



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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made,
    during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging
    the reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests
    of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give
    a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to
    the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious
    effects of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.S., 2019 ONCA 637

DATE: 20190806

DOCKET: C63397

Feldman, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.S.

Appellant

Richard Litkowski, for the appellant

Carmen Elmasry, for the respondent

Heard: December 6, 2018

On appeal from the conviction entered by Justice Howard
    I. Chisvin of the Ontario Court of Justice on November 2, 2016, and from the
    sentence imposed by Justice Amit A. Ghosh of the Ontario Court of Justice on
    February 23, 2017.

Fairburn J.A.:

OVERVIEW

[1]

The appellant was convicted of invitation to sexual touching and sexual interference.
    The complainant, his cousins son, was between six and eight years of age when
    the offending conduct took place. Although the complainant child told his
    parents about the abuse approximately a year and a half after it had stopped,
    the police were not contacted for almost another two years after that
    disclosure. Once notified, the police took a video-recorded statement from the
    child. That video recording was later admitted during the childs evidence at
    trial.

[2]

The appellant advances five grounds of appeal from conviction, arguing
    that the trial judge erred by:

(1)

admitting the video-recorded statement under s. 715.1 of the
Criminal
    Code
;

(2)

failing to allow him to lay an evidentiary foundation for a third party
    records application;

(3)

failing to properly consider exculpatory evidence;

(4)

finding that the complainant had an absence of motive to fabricate; and

(5)

applying different levels of scrutiny to Crown and defence evidence.

[3]

The appellant contends that any one or combination of those errors
    requires that a new trial be ordered.

[4]

In the event that his appeal from conviction is dismissed, the appellant
    asks this court to decrease his 54-month sentence on the basis that the
    principle of restraint was not properly applied.

[5]

For the reasons that follow, I would dismiss both the conviction and
    sentence appeals.

ANALYSIS

A.

CONVICTION APPEAL

(1)

The Video Recording Was Properly Admitted Under s. 715.1(1)

(i)

The Timing of the Childs Disclosure and Statement to Police

[6]

In the summer of 2006, the appellant moved into the complainants family
    home. Although the appellant moved out at the end of 2009, he continued to
    visit the complainants family and was sometimes asked by the complainants
    parents to look after their three children.

[7]

One evening in July 2012, the complainant disclosed to his father that
    the appellant had been sexually assaulting him. The child told his father that
    the appellant had kissed him, touched his penis and put his penis into [the
    childs] mouth. The complainants father immediately told his wife, the
    childs mother.

[8]

At the time of the childs initial disclosure, his mother decided that
    the matter should not be reported to the police for two reasons: (a) concern
    that her sons life would be ruined if the matter became public and her sons
    name were published; and (b) fear of the appellant. Although the appellant had
    never directly threatened the family, he told stories that caused the mother
    and her child to fear for their safety. It was only after the parents received
    professional advice about the Canadian legal system and protections in place
    for victims of sexual assault, and after the family moved to a new home, that
    they reported the matter to the police in May of 2014.

[9]

The complainant gave a video-recorded statement to the police on May 7,
    2014, just under two years after he disclosed the sexual assault to his parents.
    In that statement, the complainant told the police that the appellant would try
    to kiss him on the mouth, and would touch his genitals and fellate him. Among
    other things, the complainant also said that the appellant made him touch the
    appellants penis with his hands and mouth, requiring him to suck hispenis.
    This conduct occurred on six or seven occasions, all at the childs home.

[10]

The
    trial judge found that, while the evidence about the complainants age at the
    time of the alleged conduct varied a bit, he was in the range of six to eight
    years at the time of the offences. It is non-contentious that the complainants
    initial disclosure to his parents was about a year and a half after the alleged
    conduct had stopped, when he was ten years old. Nor is it contentious that the
    video-recorded statement was taken about three years and four months after the
    alleged conduct had stopped. By that point the complainant was 12 years old. He
    testified when he was 13 years old.

(ii)

The Components of Section 715.1(1)

[11]

The
    Crown applied pursuant to s. 715.1(1) of the
Criminal Code

to
    have the video recording admitted into evidence. Section 715.1(1) reads:

In any proceeding against an accused
    in which a victim or other witness was under the age of eighteen years at the
    time the offence is alleged to have been committed, a video recording made
    within a reasonable time after the alleged offence, in which the victim or
    witness describes the acts complained of, is admissible in evidence if the
    victim or witness, while testifying, adopts the contents of the video
    recording, unless the presiding judge or justice is of the opinion that
    admission of the video recording in evidence would interfere with the proper
    administration of justice.

