



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), (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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       Two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.






CITATION:
R. v. Smith, 2011 ONCA 564



DATE: 20110826



DOCKET: C50528



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



John Eric Smith



Appellant



James Foord, for the appellant



Dena Bonnet, for the respondent



Heard: April 18, 2011



On appeal from the convictions entered by
          Justice Kenneth E. Pedlar of the Superior Court of Justice on January 26,
          2009 and the sentence imposed on April 28, 2009.



Epstein J.A.:

I.         OVERVIEW

[1]

On January 26, 2009, after a five-day judge-alone trial, the appellant
    was convicted of ten offences  five counts of assault, two counts of assault
    causing bodily harm, two counts of sexual assault and one count of uttering a
    threat.   On April 28, 2009, he was sentenced to three years imprisonment on
    each count, with each sentence running concurrently.  He appeals his convictions
    and, if leave is granted, the sentences imposed.

[2]

Mr. Smith was charged with 13 offences arising out of his relationships
    with three long-term partners, B.L.
[1]
,
    D.Q. and M.O.  These relationships spanned the period from 1977 to 2006.  In
    2006, B.L. went to the police and reported nine years of continuous verbal,
    physical, financial and sexual abuse by the appellant.  As a result of B.L.s
    report, the police contacted the appellants two previous partners, D.Q. and
    M.O., each of whom described similar abuse during their relationships with Mr.
    Smith.

[3]

The grounds upon which the appellant challenges the convictions are
    primarily evidentiary, although he also submits that the trial judge erred in
    law by finding him guilty of threatening to kill D.Q. and in reversing the
    burden of proof in relation to two counts arising out of his relationship with
    M.O.

[4]

I would allow the appeal in relation to counts one, two, four, five,
    six, seven and eight, the counts that pertain to the appellants relationship
    with B.L., on the basis that the trial judge erred by relying on information
    not in evidence to support his acceptance of B.L.s version of the events where
    the credibility of B.L.s trial testimony was critical to the Crowns case.

[5]

For the reasons that follow, I would dismiss the appeal in relation to
    the remainder of the counts, namely, counts nine, ten and 12.  I would,
    however, grant leave to appeal sentence and vary the sentences imposed on the
    remaining counts.

II.        FACTUAL BACKGROUND

The Verdicts

(i)        The
    events reported by B.L.  counts one through eight

[6]

B.L. and the appellant were together from 1995 to 2006.  B.L. testified
    that the violence, consisting of verbal, physical and sexual abuse, started
    about two years into their relationship.

[7]

Count one, a charge of common assault, related to an incident that took
    place on March 26, 2006, the day the relationship between B.L. and the
    appellant ended.  In her trial testimony, B.L. described a lengthy dispute
    between her and the appellant that day, during which the appellant hit her on
    the knuckles with a telephone when she tried to phone the police and stood on her
    toes to prevent her from leaving the house where they lived.

[8]

The appellant testified that he and B.L. did argue that day but his
    description of events differed from that of B.L.  Significantly, the appellant
    denied that he assaulted B.L.

[9]

Count two, another common assault charge, related to allegations that
    the appellant, angry that the washing machine was not working, elbowed B.L. in
    the ribs.  B.L. testified that, as a result, she swung at him but missed, hit a
    wardrobe and bruised her hand.  The appellant then pushed her down on the bed,
    jumped on her, and repeatedly hit her on the back of the head as she lay face
    down.  He also pulled her hair.

[10]

The appellant described the difficulty with the washing machine and
    B.Ls having hit the wardrobe and bruised her hand, but denied the assault.

[11]

Count three, assault with a weapon, related to allegations that the
    appellant hit B.L. with a chair.  B.L. testified that she had bruises and marks
    on her back for a couple of weeks following the incident.

[12]

The appellant denied the assault.

[13]

Count four, assault causing bodily harm, related to allegations that,
    during an argument in which B.L. said she was going to the police, the
    appellant grabbed the purse she was holding and jerked her onto the ground.  As
    a result, B.L. sustained bruising to the inside of her arm from her elbow up to
    her underarm.

[14]

Again, the appellant denied the assault.  He testified that B.L.
    received the bruises from an incident with a horse on their hobby farm.

[15]

Count five, common assault, related to allegations that, during an
    argument, the appellant chased B.L. down the hall into the bedroom and, as she
    lay on the bed face down, he punched her repeatedly with full force on the back
    of the head.  B.L. testified that she had severe headaches and wet the bed for
    about a week after the incident.

