



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this subparagraph
    comes into force, if the conduct alleged involves a violation of the
    complainants sexual integrity and that conduct would be an offence referred to
    in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material or
    a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.H., 2018 ONCA 245

DATE: 20180314

DOCKET: C62212

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.

Appellant

Jill Presser and Daniel Stein, for the appellant

Lisa Joyal, for the respondent

Heard: October 30, 2017

On appeal
    from the conviction entered by Justice M.T. Devlin of the Ontario Court of
    Justice on February 18, 2016 and from the sentence imposed on May 12, 2016.

van
    Rensburg J.A.:

INTRODUCTION

[1]

The appellant, after a judge-alone trial, was
    convicted of nine historical sexual offences against his two biological
    daughters, C and D, and his step-daughter, S. He was acquitted of two charges
    in relation to his third biological daughter, A. He was sentenced to six years
    imprisonment concurrent on all charges. The appellant appeals his conviction
    and sentence.

[2]

For the reasons that follow, I would dismiss the
    appeal.

THE CONVICTION APPEAL

[3]

The appellants assaults on his biological
    daughters, C, D and A, were alleged to have occurred in the 1980s and 1990s,
    when they were between the ages of five and 18. His step-daughter, S, alleged
    she was sexually assaulted by the appellant in 2006/2007 and 2009, when she was
    in her early twenties.

[4]

The abuse described by C consisted primarily of
    vigorous rubbing of her breasts for many years and, on one occasion when she
    was 16 or 17, digital penetration. D described a continuous pattern of her
    father touching her breasts and vagina over and under her clothing from the
    time she was six until she was approximately 15 or 16, many incidents where he
    had her masturbate him and of mutual masturbation, one incident where he put
    his penis between her legs, and one incident where he put his penis in her
    mouth. A described one incident where the appellant touched As breasts and
    vagina while tickling her before D intervened. Finally, S described incidents
    that occurred many years later, and while she was in her twenties, where the
    appellant touched her breasts over and under her clothing and put his fingers
    in her vagina, and two years later when he rubbed her breasts under her clothing
    and touched her vagina with his penis.

[5]

The appellant admitted some of the offences in
    relation to C, D and S, but not the full extent of the conduct they described.
    At trial the appellant testified that he touched Cs breasts inappropriately
    about two or three times a month, but without sexual intent and always over her
    clothing. He also testified that on one occasion he put his hand inside Cs
    pants and touched her pubic hair. He admitted that he fondled Ds breasts and
    vagina on one occasion outside her clothing when she walked in on him
    masturbating his exposed penis, and that on other occasions he would touch her
    inappropriately on her breasts and vagina, again always outside her clothes. He
    admitted speaking with D about their inappropriate behaviour, and insisting
    it not continue. With respect to S, the appellant testified that he fondled her
    breasts and vagina over her clothes on impulse on one occasion in 2007 when she
    was lying on his bed, and that after that he apologized, admitted what he had
    done to his wife (Ss mother) and sought counselling. He also admitted that he frequently
    engaged in tickling and roughhousing with all his daughters. He denied any inappropriate
    sexual conduct towards A.

[6]

The trial judge accepted the evidence of S, C
    and D and convicted the appellant on all charges relating to these
    complainants. She found that the evidence in relation to A left her with a
    reasonable doubt and acquitted him on those charges.

[7]

Concerning the conviction appeal, the appellant contends
    that he was convicted of the various offences based on bad character or general
    discreditable conduct evidence. Counsel asserts that the trial judge made three
    specific errors: (i) she erred in admitting the evidence of each complainant as
    similar fact evidence across counts; (ii) she relied improperly on evidence of other
    uncharged bad conduct, including similar fact evidence that fell outside the
    scope of the information and general bad character evidence; and (iii) she
    reversed the burden of proof in finding the appellant guilty.

[8]

I will address each of these grounds in turn.

(1)

Did the trial judge err in her similar fact evidence
    ruling?

[9]

As his first ground of appeal, the appellant
    challenges the trial judges similar fact evidence ruling.

[10]

The Crown sought to use the similar fact
    evidence in support of the credibility of each complainant as to whether the
    offences occurred to the extent they described. The application was opposed by
    the defence, who asserted that there were insufficient similarities between the
    accounts provided by each complainant and that there was evidence of collusion.

