draw an
    inference that certain behaviours were linked to sexual abuse. In the absence
    of expert testimony, there is an even greater danger that the jury might be
    left with the impression that there is a scientific basis on which to conclude
    that these behaviours make a complainants testimony more credible. Further,
    there was no instruction to the jury on the distinction between legitimate
    inference and speculation on this point. The trial judge also did not emphasize
    for the jury the other possible explanations for the complainants behaviour
    advanced by the defence.

[37]

The
    Crown submits that it was entitled to invite the jury to find that the
    complainants behavioural problems were related to the abuse and the threats
    made by the appellant to silence her. This was an appropriate argument, and not
    one that needed expert evidence.

Discussion

[38]

The
    theory of the defence was that the complainant made up allegations and
    fabricated evidence so that she could live with her mother in a new home. The
    defence strategy was to diminish the complainants credibility as much as
    possible. Understandably, highlighting her bad behaviour was part of that
    strategy.

[39]

The
    Crown was entitled to respond by arguing that the complainants problems were
    consistent with the timing of the abuse. The Crown provided a theory as to why
    she was acting out. In its closing address and again in the judges summary of
    the Crowns position, it was suggested that the complainants worsening
    behaviour was consistent with the impact that abuse would have on her. This
    theory competed with the theories put forward by the defence that the
    complainant was wild perhaps because of her parents separation, or because her
    father did not play a role in her life, or because she was associating with
    other troubled kids and had access to drugs and alcohol.

[40]

I
    disagree with the defence submission that the Crown argued for a scientific
    link or inference between the complainants behaviour and the existence of
    abuse. The Crown did not argue that the complainants behaviour confirmed the
    abuse. There was very little evidence led on this point. The Crown questioned
    the complainant about her bad behaviour, including skipping school and
    drinking, as well as the timeline of the alleged abuse. The Crown then put to
    the appellant that the complainants problems at school increased as the sexual
    abuse escalated, which the appellant denied.

[41]

No
    expert evidence was proposed on this point at trial. Expert evidence on the
    behaviour of child sexual assault victims, sometimes known as Child Sexual
    Abuse Accommodation Syndrome and popular in the 1990s, has been found to be
    inadmissible:
R. v. K. (A.)
(1999), 45 O.R. (3d) 641 (C.A.). In the
    circumstances of this case, expert evidence on the behaviour of the complainant
    and its potential causes would lend the evidence unwarranted significance. In
R.
    v. Olscamp
(1994), 95 C.C.C. (3d) 466 (Ont. C.J. (Gen. Div.)), Charron J. (as
    she then was) described this danger. She held, at p. 475, that [t]he admission
    of evidence dressed up in scientific language in support of the complainants
    testimony may well be given far more weight by the jury than it deserves and
    may even become determinative of the ultimate issue (citations omitted). An
    allegation of a scientific link between the complainants bad behaviour and
    escalating abuse by an expert would have led to enormous prejudice against the
    appellant.

[42]

Triers
    of fact are capable of relying on their common sense and experience to
    understand why a complainant may act in a certain way. The Court of Appeal of
    Alberta in
R. v. R.A.N.
, 2001 ABCA 68, 152 C.C.C. (3d) 464, at para.
    20, found this to be the case in the context of sexual offences and evidence of
    declining academic performance, running away, and rebelliousness.

[43]

The
    jury was able to consider the complainants rebelliousness and assess that
    there could be more than one cause for it. Bad behaviour may be related to the
    stress of abuse at home, or it may not be. It was open to the jury to assess
    this possible explanation for the complainants behaviour and weigh it
    accordingly.

[44]

I
    disagree with the appellant that the trial judge misled the jury into believing
    that this evidence was definitive on the issue of whether the complainant had
    been sexually abused. The trial judge simply summarized the position of the
    Crown. This included the assertion that bad behaviour was consistent with the
    impact of abuse, as well as other points related to the credibility of the
    complainant. The trial judge also provided the defence position that the
    complainant was abusing drugs and alcohol, lied in the past, and was not to be
    believed.

(3)

Was the instruction given by the judge in response to the jury question improper?

Positions of the Parties

[45]

After
    nearly a day of deliberations, the jury asked: What happens when we are 11 to
    1? The trial judge explained that a verdict means that all 12 of you must agree
    and that a verdict must be unanimous. The trial judge instructed them to
    continue to try to arrive at a unanimous verdict, and if that was not possible,
    to pass her a note.

[46]

The
    appellant submits that the trial judge erred in this exhortation to the jury by
    not telling them that they had a right to disagree. Improper pressure was
    placed on the one juror to simply change his or her mind, and no tools were
    given to the jury to help them resume their deliberations.

[47]

The
    Crown disagrees. The jury was not deadlocked and had only been deliberating for
    about four and a half hours. The trial judges response to their question was
    vetted by counsel and was adequate.

Discussion

[48]

The
    jury had been deliberating for only about five and a half hours, with a one
    hour lunch break, when they asked [w]hat happens when we are 11 to 1? I do
    not think it is fair to say that this question was indicative that the jury was
    deadlocked.

[49]

The
    judge explicitly stated that if it was not possible for the jurors to reach a
    unanimous verdict, they should pass her a note. Implicit in this instruction is
    that the jury might not reach a unanimous verdict  they might disagree. There
    was no objection to the re-charge.