[12]

As
    can be seen, s. 715.1(1) contains four mandatory statutory prerequisites to
    admission of a video-recorded statement. To introduce the statement, the Crown
    must establish on a balance of probabilities that:

(1)

the video-recorded statement was provided by a complainant or witness
    who was under the age of eighteen years at the time the offence is alleged to
    have been committed;

(2)

the video recording was made within a reasonable time after the alleged
    offence;

(3)

the complainant or witness describes the acts complained of in the
    video recording; and

(4)

while testifying, the complainant or witness adopts the contents of
    the video recording.

[13]

In
R. v. L. (D.O.)
,

[1993] 4 S.C.R. 419, the decision upholding
    the constitutional validity of s. 715.1,
[1]
both
the
    majority and concurring opinions discussed a residual judicial discretion at
    common law to exclude statements on the basis that their probative value is outweighed
    by their prejudicial effect:
L. (D.O.)
, at p. 429, Lamer C.J.; at p. 461, LHeureux-Dubé J., concurring. See
    also:
R. v. F. (C.C.)
,

[1997] 3
    S.C.R. 1183,

at paras. 51-52.
That residual discretion was later explicitly
    embedded in s. 715.1(1) of the
Criminal Code

by virtue of
An
    Act to amend the Criminal Code (protection of children and other vulnerable
    persons) and the Canada Evidence Act
, S.C. 2005, c. 32, s. 23, which came
    into force January 2, 2006. Therefore, even where the four statutory
    prerequisites to admission have been met, s. 715.1(1) now requires exclusion
    where the admission of the video recording in evidence would interfere with
    the proper administration of justice.

(iii)

The
Voir Dire
and Admissibility Ruling

[14]

There
    is no dispute in this case that the complainant was under 18 years of age at
    the time of the alleged offences, that he described the acts complained of in
    the video recording, and that he adopted the contents of the video-recorded
    statement while testifying at trial. Accordingly, the trial judge said that the
    main issue for determination was whether the video recording had been made
    within a reasonable time after the alleged offences had occurred.

[15]

While
    the trial judge found that the delay of three years and four months was long,
    he concluded that it had nothing to do with the complainant himself. Rather,
    the trial judge found as a fact that the delay was explained by the mothers
    lack of real understanding of the Canadian judicial process and her genuine
    fear arising from stories that the appellant had told. In the context of the parents
    lives, the trial judge concluded that it was logical and reasonable that the
    parents did not immediately report their childs assault to the police.
    Accordingly, he concluded that the Crown had met its onus on the reasonable
    time requirement for admissibility.

[16]

Having
    found that all of the statutory prerequisites were met, the trial judge went on
    to consider whether to exclude the statement under the residual discretion. He
    rejected the appellants suggestion that the video-recorded interview had been
    tainted by leading questions posed by the interviewer. To the extent that there
    may have been any difficulties with the interview process that infected the
    childs evidence, the trial judge emphasized that this was a judge-alone trial
    and that these were matters of weight that could be considered during the trial
    proper. The statement was admitted.

(iv)

The Statement Was Made Within a Reasonable Time After the
    Alleged Offence

Is There a
    Reasonable Time Ceiling?

[17]

The
    appellant contends that the trial judges reasoning process respecting whether
    the video recording had been made within a reasonable time after the alleged
    offence was flawed. He starts with the proposition that the delay of three
    years and four months in this case was unusually long and that courts have
    generally found delays of more than three years to be unreasonable.

[18]

The
    appellant points to this courts comments in
R. v. S. (P.)

(2000)
, 144 C.C.C. (3d) 120 (Ont. C.A.),
    at para.
75, leave to appeal refused, [2000] S.C.C.A. No. 486, where a two-year
    gap between the end of the offending conduct and the video recording being made
    was described as a long delay, contributing to making it a borderline case
    for purposes of s. 715.1(1) admissibility. Although the appellant does not
    advocate for hard ceilings, above which reasonableness could not be made out,
    he argues that if a two-year delay in
S. (P.)
was borderline, it
    points toward the passage of time in this case as being clearly unreasonable.

[19]

Respectfully,
    I do not agree with the premise that a two-year delay  or for that matter, any
    amount of delay  is necessarily borderline. While s. 715.1(1) demands that
    the passage of time between the alleged offence and the video recording be
    calculated, the result of that calculation alone will not determine what
    constitutes a reasonable time for purposes of s. 715.1(1). Parliament left it
    to the courts to determine reasonableness in the specific circumstances of each
    case:
L. (D.O.)
, at p. 467. Strict timelines stand in direct
    opposition to the nuanced and case-specific analysis called for in a
    reasonableness inquiry.

