COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Leary, 2017 ONCA 71

DATE: 20170127

DOCKET: C61179

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Codi James OLeary

Appellant

Brian D. Barrie and Danielle N. Landry, for the
    appellant

Christopher Webb, for the respondent

Heard:  January 16, 2017

On appeal from the convictions entered on June 1, 2015 by
    Justice Clayton Conlan of the Superior Court of Justice.

By-the-Court:

[1]

The appellant was convicted, after a trial by judge alone, of one count
    of dangerous driving while racing causing bodily harm, and one count of
    dangerous driving while racing causing death.  He appealed his convictions
    only.

[2]

At trial, the Crown argued that the appellant and Tyler Dodd were racing
    their cars westbound on Highway 21 just outside of Owen Sound at about 10:00
    p.m. on January 8, 2013.  Mr. Dodd lost control of his vehicle, swerved into
    the oncoming eastbound lane and struck another car.  Mr. Dodd was killed and
    the driver of the other vehicle suffered serious injuries.

[3]

The appellant was not involved in the collision.  He went to the police
    station to speak to the police a day or two after the accident in response to a
    radio broadcast indicating that the police were looking for the driver of
    another vehicle connected to the accident.  That vehicle matched the
    description of the appellants vehicle.

[4]

The Crowns case consisted of:

·

Evidence
    from various independent witnesses describing the driving of the appellant and
    Mr. Dodd and the interaction of their vehicles as they drove through Owen Sound
    to the scene of the accident just west of the city.

·

The
    appellants statement to the police in which he admitted that he was racing
    with the Dodd vehicle along the stretch of the road west of Owen Sound, a short
    distance from the accident.

·

Expert
    evidence of the location on the roadway of the accident (in the eastbound lane);
    the speed of the Dodd vehicle (about 136 kilometres per hour five seconds
    before the crash and 109 kilometres per hour one second before the collision);
    the speed of the other vehicle in the accident (82 kilometres per hour five
    seconds before the crash and 77 kilometres per hour one second before the
    crash); and the cause of Mr. Dodd losing control of his vehicle in the curve
    (excessive speed possibly exacerbated by breaking/over-steering).

[5]

The appellant testified.  He denied that he was racing Mr. Dodd at any
    time.  On his evidence, he was unaware of Mr. Dodds vehicle until he noticed
    it as he pulled away from a light on the west end of Owen Sound, about 800
    metres from the accident scene.  The appellant explained that he was required
    to take evasive action to avoid a truck at the light and became aware of the
    Dodd vehicle as he took that evasive action.

[6]

The appellant acknowledged that he sped up as he moved away from the
    light.  He was going about 110 kilometres per hour in a 70 kilometre zone.  The
    appellant testified that he slowed down as he entered the curve to under 100
    kilometres per hour.  The speed limit changed to 80 kilometres just before the
    curve.  The appellant knew that the curve was a difficult one.

[7]

The appellant testified that the Dodd vehicle passed his vehicle as it entered
    the curve.  He saw the vehicle brake and begin to slide.  In a defensive
    manoeuver, the appellant accelerated quickly past the Dodd vehicle.  The
    appellant was on the inside lane and the Dodd vehicle was in the passing lane.
    The appellant did not know that Mr. Dodd lost control of his vehicle and
    crossed over into oncoming eastbound traffic.

[8]

The appellant testified that he was confused and intimidated when
    questioned by the police and that he made several factual errors in the
    statement.  He also testified that when he referred to racing, he simply
    meant that he was going fast at one point.  The trial judge rejected the
    appellants evidence about his state of mind when he was interviewed and his
    understanding of the meaning of racing.

[9]

The trial judge gave detailed reasons for admitting the appellants
    statement.  He gave equally thorough reasons for judgment.  The trial judges
    careful reasons were of great assistance to this court.

[10]

The grounds of appeal can be divided into three categories:

·

challenges
    to the finding that the appellant and Mr. Dodd were racing at the time of the
    accident;

·

the
    admissibility of the appellants statement to the police; and

·

the
    causation finding.