[16]

The appellant remembered the bed wetting but denied the assault.

[17]

Count six, assault causing bodily harm, related to allegations that the
    appellant hit B.L. in the back and knocked her to the ground as a result of
    which she injured her knee.

[18]

The appellant denied the assault and testified that B.L. hurt her knee
    when she knelt on a toy at her sons house.

[19]

Count seven, sexual assault, related to allegations that, on several
    occasions, the appellant forced B.L. to have oral sex.

[20]

The appellant testified that B.L. never performed oral sex due to a condition
    with her jaw, a gag and a bite reflex.

[21]

Count eight was a catch-all charge of common assault that related to
    multiple incidents between 1997 and 2006. B.L. described these incidents as
    including slapping, pushing and hair pulling.

[22]

The appellant denied the assaults, although he did agree that during
    their relationship they often argued and swore at each other.


(ii)       The
    event reported by D.Q.  count nine

[23]

The appellant and D.Q. were in a relationship between 1987 and 1994.  Prior
    to the conduct in issue in the charges before the trial judge, the couple had a
    history of domestic violence.  In 1993, the appellant pleaded guilty to an
    assault that took place in 1991.  The appellant testified that the conviction
    arose from an incident in which he tried to restrain D.Q. in an attempt to
    prevent her from running away, as she had threatened to commit suicide by
    crashing into a truck on Highway 401.  He admitted that he was wrong to do so,
    but explained that he was trying to protect her from herself. There were no
    records of the 1993 assault proceedings to confirm or deny the basis upon which
    the appellant pleaded guilty.

[24]

Count nine, uttering a death threat, related to an allegation that, in
    1994, the appellant said to D.Q., I could kill you at any moment, and no one
    would be the wiser.  D.Q. testified that, at the time, she thought he was
    joking.  However, later she saw a hole dug in the back of their property.  The appellant
    described it to her as a test hole, related to construction taking place on the
    property. D.Q. doubted this explanation as, by that time, the construction had
    progressed to the point where there was no further need for a test hole, and
    she believed that the hole was big enough for a body.  She became fearful for
    her life and left the appellant while he was away on a trip.  D.Q. did not
    report the threat to the police until they contacted her in 2006.

[25]

The appellant denied telling D.Q. that he could kill [her] at any
    moment.

(iii)     The
    events reported by M.O.  counts ten through 13

[26]

The appellant and M.O. met in 1972 and were married in 1977.  They were
    together until 1986 and divorced in 1987.  M.O. testified that the appellant
    was physically, emotionally and sexually abusive toward her.

[27]

Count ten, common assault, related to allegations that the appellant
    repeatedly assaulted M.O. between 1978 and 1984.  She alleged that the
    appellant pinched her legs, elbowed her in the stomach, threw forks at her,
    whipped the back of her legs with a wire, grabbed her hair, hit her on the back
    of the head and kicked her.

[28]

The appellant denied all of the assaults.

[29]

Count 11, indecent assault, related to allegations that twice between
    1977 and 1983, M.O. dreamed of being raped and when she woke up, she discovered
    the appellant having sexual intercourse with her.

[30]

The appellant denied that this happened.

[31]

Count 12, sexual assault, related to allegations that after M.O. had
    ended her relationship with the appellant and begun a new one (with her current
    partner of 22 years at the time of the trial), the appellant called her and
    asked her to come over to help him find a receipt.  M.O. testified that after
    she found the receipt, she wanted to leave but the appellant said that first
    she had to have sex with him.  She said no, but after about an hour she gave
    in, as she believed she had no choice.  When she arrived home, M.O. told her
    partner what had happened.

[32]

The appellant testified that he and M.O. had sex on several occasions
    after they broke up.  According to the appellants testimony, it was always
    consensual.

[33]

Count 13, common assault, related to allegations that two weeks prior to
    their marriage, the appellant and M.O. had an argument.  The appellant grabbed
    M.O. by both arms sufficiently hard that she had bruises on the inside of both
    arms above the elbows.  M.O. testified that she wore a long-sleeved wedding
    dress to conceal the bruises.

[34]

The appellant testified that he grabbed her arms to keep her from
    hitting him, and that there were no bruises.

