



WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.C., 2020 ONCA 159

DATE: 20200302

DOCKET: C65379

Feldman, Harvison Young and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.C.

Appellant

Jeffery Couse and Marianne Salih, for
    the appellant

Lorna Bolton, for the respondent

Heard: November 27, 2019

On appeal from the convictions entered
    by Justice Carole J. Brown of the Superior Court of Justice, sitting with a
    jury, on December 14, 2016, and from the sentence imposed on September 5, 2017,
    with reasons reported at 2017 ONSC 5089.

Jamal J.A.:

A.

INTRODUCTION

[1]

The appellant, a former fashion photographer,
    was charged with six counts of sexual assault and one count of sexual
    exploitation of four young women whom he had photographed, namely, C.K., A.R.,
    C.A., and N.H.

[2]

Before trial, the appellant applied to sever the
    charges and have them tried separately. The application judge severed only the
    charge involving N.H., which alleged the appellant had briefly touched N.H.s
    breasts without her consent during a photography session. He permitted a joint
    trial of the more serious allegations involving the other complainants, which alleged
    non-consensual vaginal touching, digital penetration, and penile penetration:
    see
R. v. R.C.
, 2016 ONSC 6593.

[3]

The trial judge later allowed the Crown to adduce
    similar fact evidence across the counts involving C.K., A.R., and C.A.: see
R.
    v. R.C.
, 2016 ONSC 7575.

[4]

The jury acquitted the appellant of the charge
    involving C.A., but convicted him of those involving C.K. and A.R. He was
    sentenced to 51-months imprisonment.

[5]

The appellant now appeals against his conviction
    and sentence. He raises four grounds of appeal:

1.

The application judge erred in refusing to sever
    the charges involving C.A., C.K., and A.R.

2.

The trial judge erred in granting the Crowns
    cross-count similar fact evidence application.

3.

The trial judges jury charge failed to relate
    the evidence to the issues and to provide a proper instruction on the
    principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

4.

The 51-month sentence imposed for a first-time
    offender violated the totality and parity principles and was demonstrably
    unfit. The trial judge also erred by relying on an aggravating factor that had
    not been proven beyond a reasonable doubt.

[6]

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

B.

BACKGROUND

(a)

The allegations involving C.K.

[7]

C.K. moved to Toronto in 2009 at the age of 18
    to pursue a modelling career. She met the appellant, who was 34 at the time, through
    K.R., a more experienced model who had worked with the appellant.

[8]

C.K. attended several photoshoots at the
    appellants studio in 2009 and 2010. At the first shoot, K.R. was initially present,
    as was another photographer, S.L., who shared the appellants studio at the
    time. C.K. testified that after K.R. and S.L. left, the appellant persuaded her
    to pose in a so-called Calvin Klein implied-nude style, in which the model
    poses topless but covers her breasts with her arms or hands. She testified that
    the appellant said that all the best models pose topless, even though C.K.s
    modelling agency did not require such shots. C.K. posed topless at several photoshoots.
    The appellant told her to undress and wear a robe while at the studio to avoid clothing
    impressions on her skin.

[9]

C.K. claimed that the appellant sexually
    assaulted her three times.

[10]

First, during a photoshoot in 2010, the
    appellant told her to think about sex, placed his hand under her robe, and
    digitally penetrated her vagina. C.K. testified that she did not want to be
    touched like this, but she did not object because she was concerned about how
    the appellant might react and whether he would hurt her career.

[11]

Second, a few weeks later, during another
    photoshoot, the appellant grabbed C.K. and fondled her breasts.

[12]

Third, in April 2010, during her final
    photoshoot with the appellant, the appellant approached C.K. from behind,
    pushed her over a table, and had vaginal intercourse with her without her
    consent. Afraid that he would hurt her if she resisted, C.K. just closed her
    eyes and tried not to cry. After this, C.K. never worked with the appellant
    again.

[13]

C.K. testified that some time later she sent the
    appellant an angry email, saying that she had trusted him and he should not
    have done that to her. She testified that the appellant wrote back something like,
    I thought that you wanted it; she responded, Are you kidding? C.K. stated
    that she had deleted the emails as it had never occurred to her that she would
    require them for anything.

[14]

A year or so later, C.K. saw the appellant at a
    fashion show and told her boyfriend that the appellant had sexually assaulted
    her. Her boyfriend encouraged her to go to the police, but she was not ready to
    do so. A week later, she read a newspaper article about several other models
    who had made allegations against the appellant. She was contacted by S.L., the
    photographer who had shared the appellants studio, who suggested that if
    something had happened she should tell the police. C.K. then went to the
    police.