The finding that the appellant and Mr. Dodd were racing

[11]

After a detailed witness-by-witness review of the evidence, including
    the appellants testimony, the trial judge concluded that the appellant and Mr.
    Dodd began to race as they drove westward through the town of Owen Sound.  The
    race continued as the vehicles left Owen Sound going west, although at one
    point in the west end of Owen Sound, the vehicles stopped for a red light.  On
    the trial judges findings, the race continued until Mr. Dodd lost control of
    his vehicle and slammed into the vehicle coming eastbound.

[12]

The trial judges finding that the cars were racing for a considerable
    distance and were still racing when Mr. Dodd lost control of his vehicle are findings
    of fact.  This court defers to factual findings absent a determination that a
    finding is unreasonable on the entirety of the record, or is tainted by either a
    material misapprehension of the evidence or a failure to consider relevant
    evidence.

[13]

The appellant alleges two errors.  First, he submits that the trial
    judge found as a fact that the appellant slowed down as he entered the curve in
    which the accident occurred.  Counsel submits that the trial judge failed to
    consider this finding in reaching his conclusion that the appellant was racing
    Mr. Dodd when he lost control and struck the other vehicle.  Counsel submits
    that the evidence that the appellant slowed down was evidence that he had quit
    the race before the accident occurred.  Counsel argues that the trial judges
    failure to consider this important evidence removes this courts obligation to
    defer to the trial judges finding that the vehicles were racing at the time of
    the accident.

[14]

We reject this submission.

[15]

The trial judge accepted the appellants evidence that he slowed down as
    he entered the curve because he knew the curve to be a dangerous one.  Considered
    in the context of the entirety of the evidence relevant to the racing issue and
    the trial judges factual findings based on that evidence, the appellants evidence
    that he slowed down as he entered a dangerous curve seconds before the accident
    could not realistically offer any support for the contention that the appellant
    had decided to stop the race with the Dodd vehicle.  Slowing down to navigate a
    curve can hardly be equated with ending the race.

[16]

Even if the appellant unilaterally stopped racing seconds before the
    accident, that action would not affect his liability.  A race does not end the
    second one of the participants decides he has had enough.  This is not a case
    like
R. v. Menezes
, [2002] O.J. No. 551, at paras. 124-25, relied on
    by the appellant in which the evidence indicated that the accused had quit the
    race about one half mile before the accident occurred.

[17]

The trial judge was alive to the evidence that the appellant braked as
    he entered the curve.  He accepted that evidence.  The trial judge did not fail
    to consider material evidence or misapprehended that evidence.  Instead, he
    declined to give certain evidence the evidentiary effect that counsel now
    argues it should have been given.  That assessment is very much in the realm of
    the trial judge.  This court must defer to the trial judges use of the
    evidence.

[18]

It is also significant when considering the trial judges reasons as
    they relate to the appellants evidence that he slowed down, that the appellant
    did not argue at trial that he was racing with Mr. Dodd, but discontinued the
    race at the curve.  The appellant argued that he was never racing with Mr.
    Dodd.  It is understandable in the context of the defence position that the
    trial judge did not focus on the evidence of the appellants slowing down at
    the curve as potentially significant to whether the appellant had discontinued
    the race.

[19]

There is no reason to interfere with the trial judges finding that the
    appellant and Mr. Dodd were racing when the accident occurred.  This finding is
    central to the appellants liability.

[20]

The second challenge to the trial judges findings of fact centers on
    the evidence of Mr. Elliott.  Mr. Elliott described the driving of the
    appellant and Mr. Dodd as they proceeded through Owen Sound.  His evidence was
    important to the trial judges finding that the racing started while the two vehicles
    were in Owen Sound and well before they pulled away from the stop light, about
    800 metres from the accident scene.