[20]

Accordingly,
    it is of limited utility to only look to the number of days, weeks, months or
    years that have been found to be reasonable or unreasonable in other cases to
    determine whether the passage of time meets the reasonableness requirement
    under s. 715.1(1). I do not read
S. (P.)

as suggesting
    otherwise. The comments in
S. (P.)

must be considered in
    context. At no point does
S. (P.)

suggest that all cases
    featuring delays of two years or more constitute borderline cases. That
    descriptor was simply used to characterize the specific circumstances of that
    case.

[21]

It
    is important to recall that s. 715.1(1) directs its energy at the testimony of children.
    The practical and recognized reality is that children will often delay
    disclosing abuse they have suffered, particularly when the abuse is sexual in
    nature and involves perpetrators who stand in positions of trust relative to
    those children:
L. (D.O.)
, at pp. 464, 468;
R. v. W. (R.)
,

[1992] 2 S.C.R. 122,

at p. 136;
R. v. D.D.
, 2000 SCC 43, [2000]
    2 S.C.R. 275, at para. 63;
S. (P.)
,

at para. 69. Whether the
    complainant is a child or not, it is a simple and irrefutable proposition
    that the reasons for delayed disclosure in sexual crimes, such as the crime in
    this case, are many, including embarrassment, fear, guilt, or a lack of
    understanding and knowledge:
D.D.
,

at paras. 65-66.

[22]

Accordingly,
    it would make little sense to take a known feature of many child complainants
    journeys toward the justice system  delayed disclosure  and make it a
    dispositive factor in the admissibility inquiry. This is precisely why each
    case must be approached on its own facts, having regard to all of the circumstances
    of the case, to determine whether the passage of time between the alleged
    events and the giving of the video statement is reasonable:
L. (D.O.)
,

at pp. 467-69.

The Impact of the Delay on
    the Childs Ability to Accurately Recall the Events in Issue

[23]

The
    appellant also argues that the trial judge erred when he failed to consider whether
    the contents of the video-recorded statement demonstrated that the childs
    ability to accurately recall the alleged events in issue had been impacted by
    the delay. The appellant relies upon the following passage from
S. (P.)
,
    at para. 71, in support of that proposition:

In considering whether a videotape has been
    made within a reasonable time, the court must balance a number of factors, the
    most important being the reasons for the delay and
the impact of delay on
    the childs ability to accurately recall the events in issue (see
R. v. L.
    (D.O.)
at 323 [C.C.C.])
. [Emphasis added.]

[24]

While
    the appellant acknowledges that the trial judge correctly summarized the law
    from
S. (P.)

in his reasons, he argues that the trial judge
    erred by not giving effect to the second consideration regarding the childs
    ability to accurately recall the events in issue. The appellant contends that
    the statement is filled with examples of the childs poor recall, including
    when the child:

·

said that it would be better if the police asked
    him questions because he did not really remember all of it  I mean, if you
    ask me questions Ill probably be reminded of it;

·

qualified some of his statements by using
    expressions like, I dont exactly remember, I dont remember and Im not that
    sure;

·

said that he did not remember certain things;
    and

·

qualified what he was saying on occasion by
    punctuating comments with the use of expressions like, I guess and I think.

[25]

I
    do not agree that the above comments by the child demonstrate an inability to
    accurately recall the events in issue. Children do not perceive the world in
    the same way as adults. This is understandable. Children do not have the
    advantage of the life education that age brings. Details that are important to
    adults, like time and location, are often overlooked by children. Accordingly,
    something that may shake a trier of facts confidence in an adult witnesss
    evidence will often be less consequential if present in a child witnesss
    evidence. As cautioned by Wilson J. in
R. v. B. (G.)
, [1990] 2 S.C.R.
    30,

at p. 55, [w]hile children may not be able to recount precise
    details and communicate the when and where of an event with exactitude, this
    does not mean that they have misconceived what happened to them and who did
    it. See also
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at pp. 133-34.

[26]

In
    light of the acknowledged manner in which children store and recount information,
    it would be unwise to subject their video statements to the analysis suggested
    by the appellant. What may appear to be an inability to accurately recall may
    be nothing more than a reflection of the childs age and stage. In my view, the
    comments to which the appellant points as demonstrating an inability on the
    part of the complainant to accurately recall the events in issue as a result of
    delay fall squarely within the
dicta
from
B. (G.)
. This can
    be easily seen when the almost 40-minute interview is placed within its proper
    context.

