



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.B., 2022 ONCA 214

DATE: 20220315

DOCKET: C68438 & C68017

Strathy C.J.O., Harvison Young
    and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.B.

Appellant

Craig Zeeh, for the appellant

Manasvin Goswami, for the respondent

Heard:
    January 21, 2022 by video conference

On appeal from the conviction entered
    and the sentence imposed on January 28, 2020 by Justice Robert J. Nightingale
    of the Superior Court of Justice.

Harvison Young J.A.:

Overview

[1]

The appellant J.B. was convicted of sexual assault against his young
    stepdaughter, J.D. He appeals both his conviction and the sentence imposed.

[2]

J.D. testified that these incidents occurred over a period of years,
    beginning when she was about 9 and continuing until she was about 16. Over that
    time, she lived with her biological father and stepmother, and visited the
    appellant and her mother during weekends and for longer periods in the summer. The
    alleged assaults took place during these visits. They were comprised of
    incidents of fellatio, forced masturbation and sexual contact in the
    complainants bed.

Facts

[3]

At trial, the Crown alleged that the appellant forced J.D. to perform fellatio
    on him on one occasion, that he forced J.D. to masturbate him on two occasions,
    and that he lay in bed against the complainants back while naked on one
    occasion.

[4]

The Crown called J.D. as its only witness. The appellant elected to
    testify on his own behalf, and to call his brother and his former spouse, J.D.s
    mother as defence witnesses.

[5]

J.D. gave evidence that the forced fellatio took place when she was
    approximately 11-years-old. She testified that she was lying on her bedroom
    floor when the appellant entered the room and tried to insert his penis into
    her mouth. She stated that this made her very uncomfortable and she turned her
    head to fight it as best as she could.

[6]

The forced masturbation is alleged to have occurred when J.D. was
    approximately 14-years-old. J.D. stated that she was watching a movie while her
    mother was upstairs in her bedroom. The appellant was wearing only his bathrobe,
    masturbating. At one point, he took J.D.s hand and put it on his penis. In
    cross-examination, she stated that this happened on only one occasion.

[7]

Finally, J.D. gave evidence that the appellants last assault occurred the
    day before she went to a theme park with her step-sister and the appellant. She
    was laying down facing the wall when the appellant came into the room fully
    naked. He allegedly lay down and pressed himself against her back. J.D.
    recalled being upset and eventually asked the appellant to leave. She was
    approximately 16-years-old.

[8]

J.D. did not disclose these allegations until she went to the police
    some seven years after the last assault.

[9]

After a three day trial, the trial judge convicted the appellant of sexual
    assault contrary to section 271 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He sentenced the appellant to 33 months imprisonment, and
    prohibition orders under ss. 161(1)(a), (b) and (c) of the
Code
.

Issues

[10]

The appellant raises three grounds of appeal
    against his conviction.

(i)

The trial judge erred by relying on the absence
    of exaggeration to bolster J.D.s evidence.

(ii)

The trial judge erred by relying on prior
    consistent statements to corroborate J.D.s evidence.

(iii)

The trial judge erred by relying on neutral
    aspects of the appellants evidence and the evidence of J.D.s mother to
    confirm J.D.s allegations.

[11]

In addition, the appellant argues argues that
    the order imposed under s. 161(1)(a) of the
Criminal Code
is
    overbroad.

[12]

I address each of these issues in turn.

Analysis

(1)

The Use of the Complainants Absence of Exaggeration

[13]

First, the appellant
    submits that the trial judge improperly used the absence of exaggeration to
    bolster J.D.s evidence, committing precisely the same error that this court
    recently found in
R. v. Alisaleh
, 2020 ONCA 597. The error, he submits,
    is highlighted in the following passages of the trial judges reasons:

At no time did
    [J.D.] appear to embellish or exaggerate the sexual abuse incidents against her
    by J.B. that could reflect a carelessness for the truth when testifying under
    oath. In fact, she made it clear when first describing the incidents to her
    stepmother and the police that there was no rape by him or touching by him on
    her breasts or vagina.

[14]

In that same passage,
    the trial judge also stated that there was no evidence of any motive for J.D.
    to lie, finding:

I have not
    considered that there was no such motive,
nor do I conclude from that that
    J.D. must be telling the truth or that it enhances my assessment of her
    credibility
. [Emphasis added; citations omitted.]