[21]

Counsel for the appellant submits that the trial judge did not refer to
    Mr. Elliotts evidence that it appeared to him that the two cars were racing,
    or about to race.  Counsel submits that this latter phrase provided an
    important qualification by Mr. Elliott on his evidence that the cars were
    racing.  He submits that the trial judge failed to consider this important
    qualification in relying on Mr. Elliotts evidence to establish that the
    appellant and Mr. Dodd were racing while driving through Owen Sound.

[22]

A trial judge is not required to refer to every answer given by a
    witness.  The trial judge summarized Mr. Elliotts detailed description of the movements
    of the two vehicles as they made their way through the town.  That description had
    more evidentiary significance than Mr. Elliotts characterization of the
    movements.  The description was accepted by the trial judge and fully supported
    his conclusion that the two vehicles began racing while in the town.

The admissibility of the appellants statement

[23]

The trial judge found that the appellant was not detained when he gave
    his statement to the police.  In doing so, he correctly set out the applicable
    law.  His findings of fact are fully justified on the record before him.  We
    see no basis upon which to interfere with that finding.  In the absence of a
    detention, neither s. 10(b) of the
Charte
r, nor the right to silence
    as guaranteed in s. 7 of the
Charter
,
are engaged.

[24]

The defence also challenged the voluntariness of the appellants
    statement.  The defence argued that the officer induced the statement by
    inviting the appellant as a member of the local community to do the responsible
    thing and tell the police what he knew.

[25]

Again, the trial judge thoroughly and correctly reviewed the relevant law.
    He made findings of fact which cannot be successfully challenged.  On those
    findings, there was no improper inducement by the police and no oppression.
    The finding that the confession was voluntary stands.

[26]

Counsel further argued that apart from the voluntariness of the
    confession, and police compliance with the
Charter
, police misconduct
    justified the exclusion of the appellants statement.  Counsel submitted that
    the officer interviewing the appellant had grounds to charge the appellant, but
    chose not to do so, and to treat him as a witness, hoping that the appellant
    would make a statement and incriminate himself.  Counsel further submits that
    the officer, having decided to advise the appellant of his right to counsel,
    did not give the appellant a fair opportunity to determine whether he wanted to
    speak with counsel.  Counsel argues that this conduct, even though it did not
    affect the voluntariness of the statement and did not breach the appellants
    constitutional rights, was so improper as to warrant the exclusion of the appellants
    statement in the name of adjudicative fairness.

[27]

Whatever power a court might have to exclude a statement even though it
    is
Charter
-compliant and voluntary, there is no factual basis to
    exclude this statement.  The trial judge found that the police officers
    questioning of the appellant was not improper.  He rejected the argument that
    the officer attempted to mislead the appellant by making him think that he was
    giving only a witness statement.  The trial judge also rejected the submission
    that the officer deliberately refrained from giving the appellant an adequate
    opportunity to decide whether he wished to consult with counsel.

[28]

The trial judges findings are fully justified on this record.  The
    officer repeatedly told the appellant that he was free to leave the station.  The
    officer repeatedly told the appellant of the jeopardy he faced and the charges
    that might be brought against him.  The officer, although he was under no
    constitutional obligation to do so, advised the appellant of his right to
    counsel and afforded him an opportunity to contact counsel.  He also advised
    the appellant that he was not obligated to say anything and that anything he
    said might be used in evidence.  There is nothing in the conduct of the
    interview to suggest that the appellant had any wish to speak to counsel.
    Clearly, he wanted to give his version of the relevant events to the officer.

[29]

Counsel made much of the officers reluctance to admit in his evidence that
    he had reasonable and probable grounds to arrest the appellant from the moment
    the appellant arrived at the police station.  Even if one could read the
    officers testimony as less than forthcoming on this point, the manner in which
    he testified had nothing to do with the treatment of the appellant at the
    police station.  Certainly, the manner in which the police officer testified at
    trial could not somehow justify the exclusion of the appellants statement.

The causation question

[30]

The trial judge dealt with the question of causation at paras. 182-200.
    His observations included the following:  (paras. 198-99):

Racing through town, and then along the sunset strip, in the
    winter, in the darkness, far in excess of the posted speed limit was inherently
    dangerous conduct.  Just as Mr. OLeary chose to race with Mr. Dodd, it was
    reasonably foreseeable that Mr. Dodd would choose to continue the race with the
    accused even in the fatal curve.  The risk of immediate and substantial harm
    was reasonably foreseeable.