[15]

In his testimony, the appellant admitted some of
    the sexual touching and the sexual intercourse, but insisted that everything was
    consensual and he always asked for permission before touching C.K. He also
    testified that C.K. had initiated the sexual contact. He saw nothing wrong in
    touching his much younger client and did not consider 15 years to be a
    significant age difference. He also denied ever receiving an angry email from her.

(b)

The allegations involving A.R.

[16]

A.R. was a 21-year-old university student with
    no professional modelling experience when she met the appellant. On March 6,
    2011, he messaged her through a website where she had a modelling profile and
    offered her a modelling opportunity. She was flattered that someone so
    experienced had contacted her.

[17]

A.R. testified that S.L. was leaving when she
    arrived at the appellants studio with her boyfriend. The appellant told her
    that the modelling opportunity was no longer available but said he saw
    potential in her and would like to help. He offered to take some headshots and
    asked her boyfriend to leave. He then gave her a robe and told her to remove
    her top and bra. He had already told her that he required models to remove
    their clothes and put on a robe to avoid visible clothing lines. He then asked
    her to pose topless. A.R. was uncomfortable, but did as she was told. She assumed
    that the appellant knew what he was doing. The appellant then proposed a
    Calvin Klein implied-nude shot and asked her to pose topless again. Once more,
    A.R. felt uncomfortable, but complied.

[18]

A.R. testified that, at a later photoshoot on
    March 10, 2011, the appellant sexually assaulted her. He first encouraged her
    to change in the open and tried to talk to her about sex. She alleged that he
    touched her vagina and digitally penetrated her. She testified, I was scared
    for my life. It shocked me. I didnt know what was happening. She said the
    appellant told her he could help her succeed, just as he had helped K.R., whom
    he said he had also touched sexually. A.R. thought about trying to leave, but
    was afraid the appellant might hurt her or assault her again. She testified
    that the shoot ended when the appellant encouraged her to touch herself but she
    refused. He then forced open her legs and touched her where her pelvis and leg
    join. A.R. insisted that the appellant never asked if he could touch her
    sexually and she never consented to him doing so.

[19]

Later that night, A.R. told one of her female
    friends and her boyfriend about what had happened. Soon afterwards, she
    contacted S.L. and told him.

[20]

In his testimony, S.L. confirmed that A.R. had
    contacted him and had told him that the appellant had sexually assaulted her. S.L.
    gave A.R. the phone numbers of C.A. and K.R., whom she called later that year,
    but she claimed she did not discuss the details of the alleged assault with
    them.

[21]

On March 16, 2011, S.L. moved his photography
    equipment out of the appellants studio and told him that he had done so
    because he had learned that the appellant was doing inappropriate things with
    models. S.L. testified that the appellant said nothing in reply.

[22]

A.R. ultimately went to the police in May 2012.

[23]

In his testimony, the appellant admitted some of
    the sexual touching, but insisted that it was all consensual.

(c)

The allegations involving C.A.

[24]

C.A. met the appellant in 2009 through the model
    K.R., who had also introduced C.K. to the appellant. C.A. was 18 and new to
    professional modelling.

[25]

At their first photoshoot, the appellant
    encouraged C.A. to pose topless in the Calvin Klein or implied-nude style.
    She complied but was uncomfortable.

[26]

At their second photoshoot, C.A.s evidence was
    that the appellant encouraged her to lie down on a bench. He then touched her
    breasts, vagina and clitoris, and digitally penetrated her, all without her
    consent. She testified that the appellant said that K.R. had done sexual things
    with him and that it had made her a better model. The appellant denied both the
    alleged sexual contact and the comments about K.R.

[27]

Some time later, the appellant offered to let
    C.A. sleep at his studio (where he was living at the time) because she had a
    casting at a nearby location the next morning. She accepted. C.A.s evidence
    was that the appellant had sexual intercourse with her that night without her
    consent. After this, she stopped working with him. The appellant denied any
    sexual contact that night but stated that later he and C.A. had a consensual
    sexual relationship for a time.

[28]

On December 14, 2016, the jury acquitted the
    appellant of the charge involving C.A., but convicted him of the charges
    involving C.K. and A.R.

C.

ANALYSIS

(1)

Did the application judge err in refusing to
    sever the charges involving three of the complainants?

(a)

Background

[29]

Before trial, the appellant applied to sever the
    charges involving each of the four complainants on the basis that a joint trial
    would prejudice his right to a fair trial, particularly since he intended to
    testify in defence to the allegations of C.K., A.R., and C.A., but not to those
    of N.H.

[30]

The application judge severed the charge involving
    N.H. He noted that the factual allegations involving N.H. were not at the same
    level of severity as those involving the other complainants and there was no
    suggestion that N.H. had been in contact with them or S.L. Accordingly, the
    application judge concluded that it would be very prejudicial to try the less
    serious allegations made by N.H. with the very severe allegations made by the
    other three complainants. The application judge also reasoned that the
    appellants announced intention to testify in defence to the charges involving
    all the complainants except N.H. would potentially be read by a jury as an
    acknowledgement of guilt in the one silent case.