[11]

A
trial judges ruling on similar fact evidence is entitled
    to a high degree of deference. Interference by this court is justified only if
    the analysis is unreasonable or if there is legal error or a misapprehension of
    material evidence:
R. v. Cresswell
, 2009 ONCA 95, at para. 7. The
    appellant says there were such errors here.

[12]

The appellant says that the trial judge: (i)
    failed to specifically identify the live issue to which the similar fact
    evidence was said to relate, with the result that her analysis of the question
    was unfocussed; (ii) failed to acknowledge meaningful dissimilarities between
    the incidents the complainants described; and (iii) erred in her assessment of
    prejudicial effect.

[13]

I would not give effect to these arguments.

[14]

First, there was no question about the live
    issue to which the similar fact evidence related in this case: whether, in
    addition to the abuse the appellant acknowledged had occurred, any or all of
    the other abusive conduct the complainants described, and which the appellant
    denied, had also occurred. While it would have been preferable for the trial
    judge to have framed her analysis of the admissibility of the similar fact
    evidence with reference to the specific issue, it was not a reversible error
    for her to fail to do so in the circumstances of this case.

[15]

The trial judges ruling on similar fact
    evidence was responsive to the arguments of counsel. The appellants trial
    counsel focused his submissions on two points  that the incidents described by
    the complainants were too dissimilar to be used as similar fact evidence, and
    that there was a possibility of collusion.

[16]

The trial judge adverted to the applicable legal
    principles in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908,
recognizing that similar fact evidence is presumptively inadmissible
    and that the Crown has the onus to establish that the probative value of the
    evidence outweighs its prejudicial effect. She concluded that, while none of
    the sexual abuse described by the complainants was exactly the same, there were
    similarities, namely: grabbing breasts, tickling and touching the breast and
    vaginal areas over and under clothing. She noted that the allegations involved
    all of the appellants children
[1]
and his step-child, that virtually all of the abuse occurred inside the family
    home, that the abuse occurred when the daughters were between six and 17 years
    old (she was referring here to the biological children), and that some of the
    conduct described was very similar.

[17]

The trial judge observed that there was no
    evidence to support collusion or collaboration among the complainants (a
    finding not challenged on appeal). Noting that the appellant admitted that he
    did engage in some of the sexual abuse that was described, the trial judge
    concluded that the probative value of the evidence significantly outweighed its
    prejudicial effect.

[18]

The appellants second argument on this ground
    of appeal is that the events described by the complainants were too dissimilar
    to be used as cross-count similar fact evidence.

[19]

The appellant points to the dissimilarities
    between the accounts of the various complainants: the time lapse of 15 years
    between the alleged assaults on the appellants biological daughters and on S;
    the variation in surrounding circumstances, with some incidents occurring in
    secret, while others occurred in the context of roughhousing out in the open;
    and the variation in the specific details of the assaults, with Ds allegations
    of oral sex and mutual masturbation being far more serious than the incidents
    involving the other complainants. The appellant says that the trial judge
    placed too much emphasis on similarities that were generic only: that he was
    in
loco parentis
, that the complainants were
    female, and that the assaults took place in the home.

[20]

I disagree. The judges task [was] not to add
    up similarities and dissimilarities and then, like an accountant, derive a net
    balance:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at
    para. 60.
The question is whether there were connecting
    factors between the alleged assaults, and whether there was a persuasive
    degree of connection between the similar fact evidence and the offence charged:
Shearing
, at para. 48. The trial judge
    concluded that there was such a connection.

[21]

Here, the context in which the alleged behaviour
    occurred was similar  the appellant was a parent or step-parent of each
    complainant, in a position of trust or authority, and engaging in sexual
    touching in the home. As this court noted in
R. v. B.(L.)
(1997),
116 C.C.C (3d) 481
(C.A.)
,
    at para. 37,
in cases of sexual assault, the similarities or
    dissimilarities between the sexual acts that are alleged are, of course,
    relevant, but often not as compelling as the circumstances surrounding the
    incidents. While there were some differences between the sexual acts
    described, and while S was older than the other complainants at the time of the
    assaults she recounted, this does not materially diminish the level of
    connectedness that would make the evidence on other counts admissible on the
    question of whether a particular assault took place. See for example
R.
    v. R.B
. (2005), 77 O.R. (3d) 171 (C.A.), where this court
    upheld a trial judges similar fact ruling on evidence across counts
    notwithstanding that the assaults described by two of four complainants
    occurred when they no longer lived in the appellants home, and where the types
    of sexual misconduct varied between complainants. The similarity or
    connectedness was in the fact that the assaults occurred when the appellant was
    a father figure, beginning in the appellants home while the complainants were
    vulnerable (at paras. 13 to 16). Finally, in the present case the probative
    value of the evidence was significant, and its reliability was enhanced by the
    fact that the appellant admitted certain abusive conduct in relation to each of
    C, D and S.