There was no break in the chain of causation.  The two cars
    were in close proximity of one another just before the crash  They were racing.
    They were driving well over the posted speed limit.  I accept the evidence of
    the accused that he slowed down going into the curve, and it appears that Mr.
    Dodd did not, at least not before he started to lose control.  All of that
    having being said, this is not a case of some intervening event having
    occurred.  An ordinarily circumspect person would have seen the loss of
    control, the crash and the resulting death and bodily harm as a likely
    consequence of Mr. OLearys dangerous driving.

[31]

The racing, a joint venture by the appellant and Mr. Dodd, was a factual
    but for cause of the accident and the death and injuries that resulted.  Not
    every factual cause is a legal cause.  The trier of fact must be satisfied that
    the accuseds actions constituted a significant contributing cause of death:
R.
    v. Maybin
, (2012) SCC 24, at para. 60.

[32]

There was no evidence in this case of any unforeseeable intervening act
    capable of breaking the chain of causation.  As explained in
Maybin
,
    at para. 38:

Legal causation does not require
    that the accused must objectively foresee the precise future consequences of
    their conduct.  Nor does it assist in addressing moral culpability to require
    merely that the risk of some non-trivial bodily harm is reasonably
    foreseeable.  Rather, the intervening act and ensuing non-trivial harm must be
    reasonably foreseeable in the sense
that the acts and the harm that
    actually transpired flowed reasonably from the conduct of the accused.  If so,
    the accuseds actions may remain a significant contributing cause of death.
[Emphasis added.]

[33]

Mr. Dodds failure to wear a seatbelt may well have contributed to his
    death.  That failure could not, however, constitute an intervening act severing
    the legally causative effect of the racing.  It cannot be argued that Mr.
    Dodds failure to wear a seatbelt should absolve the appellant from the clearly
    foreseeable consequences of his own actions:
Maybin
, at paras. 60-61.

[34]

There was also some argument at trial that Mr. Dodds ability to drive
    may have been impaired by the consumption of marihuana, or the failure to take
    certain prescribed medication.  The evidence did not support a finding of any
    impairment.  More to the point, Mr. Dodds impairment would not affect the
    finding that the racing was both a factual and legal cause of the accident and
    the death and injuries that occurred.

[35]

Having regard to the trial judges finding that the appellant was racing
    with Mr. Dodd at the time of the accident, a finding with which we would not
    interfere, the causation finding is unassailable.

[36]

As indicated at the end of oral argument, the appeal is dismissed.

Released: DD  JAN 27 2017

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pashazahiri, 2017 ONCA 60

DATE: 20170123

DOCKET: C61570

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vahid Pashazahiri

Appellant

Wayne Cunningham, for the appellant

Mabel Lai, for the respondent

Heard: January 12, 2017

On appeal from the conviction entered on November 6, 2012,
    by Justice Harriet E. Sachs of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his conviction for aggravated assault. He was
    acquitted of attempted murder, unlawful confinement, and assault with a weapon.

[2]

The conviction relates to an assault on Malcolm Isaac that occurred in
    the early morning hours of January 21, 2012. According to Isaac, he was
    assaulted by three men in his bedroom, but he could only identify one  Marcus
    Wright. Wright was the brother of Isaacs roommate, Annece Collymore. Isaac and
    Collymore also lived with a third roommate, Dunstan Haynes.

[3]

Earlier in the night, Isaac and Collymore had argued about her living arrangements.
    Collymore had become combative, and Isaac had ultimately told her that she
    would need to find another place to live.

[4]

In response, Collymore had threatened Isaac that she would get her
    brother and his friends to harm him. A short while later, Wright and two other
    men entered Isaacs bedroom and assaulted him. The trial judge concluded that
    the appellant was one of the three assailants, and he was convicted of aggravated
    assault.