[31]

However, the application judge refused to sever
    the other charges. He reasoned that there was a viable similar fact argument for
    them, and there would be nothing unduly prejudicial in trying them together.
    The appellant argues that the application judge erred in so ruling.

(b)

Applicable principles of severance

[32]

Section 591(3)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, gives the court broad discretion to sever counts in an
    indictment where it is satisfied that the interests of justice so require.
    The accused bears the onus of justifying severance on the balance of
    probabilities:
R. v. Jeanvenne
, 2010 ONCA 706, 261 C.C.C. (3d) 462, at
    para. 26.

[33]

In exercising this discretion, the court
    balances the accuseds right to be tried on the evidence admissible against the
    accused with societys interest in seeing that justice is done in a reasonably
    efficient and cost-effective manner, mindful of the risk that evidence
    admissible on one count could influence the verdict on an unrelated count:
R.
    v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-17;
R. v.
    Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 72.

[34]

The interests of justice under s. 591(3)(a) of
    the
Criminal Code
have been interpreted as including several
    non-exhaustive factors to be weighed in the balance. These were summarized in
Durant
,
    at para. 73, as including:

i.

general prejudice to the accused as a result of
    the influence of the volume of evidence adduced and the effect of verdicts
    across counts;

ii.

the legal and factual nexus between or among
    counts;

iii.

the complexity of the evidence;

iv.

the desire of the accused to testify on one or more counts but not on
    another or others;

v.

the possibility of inconsistent verdicts;

vi.

the desire to avoid a multiplicity of proceedings;

vii.

the use of evidence of similar acts;

viii.

the
    length of trial;

ix.

prejudice to the accuseds right to be tried within a reasonable
    time; and

x.

the existence or likelihood of antagonistic
    defences.

See also
Last
,
    at para. 18;
Jeanvenne
, at para. 29.

[35]

Considerable deference is owed to a lower
    courts exercise of discretion as to severance. An appellate court may
    intervene only if the lower court acted unjudicially or the ruling resulted
    in an injustice:
Last
, at paras. 14, 21;
Jeanvenne
, at para.
    26; and
Durant
, at para. 79. These are distinct inquiries. A lower
    court acts unjudicially if, based on the circumstances at the time the ruling
    was made, the court errs on a question of law or principle or makes an
    unreasonable decision. A lower courts ruling results in an injustice based on
    how the entire trial and the verdicts unfold, including the potential
    prejudicial effect of the evidence, the closing addresses of counsel, the
    judges jury instructions, and any inference that may be drawn from the jurys
    ultimate verdicts:
Last
, at para. 15;
Jeanvenne
, at para. 27;
    and
Durant
, at para. 79.

(c)

Application to this case

[36]

The appellant asserts that the application judge
    acted unjudicially because he erred in concluding that: (i) the Crown had a
    viable similar fact argument; and (ii) the prejudice arising from trying the
    allegations pertaining to C.A., A.R., and C.K. together was low. The appellant
    also asserts (iii) that the severance ruling caused an injustice based on how
    the trial unfolded.

(i)

Viability of the similar fact application

[37]

The Crown is not required to bring a similar
    fact application at the time of the severance application  it is entitled to
    defer the argument of the admissibility across counts of the evidence of
    similar acts until all the Crowns evidence has been tendered:
Last
,
    at para. 34.

[38]

Where the Crown intends to argue the
    admissibility of the similar fact evidence later in the trial, the trial judge
    should consider the similar fact evidence carefully in the context of the
    severance application:
Last
, at para. 33;
R v. Waudby
, 2011
    ONCA 707, at para. 4. As stated in
R. v. Sahdev
, 2017 ONCA 900, 356
    C.C.C. (3d) 137, at para. 49:

[A]ssessing the viability of a similar fact
    application on a severance application can be tricky, given that the burden to
    achieve severance is on the defence, while the burden to admit similar fact
    evidence is on the Crown. The exercise must be approached with great care[.]

[39]

Where a judge carefully considers the viability
    of an anticipated similar fact application at the time of the severance
    application and concludes that it appears to have sufficient merit, it will be
    difficult to establish that the judge erred by refusing to sever:
Waudby
,
    at paras. 3-4. The severance application judge need only assess whether the
    anticipated similar fact application has some possibility of success, or
    whether it is reasonable to consider that it might succeed:
R. v. Blacklaws
,
    2012 BCCA 217, 285 C.C.C. (3d) 132, at paras. 43-44,
per
Finch
    C.J.B.C. (dissenting), affd at 2013 SCC 8, [2013] 1 S.C.R. 403. This threshold
    is considerably lower than the test for admitting similar fact evidence:
Blacklaws
,
    at para. 42.