[22]

The appellants third argument on the similar
    fact evidence ruling is that the trial judge erred in failing to dismiss the
    application on the basis that the prejudice caused by such evidence outweighed
    its probative value.

[23]

I disagree. Prejudice in the similar fact
    context involves the two distinct concepts of reasoning prejudice and moral
    prejudice:
R. v. T.B.
, 2009 ONCA 177, 243
    C.C.C. (3d) 158, at para. 26. This was a non-jury case where the similar fact
    evidence related to the counts in the information and the evidence was already
    before the court.
[2]
As noted by this court in
T.B
., at
    para. 27, there is little risk of reasoning prejudice in a judge-alone case, as
    the trial judge is presumed to know the law and the proper and improper use of
    evidence.

[24]

Further, the risk that the appellant would be
    convicted solely on the basis of his general bad behaviour (moral prejudice) is
    also not a significant concern in a judge-alone trial:
T.B.,
at para. 33. See also:
R. v. MacCormack
, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 68 and 69. And, both
    moral and reasoning prejudice are significantly reduced in a count-to-count
    similar fact application, as the evidence is admissible independent of its
    status as similar fact.

[25]

I do not see any error in the trial judges
    conclusion that the probative value of the similar fact evidence in this
    multi-count, multi-victim sexual assault trial outweighed any prejudice that
    could result from the admission of such evidence

(2)

Did the trial judge improperly admit and rely on
    evidence of uncharged bad conduct?

[26]

The second error alleged by the appellant is
    that the trial judge improperly admitted and relied on evidence of other
    uncharged bad conduct. This evidence falls within two categories:  (i) evidence
    of disposition (i.e. similar fact evidence) that fell outside the scope of the
    information; and (ii) general bad character evidence.

[27]

The first category of evidence arises from the
    trial judges request, at the conclusion of closing submissions, that counsel
    link the evidence to the specific counts in the information. The appellant
    asserts that, in responding to this request, the Crown particularized the
    counts in the information, notwithstanding that the appellant did not at any
    time request particulars or object to the information as drafted. The appellant
    submits that the Crowns failure to link certain incidents described by the
    complainants to a particular count turned evidence of those incidents into
    extrinsic (uncharged), and therefore inadmissible, bad character evidence, and
    the admission of this evidence resulted in an unfair trial.

[28]

I disagree. First, contrary to how the appellant
    seeks to characterize what occurred, there was no particularization of the
    charges. The defence never requested particulars, and it was not prejudiced by
    the form of the information. The appellant received disclosure, including the
    complainants statements to police, and had a preliminary inquiry. He knew the
    case against him. After closing submissions the trial judge asked both Crown
    and defence counsel for assistance in linking the evidence to the particular
    counts, which covered various locations and time periods during which there had
    been changes to the provisions of the
Criminal Code
. Counsel responded by identifying specific incidents that were
    relied on to support each charge. For example, counts 7 through 11 all dealt
    with D, with different offences in sometimes overlapping locations and time
    periods. Counsel identified specific incidents referred to in Ds evidence and
    relied on by the Crown, together with the appellants position in respect of
    each incident.

[29]

The assistance provided by counsel linking the
    evidence to the specific counts did not mean that the counts were then
    particularized. And, more to the point of the appellants argument, the process
    of tying evidence to specific counts did not mean that all of the complainants
    other evidence about the appellants conduct was automatically transformed into
    inadmissible discreditable conduct evidence. Indeed, there was no objection
    during the trial to what the appellant now says was extraneous discreditable
    conduct evidence.