[5]

The appellant advances four arguments on this appeal.

[6]

First, he acknowledges that in a judge alone trial, there is no need for
    the trial judge to conduct a formal
Vetrovec
analysis
[1]
,
    as trial judges know the risks inherent in relying on
Vetrovec
witnesses. However, he submits that the trial judge failed to conduct any
    meaningful analysis of the evidence of the two
Vetrovec

witnesses,
    Collymore and Wright.

[7]

We disagree.

[8]

The trial judge expressly cautioned herself that Collymore and Wright
    were
Vetrovec
witnesses whose evidence should not be accepted, unless
    confirmed by other independent evidence. Accordingly, as there was no
    independent confirmation of their testimony that the appellant stabbed Isaac,
    the trial judge could not, and did not, rely upon their evidence in that
    regard.

[9]

However, the trial judge properly considered their evidence on the
    appellants involvement in the attack on Isaac. The trial judges conclusion
    that the appellant participated in the attack was based on a consideration of
    all of the evidence, including the fact that the appellant was with Wright and
    the other attacker immediately before, and immediately after, the attack.
    Moreover, Isaacs blood was found on the appellants pants. Although the trial
    judge acknowledged that it was theoretically possible that this blood might
    have been deposited innocently, she ultimately rejected this proposition, as
    she was entitled to do.

[10]

Secondly, the appellant submits that the trial judge misapprehended the
    evidence of both Haynes and Isaac. In our view, she did not.

[11]

Neither witness purported to identify the appellant as the third
    assailant.

[12]

Haynes testimony was important in that it excluded Clifford Walters
    Collymores boyfriend  as the third assailant. Haynes witnessed Walters return
    to the apartment building after the attack to return some of Collymores
    possessions. As the trial judge said, it would defy common sense for Walters to
    return to the scene if he had been one of the assailants. These circumstances were
    confirmatory of Walters evidence that he was not one of the assailants. The
    trial judge was entitled to deal with this evidence in the manner that she did.

[13]

Similarly, the trial judge properly considered the evidence of Isaac and
    made findings that were available to her on the record. Isaac testified that he
    was certain that there were three assailants. He stated that Wright was one of
    the assailants and that Collymore and Walters were not. The trial judge was
    entitled to accept Isaacs evidence and did not err in this regard. Isaac had
    met Wright before. Moreover, just before the attack, Wright reminded Isaac that
    he was Collymores brother. The trial judge also did not err in accepting Isaacs
    testimony that Collymore was not in his bedroom, even though Isaac told emergency
    personnel that Collymore was responsible for what happened to him. This
    evidence must be placed in context. Collymore was responsible for instigating
    the attack, but this is not the same as carrying out the actual attack.

[14]

Thirdly, the appellant submits that the trial judge made inconsistent
    findings on Isaacs perceptions inside the bedroom. Again, we disagree.

[15]

A trial judge may accept all, some or none of a witness testimony. Here,
    the trial judge did not err in discounting Isaacs descriptions of his
    assailants, while accepting his evidence on their number and gender.

[16]

Lastly, the appellant submits that the trial judge unreasonably found
    that the appellant was one of the assailants and that Collymore was not. We
    reject this contention.

[17]

As discussed, the trial judge accepted Isaacs evidence that Collymore
    was not in his bedroom while he was being attacked. He saw her in the apartment
    as he was fleeing the premises.

[18]

The totality of the evidence provided support for the trial judges
    finding of the appellants guilt. The trial judges ultimate conclusion that
    the appellant was actively involved in the assault was the product of all of
    the evidence, including: Wrights testimony that the appellant was one of the
    assailants, the reasonable elimination of Collymore and Walters as
    participants, the appellants association with the known assailants immediately
    before and immediately after the attack, and the presence of Isaacs blood on
    the appellants pants.

[19]

For these reasons, the appeal is dismissed.

K.M. Weiler J.A.

S.E. Pepall J.A.

G.T. Trotter
    J.A.

