COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cyr, 2012 ONCA
    919

DATE: 20121227

DOCKET: C51817

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Leonard Cyr

Appellant

Anida Chiodo and Joseph Wilkinson, for the appellant

Susan Magotiaux, for the respondent

Heard: May 3, 2012

On appeal from the convictions entered by Justice J.
    Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on
    June 30, 2009.

Watt
    J.A.:

[1]

A jury decided that
    Paul Cyr (the appellant) was not only a chicken thief but also a killer. A
    chicken thief because he hijacked a tractor-trailer unit carrying about 14,000
    kilograms of frozen chickens, then sold the chickens to some food wholesalers
    eager for a bargain. A killer because he shot the truck driver in the back of
    the head and left him dead in the cab of his truck.

[2]

The appellant was
    convicted of first degree murder and of theft. He seeks a new trial. He says
    that his first trial was flawed because the trial judge admitted some evidence
    about cell phone calls that should have been excluded, and didnt charge the
    jury correctly on the position of the defence and the evidentiary value of the
    appellants statement to the police.

[3]

These reasons explain
    why I am satisfied that neither the trial judges evidentiary rulings nor his
    instructions to the jury reflect error, and would dismiss the appeal.

The background facts

[4]

Donald Woods (the
    deceased) and the appellant were commercial truck drivers. The deceased worked
    for AK Brothers. The appellant worked for his brother, Jacques Cyr at JC
    Drivers.

[5]

In June 2006, Woods was
    interested in working for JC Drivers and planned to meet with the appellant to
    discuss employment prospects. The appellant was aware of Woods interest.

[6]

On June 21, 2006, Woods
    was driving a load of frozen chicken, weighing nearly 14,000 kilograms, from
    Drummondville, Quebec to Toronto. The load had been brokered to AK Brothers
    through JC Drivers, apparently a common practice between the two companies. Jacques
    Cyr did not know that Woods was the driver assigned to this load.

[7]

On the same day, Jacques
    Cyr and the appellant picked up separate loads of frozen food in Brampton for
    delivery to Quebec. The appellants load was to be delivered the following
    morning, June 22, 2006.

The Planned Meeting

[8]

On his way from
    Drummondville to Toronto, Donald Woods stopped in Brockville to speak with his
    wife.  He told his wife that he planned to meet up with some people from JC
    Drivers to talk about changing employers from AK Brothers to JC Drivers.

[9]

Around 6:00 p.m. on
    June 21, 2006, the deceaseds cell phone received a call from a payphone
    located at an Esso station off the 401 near Newtonville, Ontario. The appellant
    had dinner with his brother at an Esso station near Newtonville the same
    evening. The call was charged to a calling card used only once before, to call
    from Montreal (near where the appellant lived) to M & S Produce, a food
    supply company whose telephone number was found in a log book located in the
    appellants truck.

[10]

As
    the deceased approached the 10 Acre Truck Stop near Belleville, he called his
    wife on his cell phone. He explained that he was supposed to meet someone from
    JC Drivers to talk about a job, but that he was very tired and wanted to rest.
    His wife told him to go through with the meeting and sleep afterwards.

The 10 Acre Truck Stop

[11]

The
    appellant called his brother on his cell phone to tell him that he (the
    appellant) was going to pull over at Belleville for some rest and to refuel the
    truck.

[12]

The
    appellant arrived at the 10 Acre Truck Stop at 8:13 p.m. on June 21, 2006.

[13]

Woods
    arrived at the 10 Acre Truck Stop at 11:41 p.m. on June 21, 2006. He was never
    heard from again.

The Departure of the Deceaseds Truck

[14]

The
    deceaseds truck left the 10 Acre Truck Stop at 12:06 a.m. on June 22, 2006,
    about 25 minutes after Woods had told his wife that he was very tired and
    wanted to sleep.

[15]

The
    appellants truck remained at the 10 Acre Truck Stop until 11:42 p.m. on June
    22, 2006.

The Telephone Calls to Food
    Wholesalers

[16]

In
    June, 2006 Dominic Yau, a food wholesaler in the GTA, had discussions with a
    man who had been referred to him by Gary Kwok. The man, whom Yau remembered as Paul,
    was a white-skinned, very fit truck driver with arm tattoos.  The description
    provided by Yau fits the appellant. Yau couldnt take the volume of chicken
    being offered so he referred the man to Mark Pang of Tai Wah Trade, who agreed
    to buy the deeply discounted chicken. Pang recalled speaking to someone, who
    could have had the name Paul, or some other name, about buying chicken. The
    man said he would soon have a load of cheap chicken for sale.

[17]

Records
    for the appellants cell phone confirmed calls to and from numbers associated
    with Kwok, Yau, and Tai Wah Trade, including several calls between June 15 and
    June 20, 2006, between the phones of the appellant and Mark Pang.

[18]

Mark
    Pang testified that he spoke by telephone with the person offering the
    discounted chicken the day before it was delivered.

The Delivery of the Chicken

[19]

Between
    2:43 a.m. and 7:59 a.m. on June 22, 2006, 19 calls were made from the
    appellants cell phone to telephones at Tai Wah Trade. Every call was routed
    through a cell tower northwest of Tai Wah Trades business premises.

[20]

Shortly
    after 8:00 a.m. on June 22, 2006, Mark Pang arrived for work at Tai Wah Trade.
    There, he met a man in a white truck waiting to unload and sell Pang a load of
    very cheap frozen chicken. This man, who could have been named Paul, demanded
    payment in cash. The two men unloaded the chicken. The weights on the boxes
    Pang purchased matched the weights on the missing load from Woods truck. Pang
    and the man drove to another wholesaler to unload more chicken.

[21]

Pang
    paid the man some of the money in cash on delivery, but told the man he would
    have to return later to collect the balance. The man came back around 5:00 or
    6:00 p.m. to collect the outstanding balance.

[22]

Pang
    felt sure he could identify the chicken seller if he saw him again. He failed
    to pick out the appellants photograph from a line up about four months later.
    There was evidence that the appellants appearance in the photo was quite
    different than it had been in June 2006.

[23]

During
    the afternoon of June 21, 2006, the appellants cell phone made and received
    several calls all routed through cell towers in Markham and Toronto.

The Return Trip

[24]

Donald
    Carpentier, a truck driver employed by Nish Transport, made a pick up at M
    & S Quality Produce in Markham around 4:00 p.m. on June 22, 2006.  The
    appellant was there talking with the owners of M & S with whom he seemed
    quite familiar. The appellant told Carpentier that he needed a ride to Belleville
    where his truck was being repaired. Carpentier agreed to take the appellant
    with him. The men shared driving responsibilities on the way to Belleville.

[25]

The
    appellant and Carpentier arrived at the 10 Acre Truck Stop around
    8:30 p.m. on June 22, 2006. The appellant put his bag in his white truck
    and had dinner with Carpentier at the Truck Stop. Carpentier went to his truck
    to sleep.

The Inquiry

[26]

Around
    11:30 p.m. on June 22, 2006, Carpentier was awakened by a conversation between
    the appellant and a woman who was standing outside the appellants truck. The
    woman was Nicole Woods, the deceaseds wife, who was making inquiries about her
    husbands whereabouts.

[27]

Carpentier
    left the 10 Acre Truck Stop after he was awakened by the womans inquiries. The
    appellant left at 11:42 p.m.

The Explanation

[28]

Jacques
    Cyr retrieved a phone message from his brother on the morning of June 22, 2006,
    that the refrigeration unit on his truck wasnt working properly and required
    repair. Later that night, the appellant told Jacques that the unit was working
    properly. When finally delivered on June 26, 2006, the frozen food contained in
    the trailer of the appellants truck was still frozen. No invoices for repairs
    to the refrigeration unit were ever produced.

The Finding of the Body

[29]

Early
    on the morning of June 23, 2006, a Walmart employee in Pickering noticed a
    large white truck in a laneway outside the store and reported the discovery to
    police.

[30]

Police
    entered the truck and found Donald Woods body on the floor of the truck cab.
    His hands were close together behind his back, but untied. Woods DNA was found
    on a plastic tie in the cab. Woods died from a gunshot wound to the back of the
    head. No forensic evidence linked the appellant to the deceaseds truck.

The Appellants Version

[31]

The
    appellant did not testify. During a police interview introduced at trial as part
    of the Crowns case, he denied any involvement in and knowledge of the killing
    of the deceased. The Crown alleged several responses of the appellant during
    the interview were proven false by other evidence and that the interview
    contained several strategic omissions, including any mention of the allegedly
    defective refrigeration unit on the appellants truck.

[32]

At
    trial, the position advanced on the appellants behalf was that he never met
    the deceased at the Truck Stop and had nothing to do with his death or the theft
    of his truck and its load. The appellant went to Toronto because he left his
    truck at the Truck Stop so that the refrigeration unit could be repaired. He
    hitched a ride back to the Truck Stop. No forensic evidence linked him to the
    deceased or his vehicle.

the grounds of appeal

[33]

The
    appellant advances four grounds of appeal.

[34]

Two
    grounds have to do with the reception of evidence about telephone calls made to
    and from the appellants cell phone. The appellant says the cell phone
    propagation maps  maps of cell phone tower locations in a geographical area
    activated by the cell phone used by the appellant - and the results of test
    calls made by a police officer should not have been admitted.