III.      REASONS OF THE TRIAL
    JUDGE

Convictions

(i)        The
    counts involving B.L.  counts one through eight

[35]

For the most part, the evidence relating to each count consisted of the
    testimony of B.L. and that of the appellant.  In his lengthy and detailed
    reasons, the trial judge, in convicting the appellant on counts one, two, four,
    five, six, seven and eight, reviewed the testimony of the appellant and B.L. and
    explained why he preferred that of B.L. He also considered and rejected the
    defence position that B.L. had motives to fabricate, evidenced by her
animus
toward the appellant given the rocky nature of their relationship, the testimony
    of L.C., a defence witness who testified that B.L. had told her she intended to
    ruin the appellant and B.L.s 2.5 million dollar civil lawsuit against the
    appellant.  The trial judge, on his own, raised the concern that B.L. may have been
    alleging the assaults as a way of obtaining exclusive possession of the
    couples hobby farm.

[36]

In explaining his preference for B.L.s evidence over that of the
    appellant, the trial judge specifically noted, on a number of occasions, that
    B.L. had been consistent in the major details of her evidence throughout her
    statement to the police, the preliminary inquiry and trial.  In relation to
    counts four and six, the trial judge also made reference to supporting evidence
    such as medical records and the testimony of several witnesses who saw a large
    bruise on B.L.s arm.

[37]

In rejecting the appellants evidence and finding it did not raise a
    reasonable doubt, the trial judge described how he found Mr. Smiths testimony
    to be improbable and in one instance, count six, to have been contradicted by
    that of B.L.s son.

[38]

The trial judge acquitted the appellant of count three on the basis that,
    while he accepted B.L.s evidence that the appellant threw a chair at her and that
    the chair hit her, the trial judge was not satisfied that the appellant intended
    to hit B.L. with the chair.

(ii)       The
    count involving D.Q.  count nine

[39]

With respect to count nine, the trial judge found that the appellants
    credibility on this charge was severely damaged by his assertion that the 1993
    assault charge was prompted by an honest belief that he was holding on to D.Q.
    to prevent her from committing suicide.  The trial judge found it totally
    unbelievable that those facts were accepted as supporting a guilty plea to
    assault.

[40]

With respect to the threatening charge, the trial judge held that the
    appellant said the words alleged by D.Q., and that although they were not taken
    seriously at the time, when considered together with the unexplained hole in the
    backyard, the words justifiably intimidated D.Q.  Further, it was a reasonable
    inference that, even without the added concern created by the hole, the words
    were intended to intimidate; a reasonable person would consider the words a
    threat.

(iii)     The
    counts involving M.O.  counts ten through 13

[41]

The trial judge convicted the appellant on counts ten and 12 and
    acquitted the appellant on counts 11 and 13.

[42]

In relation to counts ten and 12, the trial judge accepted M.O.s
    evidence describing it as detailed, specific and consistent.  He reasoned that
    her evidence with respect to count ten would have to be a total fabrication
    if the appellants evidence were to be believed, yet she had no motive to
    fabricate.  There was no evidence that she bore any
animus
toward the
    appellant.  She had moved on with her life. The trial judge stated that M.O.
    demonstrated candour in her testimony and that she did not attempt to gild the
    lily.

[43]

These observations were in contrast to the trial judges assessment of
    the appellants evidence in response to M.O.s description of the events
    pertaining to counts ten and twelve.  The trial judge described the appellants
    denial with respect to count ten as a blanket denial providing no evidence concerning
    the incidents surrounding any of the alleged assaults.  Furthermore, the trial
    judge found that the appellants assertions that M.O. arranged to meet him for
    consensual sex and then falsely reported rape to her partner, were incredible.

[44]

The trial judge had some difficulty with M.O.s evidence relating to
    count 11 on the basis that M.O. had dreamed of being raped by the appellant
    before waking up to find him, apparently still asleep, having intercourse with
    her.  In relation to count 13, the trial judge carefully examined the evidence
    and stated that he was much more inclined to accept M.O.s evidence and that
    it likely happened the way she described it.  However, he found himself in
    some doubt and therefore also acquitted the appellant on count 13.

The Sentences

[45]

The trial judge began his reasons by
    reviewing the purposes of sentencing set out in s. 718 of the
Criminal Code
,
    and specifically referring to the identification of spousal abuse as an
    aggravating factor in s. 718.2. The trial judge also emphasized the principle
    of totality, referring to it as a huge issue and further noting that the
    whole concept of totality is what has been raised here, and I think that is
    highly relevant in this case.