[1]

R. v. Vetrovec
, [1982] 1 S.C.R.
    811.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.B., 2017 ONCA 74

DATE: 20170126

DOCKET: C59056

Weiler, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

Jill D. Makepeace, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 9, 2017

On appeal from the conviction entered on June 10, 2014
    and the sentence imposed on October 16, 2014 by Justice R. Dan Cornell of the Superior
    Court of Justice.

ENDORSEMENT

[1]

Following a successful severance application the appellant underwent two
    separate trials. On March 6, 2014 he was found guilty of sexual assault in
    relation to K.O. (see C58815), the companion appeal, and sentenced to 28 months
    imprisonment. For the reasons given we have dismissed that appeal.

[2]

In this appeal, the appellant was also found guilty of sexual assault
    and invitation to touching a person under the age of 14 for a sexual purpose.
    The sexual assault conviction was conditionally stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. The focus of the submissions on this
    appeal is the appellants sentence which is four years to run consecutively to
    his 28 month sentence for the sexual assault in C58815.

[3]

The appellant was in a relationship with the complainants mothers best
    friend, Krista. The complainant, who was three years old at the time, told her
    mother that on occasions when they slept over at the apartment of Krista and the
    appellant, the appellant would take the complainant into the bathroom and pee
    in [her] mouth at night when everyone was asleep. He would angrily tell her to
    swallow it which she sometimes did to make him happy. This happened on
    approximately ten occasions over a seven month period. The appellant denied the
    allegations.

(1)

Conviction appeal

[4]

On the conviction appeal, the appellant relies on his factum. In it, the
    appellant submits that the trial judges reasons for conviction were
    insufficient because the trial judge failed to acknowledge that the claimant
    had recanted her allegations and also recanted allegations she made against
    others.

[5]

He also asserts that the trial judge misapprehended the evidence by
    mischaracterizing certain issues as peripheral. This included the claimants
    evidence on the distance from the sofa bed to the bathroom, the appellants
    attire and the improbability of a sexual assault while the claimants mother
    was sleeping in such close proximity to the location of the assaults.

[6]

Deficiency in reasons is not a free-standing ground of appeal. They must
    be so deficient as to foreclose meaningful appellate review:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 25. That is not this case. The trial
    judges reasons fulfilled their function of explaining why the appellant was
    convicted.

[7]

The submission that the trial judge did not give consideration to the
    complainants recantation of her allegation of sexual assault is not borne out
    by the trial judges reasons. The reasons do refer to the fact that the
    complainant told her mother that she was joking about the sexual assault that
    allegedly took place in May 2010. The recantation took place about a week after
    the mother confronted the appellant and his girlfriend with the allegation and
    the appellant convinced the mother it was false. At trial, the mother testified
    that her three year old daughter did not understand the concept of a joke at
    that time. In August 2010, the complainant was in the back seat of a vehicle
    with her mother and step-father in front and spontaneously handed up a drawing
    of a penis. A few days later, the appellant delivered a wall unit and
    television to the complainants mother. Upon seeing the appellant she became frightened
    and hid behind her mother. After the appellant left, she told her mother, I
    have to tell you something Mommy, its something bad. The mother called her
    common law husband to sit down and the complainant said to them both, It is
    not a joke, mommy, Uncle Rolly did pee in my mouth. Following this, the
    complainant steadfastly maintained her allegation. The fact the trial judge did
    not comment further on the alleged joke is indicative that, insofar as he was
    concerned, the evidence of the joke did not have a material impact on the
    complainants credibility. Having regard to the context, we agree that the
    trial judge was not required to consider it further.

[8]

As for the statement the claimant made to the police that her stepfather
    had flicked her and that she had seen her fathers bum on one occasion,
    neither is an allegation in the real sense. The father was never asked about
    the flick; the stepfather acknowledged that when he was stepping out of the
    shower on one occasion he had dropped his towel within sight of his
    step-daughter. The fact that the complainant denied making these allegations
    at trial did not rise to a level of significance that required comment by the
    trial judge. Similarly, the distance to the bathroom from where the complainant
    and her mother slept was peripheral.