[40]

Here, in my view, the application judge
    correctly weighed the relevant considerations at the time of the severance
    application in evaluating whether the Crown had a viable similar fact
    application. He considered the appellants arguments that the cases had no
    unifying threads and that trying them together would come perilously close to
    saying that he is the type of person to take advantage of his position.
    Nevertheless, the application judge reasonably concluded that the Crown had a
    viable similar fact application because all the offences alleged very similar
    conduct in very similar circumstances. He was also entitled to conclude that
    there was nothing unduly prejudicial about trying the C.K., A.R., and C.A.
    cases together. It was not necessary for the application judge to go into
    further specifics about the sources of prejudice, and it is clear from reading
    his reasons as a whole that he was alive to the risk of prejudice and considered
    it in the course of his analysis: see
Blacklaws
, at para. 52. Deference
    is owed to his ultimate conclusion.

[41]

Finally, I do not agree with the appellant that
    the application judge relied on evidence of alleged collusion to support the
    viability of the Crowns similar fact application. Rather, when the application
    judges reasons are read in context, it is clear that he relied on the allegation
    of collusion among C.A., A.R., and C.K. as a characteristic distinguishing those
    charges from the charges in respect of N.H., where there was no allegation of collusion.
    The application judge used this distinction to support severing that charge
    from the others.

[42]

Therefore, in my view, the application judge did
    not err in concluding that the Crown had a viable similar fact application at
    the time of the severance application.

(ii)

Prejudice

[43]

The appellant submits that the application judge
    erred in his assessment of prejudice on the severance application in three
    ways.

[44]

First, the appellant submits that the
    application judge erred in relying on the similarity of the allegations in
    concluding that there is nothing unduly prejudicial about trying the [three]
    cases together. The appellant asserts that the similarity of the allegation
    is precisely what creates prejudice in the circumstances.

[45]

I disagree with the contention that the
    application judge erred in considering the similarity of the allegations. In
    this case, that similarity supported the viability of the similar fact
    application. Such an application, if ultimately granted at trial, would
    specifically permit the jury to consider the evidence of all three complainants
    across counts. Where a proposed similar fact application is viable at the time
    of the severance application, this may provide a sufficient reason for deciding
    to deal with potential prejudice at a later stage of the proceedings, including
    through appropriate jury instructions: see
Waudby
, at para. 8.

[46]

Second, the appellant submits that the
    application judge erred in his assessment of prejudice because he did not
    address any of the specific types of prejudice discussed by the Supreme Court
    in
Last 
i.e., the risk that the complainants credibility would be
    impermissibly bolstered, the risk that the appellants credibility would be
    impermissibly undermined, and the risk that the jury would engage in propensity
    reasoning. The appellant makes the same argument in relation to the application
    judges conclusion about the viability of the similar fact application.

[47]

As I stated above, it was not necessary for the
    application judge to go into further specifics about the sources of prejudice. He
    explicitly mentioned the risk of propensity reasoning and it is clear from his
    reasons that he was alive to the risk of prejudice generally and considered it
    in the course of his analysis. Deference is owed to his ultimate conclusion.

[48]

Third, the appellant submits that the
    application judge erred in his assessment of prejudice because he
    misapprehended the evidence about the differences between the three cases.
    Specifically, the appellant takes issue with the application judges statement
    that the three complainants were looking to the [appellant] for professional guidance
    and an initiation into their modelling careers, but what they got was an
    initiation into coerced
sex
 (emphasis added). The appellant submits
    that this statement reveals a misapprehension of the evidence, because only
    C.A. and C.K. alleged non-consensual sexual intercourse.

[49]

I disagree with this assertion. When read in the
    context of the severance decision as a whole, the reference here to coerced
sex

    included both sexual intercourse and vaginal touching. The application judge
    was well aware that only two complainants alleged sexual intercourse
.

[50]

I therefore conclude that the application judge
    did not act unjudicially in refusing severance. He did not err in concluding
    that the Crown had a viable similar fact argument or in concluding that trying
    the allegations pertaining to C.A., A.R., and C.K. together was not unduly
    prejudicial.

(iii)

Alleged injustice based on how the trial
    unfolded

[51]

Finally, the appellant asserts that the
    severance ruling caused an injustice based on how the trial unfolded. He claims
    that he was forced to testify against all complainants, such that [a]ny
    impairment of his credibility against one complainant inevitably tainted his
    credibility against the other.