[27]

The
    interview took place in a comfortable room, with comfortable seating and a
    plain-clothes police officer asking the questions. At the outset of the
    interview, the child was told by the police officer that it was important to
    tell the truth. This statement was followed by an exploration of the childs
    understanding of the difference between truth and lies. His answers demonstrate
    that he had a good grasp of those concepts. While the video recording reveals a
    timid, embarrassed and often hesitant child, it also reveals a child who was
    able to provide a coherent narrative, delivered in age-appropriate language, of
    what he said the appellant repeatedly did to him and what he was repeatedly forced
    to do to the appellant.

[28]

Against
    that context, I do not accept the appellants proposition that the trial judge
    erred when he did not consider the comments that the appellant says are
    indicative of an inability to recall as a result of delay in his assessment of
    the reasonable time component of s. 715.1(1). This is particularly true in
    light of the fact that the child provided a coherent narrative of the acts
    complained of.  In and of themselves, and in the circumstances of this
    case, the types of comments emphasized by the appellant do not reveal the
    childs inability to recall the events in issue as a result of delay.


[29]

While
    the types of comments relied upon by the appellant could be taken into account
    by the trier of fact in assessing the childs credibility and the reliability
    of his evidence, that would occur after a full trial record had developed,
    including the childs evidence adopting the video recording, the rest of his
    examination in-chief and cross-examination. To this end, I agree with the
    following comments of the trial judge:

In the end, what constitutes a reasonable time requires a
    sensible approach. If a sensible approach, in my view, is not taken, it would
    defeat the very purpose for the enactment of the legislation. One has to remember
    that the statements admissibility is different from the consideration of the
    ultimate weight and reliability. The weight and reliability cannot be
    determined until the court undertakes an assessment of all of the evidence
    after all witnesses have testified and all submissions have been made.

[30]

Thus,
    the trial judge did not err in not considering the comments emphasized by the
    appellant in the course of his reasonable time analysis.

(2)

The Trial Judge Did Not Err by Preventing Questioning to Lay the Foundation
    for a Third Party Records Application

[31]

At
    the end of the s. 715.1(1)
voir dire
,

the appellants counsel
    sought permission to ask the complainant if he had received counselling and, if
    so, to ask:

(1)

where it was done;

(2)

who the doctor was;

(3)

whether the alleged events were discussed; and

(4)

whether the counselling helped him to recall those events.

[32]

Despite
    acknowledging that he had finished questioning the complainant about the video
    statement, defence counsel wanted to ask the complainant those questions to
    lay a foundation for a possible 278 application. Crown counsel at trial opposed
    the line of questioning on the basis that it was not relevant to the s. 715.1(1)
voir dire
,

emphasizing the fact that the counselling did not
    commence until after the video-recorded statement had been given. Defence
    counsel then modified his position to suggest the questions were in fact relevant
    to the s. 715.1
voir dire
.

There was no clear rationale
    provided for that submission.

[33]

The
    trial judge precluded counsel from asking the questions, finding that they had
    no relevance to the narrow issue he needed to decide on the s. 715.1(1) admissibility
voir dire
.
Even so, he left open the possibility that counsel could
    bring a third party records application at a later date
.

[34]

The
    trial Crown later provided disclosure to the appellant as follows:

Dear [Counsel]:

The counselling information you requested is as follows:

Counselling agency: YRAP (York Region Abuse Program)

Therapist: [name of therapist]

[35]

For
    all intents and purposes, this left only two questions that the appellant had
    wanted to ask at the s. 715.1(1)
voir dire

unanswered: whether
    the alleged events were discussed during counselling and whether the counselling
    had helped the complainant to recall the alleged events.

[36]

The
    appellant brought a third party records application a couple of months later. All
    such applications are governed by ss. 278.1-278.91 of the
Criminal Code
.

They proceed in two stages, the first requiring the accused to establish
    that the records sought are likely relevant to an issue at trial or to the
    competence of a witness to testify and that their production is necessary in
    the interests of justice: s. 278.5(1).

[37]

The
    child was represented by counsel at the hearing. The trial judge concluded that
    the appellant had fallen well short of the test for production. While the trial
    judge was prepared to assume that counselling had taken place and that the
    alleged incidents were discussed during that counselling, he concluded that
    there was nothing to suggest that the private counselling records were likely
    relevant to an issue at trial. He found that there was no basis upon which to
    find that the counselling had assisted the complainants memory regarding the
    allegations.