[15]

I do not agree that the
    trial judge used the absence of exaggeration to bolster the complainants
    evidence. Read in the context of the reasons as a whole, the trial judge was
    merely noting that factors tending to diminish the complainants credibility
    were absent. As Fairburn A.C.J.O. stated, at para. 16 of
Alisaleh
:

This court has
    held that the presence of embellishment can be a basis to find the complainant
    incredible, and there is nothing wrong with noting the absence of something
    that could have diminished credibility.

[16]

It is wrong, however,
    to use the absence of embellishment as a makeweight in favour of credibility:
R. v. Kiss
, 2018 ONCA 184, at para. 53.

[17]

In this case, the trial
    judge was not using the absence of exaggeration in J.D.s evidence or her lack
    of motive to lie as a makeweight in favour of credibility. It was merely one
    of the explanations he gave for why he did not find the complainant to be
    incredible:
Kiss
, at para. 53. He was not reasoning that, because the
    allegations could have been worse, they were more likely to be true.

[18]

Thus,
Alisaleh
is clearly distinguishable. At para. 14 of that case, and unlike the present
    case, Fairburn A.C.J.O. found that the lack of embellishment was specifically
    noted by the trial judge as an important factor used to enhance the
    complainants credibility. Accordingly, I would not give effect to this ground
    of appeal.

[19]

The appellant also
    points to the inclusion of the impugned paragraphs under the heading entitled
    Assessment of the Evidence to support his argument that the trial judge used
    lack of embellishment as a makeweight in favour of the complainants
    credibility. This is not borne out by a review of the reasons. The paragraphs
    relied on by the appellant comprise only 3 out of a total of 38 paragraphs
    under that heading. In the course of these paragraphs, the trial judge assessed
    all the trial evidence and did so methodically and exhaustively while referring
    to and applying the Supreme Court of Canadas framework from
R. W.(D)
,
    [1991] 1 S.C.R. 742
.

[20]

Nor would I accept the
    argument that the trial judge erred in failing to instruct himself as to the
    uses of absence of exaggeration. It is evident from the trial judges reasons
    that he was alive to the limitations on the use of such evidence and an express
    self-instruction was unnecessary.

(2)

The Use of Prior Consistent Statements

[21]

In response to
    questions from defence counsel, J.D. explained that, when she disclosed the
    sexual assaults, she told her stepmother that there had been no rape and told
    the police that she did not recall any inappropriate touching of her personal
    areas. The appellant argues that the trial judge improperly used these prior
    statements to corroborate J.D.s evidence.

[22]

The governing
    principles are not in dispute. Triers of fact cannot assume that because a
    witness has made the same statement in the past, he or she is more likely to be
    telling the truth:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at
    para. 7.

[23]

Consistency, on its
    own, is a quality just as agreeable to lies as to the truth:
R. v. L.
    (D.O.)
(1991), 65 C.C.C. (3d) 465 (Man C.A.), at p. 484, revd [1993] 4
    S.C.R. 419. Prior consistent statements, moreover, lack the independence
    required of corroborative evidence:
Stirling
, at para. 7; David M.
    Paciocco, The Perils and Potential of Prior Consistent Statements: Lets Get
    It Right (2013) 17 C.C.L.R. 181 at pp. 185-86.

[24]

In this case, the trial
    judge did not expressly identify why he mentioned J.D.s disclosure of the
    sexual assaults. Therefore, the question is whether his reasons, by implication,
    show that he used those prior statements for an improper purpose.

[25]

The relevant passage in
    the reasons for conviction does not support such a finding. There, the trial
    judge stated:

At no time did [J.D.]
    appear to embellish or exaggerate the sexual abuse incidents against her by [the
    appellant] that could reflect a carelessness for the truth when testifying
    under oath.
In fact, she made it clear when first describing the incidents
    to her stepmother and the police that there was no rape by him or touching by
    him on her breasts or vagina
. [Emphasis added]

[26]

Read in context, the
    underlined sentence, like the first, addresses the absence of a problem in
    J.D.s evidence, such as exaggeration or embellishment, that could reflect a
    carelessness for the truth.

[27]

Having noted that this
    problem was not present in J.D.s trial testimony, the trial judge made a
    passing observation that no such problem was apparent in J.D.s pre-trial
    disclosure either. This was simply recital of a fact and a far cry from
    attempted self-corroboration by evidence of previous consistent statements:
R.
    v. Choy
, 2013 ABCA 114, 89 Alta. L.R. (5th) 401, at para. 42.