[46]

In terms of mitigation, the trial judge noted that other than the one
    previous assault conviction, for which he received a fine, the appellant
    appeared to be a law-abiding member of the community.  For three years, he had
    complied with his conditions of release.  The appellant was 56 years old and
    was being held to account for many actions that took place when he was in his
    20s.  The trial judge found that, while the appellant was a risk to women with
    whom he had an intimate relationship, that risk was decreasing with age. 
    Further, the trial judge held that there was no evidence that the appellant posed
    a risk to the community at large.

[47]

These mitigating factors notwithstanding, in response to the defence
    request for a conditional sentence, the trial judge stated that the offences
    were too serious for a sentence to be served in the community; a period of
    incarceration must be imposed.  However, he did take account of the mitigating
    factors by reducing what he identified as a fit sentence  one of four years 
    by one year, and imposed a global sentence of three years.

[48]

The following exchange at p. 11 of his
    reasons for sentence explains the basis upon which the trial judge sentenced
    the appellant for each count on which he was convicted:

[2]

THE COURT:  So, a global sentence will be three
    years. Now, how do we have to split that up here? I guess any of these would
    carry three years, wouldnt they?

MS. FERLAND: Yes.

THE COURT: So, I will just put it on count four,
    and the others will be concurrent, so they will all be concurrent, three years.
    But I would like to record it on one of the more serious ones, count four, and
    then concurrent on the other counts.

[49]

In addition, he imposed a DNA order, a ten-year weapons prohibition and
    a sexual offender registry order.

IV.      ISSUES

[50]

The appellant raises the following issues on his conviction appeal:

1.

In
    relation to counts one, two, four, five, six, seven and eight, whether the
    trial judge erred in law by misapprehending the evidence and by relying on
    B.L.s previous consistent statements made to the police and in her testimony
    at the preliminary inquiry to support the credibility of her trial testimony. And,
    in relation to the same counts, whether the trial judge erred by failing to
    take the evidence of L.C. into account.

2.

In
    relation to count nine, whether the trial judge erred in law by finding that
    the appellants utterance to D.Q. amounted to a threat to kill D.Q.

3.

In
    relation to count ten, whether the trial judge erred in misapprehending the
    appellants evidence in concluding that he gave only a blanket denial.

4.

In
    relation to counts ten and 12, whether the trial judge erred by reversing the
    onus of proof.

[51]

The nature of the appellants sentence appeal is somewhat confusing.  In
    his Supplementary Notice of Appeal and in his factum, the appellant indicates
    he is appealing sentence on the basis that the trial judge erred by failing to
    impose a conditional sentence. However, in the appellants actual argument as
    set out in the body of his factum, he submits that his sentence appeal is
    dependent on a partially-successful conviction appeal.  Specifically, he asks
    that a conditional sentence be imposed [i]f the appellant is successful on all
    or part of his conviction appeal. He fails to offer any basis for varying the
    sentence if the conviction appeal is dismissed in its entirety.

V.        ANALYSIS

The Convictions

(i)
Did the trial judge err in law by misapprehending the evidence and
    by relying on B.L.s previous consistent statements made to the police and in
    her testimony at the preliminary inquiry to support the credibility of her
    trial testimony?

[52]

As can be seen from the summary of the reasons for judgment, the Crowns
    case was largely dependent on B.L.s evidence at trial in which she described
    the events that supported each charge.  The appellant, in his testimony,
    disputed B.L.s version of events.  For the most part, this was a he said, she
    said case.  The
trial jud
ges assessment
    of B.L.s credibility was, as I have said, critical to his determination of
    whether the Crown had proven the facts in support of each count beyond a
    reasonable doubt.

[53]

The appellant submits that on all but one of the counts relating to
    B.L., count four, the trial judge erred in law by relying on B.L.s initial statement
    to the police and the testimony she gave at the preliminary inquiry as support
    for preferring B.L.s testimony over that of the appellant.  The appellant
    argues that the trial judges error in using B.L.s prior statements was
    two-fold.   First, and most significantly, the statements were not part of the
    record available to the trial judge.  Secondly, the trial judge was not
    entitled to use B.L.s prior statements, even if they were in evidence, to
    support her trial testimony.

[54]

The portion of the reasons relating to B.L.s allegations, over 50
    pages, contain a number of references that clearly demonstrate the importance
    the trial judge attached to the consistency between B.L.s trial evidence and
    what she said in her extensive statement to the police and her testimony at the
    preliminary hearing.