[38]

The
    appellant does not challenge the trial judges ultimate ruling, refusing to
    order production of the records for his review. Rather, the appellant
    challenges the ruling that was made during the s. 715.1(1) application,
    refusing to allow defence counsel to ask the complainant about matters that
    were left unanswered by the later Crown disclosure.

Accordingly, the
    only live question on appeal is whether the appellant should have been
    permitted to ask about those things at the s. 715.1(1)
voir dire
.

[39]

The
    appellant fairly acknowledges on appeal that, given that the counselling only
    commenced after the video-recorded statement had been made, the prohibited
    questioning was not relevant to the s. 715.1(1)
voir dire
.

Accordingly,
    he accepts that the sole purpose of that questioning was to lay a foundation
    for a third party records application. The appellant contends that he should
    have been permitted to use the s. 715.1(1)
voir dire

to lay
    that foundation. He relies upon
R. v. B. (E.)
(2002), 57 O.R. (3d) 741
    (C.A.), leave to appeal refused,
[2002] S.C.C.A. No. 94
,
    to advance this proposition, a decision that opines on the appropriateness of
    exploring a foundation for a third party records application at a preliminary
    inquiry.

[40]

I
    do not find the analogy to
B. (E.)

persuasive. Even assuming
    that the questions could have been properly asked at a preliminary inquiry, or
    at trial, I do not agree that a s. 715.1(1) application is analogous to a
    preliminary inquiry.

[41]

The
    result in
B. (E.)

is inextricably linked to the discovery
    function of a preliminary inquiry:
B. (E.)
,

at paras. 41, 46,
    49, 56, 61, 66. It goes no further than suggesting that an appropriately
    limited cross-examination to set an evidentiary foundation for a third party
    records application will sometimes be consistent with the discovery function of
    the preliminary inquiry. The question is one of relevance.  As Cronk J.A. said,
    at para. 49, what is necessary  is a determination of the relevance of each proposed
    question
having regard to the purpose of the preliminary inquiry process

    (emphasis added).

[42]

A
    s. 715.1(1) application does not share the same discovery function as a
    preliminary inquiry. Determining any details about a complainants counselling
    that took place after the video-recorded statement was created would be
    immaterial and irrelevant to the question of whether the s. 715.1(1) test has
    been met.

[43]

I
    disagree that a child required to take the witness stand on a s. 715.1(1)
voir
    dire
should be opened up to questioning about matters that are wholly
    irrelevant to the admissibility of the video-recorded statement at issue.

The
    trial judge did not err in concluding that the questions had no relevance to
    the issues he was being called upon to decide on the s. 715.1(1) application. The
    fact that s. 278.4(2) dictates that a complainant is not a compellable witness
    on a third party records application only strengthens this point. To permit a
    child to be subjected to exploratory questions at a s. 715.1(1)
voir dire

would circumvent the s. 278.4(2)

prohibition and do indirectly what
    the
Code
otherwise prohibits.

(3)

The Appellants Denials

[44]

The
    appellant says that the trial judge erred by failing to consider that the
    appellant had denied all wrongdoing when he was first confronted by the
    complainants parents with the allegations. The appellant says that those denials
    should have been considered as going to the appellants credibility and that the
    failure to consider them amounts to an error of law because they were
    exculpatory statements that could have left the trial judge with a reasonable
    doubt. In a case that the trial judge acknowledged boiled down to the credibility
    of the appellant and the complainant, the appellant says that the trial judge
    was duty-bound to consider the exculpatory statements and to instruct himself
    in accordance with the principles in
R. v. W.(D)
, [1991] 1 S.C.R. 742.
    The appellant says that the trial judge failed on both of these fronts.

[45]

The
    respondent accepts that the trial judge did not specifically mention the
    appellants denials in his reasons. In light of the circumstances involving
    those denials, the respondent says that the trial judge was under no obligation
    to do so. Relying upon
R. v. Liard
, 2015 ONCA 414, at para. 56, leave
    to appeal refused, [2015] S.C.C.A. No. 402, the respondent suggests that for a
    statement denying an allegation to be considered by a trial judge, there has to
    be an accusation of a crime that can garner a spontaneous response from the
    accused. As there was no specific accusation of a crime here, the trial judge was
    under no obligation to specifically consider the denials. In any event, the
    respondent says that the court should consider the reasons as a whole: they
    make it clear that the trial judge was alive to all of the evidence and properly
    applied the principles in
W. (D.)
.