[28]

The record supports a
    benign reading of the trial judges reasons. The Crown did not ask the trial
    judge to use J.D.s prior statements for a corroborative purpose. It stands to
    reason that the trial judge did not do so of his own accord. The trial judge,
    moreover, is presumed to know the law. Even if his reference to J.D.s
    disclosure is ambiguous, that ambiguity should not be resolved in favour of a
    legally impermissible use of the prior statements:
R. v. G.F
., 2021 SCC
    20, 459 D.L.R. (4th) 375, at para. 79:
R. v. Morrissey
(1995), 97 C.C.C.
    (3d) 193 (Ont. C.A.), at pp. 203-04.

[29]

In any event, the trial
    judges reference to J.D.s disclosure, in the context of discussing the
    absence of embellishment, caused the appellant no prejudice. Had the trial
    judge restricted himself to J.D.s in-trial testimony, he would have reached
    precisely the same conclusion: J.D. did not embellish or exaggerate the alleged
    sexual assaults.

[30]

This conclusion was
    clear from the trial record and remains uncontested. Beyond a solitary
    appearance in the discussion of embellishment, there is no indication that the
    prior statements played any substantive role in the trial judges analysis.
    Simply put, the trial judge did not reason that, because J.D. had disclosed the
    sexual allegations in the past, the allegations were more likely to be true.
    The material portion of the disclosure highlighted by the trial judge focused
    not on what the appellant allegedly did, but what the appellant did not do.

[31]

This is a very
    different situation from the authorities on which the appellant relies. In
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 40, the trial judge
    was clearly of the view that the complainants consistency in recounting the
    allegations made her story more credible, and relied heavily on this fact in
    convicting the appellant. The trial judge in
R. v. A.S.
, 2020 ONCA 229,
    engaged in similarly flawed reasoning in relying on a complainants prior
    statements about bruising she sustained during an alleged sexual assault: at
    para. 52.

[32]

Nothing of the sort
    happened here. If the trial judge erred, he did so by factoring an irrelevant
    detail into his conclusion that J.D. did not embellish or exaggerate her
    evidence. Since he would have made this finding in any event, and because that
    finding played no material role in his decision to convict, I would dismiss
    this ground of appeal :
R. v. Polanco
, 2018 ONCA 444, at para. 32, leave
    to appeal refused, [2018] S.C.C.A. No. 271;
R. v. G.B.
, 2021 ONCA 675,
    at para. 18;
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras.
    35, 40

(3)

The Trial Judge Did Not Rely on Neutral Factors
    to Confirm J.D.s Evidence

[33]

According to the
    appellant, the trial judge improperly used neutral aspects of his evidence and
    the evidence of J.D.s mother to confirm J.D.s account. In particular, the
    appellant objects to the following four items of confirmatory evidence:

·

the mothers evidence on whether the appellant
    had opportunities to be alone with J.D.;

·

the mothers evidence on whether J.D. would have
    been able to hide from the appellant under her bed and in her closet;

·

the mothers and the appellants evidence about
    the layout of the house; and

·

the mothers and the appellants evidence about
    whether the appellant wore bathrobes.

[34]

Evidence is
    confirmatory if it tends to support the truth of the complainants account or
    tends to dispose of alternate hypotheses raised by the defence. Evidence can be
    confirmatory even if it does not directly confirm the key allegations of
    sexual assault or directly implicate the accused:
R. v. Primmer
,
    2021 ONCA 564, at para. 39, leave to appeal to S.C.C. requested, 40020, citing
R. v. Demedeiros
, 2018 ABCA 241, 364 C.C.C. (3d) 271 at para. 8, affd 2019
    SCC 11, [2019] 1 S.C.R. 568. The degree to which confirmatory evidence advances
    the Crowns case is a matter of weight for the trial judge to resolve:
Demedeiros
,
    at para. 10.

[35]

Based on these
    principles, this ground of appeal must be dismissed. The four pieces of
    evidence to which the appellant objects were properly identified as
    confirmatory.

(a)

Opportunities for the Appellant to be Alone with
    J.D.

[36]

The appellant argues
    that the mothers evidence of his opportunity to commit the assaults was not
    confirmatory because it was equally consistent with his own account of events.
    This submission fails for two independent reasons.

[37]

First, the argument is
    wrong in law. Evidence can be confirmatory even if the accused accepts it as
    true.
Demedeiros
, the principal authority on which the appellant relies,
    makes clear at para. 10, that [t]o be given confirmatory weight, evidence need
    only be more consistent with the complainants version of events than with
    another version.

