COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kormendy, 2019 ONCA 676

DATE: 20190828

DOCKET: C64627

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kenneth Kormendy

Respondent

Elise Nakelsky, for the appellant

Peter Copeland, for the respondent

Heard: February 12, 2019

On appeal from the sentence imposed on November 6, 2017
    by Justice Christopher M. Bondy of the Superior Court of Justice without a jury,
    with reasons reported at 2017 ONSC 6426.
[1]

Feldman J.A.:

Overview

[1]

The Crown is appealing the sentence of 11 years concurrent that Mr.
    Kormendy received for attempting to kill three people, his recent girlfriend
    and two of her children, by burning down their house and trying to trap them
    inside.

While all three escaped, one of
    the children suffered horrendous burn injuries causing her terrible pain and resulting
    in permanent scarring on her face and a permanent loss of functionality in her
    hands and feet. The mother also suffered serious burn injuries. Mr. Kormendy was
    convicted of three counts of attempted murder as well as one count of arson
    causing damage to property and one count of possession of incendiary materials.

[2]

The Crown submits that the sentence imposed was demonstrably unfit. At
    trial, the Crown sought a life sentence without eligibility for parole for ten
    years to adequately reflect the gravity of the offences and the moral
    blameworthiness of the respondent. It renews its request for a life sentence on
    appeal or, in the alternative, an elevated sentence.

[3]

For the reasons that follow, I would grant leave to appeal the sentence,
    allow the appeal and impose a sentence of 20 years concurrent on each charge of
    attempted murder, less credit for pre-sentence custody.

Facts

[4]

S.R. met Kenneth Kormendy online in 2015. After dating for a couple of
    weeks, in early September he moved into her house, where she lived with her two
    school-aged daughters, ages nine and seven, and her baby of one year. However,
    their domestic relationship quickly deteriorated, and after two weeks she asked
    him to move out. She found him controlling and clingy. He did not want her visiting
    family and friends during the day while he was at work or talking to her
    friends on the phone. He did not want her to attend her fathers birthday
    dinner.

[5]

Text messages presented at trial suggested that the respondent first
    accepted S.R.s request for him to move out, but then he resumed his efforts to
    stay. In the days immediately preceding the fire, as well as the day of the
    fire (October 24, 2015), he was regularly texting her, generally without a
    response.

[6]

In the morning of October 24, 2015, S.R. first drove the respondent to
    buy six to eight tall boy cans of Budweiser. Her nine-year-old daughter was already
    at her grandmothers residence. S.R. then left with her other two children,
    dropped the baby off with her father, and took the seven-year-old to visit with
    S.R.s father for the day. She arrived home with the two girls at around 9 p.m.
    It was evident that the respondent had been drinking. He had consumed the beers
    but denied being intoxicated.

[7]

S.R. put the baby to sleep in her crib. Then S.R. went to sleep with her
    seven-year-old daughter in her daughters room. But the respondent kept coming
    in to debate her request for him to move out. S.R. kept asking him to leave. He
    came in a total of approximately eight times. The fifth or sixth time he
    smelled of gasoline. When S.R. asked him about the smell, he said he had made a
    campfire in the backyard. She asked him to wash his hands but he still smelled
    of gasoline when he came back. She told him they were over seeing one another
    and asked him to leave. When he came back in for the last time to talk, he
    asked if their relationship was finished. She said yes. He left again but this
    time he returned with a gasoline container that he poured onto the floor of the
    bedroom as well as on S.R.s track pants and on the blankets and the bed where S.R.
    and her daughter were sleeping.

[8]

When he tried to ignite the cigarette lighter in his hand, S.R. saw
    sparks, jumped up, led him out of the room, and held the door shut with her
    body so that he couldnt get back in. She then heard the sound of gasoline
    being poured on the door and on the floor outside the bedroom. Then the
    respondent ignited the fire, which quickly appeared under the door. S.R.s pants
    caught fire almost immediately.

[9]

S.R. took off her burning pants, opened the window and pushed out the
    screen. Then she woke her seven-year-old daughter and they moved to the window.
    S.R. went through first and directed her daughter to follow through the window
    that was engulfed in flames. They were both screaming in pain. When the mother
    reached through the window to help her daughter, she burned her hands.

[10]

The respondent did nothing to warn them, to help in any way or to call
    for help, including on his cell phone, which he had in his pocket.

[11]

S.R. ran over to a cab that was dropping off some neighbours, screaming
    about the fire and that her baby was inside. The cab driver called 911 then
    entered the house with two neighbours to find the baby. Seeing that they were
    about to enter the house, the respondent went in and, after some time, came out
    with the baby. S.R. screamed at him that he had started the fire and tried to
    kill them.

[12]

When the police arrived, S.R. and her daughter were screaming. The respondent
    was standing five to ten feet away in a bit of a daze, with the smells of
    gasoline and alcohol on him. The remains of a gasoline container were found on
    the lawn. The cab driver later testified that he found one burning gasoline
    container immediately outside the seven-year-olds bedroom door, which he moved
    outside of the house.

[13]

The seven-year-old daughter suffered partial thickness (second degree)
    and full thickness (third degree) burns to approximately 15% of her body. Most
    affected were her arms, hands, face, back, legs and feet. She underwent surgeries
    to multiple parts of her body. The surgeries involved removing the burnt tissue
    and replacing it with skin taken from other parts of her body in order to
    permit limited movement and function of her damaged extremities. At the time of
    sentencing, the seven-year-old still needed further surgeries for improved
    functionality. She will never recover full function of her hands and feet, and
    the scars on her face are permanent. She will also have long-term loss of
    sensitivity in her fingers, toes and feet.