[35]

The
    other two grounds of appeal are two alleged omissions in the trial judges
    final instructions to the jury: failing to include - within a
W. (D.)
instruction - exculpatory evidence beyond the police interview, and  failing to
    distinguish between disbelief and fabrication in connection with alleged lies
    in the appellants statement to police.

[36]

I
    will consider the claimed shortcomings in the charge, and thereafter, the evidentiary
    grounds relating to the cell phone calls.

Ground #1: The
W. (D.)
Instruction

[37]

The
    first ground of appeal does not allege any error in the substance of the
W. (D.)
instruction, rather the appellant complains of a failure to include within it
    potentially exculpatory evidence beyond the appellants police interview. The
    result, according to the appellant, was a failure to relate crucial aspects of
    the evidence adduced at trial to the position of the defence so that jurors
    would appreciate the value and effect of that evidence.

The Additional Background

[38]

The
    Crowns position was that the chicken seller was, at once, the chicken thief
    and the person who killed Donald Woods.

[39]

At
    its most basic, the defence position at trial was that the appellant never met
    Donald Woods at the 10 Acre Truck Stop on June 21, 2006, and was not the person
    who stole his truck, trailer, and load, sold the chicken to the wholesalers,
    and killed him. The police interview, introduced as part of the Crowns case,
    contained the core of the appellants defence.

[40]

At
    trial, the appellant relied on Pangs failure to identify him as the chicken
    seller as evidence supportive of his denial of involvement. Pang also said that
    the chicken seller returned at 5:30 p.m. for the balance of payment . The
    appellant left with Carpentier at 4:00 p.m. If Pangs evidence regarding the
    time the chicken seller returned was correct, the killer could not have been
    the appellant.

[41]

The
    Crowns position was that Pang was mistaken about the time the  chicken seller
    returned for the balance of payment, and was either mistaken or deliberately
    dishonest when he failed to identify the appellant in the photo line-up. If the
    chicken seller returned before 4:00 p.m., there was no conflict between Pangs
    evidence and the testimony of Carpentier.

The Arguments on Appeal

[42]

For
    the appellant, Mr. Wilkinson says that the trial judge erred in omitting to   refer
    to the evidence of Pangs inability to identify the appellant as the chicken
    seller, in the
W. (D.)
instruction provided at trial.

[43]

Mr.
    Wilkinson contends that this evidence, of Pangs failure to identify the
    appellant as the chicken seller, was crucial evidence that rebutted the Crowns
    contention that the chicken seller was the chicken thief and the killer of
    Donald Woods. This evidence should have been the subject of a
W. (D.)
instruction, especially because Crown counsels closing address invited the
    jurors not to rely on Pangs evidence unless it was confirmed by evidence from
    another source.  Mr. Wilkinson submits that the omission, to which objection
    was taken at trial, is fatal to the validity of the appellants conviction.

[44]

For
    the respondent, Ms. Magotiaux begins with a reminder that there is no sacred
    formula that a trial judge must follow to instruct jurors on the legal
    principles that govern the defence advanced, or to relate the evidence to the
    issues the jury are required to decide. The trial judge is best placed to
    determine what is required and how best to express it.

[45]

Ms.
    Magotiaux submits that there is no requirement that the
W. (D.)
formula be slavishly followed in connection with every aspect of the evidence
    an accused says supports the position of the defence. All that is required is a
    clear articulation of the burden on the Crown, the standard of proof to be met,
    and the injunction against simply choosing sides.

[46]

Ms.
    Magotiaux says that, in this case, there were no juxtaposed versions of events
    that invited an either/or choice, or any single piece of evidence that could
    be isolated for a
W. (D.)
instruction beyond the appellants denial.
    The instructions here included a statement of the defence position, as it was
    drafted by trial counsel, that emphasized that the evidence of Pang and
    Carpentier in combination meant that the appellant could not have killed the
    deceased.  Further, in his re-charge, the trial judge directly linked Pangs
    failure to identify the appellant to reasonable doubt. As a whole, the charge,
    which included several
W. (D.)
instructions, was fair, balanced, and
    left no doubt about who bore the burden of proof and what was required to
    satisfy it.

The Governing Principles

[47]

Several
    basic principles inform our decision on this ground of appeal.

[48]

First,
    we are to take a functional approach in our review of the instructions that were
    given, not an idealized approach to those instructions that might have been
    given:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 32;
R. v.
    Cooper
, [1993] 1 S.C.R. 146, at pp. 163-164. We test the instructions
    against their ability to fulfill the purposes for which they are given, and not
    by reference to their adherence to or departure from some specific approach or
    formula:
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at
    para. 27.

[49]

Second,
    the suggested instruction in
W. (D.)
is not a sacrosanct or sacred
    formula as the decision itself points out:
R. v. W. (D.)
, [1991] 1
    S.C.R. 742, at p. 758;
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R.
    716, at paras. 20 and 23;
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d)
    340, at paras. 82-84. Failure to parrot the precise language of the
W. (D.)
formula is not fatal, provided the charge, read as a whole, makes it clear that
    the jury could not have laboured under any misapprehension about the placement
    of the controlling burden, and the substance of the standard of proof that
    governed their deliberations:
W. (D.)
, at p. 758;
Simon
,
    at para. 82.

[50]

Third,
    the
W. (D
.
)
instruction, or its functional equivalent, is not
    limited to an accuseds testimony or statement admitted at trial, rather it
    extends to other exculpatory evidence that emerges during trial proceedings:
R.
    v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 113-114.

[51]

Fourth,
    the purpose of the
W. (D.)
instruction or its functional equivalent is
    to ensure that the jury understands how to apply the burden of proof to the
    issue of credibility. The jury must be cautioned that a trial is
not
a
    contest of credibility between witnesses, a matter of choosing sides as it
    were, and that the jurors do not have to accept the defence evidence in full to
    find the accused not guilty:
Van
, at para. 23;
W. (D.)
, at p.
    757; and
R. v. J.H.S
., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9.

[52]

Fifth,
    a trial judge is not required to relate his or her reasonable doubt instruction
    to specific items of evidence, whether consistent with the defence or the
    Crowns theory of the case:
R. v. M.R
. (2005), 195 C.C.C. (3d) 26
    (Ont. C.A.), at paras. 45-46.

[53]

Finally,
    the failure to expressly relate a
W. (D.)
or equivalent instruction to
    a particular item of evidence is not fatal, provided that the charge, taken as
    a whole, makes it clear to the jury that they are to apply the presumption of
    innocence and the burden of proof to
all
the evidence adduced at
    trial:
Van
, at paras. 22-23;
B.D
., at para. 120; and
R.
    v. Lifchus
, [1997] 3 S.C.R. 320, at para. 40.

The Principles Applied

[54]

I
    would not give effect to this ground of appeal.

[55]

Taking
    a functional approach to the instructions that were given, rather than an
    idealized approach to instructions that might have been given, and reading the
    instructions as a whole, I am satisfied that the jury was properly instructed
    on the position of the defence and evidence relevant to and supportive of that
    position, including the evidence that Pang didnt pick out the appellants
    photo as the chicken seller. The failure to specifically refer to this evidence
    in connection with the
W. (D.)
instruction does not amount to
    reversible error when account is taken of the charge as a whole.

[56]

The
    appellants complaint is one involving non-direction, an omission or failure to
    include within a
W. (D.)
instruction reference to evidence said to be
    supportive of the appellants defence, a denial of participation. The complaint
    fails for several reasons.

[57]

First,
    a trial judge is not required to give a
W. (D
.
)
instruction,
    or its functional equivalent, in connection with every aspect of the evidence
    adduced at trial upon which an accused relies:
Simon
, at paras. 82-84,
    and 89-90;
B.D
., at para. 114,
M.R
.; at para. 46; and
R. v.
    Chenier
(2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at paras. 374-375.

[58]

Second,
    as
Van
explains, the failure to include within a
W. (D
.
)
instruction a specific item of evidence does not always amount to reversible
    error:
Van
, at para. 22. The purpose of a
W. (D
.
)
instruction is to ensure that the jury understands how to apply the burden of
    proof to the issue of credibility. The jury must appreciate that a criminal
    trial is not a contest of credibility between or among witnesses. They must
    also understand that they do not have to accept the defence evidence in order
    to acquit:
Van
, at para. 23. Provided the instruction as a whole makes
    these principles clear, the jury has been properly instructed.

[59]

In
    this case, the instructions on reasonable doubt were compliant with
Lifchus
on the standard of proof. The directions explained that a reasonable doubt
    could arise because of a lack of evidence. The jury was told several times
    that, because the Crowns case was based entirely on circumstantial evidence,
    they could find the appellant guilty only if they were satisfied beyond a
    reasonable doubt that the appellants guilt was the only reasonable inference
    to be drawn from the proven facts. The
W. (D
.
)
instruction in
    association with the appellants statement was repeated several times. Any
    deficiency that there may have been because of the trial judges failure to
    expressly include Pangs failure to identify the appellant in the
W. (D
.
)
portion of the charge was more than compensated for by the balance of the
    charge.