[55]

To refer to just a few, the trial judge said, in relation to count one:

Another factor is, within less than an hour of
    walking down the lane, the complainant is at a police office, and that same
    afternoon gives a detailed account of this incident, and also goes back over
    eleven years of allegations. She has been consistent on all the major issues in
    her statement, through preliminary, and through trial in her evidence. It is
    not reasonable, in my view, to suggest that kind of detailed fabrication can be
    put together and consistently maintained. She was at the police station 40 to
    60 minutes after she walked off the property. I just do not think it is
    reasonably possible for her to fabricate all this detail, and not trip herself
    up.

In relation to count five:

This allegation and her complaint is, again, first
    made on March 26, 2006, an hour and a half interview followed. It is not
    reasonably possible to fabricate this detailed account, repeated again in her
    evidence at the preliminary, and again at trial. He denies it, and I reject
    that denial. It is not going to raise as a reasonable doubt. The evidence of
    the complainant proves the allegation beyond a reasonable doubt because it is
    detailed, specific, and consistent.

Finally in relation to count eight:

Again, these allegations go back nine years. They
    were given to the police during an interview March 26, 2006 when they were
    first reported. No reasonable possibility they were all fabricated under those
    circumstances. They are consistent in detail.

[56]

In response to the appellants arguments relating to the improper use of
    B.L.s statement to the police and her testimony at the preliminary, the Crown
    submits that the trial judge relied on these previous statements only for the
    purpose of his analysis of the defence argument that B.L.s allegations were
    fabricated.  This, argues the Crown, the trial judge was entitled to do.

[57]

My fundamental difficulty with this submission is that B.L.s prior
    statements were not in evidence.  Neither the recording of the police interview
    or its transcript nor the transcript of B.L.s evidence at the preliminary
    inquiry was tendered by counsel to form part of the trial evidence.  Both the
    preliminary inquiry and the police statement came up at various points during
    the trial and, in relation to B.L., defence counsel did read from the
    transcript of B.L.s police statement in cross-examining B.L.

[58]

While there is nothing in the record that indicates how the transcript
    of B.L.s police statement or of the preliminary inquiry came into the
    possession of the trial judge, I can only presume that it took place informally
    as the trial proceeded.  There is certainly nothing in the transcript of the
    trial that demonstrates that either statement or a portion of either statement was
    formally tendered or admitted into evidence.

[59]

These observations bring into focus problems that arise when proper
    attention is not paid to the boundaries of the trial evidence.  Both counsel
    and the trial judge are responsible for ensuring that there is no confusion
    about what is and what is not available to the trier of fact for the purposes
    of deciding the case.  Here, where Crown counsel wished to make use of the prior
    statements for the permissible purpose of rebutting the defence of fabrication,
    the Crown was obliged to decide first whether the entire statement or
    statements or just a portion were required, then to seek a ruling on the
    admission of what the Crown determined was necessary and finally, to ensure
    that what was admitted into evidence was limited to the information tendered
    and ruled admissible and nothing more. In some instances, for example, this may
    require redacting a portion of the page of a document to ensure that information
    not in evidence does not inadvertently become part of the record. Similarly,
    the trial judge has an obligation to monitor the admission of evidence
    carefully in order to ensure not only that the record is restricted to the material
    ruled admissible, but also that the evidence is used only for the purpose for
    which it was admitted.  see:
R. v. Morrisey
(1995), 22 O.R. (3d) 514.

[60]

I also disagree with Crown counsels argument that the trial judges
    only use of the previous statements was in considering the defence argument
    that B.L. had a motive to fabricate.  The above excerpts from the reasons for
    judgment demonstrate otherwise. They clearly indicate that the trial judge used
    the previous statements that were not in evidence, as corroborative of B.L.s
    testimony.

[61]

In
Morrisey
, at p. 541, Doherty J.A., highlights the fundamental
    requirement that a verdict must be based exclusively on the evidence adduced at
    trial. In the same paragraph, Justice Doherty explains that where a trial
    judge has misapprehended the evidence,
including resorting to material not
    before him or her
, and the errors play an essential part in the reasoning
    process resulting in a conviction then  the accuseds conviction is not based
    exclusively on the evidence and is not a true verdict (emphasis added). This
    reasoning was adopted by the Supreme Court of Canada in
R. v. Lohrer
,
    [2004] 3 S.C.R. 732, at paras. 2-3.