[50]

The
    right to disagree was part of the initial charge to the jury. In her initial
    charge, the judge explained [t]here are times, however, when a jury is unable
    to reach a verdict. Jurors have the right to disagreeYou must not agree, however,
    only for the purpose of returning a unanimous verdict. The judge reiterated:
    Sometimes jurors cant agree. Under our law, jurors have the right to
    disagree. However, no jury will be in any better position or different position
    to decide this case than you are right now. She also explained the process of
    notifying the court if the jury was unable to reach a unanimous verdict.

[51]

Both
    parties rely on the guiding principles in
R. v. G. (R.M.)
, [1996] 3
    S.C.R. 362. In that case, the trial judge recalled the jury and urged them to
    consider the public expense of a new trial, the inconvenience that it would
    cause to all participants, the hardship to the accused and the complainant, and
    suggested that the minority might want to reconsider what the majority were saying.
    Only fifteen minutes later, the jury returned with a verdict of guilty. These
    pressures and factors are irrelevant to the duties of the jurors and were
    therefore held to be inappropriate in an exhortation.

[52]

That
    is not the case here. The language used in response to the jurys question did
    not place undue pressure on the jury or introduce irrelevant factors. It did
    not encourage jurors to simply change their minds for the sake of conformity.
    Instead, it encouraged the jurors to deliberate further to see if they would be
    able to reach a unanimous verdict, and explained the process  to pass a note
    to the judge  if indeed unanimity was not possible. It reiterated, in part,
    the proper instruction given to the jury before they began their deliberations.

[53]

The
    Supreme Court at para. 17 of
G. (R.M.),
citing
R. v. Sims
,
    [1992] 2 S.C.R. 858, explained that the goal of an exhortation is to assist the
    process of deliberation as opposed to influencing the content of the jurys
    discussion. I am not of the view that the judges instruction would have
    influenced the content of the jurys deliberations. In all, I do not believe
    the trial judge erred in her answer to the jurys question.

(4)

Is the sentence of seven years unfit? Did the judge err by failing to consider
    the five years that he spent on strict bail conditions?

Positions of the Parties

[54]

The
    appellant submits that the custodial sentence of seven years was unfit. The
    appellant spent five years on strict pre-trial release. He was initially under
    house arrest and a curfew. He was subject to weekly reporting, required to abstain
    from alcohol and drug use, and required to live with his surety. He was
    prohibited from having contact with his son. The appellants lengthy period
    under pre-sentence house arrest and other conditions was a relevant mitigating
    factor, as it demonstrated that he was on a path to rehabilitation. In light of
    this, the sentence was excessive.

[55]

The
    Crown submits that the trial judge considered all of the appropriate legal
    principles, including the time the appellant spent on judicial interim release,
    in imposing a sentence. The judge stated that, while not assigning a particular
    credit to the terms of bail, she had taken it into her global consideration of
    sentence. The seven-year sentence cannot be said to be demonstrably unfit in
    the circumstances of the offences.

Discussion

[56]

Appellate
    courts must show great deference in reviewing sentences, and may not vary a
    sentence simply because it would have imposed a different one. Courts are not
    to vary a sentence imposed by a trial judge absent an error in principle,
    failure to consider a relevant factor, an overemphasis of the appropriate
    factors, or the imposition of a sentence that is demonstrably unfit:
R. v. L.M.
,
    2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14;
R. v. M. (C.A.)
, [1996]
    1 S.C.R. 500, at para. 90.

[57]

The
    trial judge was fully alive to and gave cogent reasons on the matter of
    pre-trial release, noting that a lengthy period on bail is a mitigating factor.
    She mentioned that the appellant had spent five days in pre-trial custody and
    five years on bail with onerous conditions. She considered the disruption that
    the bail conditions had on the appellants relationship with one of his
    daughters, but also that there was no evidence that the appellant sought to
    vary any of the terms of his bail.

[58]

Though
    no specific credit was assigned for the appellants pre-trial bail, the judge
    explained that it was taken into account globally, and specified in her
    reasons for sentence that she had considered this pre-trial custody and pre-trial
    bail conditions as a mitigating factor. The judge fulfilled the approach to credit
    for pre-trial bail conditions outlined in
R. v. Downes
(2006), 79 O.R.
    (3d) 321 (C.A.), at para. 37.

[59]

Further,
    it is clear from the reasons that the trial judge also considered the
    appellants positive steps toward rehabilitation while on bail as a mitigating
    factor. She mentioned that the appellant was not currently abusing alcohol and
    drugs, was attending a methadone clinic and had tested negative for illegal
    substances since he began the program, and that he had abided by all of the
    conditions for five years without incident.

[60]

The
    trial judge appropriately considered and weighed all the relevant factors. In
    the case of an adult offender in a position of trust who sexually abused a
    child on a regular basis, the sentence of seven years imprisonment cannot be
    said to be demonstrably unfit: see, for example,
R. v. D.D
. (2002), 58
    O.R. (3d) 788 (C.A.), at para. 44;
R. v. P.M.
, 2012 ONCA 162, 282
    C.C.C. (3d) 450, at para. 46;
R. v. D.M
., 2012 ONCA 520, 111 O.R. (3d)
    721, at para. 44.

DISPOSITION

[61]

I
    would therefore dismiss the appeal and grant leave to appeal sentence but dismiss
    the sentence appeal.

Released: EEG  NOV 25, 2015

M. Tulloch J.A.

I agree. E.E.
    Gillese J.A.

"I agree. P.
    Lauwers J.A."