[60]

Third,
    the trial judge made specific reference to Pangs evidence when reviewing the
    position of the defence.  He told the jury:

And even more importantly, Mark Pang did not identify Paul Cyr
    as the person whom he purchased the chicken from. Although he was sure he would
    be able to identify the person again from a photograph, when presented with the
    same line-up that Donald Carpentier was presented with, he did not identify
    Paul Cyr. This is direct evidence that Paul Cyr is not Donald Woods killer.
    This evidence is sufficient, on its own to raise more than a reasonable doubt
    about Paul Cyrs guilt.

He reiterated this reference to Pangs failure to
    identify the appellant in a re-charge and linked it to the balance of the
    evidence and the standard of proof required to establish guilt.

[61]

It
    is also worth reminder that Pangs failure to identify the appellant as the
    chicken seller cannot be isolated from the formidable case that linked the
    appellant to Pangs business, Tai Wah Trade, including nearly two dozen
    telephone calls from the appellants cell phone to the business,
    contemporaneous with the delivery of an amount of chicken consistent with that
    carried in Woods truck. The calls were all routed through a cell tower near
    the Tai Wah Trade business premises.

[62]

This
    ground of appeal fails.

Ground #2: Failure to Distinguish Between Rejection and Fabrication
    of Exculpatory Evidence

[63]

The
    second ground of appeal relating to the charge to the jury also relates to what
    the appellant advances as a fatal omission from the charge to the jury: the
    failure to distinguish the difference in evidentiary value between rejection of
    the appellants exculpatory statement and a finding that the statement was
    fabricated.

The Essential Background

[64]

The
    appellant did not testify at trial.  A CD of an audio-taped interview of the
    appellant on July 12, 2006 by officers of Durham Regional Police Service was
    entered as an exhibit at trial. The appellant denied meeting Donald Woods on
    July 21, 2006. He told investigators that he did not kill Woods and didnt know
    who had killed him.

[65]

At
    trial, Crown counsel had used the audio-taped interview as part of the Crowns
    case and attempted to demonstrate by other evidence that the appellant had
    fabricated several of his responses to police questions.

The Jury Instructions

[66]

The
    trial judge instructed the jury on evidence of post-offence conduct by the
    appellant, including what the Crown alleged were falsehoods and fabrications in
    the audio-taped interview.

[67]

In
    his charge, the trial judge itemized the fabrications alleged by Crown counsel,
    described the defence position in response, gave a
W. (D
.
)
instruction in relation to the appellants denial of responsibility, and told
    the jury that, before finding the appellant guilty on the circumstantial
    evidence adduced by the Crown, the jury had to be satisfied beyond a reasonable
    doubt that the appellants guilt was the only reasonable inference to be drawn
    from the proven facts.

[68]

The
    judge explained the difference between disbelief and fabrication of a statement
    in these terms:

There is a big difference between disbelief of a version of
    events and fabrication of the same version of events.  Disbelief of a version
    of events does not mean that the version of events was fabricated, not at all.
    Evidence that leads you only to disbelieve a version of events is not
    independent evidence that the version of events was fabricated.

Mere disbelief of a statement that Paul Cyr was someplace when
    the offences were committed means that you treat the evidence as if it had
    never been given.  In other words, ignore it and consider the rest of the
    evidence in deciding this case.

However, if you are satisfied on the basis of independent
    evidence that this statement is not just false but was actually fabricated by
    Paul Cyr, then you must next consider the reason why Paul Cyr fabricated the
    evidence.

[69]

The
    trial judge summarized the independent evidence relied upon to establish
    fabrication and concluded his charge on post-offence conduct in these words:

If you find that Paul Cyr fabricated, in other words, made up
    this version of events because he was aware that he did what is alleged, you
    must take that finding into account, along with the rest of the evidence, in
    deciding whether the Crown counsel has proven the guilt of Paul Cyr beyond a
    reasonable doubt.

On the other hand, if you do not or are unable to find that
    Paul Cyr fabricated this version of events because he was aware that he did
    what is alleged, you are not entitled to use this evidence in the way I have
    described and you must decide the case without its assistance.

If you find that Paul Cyr fabricated this version of events
    because he was aware that he did what was alleged and as I stated, you must
    take that finding into account, along with the rest of the evidence, in
    deciding whether Crown counsel has proven the guilt of Paul Cyr beyond a
    reasonable doubt. However, this evidence will not assist you in determining
    whether Paul Cyr committed first degree murder or second degree murder.

The Arguments on Appeal

[70]

For
    the appellant, Mr. Wilkinson begins with the incontrovertible proposition that
    there is a significant disparity in evidentiary value between an exculpatory
    statement that is disbelieved and one that is proven false, in other words,
    shown to be fabricated. Disbelieved evidence has no evidentiary value.
    Fabricated evidence may constitute circumstantial evidence of guilt.

[71]

Mr.
    Wilkinson says that the error here was that the trial judge muddled the
    distinction between disbelieved and fabricated evidence. The trial judge failed
    to adequately explain the meaning of independent evidence of fabrication as
    requiring something beyond mere disbelief of the statement itself. The judge
    erred further, according to Mr. Wilkinson, in telling the jury that they could
    infer fabrication from the content of the statement and the circumstances in
    which it was given. In the end, the jury might have felt entitled to use their
    disbelief of this statement as evidence of the appellants guilt.

[72]

For
    the respondent, Ms. Magotiaux points out that the trial judge repeatedly told
    the jury that they could not leap from disbelief of the appellants denials to
    an inference or finding of guilt. The trial judge explained that the jurors
    needed to find independent evidence of fabrication before they could make the
    findings necessary for any use of the evidence in determining guilt. The judge
    explained that independent evidence included, but was not limited to, the
    contents of the statement and the circumstances in which it was made.

[73]

Ms.
    Magotiaux says that the danger inherent in a charge that fails to distinguish
    between disbelief and fabrication is the risk that a conviction may be grounded
    on mere disbelief of an accuseds exculpatory statement. But there was no such
    risk here. The distinction between disbelief and fabrication was explained. The
    jury was told that they could not find guilt on the basis of disbelief, rather
    needed to find fabrication due to a particular state of mind before this
    evidence could be used as an item of evidence in deciding whether the appellant
    killed the deceased, although not in determining the legal character of his
    crime.

The Governing Principles

[74]

The
    parties do not differ significantly on the governing principles although they
    part company on the result of the application of those principles in this case.

[75]

The
    distinction between disbelief and fabrication originated in cases in which the
    defence advanced was alibi. Those authorities made it clear that, although a
    disbelieved alibi is of no evidentiary value, a fabricated alibi can constitute
    evidence from which an inference of guilt may be drawn:
R. v. Hibbert
,
    2002 SCC 39, [2002] 2 S.C.R. 445, at paras.
57-58;
R. v.
    Coutts
(1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras.
15-16;
    and
R. v. OConnor
(2002), 62 O.R. (3d) 263 (C.A.), at para. 17.

[76]

The
    same rule applies to other exculpatory statements:
OConnor
, at para. 18.
    In non-alibi cases, it is necessary to have regard to the content of what it is
    that is disbelieved and the connection of the disbelieved statement to the
    offence charged:
OConnor
, at para. 18.

[77]

The
    purpose of the distinction between disbelief and fabrication is to reduce the
    risk that the trier of fact, if left unschooled, may blur the need for the
    Crown to prove the offence charged beyond a reasonable doubt with the failure
    of the accused to provide a credible defence. Further, the distinction takes
    into account the danger that the trier of fact may attach undue weight to their
    rejection of the accuseds explanation, and move too readily from mere
    disbelief to a finding of guilt:
OConnor
, at para. 19;
Coutts
,
    at para. 15.

[78]

Disbelief
    cannot form the basis upon which to infer fabrication. A finding of fabrication
    must be founded on evidence that is independent from the evidence that
    contradicts or discredits the accuseds version of events:
OConnor
,
    at para. 21;
Coutts
, at paras. 15-16.

[79]

A
    trier of fact may consider the circumstances in which an accused made an
    out-of-court statement that is disbelieved as independent evidence to show that
    the accused fabricated that statement:
OConnor
, at para. 24. The
    circumstances in which a false statement has been made may show an accuseds
    intent to mislead the police, or to deflect suspicion, and thus be evidence of
    a conscious knowledge that she or he has committed an offence:
OConnor
,
    at para. 26. If the circumstances in which the statement was made tend to
    support this conclusion of consciousness, then those circumstances may be used
    as independent evidence of fabrication:
OConnor
, at para. 26.

The Principles Applied

[80]

For
    reasons I will explain, I would reject this ground of appeal.

[81]

First,
    the trial judge did distinguish between disbelief and fabrication in connection
    with the appellants out-of-court statement in which he denied participation in
    and knowledge of the killing of Donald Woods. The instructions made it clear
    that disbelief of this statement was
not
a piece of evidence that the
    jury could consider in determining whether the Crown had proven the guilt of
    the appellant beyond a reasonable doubt. Said in a different way, the
    instruction not only explained the distinction between disbelief and
    fabrication, but also expressly enjoined the jury from the prohibited chain of
    reasoning from disbelief to guilt. On these instructions, there was no danger
    that the jurors would convert their disbelief of the exculpatory statement into
    proof of the opposite conclusion: participation in the offence.