[52]

I would reject this claim. At the severance
    application, the appellant himself submitted that he planned to testify in
    defence to the charges involving C.K., A.R., and C.A., and argued that this was
    a reason to sever the charge involving N.H. The application judge severed that
    charge but refused to sever what remained. At trial, the appellant unsuccessfully
    opposed the similar fact application. Then, he chose to testify. In the
    circumstances, it cannot be said that he was forced to testify in his own
    defence, when he had previously announced that he planned to testify and then decided
    to do so based on how the trial unfolded. Moreover, the jury acquitted the
    appellant of the charge involving C.A., despite the admission of the similar
    fact evidence of C.K. and A.R., which suggests that the jury did not engage in
    forbidden propensity reasoning, and did not assume that the appellant was
    unbelievable with respect to all of the allegations just because he was
    unbelievable with respect to some of them.

[53]

In conclusion, I see no basis to impugn any
    aspect of the severance ruling.

(2)

Did the trial judge err in granting the Crowns
    cross-count similar fact evidence application?

(a)

Applicable principles for admitting cross-count similar
    fact evidence

[54]

Similar fact evidence is presumptively
    inadmissible. To make it admissible, the Crown bears the burden of showing on a
    balance of probabilities that the probative value of the similar fact evidence
    in relation to a particular issue at trial outweighs its potential prejudicial
    effect:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[55]

An aspect of the presumptive rule against admitting
    similar fact evidence is that evidence on one count cannot be used to prove
    guilt on another count where the counts do not arise out of the same events:
R.
    v. T.C.
, 2019 ONCA 898, at para. 42. This rule aims to prevent the jury from
    either: (1) placing more weight than is justified on the evidence of similar
    facts (known as reasoning prejudice); or (2) finding the accused guilty based
    on forbidden propensity reasoning (known as moral prejudice), that is, reasoning
    that a person who has engaged in disreputable conduct alleged in one count has
    a propensity or disposition to do the type of act charged in another count:
T.C.
,
    at para. 43; see also
Handy
, at para. 31.

[56]

Absent an error of law, an unreasonable
    analysis, or a misapprehension of material evidence, a trial judges decision
    to admit similar fact evidence is entitled to substantial appellate deference:
Handy
,
    at para. 153;
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 42; and
R.
    v. J.H.
, 2018 ONCA 245, at para. 11.

(b)

The trial judges similar fact evidence ruling

[57]

At the close of its case, the Crown applied to have
    the similar fact evidence admissible across counts. The trial judge found that
    the acts sought to be used as similar fact evidence were similar for the
    following reasons:

The relationship of the respondent and
    complainants was one of professional fashion photographer and aspiring models.
    As the Crown has argued and the evidence supports, the complainants were all
    young (ages 18 to 21) and relatively inexperienced in modelling. The respondent
    portrayed himself and the complainants all viewed him as a significant fashion
    photographer in the industry, who had connections. The respondent, in all three
    cases, attempted to instill a sense of trust in the complainants such that they
    would be able to perform in front of the camera, attempted to relax them,
    again so that they would be able to pose as he wanted in front of the camera,
    began to raise sexual comments and continued to do so throughout, used sexual
    touching, purportedly for purposes of relaxing them prior to shoots, and told
    them that all models in the industry did that and/or that [K.R.] had done that
    and had become a good model. He touched them all in similar ways, caressing
    breasts with his fingers and touching their vaginal areas. He had all of them
    remove all of their clothing and wear robes, which he supplied, in order that
    there would be no clothing lines showing in photographs taken subsequently,
    then reached through robes to caress the models. He photographed them posed in
    the CK look, implied topless and topless.

[58]

The trial judge found the similar fact evidence
    relevant and probative to prove the
actus reus
, to support the
    credibility of the complainants, to demonstrate a pattern of behaviour, to
    negate a defence that the complainants were fabricating, and to defy
    coincidence with respect to the offences alleged. She also found that the
    evidence was not being admitted to show bad character and that it was not
    tainted by collusion among the complainants. She therefore concluded that its probative
    value outweighed any potential prejudice and admitted it across counts.

(c)

Application to this case

[59]

The appellant asserts that the trial judge erred
    in her similar fact evidence ruling in three respects.

[60]

First, the appellant contends that the trial
    judge relied on generic factors to establish the probative value of the
    similar fact evidence. He says that it is not surprising that the complainants
    were young and inexperienced in modelling given that they were aspiring models,
    nor is it surprising that [he] attempted to instill trust in the complainants
    and relax them so that they would pose better.

[61]

I do not accept this submission. In my view, it
    was open to the trial judge to conclude that the similarities alleged here were
    more than merely generic. Her task was not to add up similarities and
    dissimilarities and then, like an accountant, derive a net balance, but rather
    to determine whether there was a persuasive degree of connection between the
    similar fact evidence and the offence charged:
R. v. Shearing
, 2002
    SCC 58, [2002] 3 S.C.R. 33, at paras. 48, 60;
J.H.
, at para. 20. That
    is exactly what the trial judge did.