[30]

With one exception, which I discuss below, the
    incidents that were admitted as similar fact evidence fell within the scope of
    the charges set out in the information; evidence of those incidents was
    therefore properly admitted by the trial judge in her ruling on the
    count-to-count similar fact evidence application.

[3]

[31]

The
    exception relates to Cs evidence about massages that the appellant had her give
    him when she was six or seven years old, while the family was living in
    Corunna. Because the offences with which the appellant was charged in relation
    to C (sexual assault and sexual exploitation) did not even exist at the time of
    the alleged massages, these incidents fall outside the scope of the information.
    The Crown sought, and the trial judge allowed, the massage evidence to be
    admitted as similar fact evidence without anyone adverting to the fact that this
    was extrinsic, rather than count-to-count, similar fact evidence.

[32]

However,
    I am satisfied that, had counsel and the trial judge adverted to this issue, the
    massage evidence would have been properly admitted as extrinsic similar fact
    evidence. In addition, the admission of this evidence caused the appellant no
    prejudice in terms of how he conducted his defence. He knew that the Crown was
    seeking to have the massage evidence admitted as similar fact; the Crowns
    factum in support of the similar fact application indicated that the Crown was
    seeking to have the massage evidence admitted as similar fact, and the
    appellants responding factum addressed this particular piece of evidence. Even
    if the trial judge may have relied on the underlying conduct in sentencing the
    appellant, I am satisfied that it would not have materially affected the
    sentence that was imposed. I therefore find that admitting the massage
    incidents as similar fact evidence did not amount to reversible error:
R.
    v. Graham
, 2015 ONCA 113.

[33]

I
    also reject the appellants contention that a mass of general bad character
    evidence was admitted at trial without a Crown application, causing him
    prejudice. Much of the evidence was admissible because it was inextricably
    connected to the incidents of abuse described by the complainants. For example,
    evidence that the appellant had pornographic magazines and videos was directly connected
    to Ds description of two incidents of abuse (during which, she testified, she
    was shown the pornography) and was relevant to show the sexual nature of the
    contact. The evidence of D and A that the appellant struck D after she
    intervened while the appellant was tickling A was part of their account of the
    very incident that gave rise to the charges involving A. Evidence of the
    appellants bullying and belittling behaviour was part of the factual
    circumstances of the offences charged, and was offered by the appellant as an
    explanation for why he did certain things, especially to C  to bug and
    tease, rather than for a sexual purpose.

[34]

By
    far the majority
of the other evidence the appellant complains
    about, such as
why his marriages failed and his alcohol abuse, was evidence
    he introduced in his own testimony or it was elicited in his counsels cross-examination
    of the complainants. Other evidence, including Ds reference to her mothers
    admission to a psychiatric hospital following her disclosure of the sexual
    abuse, was part of the narrative, and no objection was taken to this evidence at
    trial. Finally, the defence pointed to a great deal of what is characterized on
    appeal as bad character evidence to argue
animus 
that the complainants
    had reasons other than the alleged sexual misconduct to have terminated contact
    with the appellant, and to make false and exaggerated claims of sexual abuse.

[35]

In
R. v. J.A.T
., 2012 ONCA 177, 290 O.A.C. 130, a
    case relied on by the appellant, this court allowed an appeal where evidence of
    uncharged misconduct and other morally reprehensible behaviour over nearly a
    decade (characterized by Watt J.A. as an evidentiary swamp) included
    irrelevant evidence, double hearsay, opinion and prior consistent statements,
    and the jury was not properly cautioned about its use of the evidence. The
    combined serious errors were prejudicial and required a new trial. By contrast,
    there was no such evidentiary swamp in this judge-alone trial. Finally, I
    note that there is nothing in the trial judges reasons to suggest that she
    improperly relied on such evidence in determining the appellants guilt.

(3)

Did the trial judge reverse the burden of proof?

[36]

As his third ground of appeal, relying on
    comments made by the trial judge in her discussion of his credibility in
    respect of the charges relating to C and D, the appellant contends that the
    trial judge erred by shifting the burden of proof.