[82]

Second,
    the instructions on fabrication made it clear that what was required was
    independent evidence of the falsity of the statement and its
actual
fabrication. The trial judge emphasized that findings of actual fabrication,
    and of fabrication due to awareness of involvement in the offence, were
    essential before the jury could rely on the evidence that the statement had
    been fabricated, together with the rest of the evidence, in deciding the case.
    Absent these preliminary findings, the jury was instructed that they could not
    use this evidence in deciding whether the Crown had proven the appellants
    guilt beyond a reasonable doubt.

[83]

Third,
    the circumstances in which the appellant made this statement to police were
    capable of sustaining a finding of fabrication and the instructions of the
    trial judge faithfully recounted the appellants position that no such finding
    should be made.

[84]

Fourth,
    although not fatal, experienced trial counsel for the appellant raised no
    objection to the trial judges charge on this issue.

Ground #3: The Admissibility of the Cell Phone Propagation
    Maps

[85]

The
    appellant challenges the ruling of the trial judge that permitted Crown counsel
    at trial to introduce cell phone propagation maps in evidence through the
    testimony of a radio-frequency engineer employed by Bell Mobility, John Yeh. To
    frame the discussion of this asserted error, it is helpful to recall the nature
    of the evidence admitted and the reasons given by the trial judge for admitting
    it.

The Evidence

[86]

As
    I have indicated, cell phone propagation maps depict the relative coverage
    areas of cell phone towers located at various places in a geographical area.
    The maps entered as exhibits show cell phone tower locations activated by the
    cell phone owned by the appellant at the material time.

[87]

When
    a call is made from a cell phone, the signals bounce off a cell phone tower
    that is activated by the cell phone. The signal is then transmitted ultimately
    to the intended recipients phone. As a general, but not invariable rule, the
    signal from the sending cell phone bounces off the tower closest to the party
    who makes the call. Sometimes, various factors may intercede, such as
    environmental variables, a large volume of cellular traffic, and large
    vehicles, with the result that the callers signal will be directed to and
    received by a tower other than the tower closest to the caller.

[88]

Cell
    phone propagation maps do
not
establish precise locations from which
    calls have been made, only the general area from which the call originated. The
    maps are not 100 percent accurate, rather guesstimates place their accuracy
    at between 60 and 80 percent, or possibly even lower. Said in another way, the
    rate of error maybe 40 percent or more.

The Ruling

[89]

At
    trial, counsel for the appellant acknowledged the logical relevance of the cell
    propagation map evidence and the expertise of Mr. Yeh to give the evidence, but
    challenged the legal relevance of the evidence, in particular, the predominance
    of its prejudicial effect over its minimal probative value.

[90]

The
    trial judge considered that this evidence was expert evidence and applied the
    principles of
R. v. Mohan
, [1994] 2 S.C.R. 9, to determine its
    admissibility. After making reference to several factors discussed in
R. v.
    Melaragni
(1992), 73 C.C.C. (3d) 348 (Ont. Ct. G.D.),  the trial judge
    concluded:

All of the records and data upon which the Crown relies is
    available to the defence and has been disclosed as part of the disclosure
    process.

Therefore, I find that the general nature of the science
    underlying the functioning of the cell phone and the cell phone network and the
    generation of prediction maps are matters of sufficient reliability to be left
    to the jury. I am satisfied that the proposed evidence meets the criteria for
    admissibility in
Mohan
. The evidence is relevant, necessary and
    offered by a witness sufficiently qualified to be considered an expert and
    there is no rule that would require its exclusion.

Moreover, I find that there is no prejudice to be occasioned by
    the evidence. However, if I am wrong on this last point, then I find that
    whatever prejudice there may be is outweighed by the probative value of the
    evidence. Therefore, I rule that this evidence is admissible.

The Arguments on Appeal

[91]

For
    the appellant, Ms. Chiodo begins by acknowledging the logical relevance and
    materiality of this evidence, which she says is expert opinion evidence, thus
    is subject to the requirements of
Mohan
and its refinement by
R.
    v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, in particular, the application
    of the cost-benefit analysis to determine its legal relevance.

[92]

Ms.
    Chiodo says that the trial judge erred in his cost-benefit analysis. He
    misapprehended the probative value of the evidence by overstating the accuracy
    of the propagation maps and understated its prejudicial effect, a result of its
    unreliability. He also failed to factor into his cost-benefit analysis the
    likelihood that jurors would assign disproportionate weight to the evidence
    because of its expert origins.

[93]

For
    the respondent, Ms. Magotiaux submits that the trial judge properly applied the
    cost-benefit analysis to conclude that the probative value of the evidence,
    which was evidence of fact, not expert evidence of opinion, overshadowed its
    prejudicial effect. The trial judge did not misapprehend the accuracy of the
    proposed evidence, rather he expressly adverted to the error rate in his
    analysis. His decision, balancing the relative factors, involves the exercise
    of judicial discretion and is subject to substantial deference on appeal.

[94]

Ms.
    Magotiaux says that no moral or reasoning prejudice is associated with this
    evidence, unlike, for example, with evidence of extrinsic misconduct or
    uncharged similar acts. Further, she contends, in considering the prejudicial
    effect of evidence tendered for admission, a trial judge should take into
    account the efficacy of limiting instructions to confine the evidence to its
    legitimate use as probative material.

The Governing Principles

[95]

The
    admissibility of the cell propagation maps proposed for admission by Crown
    counsel at trial involves the application of general principles about which
    there is little controversy.

[96]

Evidence
    that is relevant, material, and not barred by any specific admissibility rule
    may be excluded under the general exclusionary discretion for which
Mohan
provides:
Mohan
, at pp. 20-21. This cost-benefit analysis determines
    whether the value of the evidence to the correct disposal of the litigation is worth
    the cost of its introduction to the litigation process:
Mohan
, at pp. 20-21.

[97]

Evidence
    may be excluded under this cost-benefit analysis if its probative value is
    overborne by its prejudicial effect, if it involves an inordinate amount of
    time to present the evidence that is not commensurate with its value, or if it
    is misleading in that its effect on the trier of fact is out of proportion to
    its reliability as probative material:
Mohan
, at p. 21. The
    reliability/effect balance is of particular importance where the evidence under
    consideration is expert opinion evidence:
Mohan
, at p. 21.

[98]

Any
    assessment of the potential benefit to the trial process to be gained by the
    introduction of the proposed evidence of necessity involves an intrusion into
    territory that is the traditional preserve of the jury in a criminal jury
    trial. The trial judge must be scrupulous to ensure that she or he decides only
    whether the evidence is worthy of jury consideration, not whether the jury
    should accept and act upon the evidence:
Abbey
, at para. 89.

[99]

Assessment
    of the prejudicial effect of admitting evidence must also acknowledge the
    reality of cautions and limiting instructions about the use of evidence
    received for a limited purpose. Absent alteration of the paradigm of trial by
    jury, we presume such instructions will be followed by jurors, and evidence of
    limited admissibility confined within its proper bounds:
R. v. Corbett
,
    [1988] 1 S.C.R. 670, at pp. 692-693.

[100]

Evidence that a
    call from a cell phone is likely to register at the tower closest to the caller
    is evidence of fact, not of opinion:
R. v. Hamilton
, 2011 ONCA 399,
    271 C.C.C. (3d) 208, at paras. 259, 277, and 279. This evidence is subject to
    limitations: it does not disclose the exact or precise location of a caller,
    only the general area from which the call originated. More precise evidence may
    require expert opinion:
Hamilton
, at para. 280;
R. v. Ranger
,
    2010 ONCA 759, [2010] O.J. No. 4840, at para. 17.

The Principles Applied

[101]

This ground of
    appeal fails for several reasons.

[102]

First, the trial
    judge did not misapprehend the evidence, rather he specifically acknowledged
    and adverted to its reliability being less than 60 percent.

[103]

Second, the
    trial judge was determining the admissibility of evidence, or more accurately,
    where the balance between probative value and prejudicial effect settled, in
    the circumstances of this case. In the absence of a demonstrated error in
    principle, the trial judges determination of where the balance settles is
    entitled to substantial deference on appeal:
R. v. B. (C.R.)
, [1990] 1
    S.C.R. 717, at p. 733.

[104]

Third, the
    appellant has not identified any error of principle in the trial judges cost-benefit
    analysis. The evidence was not time-consuming. It did not  engender moral
    prejudice. It could prompt no emotional reaction on introduction.  It depicted
    no morally repugnant act. It created no reasoning prejudice, either by
    distracting jurors from their consideration and determination of the central
    issues in the trial, or, by itself, creating a profusion of issues with distractive
    potential.

[105]

This evidence
    was not presented to the jury as anything other than what it was: an item of
    circumstantial evidence that the jury could consider in deciding whether Crown
    counsel had proven beyond a reasonable doubt that the appellant killed Donald
    Woods.

Ground #4: The Admissibility of the Evidence of Test Calls

[106]

The final ground
    of appeal also relates to the admissibility of evidence about cell phone calls,
    in particular, about the towers involved in transmitting calls made from a cell
    phone at various locations disclosed by the evidence adduced at trial.

The Essentials of the Evidence

[107]

P.C. James
    Doucette of the Durham Regional Police Service made several calls from a cell
    phone at times and from places that coincided with various events disclosed by
    the evidence adduced at trial. The purpose of this re-enactment was to
    demonstrate that the cell phone records already admitted in evidence, which
    showed the cell tower activated in calls involving the appellants cell phone,
    were consistent with the test results.