[14]

S.R. suffered painful burns to her hands, arms, neck and hip. Generally
    her burns were partial thickness (second degree) burns. Luckily, the baby was
    not injured.

[15]

The respondent testified at trial. He claimed that S.R. started the fire
    after he told her he was reconciling with a former girlfriend. According to
    him, she decided to kill all of them rather than lose him. The trial judge
    rejected Mr. Kormendys evidence, finding him not credible and evasive. He
    found that the respondents numerous text messages demonstrated his controlling
    nature.

[16]

The trial judge found that the respondent intended to kill S.R. and the
    two children, and that his actions in setting the fire were considered and
    deliberate. The trial judge further found that the respondent took no steps to
    warn them or to save them, although he could have, and that that demonstrated
    his continuing intent that they die in the fire. The respondent also intended the
    baby to die in the fire, but changed his mind when other people arrived. He
    only saved her because he perceived it to be in his interest to do so.
    Specifically, the trial judge concluded that his re-entry into the home was an
    effort to distance himself from having caused the fire.

[17]

S.R. provided a victim impact statement but did not attend the
    sentencing hearing in person because she did not want to see the respondent. In
    her statement, she described the terrible toll on her seven-year-old daughter
    and herself physically and emotionally. Her daughter is angry and confused.
    Their relationship has changed. S.R. now only sees her daughters a couple of
    times a week for a couple of hours. Some days she feels like a failure as a
    mother. The seven-year-olds father also sent a victim impact statement again
    describing how his daughter was robbed of her childhood, her self-esteem and
    her enjoyment of life. After the fire, she was in hospital for a month in
    terrible pain. Following her discharge from hospital, she had to attend
    numerous medical appointments and endure follow-up surgeries to try to minimize
    her facial scarring. She wears a full mask at school. She is no longer a happy,
    playful child. Instead, she has persistent dread and anxiety and constant worry
    about her appearance. She is apprehensive about being in public or with
    strangers, and spends recess inside alone for fear of stares or hurtful words
    from classmates. The fire affected her relationship with her older sister, who
    was also traumatized and now sees a clinical psychologist. It also impeded her
    ability to enjoy the arrival of a baby brother from her father and his new
    partner.

[18]

The respondent has a record consisting of three driving convictions
    involving alcohol, two for over 80 from 1992 and 2002, and one for impaired
    driving from 1996. The pre-sentence report noted alcohol as a problem for the
    respondent but he disagreed. He had a number of letters of support from family
    and friends and a co-worker.

[19]

The Crown asked for a life sentence with no eligibility for parole for
    10 years. The respondents position was 10 years, with parole eligibility left
    to the Parole Board.

[20]

In his reasons for sentence, the trial judge identified the range for a
    domestic attempted murder as 8.5 years to life imprisonment, although he found
    that where there was serious injury and a life sentence was not imposed, the
    range was 10 to 14 years. While acknowledging the particularly egregious
    behaviour of the respondent, the horrific nature and degree of violence and
    consequences to the victims, and the fact that alcohol was involved, given his
    previous alcohol-related convictions, the trial judge focused on the fact that
    it was an isolated incident with no prior pattern of abuse and imposed a sentence
    of 11 years concurrent for each of the 3 charges of attempted murder, 1 year
    concurrent for arson and 6 months for possession of incendiary materials.

Issues

1)

Should the sentences imposed by the trial judge be
    set aside as demonstrably unfit?

2)

If so, what is the appropriate sentence?

Analysis

(1)

Appellate review of
    sentences

[21]

In
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, the
    Supreme Court revisited the test for appellate review of a sentence imposed by
    the trial judge. While re-emphasizing the importance of giving wide latitude to
    sentencing judges and according them deference on appeal, the court clearly
    stated how an appeal court is to approach a sentence appeal at paras. 11 and
    12:

Ultimately, except where a sentencing judge makes an error of
    law or an error in principle that has an impact on the sentence, an appellate
    court may not vary the sentence unless it is demonstrably unfit.

In such cases, proportionality is the cardinal principle that
    must guide appellate courts in considering the fitness of a sentence imposed on
    an offender. The more serious the crime and its consequences, or the greater
    the offenders degree of responsibility, the heavier the sentence will be. In
    other words, the severity of a sentence depends not only on the seriousness of
    the crimes consequences, but also on the moral blameworthiness of the
    offender.

[22]

The court also discussed when a sentence may be considered demonstrably
    unfit at paras. 52 and 53:

It is possible for a sentence to be demonstrably unfit even if
    the judge has made no error in imposing it. As Laskin J.A. mentioned, writing
    for the Ontario Court of Appeal, the courts have used a variety of expressions
    to describe a sentence that is demonstrably unfit: clearly unreasonable,
    clearly or manifestly excessive, clearly excessive or inadequate, or
    representing a substantial and marked departure (
R. v. Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 720). All these expressions reflect the
    very high threshold that applies to appellate courts when determining whether
    they should intervene after reviewing the fitness of a sentence.

This inquiry must be focused on the fundamental principle of
    proportionality stated in s. 718.1 of the
Criminal Code
, which
    provides that a sentence must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. A sentence will therefore be
    demonstrably unfit if it constitutes an unreasonable departure from this
    principle. Proportionality is determined both on an individual basis, that is,
    in relation to the accused him or herself and to the offence committed by the
    accused, and by comparison with sentences imposed for similar offences
    committed in similar circumstances. Individualization and parity of sentences
    must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of
    the
Criminal Code
.