[37]

The appellant relies on a number of cases where
    this court concluded that it was a reversible error for a trial judge to find
    an accused guilty, after accepting the evidence of a complainant, and without
    properly assessing whether the accuseds evidence, or the evidence as a whole,
    raised a reasonable doubt. In
R. v. V.Y
., 2010
    ONCA 544, 258 C.C.C. (3d) 281, a majority of this court analyzed the reasons of
    the trial judge and found that the accused was disbelieved simply because the
    complainant was believed. In
R. v. Stewart

(1994),
    70 O.A.C. 370 (C.A.), although allowing the appeal on the basis of unreasonable
    verdict, the court noted that the trial judge shifted the onus to the appellant
    to give an explanation as to why the complainant would lie (at para. 26). In
R.
    v. A.J.S
., 2011 ONCA 566, 106 O.R. (3d) 586, this court
    criticized the trial judges comment that the appellant made an unvarnished
    denial rather than giving an interpretation of what may have happened, which
    he characterized as a denial of convenience. The appeal was ultimately
    allowed on the basis of insufficient reasons.

[38]

This case is quite different from those relied
    on by the appellant. When the impugned statements are reviewed in the context
    of the reasons as a whole, this was not a case of a trial judge reversing the
    burden of proof. The trial judge did not disbelieve the appellant simply
    because she accepted the evidence of some of the complainants. She did not
    shift the onus to the appellant to explain why the complainants would lie.

[39]

The trial judges reasons set out in some detail
    the evidence of the complainants in support of the charges. After referring to
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, she considered the
    appellants evidence and concluded that she did not accept the evidence, and
    that it did not raise a reasonable doubt. I note here that no objection is
    taken by the appellant to the trial judges reasoning in respect of the charges
    concerning S and A, or to her assessment of the credibility of the
    complainants. The concern is with respect to the trial judges discussion of
    the appellants evidence denying the extent of his abuse in relation to C and
    D.

[40]

In relation to C and D, the trial judge stated
    that she did not accept the appellants evidence and that it did not raise a
    reasonable doubt, and she referred to six reasons. Among those reasons were
    the two statements the appellant finds objectionable: (1) that the appellant
    minimized the sexual activity with C and D by, for example, claiming all of the
    touching occurred over the clothing and it only occurred two to three times per
    month and that he meant it as a teasing gesture, not as abuse; and (2) that the
    appellants denials did not include any details, and that when he denied the
    incident with D, which she said was the first instance of sexual abuse, he did
    not offer an alternative scenario of when and how the abuse began.

[41]

Contrary to the appellants submission, I do not
    regard these statements as the trial judge reversing the onus of proof to the
    appellant to disprove the complainants allegations. It is important to
    remember here that the appellant acknowledged improper behaviour with C and D
    over a significant number of years. With respect to C, he not only admitted to regularly
    grabbing her breasts, he testified that he put his hand down her pants
    (although he denied fingering her). With respect to D he admitted that for
    years he touched her breasts and vagina (albeit over her clothes), that his
    behaviour was wrong, and that on one occasion, after she caught him
    masturbating while fully exposed, he touched her breasts and vagina. The
    appellants emphasis throughout his evidence on how he was teasing and
    roughhousing with his daughters is difficult to reconcile with the specific
    incidents he admitted, his telling D when she was 12 that their inappropriate
    behaviour had to stop, and the counselling he later sought out. It was not
    inappropriate for the trial judge in these circumstances to characterize the
    appellants emphasis on him merely teasing and roughhousing with his daughters
    as minimizing and to find that it weighed against the credibility of the
    appellants evidence about the extent of his abuse of C and D.

[42]

As for the trial judges comment on the
    appellants failure to provide details of his abuse of D, including how it
    started, the appellant on his own evidence had been touching D in a sexual
    manner from when she was a small child until at least the age of 12. He denied
    the French fry incident (where he offered D a French fry if she would let him
    touch her) as the first incident of abuse, simply saying that it did not
    happen. It was not unreasonable for the trial judge to take into consideration
    in assessing the appellants credibility about such evidence, his failure to
    provide any evidence at all about how his conduct with D, which he
    characterized as inappropriate and acknowledged had continued over many years,
    had started. This is unlike the cases referred to by the appellant where
    nothing more than a bald denial might have been expected.