[108]

The test calls
    could not duplicate everything about the original calls.  Although the test
    calls were made from the same locations, at the same time of day, and over the
    same network as the original calls, they could not replicate the date, the
    amount of cell phone traffic, or any ambient environmental factors associated
    with the originals.

The Ruling of the Trial Judge

[109]

The trial judge
    acknowledged the discrepancies between the circumstances of the test calls and
    those of the original calls, but admitted the evidence of the test calls. The
    trial judge considered that the evidence was relevant, material and did not
    offend any exclusionary rule of the law of evidence.

[110]

The trial judge
    assessed the probative value of the evidence, as well as its prejudicial
    effect, and decided that the balance favoured admissibility, coupled with a
    comprehensive and scrupulous jury instruction to ensure that the jurors did
    not extend their use of the evidence beyond permitted limits.

The Arguments on Appeal

[111]

For the
    appellant, Ms. Chiodo reinvigorates the argument advanced at trial against
    admissibility. She submits that the trial judge erred in finding that the test
    calls sufficiently replicated the originals to make the test results probative
    on the issue of identity, the critical issue at trial. Further, the trial judge
    proceeded from a presumption of admissibility, she says, rather than
    determining admissibility based on balancing of the probative value of the
    proposed evidence against its prejudicial effect.

[112]

Ms. Chiodo
    submits that the trial judge erred in his assessment of the prejudicial effect
    of the proposed evidence by measuring prejudicial effect, not as an inherent
    quality of the evidence, but rather as attenuated by limiting instructions. In
    the result, Ms. Chiodo argues, the trial judge failed to fulfill his gatekeeper
    function in connection with this evidence and erred in admitting it.

[113]

For the
    respondent, Ms. Magotiaux says that this evidence was evidence of observed
    facts, not expert evidence subject to the rigours of
Mohan
. The
    evidence was relevant, material, and contravened no specific admissibility
    rule, including the discretion that permits exclusion of evidence the probative
    value of which is overborne by its prejudicial effect.

[114]

Ms. Magotiaux
    contends that the trial judge accurately gauged the probative value of this
    evidence. He recognized its limitations and appreciated that it was simply an
    item of circumstantial evidence, to be considered along with the rest of the
    evidence, in determining whether the Crown had proven beyond a reasonable doubt
    that the appellant killed Donald Woods. Further, Ms. Magotiaux says, the trial
    judge properly considered the impact of limiting instructions when assessing
    the prejudicial effect of the evidence. Antidotes to prejudice are properly
    considered in assessing the prejudicial potential of evidence tendered for
    admission.

The Governing Principles

[115]

Several
    principles of general application and others relating to the admissibility of experiment
    evidence inform the decision in connection with this ground of appeal.

[116]

To begin with
    first principles, a witness testimony about observed facts must be relevant
    and material. Satisfaction of these requirements will result in reception of
    the evidence unless its exclusion is justified on some other ground:
R. v.
    Collins
(2001), 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 18. Relevant and
    material evidence may be excluded by the operation of a specific evidentiary
    rule, like the rule against hearsay, the opinion rule, and the rule against
    similar acts and extrinsic misconduct:
Collins
, at para. 19.

[117]

Second, apart
    from these specific admissibility rules that are exclusionary, evidence that is
    otherwise relevant, material and compliant with these specific evidentiary
    rules, may be excluded in the exercise of the trial judges general exclusionary
    discretion to safeguard the fairness of the trial:
Collins
, at para.
    19.  The exercise of this discretion involves a cost-benefit analysis to
    determine whether the cost to the litigation process of receiving the evidence exceeds
    the benefit to be gained in the correct disposal of the litigation:
Collins
,
    at para. 19;
Mohan
, at p. 21.

[118]

Third, the law
    of evidence distinguishes fact from opinion. Generally, witnesses testify only
    about observed facts. The trier of fact draws inferences from those facts. An
    opinion is an inference from observed facts. Lay witnesses can give opinion
    evidence only on issues that do not require special knowledge and where it is
    virtually impossible to separate the facts from the inferences based on those
    facts:
Collins
, at para. 17.

[119]

Fourth, experiment
    evidence that is relevant and material is generally received in criminal
    trials. No specific admissibility rule excludes it, but it, like other
    evidence, is subject to the general exclusionary discretion of the trial judge
    described earlier:
Collins
, at para. 21. Where the evidence requires
    inferences from observed facts that require special knowledge, the specific
    exclusionary rule about opinion evidence is engaged and the requirements of
Mohan
must be met.

[120]

Further, in most
    cases, the relevance of the experiment evidence depends upon the degree of
    consonance between the replication and the original event:
Collins
, at
    para. 22;
R. v. Nikitin
(2003)
,
    176 C.C.C. (3d) 225 (Ont. C.A.), at para. 14.

[121]

Finally, where experiment
    evidence has been admitted in a criminal jury trial, the trial judge should
    provide a comprehensive instruction to the jury about the limitations on their use
    of this evidence and the factors identified by the defence that might diminish
    the weight to be assigned to the evidence:
Nikitin
, at para. 15.

The Principles Applied

[122]

For several
    reasons that I will explain, I would not give effect to this ground of appeal.

[123]

First, this
    evidence was relevant, material, and contravened no specific exclusionary rule
    of the law of evidence. Its relevance resided in its tendency to show the
    general location of the caller when a call was made that was routed through a
    specific cell tower. The evidence tended to confirm the cell phone records for
    the appellants cell phone, and his relative location when he made each call.
    His location at various times was a piece of circumstantial evidence, to be
    considered together with the rest of the evidence, on the issue of whether the
    Crown had proven beyond a reasonable doubt that he was the chicken seller, and thus
    the deceaseds killer.

[124]

Second, the
    trial judge considered the degree of similarity between the replication and the
    original event in reaching his conclusion on admissibility. He recognized the
    impossibility of perfect replication, but considered that there were sufficient
    common features, such as time of day, day of the week, location, and service
    provider, to make it worthwhile to receive this evidence. His balancing of
    probative value and prejudicial effect, which was untainted by legal error and
    plainly a conclusion open to him, is entitled to substantial deference in this
    court.

[125]

Third, this
    evidence did not implicate any specific exclusionary rule of the law of
    evidence. It was evidence of fact, not evidence of opinion. It required no
    special knowledge or expertise of the witness who simply made the calls at a
    specific time and place. The opinion rule had no say on the admissibility
    issue.

[126]

Fourth, the test
    calls in this case, did not portray a one-sided account of disputed facts:
R.
    v. Walizadah
, 2007 ONCA 528, 223 C.C.C. (3d) 28, at paras. 50-51. The
    calls confirmed cellular telephone records already in evidence by providing a
    live witness to describe his location when the call was made.

[127]

Fifth, although
    not a factor on the admissibility issue, the record reveals no improper use of
    this evidence by Crown counsel in his closing address and a scrupulously fair
    charge to the jury about its limitations. That said, in determining the
    prejudicial effect of the evidence in the application of the general
    exclusionary discretion, the trial judge was entitled to consider antidotes to
    prejudice available in the trial process, foremost amongst them, properly
    tailored limiting instructions.

[128]

Finally, nothing
    about this evidence engendered any reasoning or moral prejudice.

CONCLUSION

[129]

For these
    reasons, I would dismiss the appeal.

Released: December 27, 2012 (K.M.W.)

David Watt J.A.

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

I agree. Gloria Epstein J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

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

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

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

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

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

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

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

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. D.M., 2012
    ONCA 894

DATE: 20121220

DOCKET: C52632

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.M.

Appellant

Timothy E. Breen, for the appellant

Catherine Mullaly, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on March 31, 2010
    and the sentence imposed on November 10, 2010 by Justice John R. McIsaac of the
    Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

overview

[1]

The appellant, D.M., was convicted of eight counts of sexually molesting
    his step-daughter, E.  The molestation took place over an eight-year period,
    when E was between 11 or 12 and 20 years old.  The acts of molestation
    consisted of sexual touching and digital penetration, but not intercourse.

[2]

On numerous occasions, the appellant acknowledged his acts of wrong
    doing  to his step-daughter directly, to a Childrens Aid Society (CAS)
    worker, in a statement to police, which was admitted at trial after a
voir
    dire
, and in his trial testimony.  However, he sought to minimize his
    culpability by admitting only to a few isolated acts of sexual touching.  Thus
    the trial was mainly about the frequency and the intrusiveness of the
    appellants wrongdoing.

[3]

In convicting the appellant, the trial judge found that the episodes of
    molestation were almost unrelenting and occurred many, many times over the
    course of eight years.  He sentenced the appellant to five years imprisonment.

[4]

The appellant appeals both his conviction and sentence.  On his
    conviction appeal he makes two submissions.  First, the trial judge erred in
    ruling that his statement to the police was voluntary.  Second, the trial judge
    erred in the way he evaluated Es credibility.  On his sentence appeal, the
    appellant submits that his sentence exceeds an appropriate range.

[5]

For the reasons that follow, I would dismiss the conviction appeal, but
    would allow the sentence appeal and reduce the appellants sentence from five to
    four years imprisonment.