[62]

Here, the alleged similar facts involved a
    consistent
modus operandi
of grooming young, vulnerable, and trusting
    women to normalize the sexual assaults for which the appellant was charged.
    While some of the similar facts alleged could perhaps be described as generic
     that the models were all young and inexperienced and needed to relax before
    photoshoots  others were not, including the appellants alleged sexual
    touching to relax the complainants, his references to K.R. as a model who had
    succeeded under his guidance, and his encouraging topless implied-nude shots,
    even when not required.

[63]

A trial judges conclusion that alleged similar
    facts are sufficiently similar rather than impermissibly generic is entitled to
    substantial deference, absent an error of law or principle or a misapprehension
    of the evidence. I see no such error.

[64]

Second, the appellant asserts that the trial
    judge failed to assess the probative value of the similar fact evidence in
    relation to the specific issues in question at trial. He says that the only
    issue at trial was consent, and that the alleged similar touching with all
    three complainants was neither logically probative of that issue nor logically
    supportive of their credibility.

[65]

I do not agree that the trial judge failed to
    assess the probative value of the similar fact evidence in relation to the
    issues at play at trial. Apart from being relevant to and probative of the
actus
    reus
, the trial judge permitted the similar fact evidence to support the
    credibility of the complainants, to demonstrate a pattern of behaviour, to
    negate a defence that the complainants were fabricating, and to defy
    coincidence with respect to the offences alleged. These were all live issues at
    trial.

[66]

With respect to credibility in particular, the
    trial judge cited the admonition in
Handy
, at para. 115, that [c]are
    must be taken not to allow too broad a gateway for the admission of propensity
    evidence, because [c]redibility is an issue that pervades most trials, and at
    its broadest may amount to a decision on guilt or innocence. The trial judge
    went on to note that [t]he probative value of similar fact evidence in a
    credibility case lies in the improbability of witnesses giving similar accounts
    of incidents unless the witnesses are telling the truth, and as such, the
    probative value of the evidence depends upon the similarity between the
    incidents. She found, in this case, that the similar facts were significantly
    similar to justify admission across counts. Again, I see no error in the trial
    judges analysis or conclusion.

[67]

Third, the appellant asserts that the trial
    judge erred in finding that there was no air of reality to the appellants
    allegation of collusion among the complainants. He notes that there was a delay
    of one to four years in reporting each of the allegations, and that before doing
    so each complainant was contacted by S.L., the appellants former photography
    colleague. The appellant asserts that this finding was also inconsistent with the
    trial judges jury charge, which left the theory of collusion with the jury.

[68]

I disagree that the trial judge erred in how she
    dealt with the collusion allegation. Although the trial judge found evidence of
    opportunity for collusion, she concluded that there was no evidence of actual
    collusion. This conclusion was supported by the evidence on the application. I
    see no reason to disturb it.

[69]

It is true that the trial judge stated in her
    reasons on the similar fact application that she found no air of reality
    regarding actual collusion. However, she then added that if she was wrong about
    this the evidence of collusion was insufficient to taint the evidence of similar
    facts, and collusion was ultimately an issue of fact for the jury to decide on
    the evidence:

If I am wrong as regards there being no air
    of reality, I nevertheless find that there is, on the evidence before the
    Court, no sufficient evidence of collusion for this Court to find that the
    similar fact evidence sought to be used among the five counts was tainted by
    collusion. Based on the foregoing, I find, on a balance of probabilities, that
    the evidence of similar facts is not tainted with collusion.

For purposes of the trial, whether or not
    there was collusion, is ultimately a matter for the decision of the jury in
    this case, as with all findings of fact.

[70]

Thus, the trial judges initial conclusion that
    there was no air of reality to the collusion theory, if read out of context, may
    seem inconsistent with her ultimately leaving this issue for the jury. I do
    not, however, read her reasons that way. She appears to have left collusion to
    the jury because she considered it in the alternative as having an air of
    reality in addressing the similar fact application. In any event, any error
    occasioned by this, if indeed there was one, inured to the appellants benefit,
    because collusion was ultimately left to the jury.

[71]

For these reasons, I conclude that the trial
    judge did not err in granting the Crowns cross-count similar fact evidence
    application.

(3)

Did the trial judge err in her jury charge?

(a)

Applicable principles for evaluating a jury
    charge

[72]

An appellate court reviews the adequacy of a
    jury charge through a functional assessment. The court asks whether the
    charge, read as a whole in the context of the specific case, properly equipped
    the jury to decide the case based on the application of the applicable legal
    principles to the evidence:
R. v. Badgerow
, 2019 ONCA 374, 146 O.R.
    (3d) 35, at para. 17;
R. v. Calnen
, 2019 SCC 6, 430 D.L.R. (4th) 471,
    at para. 8.