[43]

In any event I do not regard these comments as
    reversing the onus of proof, when considered in the context of the reasons as a
    whole, and in particular the other reasons the trial judge gave for
    disbelieving the appellant and finding his evidence did not raise a reasonable
    doubt (which included his bizarre and illogical explanations for incidents he
    recalled differently, such as that he put his hand down Cs pants because she
    was bugging him about his interaction with a female guest, and he decided to
    show her). The trial judge took into consideration the appellants efforts to
    cast his daughters in a negative light, to portray himself as both a victim and
    a great father, and his admitted binge-drinking that he blamed for at least one
    incident of sexually abusive behaviour, and that the trial judge found
    difficult to believe was the only incident where alcohol was a factor. Contrary
    to the appellants assertions, there was nothing wrong with the trial judge
    taking these factors into account in her assessment of the appellants
    credibility.

[44]

Finally, the appellant complains about two other
    features of the trial judges assessment of his credibility in relation to the
    allegations concerning C and D. First, he says that the trial judge failed to mention
    two factors that were favourable to him: that he admitted to having engaged in
    sexually inappropriate behaviour with his daughters, and that he sought and
    obtained treatment for his sex offending behaviour prior to being charged.
    Second, he contends that the trial judge misapprehended the evidence when she
    stated that the appellant blamed his daughters for breaking off contact, when the
    evidence was to the contrary.

[45]

The appellants testimony that he engaged in
    inappropriate sexual misconduct (although he characterized it largely as
    non-sexual rough-housing and teasing) was more of a denial of an intention to
    sexually abuse his daughters than an admission of wrongdoing. As for his
    participation in sex offender treatment, this occurred after the 2007 incident
    with S, many years after the sexual abuse of his biological daughters, and very
    little information was provided about the content of the counselling and
    treatment. The relevance of this evidence to the appellants credibility on the
    extent of what occurred, is not apparent. The trial judge did not err in these
    circumstances by failing to mention any of this evidence, which could not have
    had a material effect on her assessment of the appellants credibility.

[46]

As for the assertion that the trial judge misapprehended
    the evidence when she said that the appellant blamed his daughters for breaking
    off contact, I do not see an error here. In the context of her comments about
    the appellant taking pains to cast the complainants in a negative light, the
    trial judge said that he seemed to blame his daughters for not keeping in
    touch, not contacting him when their mother died, and with respect to [A] not
    inviting him to her graduation. It is a fair and available inference from the
    evidence that the appellant, while asserting that he respected the
    complainants choices to break contact with him, did in fact suggest that the
    complainants were unreasonable in not informing him of their mothers death and
    excluding him from such events in their lives as a graduation and contact with
    his grandchildren.

SENTENCE APPEAL

[47]

In his sentence appeal the appellant asserts
    that the trial judge erred in two ways. First, he says that she started with a
    global sentence and then imposed a sentence of six years on each count to run
    concurrently, instead of considering a fit sentence for each count and then
    applying the principle of totality. The appellant contends that
the
    seriousness of the offences varied, and that each of the counts, individually, ought
    to have attracted lesser sentences, and resulted in a  total sentence of less
    than six years imprisonment.

[48]

I would not give effect to this ground of appeal.

[49]

The trial judge concluded that a global
    sentence of six years was warranted. To the extent that she began with a global
    sentence, and then determined the appropriate sentence for each count, she did
    not err in principle. This approach was endorsed by this court in
R.
    v. Jewell

(1995),
    100 C.C.C. (3d) 270
(Ont. C.A.), at p. 279: "[h]aving
    determined the appropriate total sentence, the trial judge should impose
    sentences with respect to each offence which result in that total sentence and
    which appropriately reflect the gravamen of the overall criminal conduct".
    See also
R. v. Ahmed,
2017 ONCA 76, 346 C.C.C. (3d) 504, at para. 85.


[50]

It
    was not a reversible error for the trial judge to determine a global sentence first
    and then to impose concurrent sentences of equal length. Concurrent sentences
    can reflect a trial judges view that the offences were sufficiently
    interrelated to merit concurrent dispositions:
R. v. Taylor
, 2010
    MBCA 103, 263 C.C.C. (3d) 307, at para. 12. And, the determination of whether
    sentences should run concurrently or consecutively is entitled to deference:
R.
    v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46. In cases of multi-victim
    sexual abuse where the offender was engaged in a pattern of conduct over many
    years with various victims, there may be good reason to impose concurrent
    sentences of equivalent length, after the court considers an appropriate global
    sentence. See, for example:
R. v. Stuckless
, 2016 ONCJ 338 and
R.
    v. D.D.
(2002), 58 O.R. (3d) 788, 163 C.C.C. (3d) 371 (C.A.).