[38]

The accused cannot
    negate the effect of confirmatory evidence which tends to support the Crowns
    overall case by admitting the underlying facts. A trial judge is entitled to
    consider all relevant and material collateral facts, whether disputed or
    admitted, in determining whether the complainants evidence is reliable:
Demedeiros
,
    at para.
13;
R. v. Gagnon
(2000), 147 C.C.C. (3d) 193 (Ont. C.A.), at para.
16

[39]

Second, the argument
    is incorrect on the facts. The mothers evidence was not equally consistent
    with the appellants evidence on the issue of his opportunities to be alone
    with J.D. The appellants evidence on this point was considerably more
    categorical than the mothers. He went so far as to say that he never did have
    any interactions with J.D. even when he was home during the weekends.

[40]

The appellant also
    claimed that he could not have been alone with J.D. in the living room because
    her mother was always inside that room, never le[ft], and never went to
    sleep when I went to bed, she would come up after I went to bed.

[41]

The mothers evidence
    was quite different. She testified that the appellant could have been alone
    with J.D. while, for example, she took the other children outside, or when she
    was laying down because she felt ill. She was also clear that she would not
    always go to bed before the appellant did:

Q. Now, sometimes
    when he would come home, Id take it, you might already be in bed, you wouldnt
    necessarily wait up every single time that he went out with his buddies.

A. No.

Q. So, its
    possible that he mightve, he couldve sat down on the couch, and watched TV
    for all you know, when he got home.

A. Yeah.

[42]

In short, on the
    appellants evidence, his opportunities to be alone with J.D., including in the
    living room, were virtually non-existent. The mother painted a less stark
    picture. Her evidence supported J.D.s account by confirming that the appellant
    had opportunities to be alone with J.D. and by rebutting the appellants
    minimization of those opportunities. The evidence was properly identified as
    confirmatory.

(b)

Hiding under the Bed and in the Closet

[43]

J.D. testified that she used to hide from the
    appellant under her bed and in her closet. The appellant testified that J.D.
    could not have hidden under the bed because there were drawers that occup[ied]
    the full space under the bunkbed and had been installed just as soon as the
    bunkbed was purchased. Further, J.D. could not hide in the closet because it
    was taken up by a dresser that had been there all the time.

[44]

J.D. rejected the suggestion that the were
    drawers under her bed or a dresser in her closet in her cross-examination.
    Defence counsel argued that J.D. had not been truthful, undermining her
    credibility and reliability.

[45]

The mothers evidence supported J.D.s account
    and rebutted the appellants conflicting evidence. On her evidence, there was
    nothing under the bed except some boxes with clothes and toys and, temporarily,
    a suitcase. As for the closet, a dresser had not been placed there until J.D.
    was 14 or 15. The mothers evidence therefore confirmed J.D.s evidence that
    there were no drawers under her bed, while also rebutting a defence challenge
    to J.D.s credibility and reliability.

[46]

Accordingly, the mothers evidence on this issue
    was confirmatory of J.D.s account.

(c)

The Layout of the House

[47]

As the appellant notes, the evidence of the
    mother and the appellant was generally consistent with J.D.s description of
    the layout of the house. The appellant argues that the layout evidence is not
    confirmatory because it supports only consistent mundane details in J.D.s
    evidence.

[48]

However, the layout evidence supported J.D.s
    truthfulness and rebutted hypotheses put forward by the defence to attack
    J.D.s credibility and reliability. Among these were the theories that J.D. was
    guessing at various points in her evidence, that her recollection had been
    warped over time with flashbacks and nightmares, and that her allegations may
    have been influenced by PTSD. Against this backdrop, it was entirely proper
    for the trial judge to note that J.D.s recall of the house where the sexual
    assaults occurred  a house she had stopped visiting five to six years earlier
     was accurate and anchored in reality:
R. v. Slatter
, 2019 ONCA 807,
    382 C.C.C. (3d) 245, at para. 154,
per
Pepall J.A., (dissenting)
    affd, 2020 SCC 36.

[49]

These details, moreover, had some significance
    to the Crowns case. They explained, for example, why the appellant was able to
    expose himself and masturbate in the living room without being heard or seen by
    those in upstairs bedrooms. Granted, these details were not decisive, but the
    trial judge did not overstate [their] importance:
Primmer
, at para.
    42. Whether those details were mundane, as the appellant asserts, is an
    objection that goes only to weight, not to legal error:
Demedeiros
, at
    para. 12

(d)

The Bathrobes

[50]

For the same reason,
    evidence confirming that the appellant wore bathrobes, as J.D. described, was
    appropriately classified as confirmatory. It tended to support J.D.s
    truthfulness  and tended to rebut the alternate hypotheses advanced by the
    defence  by confirming J.D.s recall of an important contextual detail at
    trial.