[73]

Such a functional assessment gives significant
    weight to the position advanced by counsel at trial, and [t]o the extent the
    instruction tracks that position, it is likely to properly serve its functional
    purpose:
Badgerow
, at paras. 18-19. The jury instruction must be
    legally correct and fair, not perfect:
Badgerow
, at para. 20;
Calnen
,
    at para. 9.

(b)

Application to this case

[74]

The appellant argues that the trial judge erred
    in her jury charge in three respects. While not determinative, it bears noting that
    at trial the appellants trial counsel (who was not appeal counsel) did not
    object to the jury charge.

[75]

First, the appellant claims that the trial judge
    failed to explain that the real issue was consent, not whether the sexual
    encounters occurred. He highlights the trial judges jury instruction that
    [t]he real issue for you to decide in this case is whether
the offences
alleged by each complainant or any of them actually took place (emphasis
    added). He claims that the reference to the offences left the jury with the
    misunderstanding that he disputed sexual contact, when his position was that all
    sexual contact was consensual.

[76]

I see no error here. The trial judge referred to
    sexual offences, not encounters  which highlighted that the issue was
    whether the offences occurred, not whether there were sexual encounters. Elsewhere
    in the charge, the trial judge explained the essential elements of the offence
    of sexual assault as including intentional touching, of a sexual nature,
    without consent, by an accused who knew that the complainant did not consent.
    Thus, the jury was left with no confusion about the appellants position.

[77]

Second, the appellant contends that the trial
    judge failed to relate the evidence to the issues, especially to the issue of
    consent, and instead offered a witness-by-witness recitation of the evidence.

[78]

I do not agree with this submission. I
    acknowledge that this court has observed that a witness-by-witness recitation
    of the evidence is almost always ineffective, because it tends to be
    unnecessarily detailed and, as a summary of the evidence, often bears no
    relationship to the issues in dispute: see
R. v. Newton
, 2017 ONCA
    496, 349 C.C.C. (3d) 508, at paras. 15-16.

[79]

However, that is not a fair description of the
    trial judges jury charge in this case. For example, although the trial judge
    began with a detailed summary of the evidence of each of the five witnesses,
    including the three complainants, she went on to summarize again  though more
    succinctly  the relevant evidence as to consent. She stated:

The evidence as regards consent is as above
    set forth. The three complainants state that they did not consent to sexual
    touching by the accused. [The appellant] states that all complainants
    consented, and that he would never touch anyone without their consent. While he
    does not recall the words used by him to obtain consent, nor the words used by
    each complainant to give consent, he testified that he would not touch anyone
    without their consent.

[80]

The trial judge addressed consent again when she
    instructed the jury on whether the appellant had the
mens rea
for sexual
    assault and summarized the evidence respecting consent and honest but mistaken
    belief in consent.

[81]

Thus, in my view, read as a whole, the jury
    charge cannot be impugned for failing to relate the evidence to the issues.

[82]

Third, the appellant asserts that the trial
    judge failed to give a proper jury instruction in accordance with
W.(D.)
,
    at p. 758, namely:

(a)

First, if you believe the accuseds evidence, you
    must acquit;

(b)

Second, if you do not believe the accuseds evidence
    but are left in reasonable doubt about his guilt, you must acquit;

(c)

Third, even if you are not left in doubt by the accuseds
    evidence, you must ask whether, based on the evidence you do accept, you are
    convinced beyond a reasonable doubt by that evidence of the accuseds guilt.

[83]

The appellant acknowledges that the trial judge
    included the standard
W.(D.)
instruction at the beginning of the jury
    charge, but complains that she did not instruct the jury that the
W.(D.)
analysis was to be applied to every element of the offence and did not relate
    the evidence to the
W.(D.)
analysis to be applied.

[84]

I would not give effect to this submission. A court
    need not take a formulaic approach to the
W.(D.)
analysis, but
    rather must ensure that the burden of proof never shifts from the Crown:
R.
    v. Robinson
, 2009 ONCA 626, 254 O.A.C. 171, at para. 25. The key question
    is thus whether the jury charge made this clear.

[85]

In my view, the jury charge made this abundantly
    clear. As the appellant concedes, the trial judge did include a standard
W.(D.)
instruction at the beginning of her charge. She was not required to repeat that
    instruction when dealing with each and every element of the offence. The trial
    judge clearly instructed the jury that it could believe some, all, or none of
    each complainants evidence; repeatedly explained that the Crown bore the
    burden of proof and the appellant did not have to prove anything; and cautioned
    that the verdict must be based on all the evidence. Nothing more was required.