[23]

To summarize, while an appellate court must accord significant deference
    to the sentence imposed by the trial judge, it may set aside a sentence where
    the trial judge made an error of law or an error in principle that had an
    impact on the sentence, or where the sentence is demonstrably unfit. The test
    for unfitness rests on the proportionality principle. A sentence will be
    demonstrably unfit if it constitutes an unreasonable departure from a
    sentence that is proportionate to the gravity of the offence and the degree of
    responsibility of the offender, examined in the context of the accused and the
    offence as well as similar offences committed in similar circumstances.

(2)

Imposing the maximum
    sentence

[24]

In
R. v. Cheddesingh
,
2004 SCC 16, [2004] 1 S.C.R. 433, an
    appeal by the accused from the imposition of the maximum sentence of life
    imprisonment on a conviction for manslaughter resulting from sexual assault,
    the Supreme Court held that the terms stark horror, worst offence and
    worst offender should be avoided as they add nothing to the analysis of when
    the maximum penalty may be imposed. The court stated at para. 1:

All relevant factors under the
Criminal Code
,
R.S.C.
    1985, c. C-46, must be considered. A maximum penalty of any kind will by its
    very nature be imposed only rarely (see A. Manson,
Law of Sentencing

(2001), at p. 106) and is only appropriate if the offence is of sufficient
    gravity and the offender displays sufficient blameworthiness. As is always the
    case with sentencing, the inquiry must proceed on a case-by-case basis. Here we
    are satisfied that the sentencing judge considered all the relevant factors and
    exercised his discretion judicially in sentencing the appellant to life
    imprisonment.

[25]

The Supreme Court elaborated on its brief decision in
Cheddesingh
and clarified its meaning in
R. v. L.M.
,
2008
    SCC 31
, [2008] 2 S.C.R. 163, where the court explained at para. 22 that:

Thus, the maximum sentence cannot be reserved for the abstract
    case of the worst crime committed in the worst circumstances. The trial judges
    decision will continue to be dictated by the fundamental principle that a
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender (s. 718.1
Cr. C.
).

(3)

Sentencing principles
    for domestic attempted murder

[26]

The moral blameworthiness for an attempt to murder someone is as serious
    as in a crime of murder. The only difference is that despite the accuseds
    effort and intent, the victim did not die, although often the victim has suffered
    terrible long-term effects. The seriousness of a conviction for attempted
    murder was clearly explained by the Supreme Court in
R. v. Logan
,
[1990]
    2 S.C.R. 731, at p. 743:

The stigma associated with a
    conviction for attempted murder is the same as it is for murder. Such a
    conviction reveals that although no death ensued from the actions of the
    accused, the intent to kill was still present in his or her mind. The attempted
    murderer is no less a killer than a murderer: he may be luckythe ambulance
    arrived early, or some other fortuitous circumstancebut he still has the same
    killer instinct. Secondly, while a conviction for attempted murder does not
    automatically result in a life sentence, the offence is punishable by life and
    the usual penalty is very severe.

[27]

The same concept was observed by Doherty J.A. in
R. v. McArthur

(2004)
,
182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47, where he
    stated:

Under our law, a person can only be convicted of attempted
    murder if he or she intended to kill. The moral culpability of the attempted
    murderer is at least equal to that of a murderer. He or she avoids a murder
    conviction and the automatic sentence of life imprisonment not because of any
    mitigating factor, but because through good fortune, the victim was not killed.

[28]

While every attempted murder is a most serious crime, attempted murders
    in the domestic context are particularly heinous. The domestic partner victims
    are uniquely vulnerable because they are in a relationship of trust with the
    perpetrator. Even more vulnerable are children of the person in the
    relationship with the perpetrator, who often suffer terribly in a myriad of
    ways, if they survive the murder attempted on them.

[29]

Our courts have continually emphasized that denunciation and deterrence
    are the paramount sentencing objectives for attempted murder in the domestic
    context:
R. v. Tan
,
2008 ONCA 574, 268 O.A.C. 385, at para. 31;
R. v. Boucher

(2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para
    27;
R. v. Denkers

(1994), 69 O.A.C. 391 (C.A.). In
Boucher
,
    this court specifically addressed the issue that people in romantic
    relationships must be able to end their relationships, if they want to, without
    fear of violence. The way the law sends that message is through a very heavy
    sentence that makes denunciation and deterrence the overriding considerations:

[T]his court has repeatedly emphasized that the principles of
    denunciation and deterrence are of paramount importance in cases involving
    domestic violence: see, for example,
Edwards
and

Levo

[
R.
    v. Edwards
(1996), 28 O.R. (3d) 54 (C.A.),
    leave to appeal refused, [1996] S.C.C.A. No. 201]
;
Campbell
[
R. v. Campbell
(2003), 170 O.A.C.
    282 (C.A.)]
; and
Denkers

[
R. v. Denkers

(1994), 69 O.A.C. 391 (C.A.)]. In
Denkers
, in particular, this
    court indicated that the sentences imposed in cases involving domestic violence
    must be such that they will foster an environment in which individuals can feel
    free to leave romantic relationships without fear of harassment or harm, and
    without fear of violence aimed at forcing a return to a no longer wanted
    relationship:

The victim, and others like her, are entitled to break off
    romantic relationships. When they do so they are entitled to live their lives
    normally and safely. They are entitled to live their lives free of harassment
    by and fear of their former lovers. The law must do what it can to protect
    persons in those circumstances. In this case its order that the appellant not
    have contact with the victim failed to provide that protection.

It follows that the principles
    of general and specific deterrence must be the overriding consideration in the
    determination of the sentence in this case. Those principles demand a very
    heavy sentence to act as a general deterrent to other persons who cannot abide their
    rejection by a person whom they love. The sentence must act as a specific
    deterrent to this appellant who was not deterred by the victims requests that
    he leave her alone nor by a court order requiring him to do so. [Citations
    added.]

