



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. B.S., 2019 ONCA 72

DATE: 20190131

DOCKET: C61018

Doherty, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.S.

Appellant

Graham Jenner, for the appellant

Joe Hanna, for the respondent

Heard: January 25, 2019

On appeal from the conviction entered on May 26, 2014 and
    the sentence imposed on December 12, 2014 by Justice B.A. Allen of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of a series of sexual and violent offences
    against the complainant. The offences occurred in the context of a two-year
    sexual relationship. The complainant was aged 12-14 years at the time of the
    offences, and therefore legally incapable of consenting to the sexual relations,
    while the appellant was aged 27-29. The trial judge imposed sentences totalling
    8 years. The complainant first met the appellant when she would come to his
    mothers apartment to play with his younger sister. The complainants household
    was highly dysfunctional, and although she was intermittently in the care of
    Native Child and Family Services (NCFS), she was frequently truant and living
    clandestinely with the appellant.

[2]

The appellant appealed against both conviction and sentence. At the
    conclusion of the hearing, we dismissed the conviction appeal and allowed the
    sentence appeal in part, with reasons to follow. These are those reasons.

Conviction appeal

[3]

With respect to the appeal against conviction, the appellant argues that
    the trial judge erred by:

(1)

relying on photographic evidence
    that had not been authenticated;

(2)

rendering an unreasonable
    conviction under the meaning of s. 686(1)(a)(i) by relying on the complainants
    evidence, given her inconsistent statements and admitted perjury;

(3)

relying on evidence from the
    complainants mother and stepfather, despite finding them to be unreliable
    witnesses;

(4)

misapprehending the evidence that
    the complainant had been coached in her police statement by the NCFS and had a
    motive to lie.

[4]

We do not agree with the submissions.

The
    photographs:

[5]

With respect to the photographs, it was not necessary that they be
    authenticated by evidence from the person who took the photographs. They were
    capable of being authenticated by the evidence of the complainant, who was able
    to identify herself and the appellant in the photographs, explain the
    interactions depicted, and the locations at which the photographs were taken. She
    was also able to provide a reasoned explanation for the approximate date range
    she gave for the photographs, and her belief that her sister was the likely
    photographer. The trial judge made no error in receiving the photographs into
    evidence.

The reasonableness of the conviction:

[6]

The appellant focuses on the nature and number of admitted lies the
    complainant told the police and repeated at the preliminary inquiry. The trial
    judge was alive to the untruthful statements and carefully considered both the
    complainants explanations for them and the circumstances surrounding the
    recantations. The trial judge found that the complainants admitted lies did
    not negate her credibility or reliability on the central issue: she and the
    appellant had engaged in sexual intercourse approximately 300 times over a
    two-year sexual relationship, and the appellant had on various occasions physically
    assaulted her.

[7]

The appellant argued that the trial judge erred by finding that the
    complainants lies actually made her more credible than she would have been
    without the lies. We do not agree with this reading of the trial judges
    reasons. The trial judge expressed concern about the effect of the untruthful
    statements on the complainants credibility. In stating that the recantations
    have a redeeming feature and cast a somewhat more positive light on her
    general credibility, she was merely stating that the complainants
    acknowledgment and recantation of the lies had some ameliorative effect. It is
    not open to us to interfere with the trial judges credibility assessment.

The parents evidence:

[8]

With respect to the complainants parents evidence as to the sexual
    relationship between the appellant and the complainant, it was open to the
    trial judge to rely on the parents evidence where it was supported by other
    credible evidence, notwithstanding her finding that the parents substance
    abuse made their evidence generally unreliable. The evidence of the parents that
    the trial judge was willing to accept was consistent with the photographic
    evidence and the evidence she accepted from other sources, including the
    complainant, the NCFS, and the police. The trial judge viewed the parents
    evidence as providing some additional support for evidence from sources that she
    found more reliable. She did not err in doing so.