[86]

I therefore conclude that the jury charge, read
    as a whole, properly equipped the jury to decide the case. Thus, I conclude
    that the jury charge easily passes muster under a functional assessment.

[87]

For these reasons, I would dismiss the
    conviction appeal.

(4)

Did the trial judge err in sentencing?

[88]

After the jury found the appellant guilty of
    sexually assaulting C.K. and A.R., the trial judge sentenced the appellant to 51-months
    imprisonment, less credit for 13 days of pre-trial custody and three months for
    strict bail conditions during the first year.

[89]

This sentence consisted of three years and three
    months for assaulting C.K., and one year for assaulting A.R., to be served
    consecutively. The trial judge noted that the crimes against each of C.K. and
    A.R. were separate and distinct, and that as a general principle, assaults that
    are separate, unrelated transactions should receive separate, consecutive
    sentences. The sentence imposed was roughly midway between the parties
    submissions: the Crown had sought six years and three months, while the defence
    argued for two years plus a day.

[90]

The appellant claims that the trial judge erred
    in two respects.

[91]

First, the appellant asserts that the trial
    judge erred in sentencing with respect to the offences committed against A.R. by
    considering an aggravating factor  digital penetration  that had not been
    proven beyond a reasonable doubt. Specifically, the appellant says that there
    was a discrepancy in the evidence on the extent of sexual touching of A.R.: she
    testified that the touching included digital penetration; he testified that it
    did not. The appellant argues that the jurys verdict showed that it was
    satisfied that there was sexual touching without consent, but does not show
    what touching was proven beyond a reasonable doubt. The appellant submits that before
    the trial judge could rely on digital penetration as an aggravating sentencing
    factor, she should have made an independent determination of the facts:
Criminal
    Code
, ss. 724(3)(d) and (e);
R. v. Ferguson
, 2008 SCC 6, [2008] 1
    S.C.R. 96, at paras. 17-18.

[92]

I disagree with the appellants claim that the
    trial judge considered digital penetration as an aggravating factor. The issue
    of whether the non-consensual touching of A.R. specifically included digital
    penetration was not explored in the parties sentencing submissions, which
    suggests that neither party considered it especially material to sentence. The
    trial judges reasons mentioned the alleged digital penetration in passing, but
    did not treat it as an aggravating factor. The specific aggravating factors she
    considered were the power imbalance that the appellant exploited to take
    advantage of two young, inexperienced aspiring models who perceived him as
    experienced, trusted him as a professional and were deceived; and the ages of
    the victims, the fact that there were two victims and several incidents of
    sexual assault and further that the victims were significantly affected.

[93]

Second, the appellant claims that the trial
    judge violated the totality principle in imposing consecutive sentences,
    resulting in an unduly long or harsh combined sentence contrary to s.
    718.2(c) of the
Criminal Code
. The appellant submits that a total
    sentence of 51 months for a first-time offender was demonstrably unfit because he
    has excellent prospects for rehabilitation.

[94]

As is well known, trial judges have broad
    discretion in sentencing and are accorded significant deference on appeal. An
    appeal court can intervene only where the sentencing decision reveals an error
    of law or principle that has an impact on the sentence, or where the sentence
    imposed is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at paras. 11, 44.

[95]

In my view, the 51-month total sentence imposed for
    these offences was not demonstrably unfit. The appellant was found to have
    violated the trust of two complainants through serious sexual misconduct,
    including forced penile penetration in one case, with profound psychological
    consequences for both complainants. While the appellant had no prior record,
    there were few other mitigating factors. The sentence for this misconduct against
    two complainants fell within the range of sentences for similarly-situated
    offenders, which, while involving somewhat different circumstances of abuse of
    trust, confirm the fitness of the combined sentence imposed here: see, for
    example,
R. v. Bradley
, 2008 ONCA 179, 234 O.A.C. 363, at para. 18
    (three-year sentence for a single count of sexual assault by a police officer with
    no prior criminal record who vaginally and anally penetrated a mentee who
    aspired to become a police officer);
R. v. Wood
, 2015 ONCA 337, at
    para. 4 (six-year sentence for a pastor convicted of sexual offences against
    three parishioners); and
R. v. Clase
, 2017 ONSC 2484 (five-year
    sentence for sexual assault involving vaginal penetration and choking). I
    therefore see no basis to disturb the sentence imposed.

[96]

Accordingly, although I would grant leave to
    appeal sentence, I would dismiss the sentence appeal.

D.

conclusion

[97]

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

Released: March 3, 2020 (K.F.)

M.
    Jamal J.A.

I
    agree. K. Feldman J.A.

I
    agree. A. Harvison Young J.A.