[30]

In
Tan
, Laskin J.A. discussed the range of sentences for attempted
    murder that this court has upheld. While noting
Boucher
where this
    court granted a Crown appeal and raised a sentence of two years less a day plus
    probation to six years but did not reincarcerate, he identified the low end as nine
    years in
R. v. Campbell
(2003), 170
    O.A.C. 282 (C.A.)
. The high end is the maximum of life imposed in
R.
    v. Charlebois

(1987)
,
22 O.A.C. 235 (C.A.),
R. v. Lieug

(1995)
,
82 O.A.C. 317 (C.A.), and
R. v. Mesgun

(1997),
    36 O.R. (3d) 739 (C.A.). I would add to those cases
R. v. Simpson

(1981),
    58 C.C.C. (2d) 308 (Ont. C.A.). In the middle of the range is the case of
R.
    v. Spurway

(1996), 94 O.A.C. 58 (C.A.), where the offender broke
    into his wifes home and attempted to shoot her in bed, but the gun was
    defective and did not fire. This court reduced the global sentence of 17 years
    for which 15 were for the attempted murder, to 13 with 11 for the attempted
    murder.

[31]

Having identified the range, Laskin J.A. considered the sentence of 15
    years imposed by the trial judge. The appellant was 34 at the time of the
    offence, while the victim was a university student acquaintance. After he
    helped her move out of her boyfriends apartment, he told her he wanted to be
    her boyfriend. When she rejected his advances, he became enraged, refused to
    let her out of his car, bound her hands and feet and taped her mouth. He
    brandished a knife and told her to be quiet or he would kill her. He drove her
    three hours to a friends cottage in Bancroft, where he tried to sexually
    assault her. He then put her in a chokehold, told her he was going to kill her
    and slit her throat with the knife, then kneeled on her back and stabbed her in
    the side collapsing her right lung. He obtained her PIN number for her bank
    accounts and took all of her identification. He then dragged her into the bush,
    covered her with a tarp and left her to die. Miraculously, she regained
    consciousness, got to the main road and was picked up by a passer-by and taken
    to a hospital. She suffered serious physical and psychological long-term
    effects. The appellant eventually pled guilty and expressed remorse.

[32]

The court observed that a 15-year sentence for a first offender who
    entered an early guilty plea and expressed remorse was high. However, the court
    found that it was justified in this case for a number of reasons: a) the
    domestic context was an aggravating factor; b) the specific intent to kill; c)
    the elements of planning and deliberation; d) the prolonged duration of the
    attack; e) the concealing of the body and the identity of the victim; f) the
    victim was left to die; and g) the serious physical and psychological injuries.

[33]

A number of domestic attempted murder cases since
Tan
in 2008
    have added to and filled in the range. In
R. v. K.G.
, 2010 ONCA 177, 266
    O.A.C. 334, the accused struck and then drove over his wife from whom he was
    separated, with his two young children in the car, and left her for dead. He
    pleaded guilty to attempted murder and was sentenced to 14 years. That sentence
    was upheld by this court. In
R. v. Adamson
,
2018 ONCA 678, 364
    C.C.C. (3d) 41, the accused was the victims boyfriend. The victim was pregnant
    with his child. He entered her room while she was asleep, punched her in the
    head, told her he loved her as he cut her neck. The appellant was convicted of attempted
    murder following a jury trial. On appeal, the court upheld the sentence of 13
    years. The court identified the following aggravating factors in addition to
    the significant moral blameworthiness for the crime where there is intent to
    kill: a) the domestic-like context; b) the breach of trust; c) the planned
    nature of the attack; d) the invasion of the victims home; e) her pregnancy;
    and f) the serious consequences for the victim and her family. The victim only
    escaped death because the knife was dull.

[34]

Another relevant domestic case is
R. v. Stubbs
,
2013
    ONCA 514, 300 C.C.C. (3d) 181, where the victim was the offenders
    ex-girlfriend. He broke down her apartment door and shot her in the head at
    close range while she was calling 911. The appellant received a global sentence
    of 22 years, 16 of which were for the attempted murder. On appeal, the court
    noted that 16 years was within the range established by this court for
    attempted murder committed in the context of a domestic relationship.

[35]

R. v. Mann
,
2016 ONSC 2675 (conviction and sentence
    appeal outstanding, C65574), is an Ontario trial decision. The accused believed
    he had a relationship with a woman he met as an escort and wanted to move in
    with her, but when she did not want to talk about it with him, he smashed her
    head into the floor, partially shearing both her carotid arteries and causing
    bleeding in her brain, and he choked her around the neck fracturing her larynx.
    Due to multiple high velocity blows, her liver was broken into multiple pieces,
    which caused severe internal hemorrhaging. The victims 17-year-old daughter
    came in and saw the appellant smashing her mothers head. The daughters
    boyfriend, a large young man, tried to pull the appellant off the victim but
    was unable to do it. The appellant told the 911 operator, whom the daughters
    boyfriend had called, that his so-called girlfriend had pissed him off so I
    killed her. The intent to kill was clear. Healy J. imposed a life sentence.
    While counsel for the respondent argued in oral submissions that
Mann

is distinguishable from the present case because Healy J. found the accused
    to be deeply disturbed psychologically, there is nothing in the decision to
    indicate that Healy J. perceived this as an aggravating factor in sentencing.

[36]

In
R. v. Vienneau
,
2015 ONCA 898, the victim was the
    appellants ex-girlfriend. The appellant broke into her home while she and her
    new boyfriend were asleep. He slashed her throat, then tried to commit suicide.
    He appealed his sentence of 11 years but it was upheld by this court.