B.

background facts

(1)

The Family

[6]

The victim, E, was born in 1984.  She is the oldest of her mothers
    eight children.  She and her older brother were fathered by another man.  When E
    was seven years old, Es mother and the appellant married.  They had six
    children together.  All the children lived together as a family in several
    small Ontario communities.  For most of the time the children were homeschooled,
    mainly by their mother.

[7]

At the time of trial, the appellant was 48 years old.  He was a university
    professor, though his job has been terminated because of his conviction. E had
    willingly accepted the appellant as her father, and continued to do so despite
    his sexual molestation of her.  However, after she reported the abuse she left
    the family home, and has been ostracized by her mother and estranged from her
    siblings.  At the time of trial, E was beginning graduate work at a Canadian
    university.

(2)

The Appellants Acts
    of Sexual Molestation

[8]

E reported the appellants abuse of her to the police in September
    2007.  The appellant was charged with five counts of sexual assault (counts 1,
    3, 5, 7 and 9) and five counts of sexual touching (counts 2, 4, 6, 8 and 10).
    He was found guilty on counts 1 to 6 and counts 9 and 10, and not guilty on
    counts 7 and 8.  The following is a brief summary of Es evidence about the
    appellants sexual abuse of her, which the trial judge almost entirely accepted.

[9]

Counts 1 and 2
. E testified that when she
    was young, the family would gather together on Friday nights to watch movies.
    She recalled lying with the appellant on the couch covered by a blanket.  She
    testified about three incidents before her thirteenth birthday when the appellant
    touched her inappropriately under the blanket.  On the first occasion he
    touched her breasts; on the other two occasions he put his hand down her pants
    and touched her vagina.  On each occasion the touching was very brief.

[10]

Counts 3 and 4
.  On her thirteenth birthday, in June
    1997, E went camping with her parents and siblings in a provincial park.  E
    shared a tent with her four-year old sister L.  During the night L started
    crying and the appellant came into the tent to settle her down.  The appellant
    then opened up Es sleeping bag and laid down next to her.  He removed her
    nightgown, put his legs between her legs, touched her breasts and digitally
    penetrated her.  After he stopped he still remained in the tent overnight.

[11]

Counts 5 and 6
.  The next night on the camping trip, the
    appellant slept with E and L in their tent.  E testified that the same thing
    happened.  The appellant took off her nightgown, touched her breasts, moved his
    legs between her legs, and touched her clitoris.

[12]

Count 7 and 8
.  In September 1998, E went camping in Algonquin
    Park with the appellant, her sister L and her brother P.  They all stayed in
    one large tent.  E testified that after L went to sleep, the appellant undid
    her nightgown, touched her breasts and clitoris and digitally penetrated her.
    The trial judge found that this abuse probably took place, but had a
    reasonable doubt because of certain inconsistencies in Es evidence.

[13]

Counts 9 and 10
.  E and L shared a bedroom until early
    2001, when L moved into another room.  E testified that the appellant came into
    her bedroom in the middle of the night  both before and after L moved out
    hundreds of times, and sexually molested her.  The appellant massaged her legs,
    touched her clitoris and occasionally digitally penetrated her.  The appellant
    never spoke to E and she pretended to be asleep.

[14]

The
    trial judge had a reasonable doubt about whether the incidents occurred while L
    shared the bedroom because of Ls evidence that she would have been able to
    detect the abuse.  However, the trial judge had no doubt that the abuse
    occurred after L moved out of the bedroom.

[15]

In
    addition to molesting E in the bedroom, the appellant also began touching her
    breasts and pressing his body against her while she was studying, working on
    the computer or playing the piano.

(3)

The Appellants
    Acknowledgements of Wrong Doing

(a)

Before trial

[16]

Before
    trial the appellant acknowledged at least five times that he had sexually
    molested E  three times to E directly, once to the CAS, and once to the
    police.  These acknowledgements of molestation, though qualified in frequency
    and intrusiveness, were as follows.

[17]

May 2001
.  One day in May 2001, L (Es younger sister) said
    that she woke up with hands all over her.  L was eight years old at the
    time.  E became upset because she felt that she had failed to protect her
    sister.  E told her mother that she thought what L said was true because the
    same thing had happened to her.  This was the first time that E told anyone in
    her family about the abuse.

[18]

This
    conversation led to a meeting between E and her parents.  The appellant told E that
    he knew what he did was wrong.  He said that he was sorry and it would not
    happen again.  But, it continued for another four years.

[19]

April 2005
. In late April 2005, E disclosed the abuse to
    the minister of a church where she went for bible study.  The minister reported
    the abuse to a CAS representative and E, too, told the CAS representative that
    the appellant had sexually molested her.

[20]

The
    CAS representative then came to the appellants home and advised him that E had
    reported he had touched her inappropriately.  The appellant acknowledged Es
    complaint and admitted that he had touched her inappropriately.

[21]

The
    CAS allowed the appellant to remain in the home on condition he go for
    psychometric testing and seek counselling.  He agreed to do so.  During the
    testing he again admitted that he had touched E inappropriately.

[22]

June 2005
.  In June 2005, the appellant gave a statement
    to the police in which he admitted that about four years earlier he had touched
    E five or six times.  This statement was admitted after a
voir dire
and is the subject of one of the grounds of appeal, which I will deal with
    shortly.

[23]

July 2005
.  In July 2005, after E had moved out of the
    house, she received an email from the appellant, which said:

I have said this before and I am willing to say it again: Ive
    hurt you. I was wrong.  I am sorry.  I have always loved you, however sometimes
    my actions were [inappropriate].  I hope you can also remember all the many
    good things I have done for you.

[24]

February 2007
.  In February 2007, E received a care
    package from her family, which included a letter from the appellant.  The
    letter began:

Dear E, I miss you  we all do.  I look forward to the day when
    we can be together as a family.  That is Gods desire and I have faith that he
    will see it to completion.  It starts with repentance and forgiveness.  As I
    have said to you before, and written to you before, I am very sorry.  I hurt
    you and it was wrong.  I wish I could undo it, but I cant.  But the past is
    past, and long over.

(b)

The appellants trial
    testimony

[25]

The
    appellant gave evidence about all the counts in the indictment.  He admitted to
    a few incidents of sexual touching of E in respect of counts 9 and 10.
    Otherwise he denied that he had sexually molested his step-daughter.

[26]

On
    counts 1 and 2 he agreed that the family occasionally watched movies on Friday
    nights and several times he and E laid on the couch together.  The appellant
    acknowledged that during these occasions he may have inadvertently touched Es
    breasts.

[27]

On
    counts 3 and 4, the appellant agreed that the family went camping in June 1997.
    He also agreed that he came into the tent E and L slept in to calm L down when
    she started crying.  However, he said that he stayed only 15 minutes and did
    not molest E.

[28]

On
    counts 5 and 6, the appellant denied that he slept in the girls tent on the second
    night of the camping trip.

[29]

On
    counts 7 and 8, the appellant agreed that he and E went camping in Algonquin
    Park, but again he denied molesting her.

[30]

On
    counts 9 and 10, the appellant acknowledged that he touched E inappropriately
    four to seven times between February and May 2001.  He recalled three or four
    instances when he went into her bedroom while she was asleep and touched either
    her vagina or breasts or both.  He denied digitally penetrating her.  He also
    admitted that once or twice he touched Es breasts under her blouse while she
    was studying at her desk, and once he touched her breasts while she was sitting
    at the piano.

C.

the conviction appeal

(1)

Did the trial judge err in ruling that the appellants statement to the
    police was voluntary?

[31]

After
    a
voir dire
, the trial judge ruled that the appellants statement to
    the police in June 2005 was voluntary and therefore admissible at trial.  The
    appellant submits that the trial judge erred in his ruling.  He contends that
    as he was a suspect in a criminal investigation, for his statement to have been
    voluntary he had to have been aware of the consequences of speaking to the
    police.  He maintains that he was not advised of and was not aware of these
    consequences.  He argues that had he been aware of the consequences of speaking
    to the police he may have said nothing.  He also argues that once his statement
    to the police was ruled admissible, he was forced to testify, and
    acknowledge, though in a limited way, his wrong doing.

(a)

Circumstances giving
    rise to the appellants statement

[32]

In
    late April 2005, following Es report to the CAS, Constable Sheryl Sutton of
    the Criminal Investigation Bureau of the South Simcoe Police, was asked to
    investigate the alleged sexual abuse.  She contacted E, who refused to make a
    formal complaint to the police.  Sutton acknowledged that though she lacked
    grounds to lay a charge, she wanted to speak to the appellant.  In mid-May she
    phoned his home and was told that he was out of the country.  She left a message
    that she wanted to speak to him.  He did not return the call.

[33]

About
    a month later, at 7:30 p.m. one evening, the appellant was stopped by another
    police officer for speeding.  At the time Sutton was on duty at the police
    station and heard the radio call concerning the traffic stop.  She told the
    other officer to ask the appellant to come to the station to meet with her.

[34]

The
    appellant arrived at the police station at 7:50 p.m.  Sutton took him to a
    small interview room.  She testified that she told the appellant that he was
    not obliged to see her or remain at the station, and that he did not need to
    answer any of [her] questions.  As she did not believe that there were
    sufficient grounds to lay a charge or that the appellant was detained, she did
    not advise him of his right to counsel.  She did, however, acknowledge that she
    was investigating an allegation of sexual assault and hoped to obtain a
    confession from the appellant.