[51]

Further, on the
    appellants version of events, there was no explanation of why or when J.D.
    would have seen that item of clothing. The appellant agreed that he wore bathrobes
    on occasion, primarily in the morning, and testified that he used to leave
    the house before J.D. was out of bed. Confirmation that J.D. was correct about
    the appellant wearing bathrobes suggested that she had more interactions with
    the appellant than his evidence accounted for.

(4)

The Sentence Appeal under 161(1)(a) and (c)

[52]

When offenders are
    convicted of certain sexual offences against a person under the age of 16
    years, s. 161(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, gives
    sentencing judges the discretion to prohibit them from engaging in a variety of
    everyday conduct upon their release into the community, subject to any
    conditions or exemptions the judge considers appropriate:
R. v. K.R.J.
,
    2016 SCC 31, [2016] 1 S.C.R. 906, at para. 3. Section 161(1) prohibitions are
    meant to protect children from sexual offenders. Orders under s. 161(1) are
    discretionary and entitled to substantial deference on appeal:
R. v.
    Durigon
, 2021 ONCA 775, at para. 5.

[53]

The appellant
    challenges one term in the s. 161(1) order imposed in this case: the
    prohibition under s. 161(1)(a) on his attendance at certain locations where
    persons under the age of 16 might reasonably be expected to be present, unless
    accompanied by a responsible adult. The appellant, pointing to his first-time
    offender status, argues that this prohibition was manifestly unfit because, at
    most, he only poses a risk to re-offend with children in his care.

[54]

I would not accept this
    submission.

[55]

As this court noted at
    para. 41 of
R. v. M.C.,
2020 ONCA 510, 390 C.C.C. (3d) 389, a
    prohibition under s. 161 falls within the definition of "sentence" in
    s. 673 of the
Criminal Code
. While a sentence or one of its provisions
    may be manifestly unfit even if the sentencing judge made no error in imposing
    it, the threshold is very high and must reflect a sentence that is clearly
    excessive or inadequate or which represents a substantial and marked
    departure:
M.C
., at para. 43;
R. c. Lacasse,
2015 SCC 64, [2015]
    3 SCR 1089, at para. 52. Further, whether a s. 161(1) prohibition or a
    probation order is included as well as the terms of each order are largely
    matters that engage the discretion of the sentencing judge. The exercise of
    this discretion in both its aspects is entitled to substantial deference on
    appeal
: M.C
., at para. 45.

[56]

Related convictions are
    not prerequisites to an order under s. 161(1). Nor must the offender have
    committed the offence in the circumstances contemplated by the order. A finding
    of pedophilia is not necessary either. A sentencing judge need only have an
    evidentiary basis upon which to conclude that the particular offender poses a
    serious risk to young children and be satisfied that the terms of the order are
    reasonable attempt to minimize it:
R. v. R.K.A.
, 2006 ABCA 82, 208
    C.C.C. (3d) 74, at para. 32; see also
K.R.J.,
at para. 48.

[57]

In this case, the same
    evidence showing that the appellant repeatedly took advantage of his access to
    J.D. reasonably supports the limits on his future access to children imposed by
    the sentencing judge, including the order under s. 161(1)(a). In addition
    to the inherent seriousness of the appellants offences, the relevant evidence
    showed that the assaults were prolonged, and included multiple incidents over
    several years. He denied responsibility for his actions, a factor that may be
    indicative of future risk. The presentence report indicated that the appellant
    would benefit from controls placed upon him that would enhance public and
    victim safety, and would benefit from engaging in sexual offending
    programming to address his offending behaviour to prevent future recidivism.

[58]

In short, there is no
    basis to interfere with his discretionary judgment call in including this
    section.

(5)

Section 161(1)(c)

[59]

In the course of oral
    argument, the parties advised that they agreed that the order imposed under s.
    161(1)(c) could not stand because this subsection could not be applied to an
    offence committed prior to August 9, 2012 when the amended version of that
    provision came into force. Accordingly, the s. 161(1)(c) order should be
    removed from the sentence imposed.

(6)

Disposition

[60]


For the foregoing reasons, I would dismiss the conviction appeal. Leave
    to appeal the sentence appeal is granted, and allowed only to the extent of
    removing the s. 161(1)(c) order.

Released: March 15, 2022 GRS

A.
    Harvison Young J.A.

I
    agree G.R. Strathy C.J.O.

I agree B. Zarnett J.A.