[46]

I
    do not agree with the suggestion that an accuseds denial that has been
    admitted into evidence does not have to be considered by a trial judge because
    of the lack of a specific accusation that is capable of garnering a spontaneous
    result. That position conflates an admissibility issue regarding a potentially exculpatory
    statement with the trier of facts assessment of a potentially exculpatory
    statement.  This is not a case where the accused sought to have an exculpatory
    statement admitted into evidence:
Liard
,

at para. 49;
R. v.
    Edgar
, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 72, leave to appeal refused,
    [2010] S.C.C.A. No. 466. Rather, it was the Crown who elicited the appellants
    denials.

[47]

Even
    so, when considered in context, the denials are not nearly as probative as the
    appellant suggests. An accuseds denials must be considered against what it is
    that he or she is denying. It is the actual allegation being denied that lends
    probative value to the denial. In this case, there was no specificity to the allegation
    being denied.

[48]

Both
    of the complainants parents were asked about a telephone call they had with
    the appellant the morning after their child had made the initial disclosure.
    The father testified that he asked the appellant the following question: Why
    did you do, what did you [do] to my kid? He received the answer: Nothing.
    The mother asked him: Why did you do this? or Why you do like this? or What
    did you do to my child? He answered: I didnt do anything.

[49]

Importantly,
    the appellant confirmed the nature of the questioning when he was examined in
    chief. The following exchange took place between defence counsel and the
    appellant:

Q. And what  did [the mother] talk to you? What did she tell
    you?

A. [The mother] asked me, What did you do to my child?

Q. And what did you say?

A. I  I asked her, What? What did I do? She asked me, What
    did you do to [my child]? I said, I didnt do anything. What is the matter?
    What is the problem?



Q. And what did [the father] say to you?

A. [The father] asked me similar questions. I said, What did I
    do? I didnt do anything.

[50]

The
    appellant testified that he only came to know of the actual allegations after
    they were explained to him by another person, which took place after the
    telephone call with the childs parents.

[51]

This
    ground of appeal really distills into a complaint regarding the sufficiency of
    the reasons for judgment. The reasons demonstrate that the trial judge was
    alive to the evidence about the appellants denials. Although he did not
    recount the conversation between the parents and the appellant over the phone,
    he noted that one had taken place and that both parents had spoken to the
    appellant.

[52]

A
    functional approach to the adequacy of reasons applies. They must be read as a
    whole, against the evidentiary backdrop of the trial and the positions taken by
    the parties:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para.
35;
R. v. D. (J.J.R.)

(2006),

215 C.C.C. (3d)
    252 (Ont. C.A.), at paras.
32, 37-40, leave to appeal refused, [2007]
    S.C.C.A. No. 69. It is not necessary for the reasons to demonstrate that the
    trial judge considered all of the evidence, or answered each and every argument
    of counsel:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    30. The key consideration is whether the reasons respond to the live issues
    before the court.

[53]

Although
    the appellant points to the submissions of trial counsel (not counsel on
    appeal) and suggests that he argued that the appellant denied any
    inappropriate touching while on the phone with the childs parents, that
    submission placed the nature of the denials above what the record supports. At its
    highest, the appellant denied an amorphous suggestion that he may have done
    something wrong. Accordingly, any probative value that could be assigned to the
    denials was so weak that it is unsurprising that the trial judge did not
    specifically refer to them.

[54]

The
    trial judge was alive to the principles in
W. (D.)
.

He
    expressed his understanding that this was a case that turned on credibility and
    that he was required to assess the evidence in accordance with the principles set
    out in
W. (D.)
. He was under no duty to exhaustively review those
    principles; his only duty was to apply them correctly. Having regard to the
    judgment as a whole, I am satisfied that the trial judge correctly performed
    that task.

(4)

The Trial Judge Did Not Err By Finding No Motive to Fabricate

[55]

The
    appellant argues that the trial judge erred when he said that he could find no
    motivation on [the complainants] part to lie or fabricate the events. The
    appellant contends that this sentence demonstrates that the trial judge
    misunderstood the distinction between finding an absence of evidence of a motive
    to fabricate and making a positive finding of an absence of motive to
    fabricate. The appellant points to
R. v. L.L.
, 2009 ONCA 413, 96 O.R.
    (3d) 412,

at para. 44, in support of the proposition that just because
    a complainant has no apparent motive to fabricate does not mean that the
    complainant has no motive to fabricate.