[35]

The
    interview lasted 25 minutes.  It was videotaped but the tape has been destroyed
    in accordance with a policy to retain tapes for only one year if charges have not
    been laid.  Sutton, however, made three pages of notes summarizing significant
    portions of the interview.

[36]

Sutton
    testified on the
voir dire
that she told the appellant E had reported
    inappropriate touching to the CAS but had not made a complaint to the police.  The
    appellant said that about four years previously he had touched E five or six
    times.  He also said that the family had addressed the matter and that the
    police did not need to be involved.  Sutton asked the appellant where he had
    touched E.  The appellant refused to provide any detail; he said that he did
    not see why he needed to answer her questions.  At the end of the interview,
    Sutton told the appellant that the investigation was closed, but that if E
    changed her mind and gave a statement to the police, he would be charged.

[37]

The
    appellant also testified on the
voir dire
.  He said that he did not
    want to meet with Sutton and found the interview to be intimidating.  He denied
    Sutton had told him that he was not obliged to meet with her or answer her
    questions.  He did acknowledge telling Sutton that four years previously he had
    touched E five or six times.  He testified that he made these statements to
    Sutton because he believed the police investigation was related to the CAS
    complaint, and it was in his best interests to cooperate and be consistent.

(b)

The trial judges
    ruling

[38]

The
    trial judge ruled that the appellants statement to Sutton was voluntary and
    admissible.  In so ruling, he made the following findings:

·

The interview was not conducted in an atmosphere of oppression,
    as the appellant was permitted to attend and leave the station on his own.

·

Sutton did tell the appellant that he did not have to remain or
    answer her questions; therefore, when [the appellant] chose to answer the
    questions posed, he was well aware of his right to refuse to co-operate with
    this investigation.

·

The appellants statement to the police was not tainted by his
    previous statement to the CAS.  He decided to say the same thing both to the
    CAS and Sutton to appear consistent.

(c)

Discussion

[39]

The
    appellant submits that the trial judge took too narrow a view of the
    confessions rule.  He says that the voluntariness of a confession rests on
    two planks: knowing waiver of the right to silence; and knowledge of the
    consequences of speaking to the police.  Accepting the trial judges findings,
    the appellant was cautioned on his right to silence and knowingly waived that right.
    However, he was not told and was not aware of the consequences of speaking to
    the police  that what he said could be used against him in a criminal
    prosecution.  He thought that the police interview was a continuation of the
    CASs investigation into the safety of his other children; he did not
    appreciate that his admissions to Sutton were made in the context of a criminal
    investigation of Es allegations against him.

[40]

When
    the appellant was interviewed by Sutton, he was not under arrest, nor was he detained.
    His rights under the
Canadian Charter of Rights and Freedoms
were not
    triggered.  However, I agree with the appellant that when he was interviewed,
    he was a suspect, indeed, the target of a criminal investigation.  Therefore, the
    common law confessions rule, described by the Supreme Court of Canada in
R.
    v. Oickle,
2000 SCC 38, [2000] 2 S.C.R. 3, applies.  The confessions rule requires
    the Crown to demonstrate beyond a reasonable doubt that a confession made by a
    suspect to a person in authority, such as the admission in this case, was
    voluntary:
R. v. Oickle
, at para. 30.

[41]

The
    majority in
R. v. Oickle
stated, at paras. 25-27 and 68-69, that
    voluntariness is not only concerned with whether the accuseds confession was
    induced by threats or promises; it is a broader concept focused on the
    protection of an accuseds rights and fairness in the criminal process.  A
    court must, therefore, consider all the circumstances in which the accused
    spoke to determine whether a statement given to a police officer was made
    voluntarily:
R. v. Oickle
, at para. 68.

[42]

Because
    of the factual nature of a voluntariness determination, a trial judges finding
    that a confession was made voluntarily is owed deference on appeal:
R. v.
    Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17. If the trial
    judge applied the proper legal test and considered the relevant circumstances
    surrounding the confession, a court of appeal should only overturn the
    determination if a palpable and overriding error tainted the trial judges
    assessment:
R. v. Oickle,
at para. 71.

[43]

The
    appellant submits that the trial judge did not apply the proper test.  In
    finding the appellants statement voluntary he did not take into account that
    the appellant was not told and was unaware of the consequences of speaking to
    the police.  The trial judges ruling, therefore, cannot stand.  I do not
    accept this submission because I do not accept that the appellant was unaware
    of the consequences of speaking to the police.

[44]

I
    accept the trial judges finding that the appellant was cautioned about his
    right to silence.  However, the trial judge did not find that the appellant was
    told the police were conducting a criminal investigation.  There is some case
    law supporting the appellants position that not being aware of the
    consequences of speaking to the police is a relevant circumstance in assessing
    voluntariness.  Watt J., for example, made this point in
R. v. Worrall
,
    [2002] O.J. No. 2711 (S.C.), at para. 106 :

Voluntariness implies an awareness about what is at stake
    in speaking to persons in authority, or declining to assist them
.  Neither
    Detective Constable Chiasson nor Detective Scott told Joseph Worrall (after
    this disclosure) that what he said could be used in his prosecution for an
    offence arising out of his conduct in connection with the death of Brendan
    Carlin. [Emphasis added.]

[45]

Assuming
    that knowledge of the consequences of making a statement to the police is a
    relevant consideration in determining voluntariness, I have no doubt that this
    appellant was fully aware of the consequences of speaking to Sutton.  The
    appellant is an intelligent and highly-educated man.  Suttons line of
    questioning at the police station was not misleading; she confronted the
    appellant directly with Es allegations.  He knew what the police were
    investigating.

[46]

The
    appellant also appears generally knowledgeable about the potential legal consequences
    of his actions.  After he was interviewed by the CAS, for example, he consulted
    a lawyer.  And the most telling evidence that he was aware of the consequences
    of speaking to the police was his refusal to provide Sutton with details of the
    touching, instead telling her he did not see why he needed to answer her
    questions.  These reasons are sufficient to dispose of this ground of appeal.

[47]

There
    is, however, another basis for not giving effect to the appellants argument on
    the admissibility of his statement to the police.  Even if the trial judges
    ruling was in error, the error was harmless.  The appellants admission of
    wrong doing to Sutton added nothing to the acknowledgement of wrong doing that
    he had already made to E and especially to the CAS representative.  These
    acknowledgements were all admissible at trial.

[48]

I
    would not give effect to this ground of appeal.

(2)

Did the trial judge
    err in his evaluation of Es credibility?

[49]

The
    appellant submits that the trial judge erred in his assessment of Es
    credibility.  His argument has three prongs:

·

The trial judge erred by failing to consider Es motive to
    fabricate;

·

The trial judge erred by relying on the fact that E did not claim
    she had oral sex or intercourse to support her credibility;

·

The trial judge erred by failing to consider the significance of the
    contradictory evidence of Es younger sister, L.

(a)

Motive to fabricate

[50]

The
    appellant contends that Es evidence showed she had a motive to fabricate her
    allegations of abuse and that the trial judge failed to address this evidence.
    The motive arose because of her feelings of ill will towards her family and
    their determination to ostracize and isolate her.  The appellant points out that
    E admitted to entertaining thoughts of revenge.  I do not accept the
    appellants contention for several reasons.

[51]

First,
    in the light of the appellants own admission of sexual abuse, E could hardly
    be said to have fabricated her allegations.  The most that the appellant can
    claim is that she exaggerated them.

[52]

Second,
    I do not see in the record any clear evidence of even a motive to exaggerate.
    That E was upset with her family, even angry with her family, was to be
    expected.  They did not support her in coming to terms with her abuse, and she
    was estranged from them.  However, her motive in going to the police was simply
    to protect her sisters from abuse.  Although in cross-examination she candidly
    acknowledged she had feelings of anger toward her family and wanted to get back
    at them, she also testified that these feelings were as a fleeting thought,
    perhaps.

[53]

Third,
    in two passages germane to this ground of appeal, the trial judge carefully
    considered Es credibility and her motives in reporting the abuse to the police.
    At the beginning of his assessment of Es credibility, the trial judge said:

I found the complainant to be an extremely impressive and
    credible witness.  She withstood a lengthy and probing cross-examination which
    included numerous references to the troubling process of her lengthy period of
    counselling.  I find it difficult to accept that she would expose herself to
    such disturbing questions which include references to two episodes of attempted
    suicide and multiple episodes of self-mutilation if she was prepared to
    exaggerate her complaints for the purpose of avenging herself on the family
    that has abandoned her.  This simply does not accord with normal human
    experience and I reject any suggestion that she has manufactured any of her complaints.
    I accept that she threatened to go to the police in 2005 with her complaints
    but I am satisfied that she did so as a last resort effort to get her property
    out of the family home having been stonewalled in her efforts up to that
    point by the accused and her mother.