[62]

In my view, the appellant has demonstrated that the convictions in
    relation to counts one, two, four, five, six, seven and eight depended on
    material not in evidence and this material played an essential part in his
    conviction of the appellant.  While the trial judge did not mention B.Ls
    previous consistent statements in his analysis of count four and the Crowns
    case was supported by the testimony of other witnesses, reasons are to be read
    as a whole and I am not satisfied the trial judges conviction on count four
    was not tainted by the material not in evidence. Where a miscarriage of justice
    within the meaning of s. 686(1)(a)(iii) of the
Criminal Code
has been
    demonstrated, the appellant does not need to show that the verdict cannot be
    supported by the evidence within the meaning of s. 686(1)(a)(i).  It follows that,
    in relation to these counts, the convictions must be quashed.

[63]

While it is not necessary for me to deal with the appellants second
    argument, namely, that the trial judge erred by failing to take into account L.C.s
    evidence about B.L.s motive to fabricate, I have decided, for the sake of
    completeness to do so.

[64]

I do not accept the appellants submission on this point. The trial
    judge did refer to L.C.s evidence, at p. 17 of his reasons for judgment, when
    considering whether B.L. had a motive to fabricate her evidence.  Although, in
    his reasons, the trial judge did not advert directly to L.C.s evidence about the
    toothpaste incident, it was not necessary in the circumstances since he had already
    rejected the appellants evidence with respect to this incident as being
    contrived and not credible.

(ii)       Did the trial judge err in law by finding the appellant
    guilty of uttering threats to kill D.Q.?

[65]

On this count, there were two issues for the determination of the trial
    judge.  Did the appellant actually say the words to D.Q. and second, did they
    amount to a threat?

[66]

The trial judge not only rejected the appellants denial that he said
    the words, but also found that it did not raise a reasonable doubt.  This
    conclusion was based largely on the trial judges finding that the appellants
    description of the circumstances under which he pled guilty in 1993 of
    assaulting D.Q., was incredible.  Furthermore, he accepted D.Q.s evidence that
    the appellant did say to her that he could kill [her] at any moment, and no
    one would be the wiser.

[67]

The trial judges conclusion that the appellant said those words to D.Q.
    was based on his assessment of the evidence. I see no reason to interfere.

[68]

The only remaining issue is whether these words, in the circumstances in
    which they were uttered, support a conviction for uttering a death threat.  Counsel
    for the appellant submits that these words amount only to an assertion of the
    ability to kill and do not convey a present intention to kill now or in the
    future - the
actus reus
of uttering a threat to kill.

[69]

Based on the following analysis, I do not agree with this submission.

[70]

Section 264.1(1)(a) of the
Criminal Code
provides that [e]very
    one commits an offence who, in any manner, knowingly utters, conveys or causes
    any person to receive a threat (a) to cause death  to any person.

[71]

In
R. v.

McCraw
, [1991] 3 S.C.R. 72, at pp. 82-83, the Supreme Court instructs
    that the question of whether the impugned words constitute a threat, which it
    describes as a question of law rather than one of fact, should be approached by
    looking at the matter objectively from the perspective of the ordinary,
    reasonable person:

The structure and wording of s. 264.1(1)(
a
)
    indicate that the nature of the threat must be looked at objectively; that is,
    as it would be by the ordinary reasonable person.  The words which are
    said to constitute a threat must be looked at in light of various factors.
     They must be considered objectively and within the context of all the
    written words or conversation in which they occurred. As well, some thought
    must be given to the situation of the recipient of the threat.

The question to be resolved may be put in the
    following way.
Looked at objectively, in the context of all the words
    written or spoken and having regard to the person to whom they were directed,
    would the questioned words convey a threat of serious bodily harm to a
    reasonable person?

[Emphasis added.]

See also
R. v. Clemente
, [1994] 2 S.C.R. 758, at p. 763,
R. v. Batista
(2008), 270 O.A.C. 73, at paras. 12-20.

[72]


The Crown must
    therefore prove two elements to establish the offence of uttering a threat.
    First, the Crown must prove that the appellant made a threat
to cause death;
and second, that he made the threat
    knowing that it would be taken seriously.

[73]

With respect to the second element, in
R. v. LeBlanc
,
    [1989] 1 S.C.R. 1583, the Supreme Court approved the trial judges ruling that
    whether the threatener intends to carry out the threat is irrelevant to
    determining if a conviction can be maintained.  It is the element of fear
    instilled in the victim by the issuer of the threat at which the criminal
    sanction is aimed.  Section 264.1 provides that the threat must be
    knowingly uttered or conveyed by the accused.  Thus the Crown is required
    to establish that the accused intended to threaten the victim with death.