[56]

The
    respondent encourages the court to place this alleged error within the context
    of the defence position at trial. In his closing submissions, the appellant asked
    the court to find that the child falsely accused the appellant because the
    childs parents were upset over the appellant having moved out of their home.
    He also suggested that the childs parents would have been upset with the
    appellant because they did not like the appellants mother, whom the appellant went
    to live with when he moved out. Although somewhat convoluted, the defence closing
    submission at trial was as follows:

Because you know from the evidence on the
    trial that there is some kind of, of difficulty between [the appellants]
    parents, mother, and [the childs] family, right? Its not controversial. So,
    what happened when he left the house, assuming now, that [the complainant] and [the
    appellant] are as loving as everybody says? He leaves in 2009 and where does he
    go? He goes to live with his mother. And what is being said in that house?
    Cause people have to be upset, it just makes sense that people are upset.

[57]

The
    impugned comment in the trial judges reasons must be read against the
    background of that defence position. Read in context, the clear effect of
    counsels submissions was that the parents negative feelings about the
    appellant influenced the child to the extent that the child made a false report
    about what the appellant had done to him.

[58]

The
    following statement from the reasons for judgment is entirely responsive to that
    defence position:

In reviewing the evidence,
I can see no
    motivation on [the complainants] part to lie or fabricate the events
. Even
    if there was animosity between [the appellant, the complainants mother and the
    complainants father], there is nothing to suggest it had any effect upon [the
    complainant], nor that it was a motivation for [the complainant] to fabricate
    the events. [Emphasis added.]

[59]

While
    there is a difference between the absence of evidence of a motive to fabricate and
    a proven absence of motive to fabricate, the defence had specifically asked the
    trial judge to find a motive to fabricate:
L.L.
, at para. 44;
R.
    v. M.B.
, 2011 ONCA 76, 267 C.C.C. (3d) 72, at para. 31. In light of that
    defence position, the trial judge had to grapple with whether the complainant
    had a motive to fabricate. In rejecting that defence position, the trial judge
    did not cross the line and use this rejection to bootstrap the credibility of
    the child. Rather, his finding that, in his review of the evidence, he could
    not see motivation  to lie or fabricate the events was entirely responsive
    to the defence position. I see no error in the trial judges approach.

(5)

The Trial Judge Treated Crown and Defence Evidence Evenly

[60]

The
    appellant also argues that the trial judge scrutinized the evidence unevenly.
    He argues that he was held accountable for every frailty and inconsistency in
    his evidence, yet the complainant was forgiven for similar frailties, leading
    to what was referred to in
R. v. Gravesande
,
2015 ONCA 774, 128
    O.R. (3d) 111, at para. 41, as a deeply incongruous approach to the Crown and
    defence cases.

[61]

The
    appellant specifically objects to what he says are the two main bases upon
    which the trial judge rejected his evidence: (a) the finding that the appellant
    had minimized the time that he spent with the complainant; and (b) the use of a
    letter that the appellant had left for the complainants parents when he moved
    out of their home.

[62]

The
    context for the impugned aspect of the trial judges reasons on the minimization
    of time with the complainant is as follows:

I have carefully considered the evidence of [the appellant]. I
    am concerned with parts of his evidence. It is clear throughout his examination
    in-chief that he tried to minimize the time he spent around [the complainant]
    in the home. He minimized the time he was at the home, both while he lived
    there and when he came to visit after he moved out. It is clear he tried to
    limit his actual involvement with [the complainant].

His evidence suggests that he was frequently away from the home
    at one of his places of employment and working long hours.

I find that this was not the case.

[63]

The
    evidentiary record supports the trial judges conclusion that the appellant had
    in fact tried to minimize the time he spent around the complainant. By way of one
    example, despite having lived in the childs home for a long time, the
    appellant denied that he had ever been alone with the child. He was also
    confronted in cross-examination with opportunities when he could have been
    alone with the child. Those opportunities were taken from the schedule he set
    out in his examination-in-chief. Yet, when confronted with those times in
    cross-examination, the appellant added to his activities, including small jobs
    that he said that he did. In light of this evidence alone, it was open to the trial
    judge to conclude that the appellant was indeed minimizing the time that he
    spent around the child.

[64]

The
    appellant also objects to the trial judges use of a letter that the appellant
    had left in the complainants family home when he moved out. This impugned
    aspect of the reasons also has to be placed in context.

[65]

The
    appellant testified that he moved out because he had paid off a debt that had
    been owing to the complainants parents. (The complainants father denied the
    suggestion of any debt.) The appellant testified that he was required to live
    with the complainants family until his debt was paid off. He said that once
    his debt was paid off, he left the home. He agreed that he did so without
    telling anyone.