[51]

I
    would not, however, endorse an approach where a trial judge starts with a
    global sentence and then applies the same sentence across the board on a
    concurrent basis. In this case, the conduct underlying the counts differed in
    seriousness and, standing alone, any given count could arguably have attracted
    a different and lesser sentence. Here, the trial judge ought to have explained
    why concurrent sentences of equivalent length were imposed for these offences.
    Instead, her sentencing reasons addressed only the question of a global
    sentence, and she then endorsed on the information sentences of six years on
    each count to run concurrently. The practice of not differentiating between the
    various counts in terms of the sentence imposed makes it difficult for this
    court, on appeal, to properly address the appropriate sentence should an appeal
    succeed on some, but not all, of the convictions.

[52]

None
    of this, however, affects my view that the total sentence imposed in this case
    was appropriate. The sentence was within the range of mid to upper single digit
    penitentiary terms for the regular and persistent sexual abuse by a person in a
    position of trust of young children over a substantial period of time: see
D.D.
at para. 44; and
R. v. Woodward
, 2011 ONCA 610, 276 C.C.C. (3d) 86, at
    para. 75.

[53]

The
    appellants second argument on his sentence appeal is that the trial judge
    erred in relying on at least two uncharged acts  the French kissing and
    attempted intercourse allegations by D, which the appellant says were excluded
    when the Crown particularized the information. As I have already rejected the
    argument that there were uncharged acts, I see no merit to this argument. The
    incidents the appellant says were uncharged were not excluded. They were
    referred to in the trial judges reasons for judgment and, in addition to all
    of the other incidents of repeated sexual abuse of D, were relevant to her
    findings of guilt in respect of the counts relating to D. In any event, the
    exclusion of these two incidents would not have had any material effect on the
    length of the appellants custodial sentence.

[54]

The appellant also contends (and the Crown agrees) that
the
    condition in the ancillary order under s. 161(d) of the
Criminal Code
,
    which appears to have been included as a result of an administrative error,
    should be deleted from the s. 161 order. I agree.

CONCLUSION AND DISPOSITION

[55]

For
    these reasons, I would dismiss the conviction appeal. I would grant leave to
    appeal sentence, and allow the sentence appeal in part, to remove the condition
    under s. 161(d) from the appellants s. 161 order.

K. van Rensburg J.A.

I agree Janet Simmons
    J.A.

I agree I.V.B, Nordheimer

Released: March 14, 2018





[1]
Although not argued by the appellant, I note that the fact that the trial judge
    ultimately acquitted the appellant on the counts relating to A does not mean
    that she erred in admitting As evidence as similar fact:
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 79. In her reasons for judgment, the trial judge
    indicated that she relied on the evidence of each individual complainant to
    corroborate the evidence of the others. The appellant took no issue with this
    statement and I do not interpret it as an indication that the trial judge
    improperly used As similar fact evidence, as this statement was made after the
    trial judge had made her findings regarding As evidence about to the incident
    involving A. In addition, other aspects of As evidence corroborated the other
    complainants evidence. For example, A testified that she saw the appellant
    grab Cs breasts.



[2]
In the next section, I address
the appellants argument that
    the similar fact evidence included uncharged conduct that had been excluded by
    the Crown when he particularized the information.



[3]
The appellant took issue with Cs evidence
about one occasion
    when the family was living in Scarborough and the appellant rubbed her breasts
.
    C
testified that this occurred when she was ten or 11 years
    old (i.e. between June 23, 1983  June 23, 1985), a portion of which timeframe
    falls outside of the dates in count four (June 23/84  June 22/90). However, I
    agree with the Crown that, in the absence of any suggestion that the dates were
    an essential element of the offence, or that the appellant was misled and
    therefore prejudiced, the discrepancy in dates does not affect the validity of
    the charge or the conviction:
R. v. B.G.
, [1990] 2 S.C.R. 30 at paras.
    38-40;
R. v. S.D.
, 2011 SCC 14, [2011] 1 S.C.R. 527, at paras. 1-2.