(4)

Attempted murder by
    fire

[37]

There have also been previous cases where the accused tried to kill a domestic
    partner by dousing the partner or the partners residence in gasoline and
    lighting a fire. In
R. v. Quance

(2000), 146 C.C.C. (3d) 153
    (Ont. C.A.) the appellant went to the house where his estranged wife and her
    boyfriend were living, taking with him four containers of gasoline, which he
    began to splash around the house. There was an altercation between him and his
    wife and her boyfriend, during which gasoline was spilled or poured on them.
    The gasoline ignited and the two victims were horribly burned. The appellant
    was convicted by a jury of two counts of attempted murder as well as other
    charges that were conditionally stayed. He was sentenced to 14 years in addition
    to a credit of 3 years for pre-sentence custody for a total sentence of 17
    years.

[38]

On appeal, this court upheld the sentence imposed by the trial judge.
    While the appellant was of previously good character and presented psychiatric
    evidence that he was likely suffering from an adjustment disorder and was a low
    risk to reoffend, the court focused on the very high degree of responsibility
    for the crimes, which would have been first degree murder had the victims died.
    The court also considered the horrific effect on the victims of lifelong pain
    and suffering and permanent disabilities. The court commented that the sentence
    was high given the previous good character of the appellant and his pretrial
    custody, but it was not unwarranted.

[39]

More recently, in
R. v. Borel
(15 August 2014), St. Catherines,
    1883/12 (Ont. S.C.), (conviction and sentence appeal outstanding, C62693), the
    offender who was again a man of previously good character, was convicted by a
    jury of attempted murder of his former girlfriend. The victim and the accused
    were involved in an intimate relationship for a few months. She described him
    as jealous, controlling and threatening. Following a tumultuous break-up, he
    sent her a series of very disturbing emails that she forwarded to a friend in
    case something happened to her. And it did. The accused arranged to meet her at
    a community centre, where he arrived with a jerry can of gasoline and matches,
    doused her with the gasoline and lit her on fire.

[40]

The victim suffered burns to 60% of her body. The medical evidence at
    trial was that her risk of mortality was very high. She was significantly
    disfigured and would be traumatized for the rest of her life. The accused was
    51 years old at trial. He was a first-time offender with two teenaged sons with
    whom he had a close and loving relationship. He was actively involved with
    coaching. He also had significant family support, including from a previous
    common law spouse. He was described in letters filed as peaceful, kind and
    generous. At the time of the offence, he was employed as an I.T. specialist
    with the Ministry of Government Services of Ontario.

[41]

The Crown asked for a sentence of life in prison. The defence submitted
    that the sentence should range between 7 and 11 years, in addition to credit
    for his 3 years of pretrial custody.

[42]

In fashioning the appropriate sentence, the trial judge grounded her
    analysis in ss. 718, 718.1 and 718.2 of the
Criminal Code
,
R.S.C.
    1985, c. C-46. She noted that s. 718.2 mandates that abuse of a spouse or common
    law partner and significant effect of the crime on the victim are deemed to be
    aggravating factors on sentence. She also referred to the proposition
    established in the case law that for a conviction for attempted murder the paramount
    principles of sentencing are deterrence and denunciation, while rehabilitation
    of the offender is a lesser consideration.

[43]

Focusing on the crime itself, the trial judge stated:

The circumstances of the offence are horrific and unimaginable.
    Mr. Borel purposely doused Ms. Campbell with gasoline, set her afire and
    watched her burn. This is an act of incomprehensible cruelty. I find that the
    gravity of this offence is very high, as is the degree of Mr. Borels
    responsibility.

[44]

Based on those circumstances, and taking account of the mitigating and
    aggravating factors, the trial judge concluded that the sentence must be at the
    higher end of the range for sentences for attempted murder. She rejected a life
    sentence only because of the accuseds unblemished record with no history of violent
    behaviour. The total sentence she imposed was 19.5 years made up of a credit of
    4.5 years for the 3 years in pre-sentence custody together with 15 additional
    years.

[45]

The last case involving a fire is
R. v. Klair
(2004), 71 O.R.
    (3d) 336 (C.A.), however, it was not an attempted murder nor did it occur in
    the domestic context. The appellant was a 70-year-old grandfather who was baby-sitting
    his 4-year-old grandson at his sons home. There were also tenants living on
    the lower level of the home, some of whom were at home, although it was not
    clear whether the appellant was aware of that. Around 2 p.m., the appellant
    started three fires in the bedrooms of the home, using gasoline as an
    accelerant, then walked away from the home. One of the tenants coaxed the
    grandson to come outside and doused the flames covering him. The appellant
    returned the next day intoxicated, asking if the grandchild had been saved, and
    was relieved when he was told that he had been. The grandchild suffered
    terrible burn injuries with excruciating pain and lasting disabilities and
    scarring.

[46]

The appellant pled guilty to one count of arson causing bodily harm. At
    sentencing, he denied any intention to harm his grandson and expressed remorse.
    The trial judge imposed a sentence of life in prison. On appeal, the majority
    of the panel reduced the sentence to 12 years, primarily because the appellant
    did not intend to cause harm.

(5)

Is the sentence of 11
    years demonstrably unfit?

[47]

At trial, the Crown sought a sentence of life imprisonment for each of
    the three attempted murder convictions, with no parole eligibility for 10 years.
    The respondent submitted that 10 years was appropriate and asked that parole
    eligibility be left to the Parole Board. The trial judge sentenced the
    respondent to 11 years on each count of attempted murder concurrently, leaving
    parole eligibility to the Parole Board. On the appeal, the Crown again seeks a
    sentence of life imprisonment on each attempted murder offence but does not ask
    for a limit on parole eligibility, or alternatively, an elevated sentence.