[66]

It
    was non-contentious that the appellant left a letter for the complainants
    parents when he moved out. The letter made no reference to the debt or to it
    having been paid. The trial judge specifically noted that [n]owhere in the
    letter was there mention that there was a debt nor does [the appellant]
    reference moving out because he had paid off the loan. The trial judges
    finding that the content of the letter was not consistent with the explanation
    given by the appellant at trial for moving out was open to him on the evidence.
    It was an available inference and one that is owed deference. I see no error in
    the trial judges approach.

[67]

The
    appellant also argues that the trial judge spent little time analyzing the Crowns
    evidence.

[68]

I
    find nothing incongruous in terms of how the trial judge treated the defence
    and Crown evidence. He did not apply different approaches to the evidence or
    apply different levels of scrutiny to assess credibility:
R. v. Radcliffe
,
    2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 25, leave to appeal refused, [2017] S.C.C.A.
    No. 274.

[69]

The
    trial judge correctly applied
W. (D.)
. Having rejected the appellants
    evidence, he went on to specifically consider the complainants credibility and
    reliability. The trial judge found that the child was consistent throughout his
    evidence and did not embellish. In short, on the whole of the evidence, he disbelieved
    the appellant, was not left in a state of reasonable doubt by his evidence,
    believed the child, and was satisfied of guilt beyond a reasonable doubt.

B.

Sentence Appeal

[70]

The
    appellant argues that, because he was a first offender, the sentencing judge
    erred in failing to apply the principle of restraint when imposing a 54-month
    sentence:
R. v. Batisse
, 2009 ONCA 114,

93 O.R. (3d) 643, at
    paras. 32-35.

[71]

While
    the appellant acknowledges the sentence imposed in this case fell within the
    range for offences involving similar factual circumstances, he emphasizes that
    ranges are not fixed and inflexible in nature:
R. v. D. (D.)

(2002),
    58 O.R. (3d) 788, at para. 33. As the appellant was a first offender, the penitentiary
    sentence should have been as short as possible and tailored to his specific
    circumstances. He argues that the primary principles of denunciation and deterrence
    could have been met in this case by a penitentiary sentence of three years.

[72]

Pursuant
    to s. 669.2 of the
Criminal Code
,
on the consent of both
    parties, a judge other than the trial judge sentenced the appellant. The trial
    Crown requested a sentence of 6 years, and the appellant, a sentence of 2.5 to 3
    years. The sentencing judge provided careful reasons for sentence. He reviewed
    the facts, including the acts of masturbation and oral sex that the child was
    forced to perform on the appellant and the fact that the appellant would
    sometimes suck the childs penis. He also reviewed the ways in which the
    appellant would scare the child to prevent him from resisting, including the
    use of ghost stories to discourage him from telling anyone. On one occasion he
    told the child that he was a ghost and could kill the child. As noted by the
    sentencing judge, [t]hese comments scared [the complainant] into silence and
    obedience.

[73]

The
    sentencing judge carefully reviewed the circumstances of the offences and of
    the offender, the pre-sentence report, the victim impact evidence and the
    positions of the parties. He also carefully reviewed the operative principles
    of sentencing, including this courts authorities pertaining to child sexual
    abuse. He reviewed the aggravating and mitigating factors in the case. The
    aggravating factors involved the serious breach of trust, the particularly
    vulnerable child victim, the fact the offence occurred in the sanctity of the
    childs home, the repeated abuse over two to three years and the use of stories
    and veiled threats to compel compliance and discourage reporting.

[74]

In
    his review of the mitigating factors, the sentencing judge specifically noted
    that the appellant did not have a criminal record, had positive relationships
    and work history, as well as community supports in place, and was willing to
    take treatment.

[75]

There
    is no suggestion that the sentencing judge erred in his review of the
    principles relevant to sentencing. The suggestion is that he failed to properly
    apply the principle of restraint. I disagree.

[76]

The
    sentencing judge specifically turned his mind to that principle, saying that he
    was mindful to apply restraint in sentencing the appellant. Despite that
    principle, balancing all of the factors, he concluded that a sentence of 54
    months was fit and appropriate.

[77]

I
    see no error in principle in the determination of that sentence. Deference
    should apply:
R. v. Lacasse
,

2015 SCC 64, [2015] 3 S.C.R. 1089,
    at paras. 43-44.

CONCLUSION

[78]

I
    would dismiss the conviction appeal. I would grant leave to appeal sentence,
    but dismiss the sentence appeal.

Released: K.F. August 6, 2019

Fairburn
    J.A.

I agree. K.
    Feldman J.A.

I agree. P. Lauwers J.A.





[1]
The provision has undergone some changes since its inception, including an
    expansion of its original reach from video-recorded statements of child
    complainants in sexual offences to those of child complainants and witnesses in
    all criminal cases.