[74]

However, here, since the appellant denied uttering the
    words in issue and therefore provided no evidence as to context or his intent,
    the determination as to whether there was such a subjective intent must be
    based upon a consideration of the words themselves.

[75]

In considering the first element, whether the
    words amounted to a threat, the ordinary, reasonable person would take into
    account all the circumstances, including the manner in which the words were communicated,
    the person to whom the appellant addressed his comments and the relationship
    between the appellant and the subject of the alleged threat.

[76]

In my view, the trial judge made no error in concluding that
    objectively, even without the evidence about the hole in the ground, a
    reasonable person would consider the words uttered to be a threat, given the
    nature of the appellants relationship with D.Q.  a relationship in which the
    appellant had been physically and emotionally violent towards D.Q. over an
    extended period of time.

[77]

I would therefore not give effect to this ground of appeal.

(iii)     Did the trial judge misapprehend the appellants evidence
    in respect of count 10, concluding that he gave only a blanket denial?

[78]

The appellant submits that the trial judges finding that that the
    appellant gave no evidence about any incidents surrounding any of these
    allegations was contrary to the evidence as the record demonstrates that the appellant
    testified in some detail about various aspects of his relationship with M.O,
    including incidents that took place that related to some of the allegations
    that formed the basis of count ten.  Furthermore, argues the appellant, since
    he took the position that none of the assaults described by M.O. took place, it
    was unreasonable to expect him to provide detailed information about such
    events.

[79]

In my view, the trial judges comment that the appellant gave a blanket
    denial must be read in the context of the entirety of the portion of his
    reasons dealing with count ten, in which the trial judge reviewed the
    appellants testimony in full, ending with his rejection of the appellants
    version of events and his conclusion that it did not raise a reasonable doubt. 
    In accepting M.O.s evidence, the trial judge found that it was balanced,
    specific, detailed and consistent.

[80]

I see no error in the trial judges treatment of the evidence relating
    to count ten or in his analysis of the evidence that led him to the conclusion
    that the Crown had proven the assaults.  I would therefore not give effect to
    this ground of appeal.

(iv)      Did the trial judge err by reversing the onus of proof in
    relation to counts ten and 12?

[81]

With respect to count ten, the appellant submits that the trial judge
    erred when he said that M.O.s evidence would have to be a total fabrication
    if the appellants was to be believed.  The appellant only needed to raise
    reasonable doubt; he did not need to prove fabrication.  With respect to count
    12, the appellant similarly argues that the trial judges findings that it was
    unreasonable to believe the appellants testimony that M.O. would pursue the
    appellant after leaving him for a man with whom she still lives 22 years later,
    and that it defied common sense that she would falsely report a rape to her
    boyfriend, were unreasonable.  These findings, argues the appellant, show that
    the trial judges approach was to assume that he committed the sexual assault
    against M.O., as it was only then that his testimony would defy common sense.

[82]

I would not give effect to this ground of appeal.

[83]

In my view, the trial judge did not reverse the onus of proof with
    respect to count ten or count 12.  Throughout his reasons, the trial judge
    repeatedly referenced the required approach to the assessment of evidence
    established in
W.(D.)
. The trial judge was entitled to reject the
    appellants evidence and find that it did not raise a reasonable doubt.  With
    respect to count ten, the trial judges comment about fabrication was nothing
    more than a recognition of the obvious  that the appellants and M.O.s
    evidence conflicted and thus could not both be true.  Similarly, with respect
    to count 12, the trial judge was entitled, on the available evidence, to make
    the findings of fact that he did. In noting that the appellants version of the
    events was unreasonable, the trial judge was merely explaining why that version
    did not raise a reasonable doubt about his guilt.

The Sentence

[84]

Since I would allow the appeal in relation to counts one, two, four,
    five, six and eight, quash the convictions and order a new trial and dismiss
    the appeal in relation to all other counts, it is necessary to consider only
    the sentences imposed on counts nine, ten and 12.  The death threat to D.Q. and
    the assaults on M.O., including the sexual assault that forms the basis of
    count 12, must be considered separately for sentencing purposes.

[85]

In this province, sentences for uttering a death threat in circumstances
    similar to those in this case tend to range from the imposition of a suspended
    sentence to six months imprisonment: see
R. v. Rowe
(2006), 212 C.C.C.
    (3d) 254 (C.A.),
R. v. Bytyqi
(2004), 186 O.A.C. 114 (C.A.),
R. v.
    Stiliadis
, 2004 CarswellOnt 1388 (C.A.).