The evidence
    of motive to lie:

[9]

This argument rests on the trial judges statement at paragraph 58 of
    her reasons that (t)here is no substantiation for the defence theory that the
    complainant fabricated the claims she made to the police as part of a deal with
    the NCFS to secure her independence from them. There is, as the appellant
    argues, some evidence that could have supported that allegation. However, we do
    not read the trial judges reasons as denying this. Rather, she concluded that in
    light of the totality of the evidence that she accepted, she could not draw the
    inference urged by the defence. The trial judge made no error in so finding.

Sentence appeal

[10]

The
    appellant advances multiple arguments on the sentence appeal.

[11]

The
    trial judge found that the appellant was in a position of trust or authority
    over the complainant, which is an aggravating factor under s. 718.2(a)(iii) of
    the
Criminal Code
. The appellant disputes this, arguing that he was
    simply a neighbour trying to help the complainant through a difficult home
    life, and ended up romantically involved with her. We do not agree. As the
    trial judge found, the appellant made himself a confidante for a troubled and
    vulnerable 12 year old girl. He provided places of refuge and protection from
    neglectful parents who were adrift in their own world of substance abuse. She
    stopped going to school and to her family home in order to spend all her time
    with him. He facilitated her flight from the NCFS and kept her in hiding. She
    was wholly dependent upon him for companionship, food, and shelter. He made
    himself, in the trial judges words, her world. The trial judge made no error
    in characterizing the relationship as one of trust, coming within s.
    718.2(a)(iii).

[12]

We
    do not agree that the trial judge inappropriately considered the complainants
    age as an aggravating factor under s. 718.2(a)(ii.1) with respect to the sexual
    interference conviction, which necessarily involves the abuse of a person under
    the age of 16. The complainants age was relevant to assessing her degree of
    vulnerability, and the age difference was relevant to assessing the appellants
    degree of culpability.

[13]

The
    appellant argues that the trial judge erred in considering the appellants
    conviction for arson as an aggravating factor, given that the conviction
    post-dated the conduct for which the appellant was sentenced. The Crown
    concedes, properly, that this was an error, but argues that it did not have an
    impact on the appellants sentence. We agree. Although it was an error to
    consider post-offence conduct, we are not persuaded that it had any impact on
    sentencing. The fact of the arson conviction was listed as part of an extensive
    criminal record, which was itself only one of ten aggravating factors
    considered by the trial judge. Additionally, it was not an error for the trial
    judge to consider the arson conviction when assessing his rehabilitative
    potential.

[14]

The
    appellant also argues that the trial judge erred in relying on facts that were
    not in evidence, specifically, facts related to the appellants subsequent
    conviction for sexual offences. Again, it was not an error for the trial judge,
    in assessing the appellants prospects for rehabilitation, to consider his
    conduct when he was on bail.

[15]

The
    appellant argues, and we agree, that the trial judge erred in failing to comply
    with s. 726 of the
Criminal Code
and ask the appellant if he had
    anything to say. We are not satisfied, however, that this error had any impact
    on sentence.

[16]

Most
    significantly, the appellant argues that the sentence imposed is unfit, falling
    outside the appropriate range. We do not agree. This ground of appeal is
    largely exhausted by our rejection of the argument that the trial judge erred
    in finding the appellant to have been in a position of trust. In any event,
    given the complainants vulnerability, the appellants domination of her, the
    disparity in ages, the duration of the abuse, and the instances of violence
    (including choking the complainant and punching her in the face), we do not
    agree that the sentence is unfit.

[17]

The
    crown concedes, and we agree, that the trial judge erred in failing to give the
    appellant credit for 105 days of pre-trial custody, which when calculated on a
    1.5:1 basis, should have resulted in a credit of 158 days.

Disposition

[18]

The
    appeal as to conviction is dismissed. Leave to appeal sentence is allowed, and
    the sentence appeal is allowed only with respect to credit for pre-trial
    custody. The sentence appeal is dismissed in all other respects.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