[48]

In my view, the sentence imposed must be set aside as demonstrably unfit,
    as it is wholly inadequate in light of the degree of responsibility of the
    offender and the gravity of these three attempted murders. The moral
    blameworthiness of these crimes is at the highest level. As in a number of
    other cases of especially violent attempted murders, the fact that the victims
    survived was by sheer luck. They continue to suffer terrible injuries. The
    respondent not only intentionally set fire to his girlfriend and her home, deliberately
    trapping her and the two children in the burning house, he stood outside
    without helping or calling for help.

[49]

The trial judge made a number of errors that affected the sentence.
    First, he failed to give effect to the gravity of the offence and the moral
    blameworthiness of the offender. Second, while the trial judge acknowledged
    that the crimes were carried out in a domestic context, he failed to treat
    deterrence and denunciation as the primary sentencing objectives and failed to
    appreciate why those objectives are paramount in the domestic context: see
Boucher
at para. 27. Third, although he reviewed the case law referred to him by
    counsel, the trial judge failed to use the most relevant cases to assist in
    gauging a fit sentence. As a result, the trial judge imposed a sentence that is
    wholly inadequate and therefore demonstrably unfit.

(a)

Failure to give effect
    to the gravity of the crimes and the moral blameworthiness of the offender

[50]

In the context of setting out the background to the sentencing, the
    trial judge reiterated a number of findings that he had made in his reasons for
    conviction that are particularly significant for sentencing: a) the respondents
    reaction to S.R.s request that he move out of her home was to pour gasoline on
    her and on her bed, around the room and outside the bedroom door, and then
    light it, effectively trapping her and her seven-year-old daughter in the room
    by fire; b) the respondent acknowledged that he never called to warn them and
    that he passed by the bedroom window twice on the outside and did not stop to help
    or to call them; c) he made no effort to seek help from neighbours, or to use
    his cellphone to call the fire department, an ambulance, or the police; d)
    because he could hear the screams and did nothing to help, the trial judge
    found the respondent to be steadfast in his intent to kill them both; e) the
    respondent only went in to get the baby when he realized that S.R. had escaped
    and help was on the way, and he did so for the purpose of trying to distance
    himself from causing the fire; and f) both S.R. and the seven-year-old suffered
    serious injuries.

[51]

These findings make very clear that the respondents degree of
    responsibility was at the highest level. All of his actions in setting the fire
    and his failure to act to warn or save two of the victims were for the
    deliberate purpose of murdering S.R., her seven-year-old daughter and her one-year
    old baby  and, doing it in a way that created maximum terror and horrendous
    physical and psychological suffering.

[52]

There were three victims. While the trial judge was well-aware of that,
    he failed to take it into account in discussing where, within the range of
    sentence, a triple attempted murder should properly fall. And the victims were the
    respondents live-in girlfriend and her two young children. I will discuss the
    domestic aspect more fully below. However, the fact that two helpless children
    were targeted for murder is an aspect of the case that warrants separate
    consideration when assessing the moral blameworthiness of the offender. The
    trial judge noted that it is a statutory aggravating factor under s. 718.2 of
    the
Criminal Code
and a reason for denunciation, but did not address
    it in the context of placing the sentence within the appropriate range.

[53]

The terrible gravity of this deliberate attempted murder of three
    victims and the high degree of responsibility of the offender called for a
    sentence at the high end of the range. It was an error to impose a sentence that
    was at the lower end of the range for the attempted murder of a single victim,
    and this error resulted in the imposition of a sentence that was demonstrably
    unfit.

(b)

Failure to treat
    denunciation and deterrence as primary sentencing objectives

[54]

In his discussion of the objectives of sentencing, the trial judge
    stated that denunciation and specific and general deterrence were both important
    considerations. However, while he referred to the case of
Boucher
, and
    quoted this courts directive that the principles of denunciation and
    deterrence are of paramount importance in cases of domestic violence, he did
    not make them the paramount considerations.

[55]

Rather he talked about the need to balance the principles of
    denunciation and rehabilitation. While the need to balance these factors is
    generally part of the sentencing analysis, when the offence is attempted murder
    in the domestic context, it is an error for the sentencing judge not to make
    denunciation and deterrence the paramount principles to be applied. Further,
    the trial judge appeared to give significant weight in the balancing to the
    fact that the respondent was taking courses in prison in anger management and
    supportive relationships, which he found demonstrated some insight on the
    part of the respondent into the factors that contributed to his actions, and
    also to the contents of the supportive letters that described the respondent as
    considerate, non-violent and helpful. The trial judge discussed the respondents
    rehabilitation at length in paras. 51-59 of his reasons, and specifically listed
    the potential for rehabilitation in his discussion of mitigating factors at
    paras. 65-66 of his reasons:

As a result, I have good reason to believe Mr. Kormendy can,
    with time, be rehabilitated. Mr. Kormendy has significant support from both his
    family and friends who will no doubt assist with continued rehabilitation once
    Mr. Kormendy is released from prison.

[56]

While the trial judge was entitled to take this evidence into account in
    determining the appropriate sentence, it was an error for him to give it as
    much or more weight than the paramount factors of denunciation and deterrence.
    This error contributed to the imposition of a demonstrably unfit sentence.