[86]

The jurisprudence of this court suggests that a sentence of one to two
    years will generally be appropriate for a conviction for common assault based
    on facts such as those comprising count ten, committed against a spouse or
    domestic partner in the context of a lengthy pattern of domestic abuse: see
R.
    v. Petrovic
(1984), 47 O.R. (2d) 97 (C.A.),
R. v. Inwood
(1989), 32
    O.A.C. 287 (C.A.),
R. v. R.(B.S.)
(2006), 81 O.R. (3d) 641 (C.A.),
R.
    v. Sidhu
, 2011 ONCA 139,
R. v. States
(2006), 214 O.A.C. 106 (C.A.).

[87]

Finally, in cases of sexual assault involving forced intercourse with a
    spouse or former spouse, sentences generally range from 21 months to four
    years: see
R. v. R.(B.S.)
(2006), 81 O.R. (3d) 641 (C.A.),
R. v.
    Jackson
, 2010 ONSC 3910,
R. v. M.(B.)
, 2008 ONCA 645,
R. v. Nolan
,
    2009 ONCA 727,
R. v. Toor
, 2011 ONCA 114.

[88]

These observations take me to the question of whether the sentences I
    would impose for these crimes should be served consecutively or concurrently.  While
    the decision to impose sentences consecutively or concurrently is entitled to
    the same deference customarily afforded to sentencing decisions (
R. v.
    M.(T.E.)
, [1997] 1 S.C.R. 948, at para. 46), in this case, the trial judge
    failed to offer any justification for his decision that each sentence be served
    concurrently. As such, there is no reasoning to which to defer. Given the
    length of time between the offences committed against D.Q. and against M.O.,
    the fact that they were committed against two different complainants and the
    lack of any other relevant nexus between the offences, including those in
    relation only to M.O., in my view the trial judge made a reversible error in
    deciding that the sentences should be served concurrently: see
R. v. W.Q.
(2006),
    213 O.A.C. 217 (C.A.), at para. 15,
R. v. Traverse
(2008), 231 Man R.
    (2d) 123 (C.A.), at para. 47.

[89]

At this juncture it is important to note that the Crown chose not to
    cross appeal sentence.  Therefore, the sentence I would impose in relation to
    the three counts that require reconsideration cannot exceed three years, in
    total.

[90]

Against that background, having regard to the principles set out in s. 718
    of the
Criminal Code
, the aggravating circumstances, the main one being
    the fact that the appellants acts were acts of spousal abuse, and the
    mitigating factors identified

by the trial judge, I am of the view that
    fit sentences are two months for count nine, ten months for count ten and two
    years for count 12.  I would order the sentences for counts ten and 12 to be
    served consecutively with each other and consecutive to the sentence for count
    nine.

DISPOSITION

[91]

In the result, I would allow the appeal and quash the convictions on counts
    one, two, four, five, six, seven and eight and direct a new trial.  I would
    dismiss the appeal from the convictions on counts nine, ten and 12, grant leave
    to appeal the sentence imposed on those counts, allow the appeal and vary the
    sentences imposed on those counts to two months for count nine, ten months for
    count ten and two years for count 12, each sentence to be served consecutively
    to each other sentence.

RELEASED:

AUG 26 2011                                             Gloria
    Epstein J.A.

KMW                                                          I
    agree K.M. Weiler J.A.

I
    agree R.A. Blair J.A.





[1]

B.L. are the complainants initials since her
    marriage.  She is referred to as B.V. in the reasons for judgment.



[2]

The proper approach to sentencing an offender
    for multiple offences is unsettled. The courts of appeal of various provinces
    have set out two competing approaches. One requires a sentencing judge to fix
    an appropriate global sentence first and then assign sentences for each
    individual offence and designate them concurrent or consecutive to fit within
    the already determined global sentence: see
R. v. Jewell
(1995), 83
    O.A.C. 81 (C.A.). The alternative approach requires a sentencing judge first to
    assign fit sentences for each offence and designate those sentences as
    concurrent or consecutive and only then, as a final step, consider the total
    sentence to ensure it does not offend the principle of totality: see
R. v.
    Adams
(2010), 291 N.S.R. (2d) 206 (C.A.),
R. v. Wozny
, [2011] 2
    W.W.R. 630 (C.A.).

Here, the trial judge followed the approach set out
    by this court in
Jewell
.