[54]

Then
    the trial judge addressed the process by which E eventually brought her
    allegations out in the open:

The complainant has given a reasonable explanation for not
    taking her allegations outside the family given her perception of the impact of
    doing so on her mother and, most importantly, the solemn promises from her
    molester father that he would not repeat his abuse.  In addition, I am not
    prepared to draw any adverse inference from the delayed and incremental
    disclosure of the extent of the invasiveness of the abuse in this case.  The
    numerous references in the counselling records disclosed at trial satisfy me
    that this was a long, torturing experience for the complainant before she was
    able to articulate these details.

[55]

These
    two passages show that the trial judge considered Es reasons for reporting the
    appellants abuse and that he rejected the notion that she had any motive to
    lie about or embellish her allegations.

(b)

Absence of
    allegations of oral sex or intercourse

[56]

In
    finding Es evidence credible, the trial judge said:

As well, it is noteworthy that, if the complainant was prepared
    to falsify and exaggerate her complaint against her stepfather, she did not
    play the trump cards of an allegation of penile penetration, fellatio or
    cunnilingus.

[57]

The
    appellant submits that the absence of more serious allegations of sexual abuse
    does not support the credibility of the allegations E did make.  Even if the
    appellant is correct, this brief passage from the trial judges reasons was not
    essential to his finding that Es testimony was credible.  This passage comes
    at the end of his assessment of her credibility, after he had already accepted
    her evidence.  Bearing in mind the significant deference accorded to a trial
    judges credibility findings, this one passage does not provide a basis for
    appellate intervention.

(c)

Ls contradictory
    evidence

[58]

The
    trial judge accepted that Ls contradictory evidence concerning the camping
    trip in Algonquin Park and the alleged abuse while she and E shared a bedroom
    raised a reasonable doubt about the appellants guilt on counts 7 and 8, and on
    part of the timeframe for counts 9 and 10.  The appellant submits that the
    trial judge erred because he failed to consider the effect of Ls evidence on Es
    overall credibility.

[59]

I
    do not agree with this submission.  A trier of fact, of course, is entitled to
    accept all, some or none of a witnesss evidence.  And even though the trial
    judge accepted Ls evidence in connection with some of the incidents, he still
    held that all these incidents probably took place given the compelling nature
    of Es testimony and the accuseds partial admission of criminal liability.
    He also harboured lingering suspicion that [L] has been indoctrinated to
    support her father on these charges.  Taking into account these observations, and
    the trial judges finding that E was an extremely impressive and credible
    witness, it is inconceivable that Ls evidence would affect the trial judges
    assessment of Es overall credibility.

[60]

I
    would not give effect to this ground of appeal.

[61]

Accordingly,
    I would dismiss the conviction appeal.

D.

the sentence appeal

[62]

The
    trial judge sentenced the appellant to five years in the penitentiary.  The
    appellant submits that this sentence exceeds the proper range for these
    offences and this offender.

[63]

In
    assessing this submission, I begin with the trial judges reasons.  The trial
    judge correctly noted that the primary sentencing objectives were denunciation
    and deterrence.  He also correctly noted the several aggravating circumstances
    of these crimes.  They include:

·

The appellant committed a gross breach of parental trust by
    abusing his step-daughter.  Abuse of a position of trust toward a victim, and
    abuse of a person under age 18 are deemed by s. 718.2(a) of the
Criminal
    Code,
R.S.C., 1985, c. C-46, to be aggravating circumstances on sentence.

·

The appellants sexual molestation of his step-daughter occurred
    frequently, and at times was unrelenting.

·

The offences took place over a long period of time (eight years).

·

These offences have had a devastating impact on the victim, E.
    Her entire well-being, but principally her emotional well-being, has been
    affected.  Twice she has attempted suicide.  Almost unimaginably to any
    right-thinking person, her entire family has turned on her for reporting the
    abuse, so that she is now almost completely isolated from her mother and her
    siblings.

[64]

The
    trial judge also referred to several of the mitigating circumstances
    surrounding these offences:

·

The appellant had no previous criminal record.

·

He sought professional help and counselling for what he had done.

·

He has a stellar professional reputation, and has done much to
    benefit society, including, for example, volunteering in developing countries.

·

He has shown some remorse, albeit limited.  However, I
    acknowledge that the trial judge found on a balance of probabilities the
    appellant was not genuinely remorseful for the abuse of E.

[65]

In
    the light of these circumstances and the nature of the offences, is a five-year
    penitentiary sentence excessive? Over 20 years ago, in
R. v. B.(J.)
(1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a
    person in a position of trust sexually abuses a child, and the abuse includes
    sexual intercourse, the range of sentence is three to five years in the
    penitentiary: para. 5.  In this case, the appellants abuse of E did not
    include sexual intercourse.

[66]

However,
    several decisions of this court in the last decade demonstrate that the range
    outlined in
R. v.

B.(J.)
is no longer appropriate.  We have
    recognized that sexual abuse of children by a person in a position of trust or
    authority now warrants more severe sentences, and where the abuse includes
    sexual intercourse, in most cases, a three- to five-year range is too low.  The
    trial judge referred to one of our decisions,
R. v. D.(D.)
(2002), 58
    O.R. (3d) 788, and cited Moldaver J.A.s oft-quoted statement that as a
    general rule, when adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms: para. 44.  See also:
R. v. D.M.
, 2012 ONCA 520,
    111 O.R. (3d) 721.

[67]

However,
    even taking account of our courts more recent jurisprudence, I agree with Mr.
    Breen that a sentence of five years imprisonment for the appellant exceeds an
    appropriate range.  I would reduce the appellants sentence from five years to four
    years in the penitentiary.  I would do so for two main reasons.

[68]

First,
    in those cases where this court has either upheld or imposed penitentiary
    sentences of five years or more, one or more of the following aggravating
    circumstances has been present:

·

Sexual intercourse (vaginal or anal)

·

Oral sex

·

Incest

·

More than one victim

·

Grooming of the victim

·

Other acts of physical violence or threatened physical violence
    to obtain compliance and keep the abuse secret

·

A previous criminal record for sexual abuse

[69]

Examples
    of these cases in recent years include
R. v. P.M.
, 2012 ONCA 162, 282
    C.C.C. (3d) 450;
R. v. Cloutier
, 2011 ONCA 484;
R. v. J.L.
,
    2009 ONCA 788;
R. v. D.G.F.
, 2010 ONCA 27, 98 O.R. (3d) 241;
R. v.
    W.Q.
(2006), 210 C.C.C. (3d) 398 (C.A.);
R. v. R.B.
(2005), 77
    O.R. (3d) 171 (C.A.).

[70]

In
    this case, not one of these aggravating circumstances is present.

[71]

Second,
    this court has either upheld or imposed sentences of less than five years for
    seemingly more egregious conduct:

·

In
R. v. I.F.
, 2011 ONCA 203, this court imposed a four-year
    sentence for a man who abused his three step-granddaughters over an eight-year
    period; the abuse included fondling, masturbation, oral sex, and acts of
    grooming.

·

In
R. v. C.B.
, 2008 ONCA 486, 237 O.A.C. 387, this court
    upheld a three-year sentence for a man who abused his niece when she was
    between 12 and 16 years old.  The abuse included fondling and digital
    penetration; the victim also reported that her uncle would get on top of her
    with his shorts pulled down and she would feel something going inside of her:
    para. 7.  At times, the abuse was accompanied by threats.

·

In
R. v. B.A.
, 2008 ONCA 556, 238 O.A.C. 198, this court
    imposed a three-and-a-half year sentence for a man who abused both a girl he
    watched while her mother was at work, and the girls friend.  The abuse
    included digital penetration, oral sex, one act of vaginal intercourse, and
    acts of violence and humiliation.

·

In
R. v. G.A.G.
(2006), 206 O.A.C. 131, this court
    upheld a sentence of four years and six months imprisonment for a man who
    abused his son over many years.  The abuse included mutual masturbation and
    oral sex.

·

In
R. v. A.G.
(2004), 190 C.C.C. (3d) 508, this court
    imposed a two-year sentence for a man who abused his 12 year old niece; the
    abuse included fondling, attempted fellatio, and attempted intercourse.  The
    victim struggled fiercely during the assaults.

[72]

Although
    in several of these cases the accused relied on mitigating factors not present
    in this appeal, these cases still demonstrate that sentencing the appellant to
    five years imprisonment would be inconsistent with the jurisprudence of this
    court.

[73]

However,
    the frequency and duration of the appellants sexual abuse demands a severe
    sentence.  The trial judge accepted Es evidence that this abuse occurred many,
    many times over an eight-year period.  The appellant often entered Es bedroom
    in the middle of the night, while she lay sleeping in her bed, to perpetrate
    the abuse.  His assaults continued despite Es disclosure to her mother and several
    conversations with the appellant about his behaviour.  The appellants
    acknowledgements, apologies, and promises to reform, followed as they were by
    renewed abuse, have undoubtedly contributed to Es trauma.  Notably, although
    the appellant professed contrition, he allowed E to become isolated from her
    family and chose to put her through a trial.

[74]

For
    these reasons, I would sentence him to four years in the penitentiary.

E.

conclusion

[75]

I
    would dismiss the conviction appeal.  I would grant leave to appeal sentence,
    allow the sentence appeal and reduce the appellants sentence from five years
    to four years in the penitentiary.

Released: Dec. 20, 2012

JL                                                                    John
    Laskin J.A.

I
    agree E.A. Cronk J.A.

I
    agree Alexandra Hoy J.A.