[57]

More significantly, although the trial judge mentioned that, under s.
    718.2 of the
Criminal Code
, the fact that the crimes were committed
    in a domestic context is deemed to be an aggravating factor, he did not refer
    to the reason that the courts have continued to emphasize the critical need for
    denunciation and deterrence to be the paramount considerations in sentencing
    for domestic abuse, and in particular, attempted murder. That reason, fully
    applicable in this case, is that the abuser feels entitled to control the
    victim, and when that control is rejected, the abuser feels entitled to attack
    the victim, terrorize her, kill her, or kill her and her children.

[58]

In this case, the respondent had moved into the victims home. He then
    tried to control her actions, whom she spoke to and where she went. When she
    told him to move out, he first argued with her, trying to get her to allow him
    to stay. But when she would not do that, he decided if he wasnt staying,
    neither was she. He proceeded to burn down the house with her and her children
    inside. The fact that this kind of situation continues to recur in the case law
    is shocking. The need for denunciation and deterrence is obvious.

[59]

Two comments in particular by the trial judge in his reasons for
    sentence demonstrate his failure to fully appreciate the dynamic in a domestic
    abuse situation. First, when discussing at para. 44 of his reasons the fact
    that the violence was directed in part at the two children, the trial judge refers
    to them as innocent victims who had nothing to do with the conflict between
    the adults.

[60]

The reference to a conflict between the adults in comparison to the innocence
    of the children fails to acknowledge and reflect the reality of the abusive
    situation where the victim was rejecting the respondents attempt to control
    her. This was not a conflict involving two active participants; this was a
    one-sided attempt to control and then, when that failed, to kill. The message
    the court must send is that abusers who feel entitled to control their domestic
    partners and punish them for resisting will be severely dealt with when their
    conduct is criminal. They are not entitled to exercise control over the other
    person.

[61]

Second, to distinguish the case of
Mann
, where a life sentence
    was imposed, the trial judge in this case stated that the victim in
Mann
was
    not a common law partner but a sex trade worker whom the accused believed he
    had the right to control. Again, the trial judge failed to appreciate that the
    offender wanted a relationship and that it is the belief in the right to
    control in a domestic situation that defines the problem in domestic abuse and attempted
    murder scenarios and is the basis for the need for denunciation and deterrence.

[62]

The trial judge also erred by purporting to distinguish this case from
    other cases of domestic violence on the basis that this was an isolated
    incident with no pattern of abuse. First, while the trial judge correctly
    recognized that the respondent had never before been convicted of a violent
    crime, the trial judge erred in going further than that, and finding that
    there was no evidence of a pattern of abuse. The trial judge failed to understand
    that the respondents controlling behaviour during their relationship, leading
    up to his refusal to leave the house when asked on the day of the fire, does
    constitute a pattern of abusive behaviour, and one that ultimately resulted in
    violence as his solution. Second, in a number of other cases, the violence also
    seemed to be an isolated incident, significantly in
Quance
and
Borel
,
    two very similar cases to this one, and in
Mann
, but significant
    sentences were still imposed to express the required denunciation and
    deterrence.

(c)

Failure to apply the
    most relevant cases

[63]

The trial judge did refer to many cases in his case law review,
    including the three cases where the accused started a fire in a home. He
    focused initially on the case of
Klair
, where this court reduced a
    sentence of life in prison imposed by the trial judge to 12 years. However,
Klair
is not a similar case because he was not convicted of attempted murder, nor was
    it a case of domestic abuse. In that case, the appellant pled guilty only to
    arson causing bodily harm and denied any intention to harm the child. Even
    then, the sentence of 12 years was higher than the one imposed by the trial
    judge in this case.

[64]

The trial judge also referred briefly to
Quance
, but effectively
    discounted its importance and relevance. There the appellant went to the home
    of his estranged wife and her boyfriend with four gas cans, spread the gas
    around the house, spilled or poured it on the victims, then lit it, causing
    terrible burns to the victims. He was convicted of attempted murder and
    sentenced effectively to 17 years (14 years plus 3 years credit for presentence
    custody). That sentence was upheld by this court. In upholding the sentence,
    Rosenberg J.A. stated at para. 40:

On the findings made by the trial judge, this was in effect an
    attempted first degree murder. The gravity of the crime could only have been
    greater if the victims had died. The appellants degree of responsibility was
    also very high. The psychiatric report, aside from indicating an adjustment
    disorder with mixed disturbance of emotions and conduct, offered no
    psychiatric explanation for this conduct.

[65]

In referencing
Quance
, the trial judge incorrectly stated that
    the sentence was 14 years (not 17). The trial judge also stated that the facts
    were somewhat distinguishable because the offender had made prior threats.
    While that is true, the fact of the prior threats was not the stated basis for
    upholding the sentence.

[66]

Finally, the trial judge also referred only briefly to
Borel
.
    In
Borel
, the trial judge imposed an effective sentence of 19.5 years on
    the appellant who was controlling of his girlfriend and, following a break-up,
    set her on fire, causing her terrible burns and pain. The trial judge in the
    case at bar focused only on the fact that the trial judge in
Borel
rejected
    a life sentence because of the appellants prior unblemished record and no
    previous violence. He did not acknowledge the relevance of the significant
    sentence of 19.5 years imposed on a similarly situated offender.

[67]

In my view, in imposing an 11-year sentence, the trial judge effectively
    excluded the importance and similarity of these cases, where significantly higher
    sentences were imposed in situations where there were fewer than three victims
    and where the offender was of previously good character.

[68]

The trial judges failure to give adequate weight to these highly
    analogous cases to discern the proper application of the underlying principles
    in a case such as this led to a sentence that is demonstrably unfit.

[69]

The trial judge and the respondent referred to some domestic attempted
    murder cases in which sentences of 11 and 12 years were imposed or upheld on
    appeal by the offender,
[2]
including
R. v. McDonald
,
[2007] O.J. No. 3859;
R.
    v. Champagne

(2002)
,
166 O.A.C. 194 (C.A.);
    and
Vienneau
.
While these
    are also terrible cases of domestic abuse, they are all distinguishable from
    the present case. In
McDonald
,
a trial decision,

there
    was no history of controlling behaviour, no prior convictions, no child
    victims, and the offender pled guilty and demonstrated remorse. Similarly, in
Vienneau
,
there was only one victim, no children were targeted, the appellant pled
    guilty, expressed remorse, and had no prior criminal record. Finally,
Champagne

involved only one victim, and the sentence imposed was still higher than
    the respondents sentence in this case.

The proper sentence

[70]

Having found that the trial judge erred in law and imposed a sentence
    that is demonstrably unfit, it falls to this court to impose the appropriate
    sentence.

[71]

Having regard to all of the circumstances discussed above, including the
    gravity of the offences, the moral blameworthiness of the offender, the paramountcy
    of the objectives of deterrence and denunciation in the domestic context, the
    fact of three victims including two children, and the terrible, lasting
    injuries to the seven-year-old child, a sentence at the high end of the range
    is required. I would impose a sentence of 20 years in prison less the credit
    for pre-sentence custody that was granted by the trial judge.

[72]

In light of all the circumstances in this case, a life sentence may well
    have been fit. However, for the reasons I have articulated, a 20-year sentence
    is also fit. Thus, in accordance with this courts customary practice when increasing
    a sentence imposed at trial, I will impose the lower of the two  a 20-year
    sentence: see
R. v. D.D.
(2002), 58 O.R. (3d) 788 (C.A.), at para. 30.

Conclusion

[73]

I would grant the Crown leave to appeal sentence, set aside the sentence,
    and impose a sentence of 20 years, less credit for pre-sentence custody.

Released: K.F. August 28, 2019

K. Feldman
    J.A.

I agree.
    David M. Paciocco J.A.

I agree. B.
    Zarnett J.A.

[1]
Mr. Kormendy is also appealing his conviction as an inmate appeal
    (C64638). On November 16, 2018, by order of MacPherson J.A., on consent of all
    parties, this Crown sentence appeal, where Mr. Kormendy is represented by
    counsel, was bifurcated from the inmate conviction appeal and allowed to
    proceed before the conviction appeal.

[2]

In such appeals, the only issue is whether the sentence should
    be lowered, not raised.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

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

DATE: 20190806

DOCKET: C63397

Feldman, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.S.

Appellant

Richard Litkowski, for the appellant

Carmen Elmasry, for the respondent

Heard: December 6, 2018

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

Fairburn J.A.:

OVERVIEW

[1]

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

[2]

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

(1)

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

(2)

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

(3)

failing to properly consider exculpatory evidence;

(4)

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

(5)

applying different levels of scrutiny to Crown and defence evidence.

[3]

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

[4]

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

[5]

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

ANALYSIS

A.

CONVICTION APPEAL

(1)

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

(i)

The Timing of the Childs Disclosure and Statement to Police

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

(ii)

The Components of Section 715.1(1)

[11]

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

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

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

[12]

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

(1)

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

(2)

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

(3)

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

(4)

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

[13]

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

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

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

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

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

(iii)

The
Voir Dire
and Admissibility Ruling

[14]

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

[15]

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

[16]

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

(iv)

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

Is There a
    Reasonable Time Ceiling?

[17]

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

[18]

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

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

[19]

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

[20]

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

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

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

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

[21]

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

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

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

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

at paras. 65-66.

[22]

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

at pp. 467-69.

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

[23]

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

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

[24]

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

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

·

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

·

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

·

said that he did not remember certain things;
    and

·

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

[25]

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

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

[26]

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

[27]

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

[28]

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

[29]

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

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

[30]

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

(2)

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

[31]

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

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

(1)

where it was done;

(2)

who the doctor was;

(3)

whether the alleged events were discussed; and

(4)

whether the counselling helped him to recall those events.

[32]

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

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

There was no clear rationale
    provided for that submission.

[33]

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

[34]

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

Dear [Counsel]:

The counselling information you requested is as follows:

Counselling agency: YRAP (York Region Abuse Program)

Therapist: [name of therapist]

[35]

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

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

[36]

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

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

[37]

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

[38]

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

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

[39]

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

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

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

[40]

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

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

[41]

The
    result in
B. (E.)

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

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

    (emphasis added).

[42]

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

[43]

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

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

would circumvent the s. 278.4(2)

prohibition and do indirectly what
    the
Code
otherwise prohibits.

(3)

The Appellants Denials

[44]

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

[45]

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

[46]

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

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

[47]

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

[48]

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

[49]

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

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

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

Q. And what did you say?

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

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

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

[50]

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

[51]

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

[52]

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

(2006),

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

[53]

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

[54]

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

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

(4)

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

[55]

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

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

[56]

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

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

[57]

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

[58]

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

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

[59]

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

(5)

The Trial Judge Treated Crown and Defence Evidence Evenly

[60]

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

[61]

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

[62]

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

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

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

I find that this was not the case.

[63]

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

[64]

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

[65]

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

[66]

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

[67]

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

[68]

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

[69]

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

B.

Sentence Appeal

[70]

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

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

[71]

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

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

[72]

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

[73]

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

[74]

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

[75]

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

[76]

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

[77]

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

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

CONCLUSION

[78]

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

Released: K.F. August 6, 2019

Fairburn
    J.A.

I agree. K.
    Feldman J.A.

I agree. P. Lauwers J.A.

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