[9]

The appellant testified that when he was at home he always changed into
    a t-shirt and he either wore jeans or, since 2003, a pair of knee length purple
    shorts with white flowers on them and that he had never worn pyjamas. The
    complainants evidence as to the appellants attire was conflicting and
    inconsistent. The trial judge acknowledged the conflict in the evidence and
    that this aspect of the complainants evidence was unreliable. He also
    addressed a number of other problematic aspects of the complainants evidence
    such as the improbability of the complainant being sexually assaulted with her
    mother in close proximity. A trial judge may accept all, some or none of a
    witness testimony. The trial judge explained in detail why he accepted the
    complainants allegation against the appellant, addressed the appellants
    evidence and explained why he rejected it. The trial judges reasons are
    entitled to deference and do not disclose error.

[10]

The Crown applied successfully to have the convictions and facts found
    in C58815 admitted as similar fact evidence in this trial. The similar fact
    evidence, which the trial judge accepted, corroborated the complainants
    evidence, although the trial judge indicated he would have come to the same
    conclusion without it. The appeal from conviction is dismissed.

(2)

Sentence appeal

[11]

We turn now to the sentence appeal. The appellant and respondent agreed
    that 1) the appellant was to be sentenced as a first offender; 2) the appellant
    had been sentenced to 28 months for the other offence; and 3) the totality
    principle applied.

[12]

The Crowns submissions on sentencing at trial were confusing. When
    defence counsel gave his submissions, he suggested to the trial judge that the
    Crown had been inconsistent, at times asking for 24-30 months consecutive, and
    at times submitting that the global sentence should be 5-6 years (which would
    be 32-40 months for the present offence). The trial judge responded:

I will call upon him again, but I asked him two or three times
    what an appropriate total sentence would be and he can correct me if Im wrong,
    but I clearly heard him say, on no less than three occasions, five to six years
    for these remaining three charges.
You have correctly
    pointed out that even on his own math, we dont get to six years, we get to
    approximately five years, so I will work with five years.
Thats what
    his position is, that if there had been one trial, a conviction on all three
    charges, that the Crown would have been asking for, for arguments sake, five
    years. I put the same question to you, if this had been one trial, and your
    client had been convicted on those three counts, what is your submission as to
    the proper length of the sentence? [Emphasis added.]

[13]

The position of the defence was that an appropriate sentence was 12
    months consecutive to the 28 months already given following the appellants
    other trial.

[14]

In his reasons for sentence, the trial judge reviewed the factual
    background and the position of the parties. In doing so, he stated, The Crown
    has submitted that the appropriate range of sentence in connection with both of
    the indictments that were before the Court is four to six years.

[15]

The trial judge then reviewed the jurisprudence and distinguished the
    cases on which the appellant relied, reviewed the victim impact statement, the
    fundamental purpose and principles of sentencing, the appropriate range of
    sentence for this type of crime, the aggravating and mitigating factors, and
    the totality principle. However, he ended up imposing a sentence of four years
    imprisonment to be served consecutive to the 28 months. This amounted to a
    global sentence of six years and four months. The defence had not been given notice
    that the trial judge intended to jump the Crowns submissions and accordingly
    made no submissions on such a sentence.

[16]

The appellant contends that in saying, I will work with five years
    during counsels submissions, the maximum global sentence available to the trial
    judge in the absence of notice was five years.

[17]

The appellants position on appeal is that a sentence of 24 to 30 months
    consecutive to the 28 months (which would result in a global sentence of 52-58
    months) is warranted.

[18]

The Crown submits that the trial judges comment did not bind him to
    five years. He submits that the trial judge was entitled to impose the sentence
    he did as the sentence only slightly exceeded the upper end of the range of six
    years the Crown mentioned.

[19]

While there is disagreement between counsel on the extent to which the
    Crowns submission as to a global sentence was exceeded, there is no question
    that the trial judge imposed a sentence that exceeded the Crowns position. A
    trial judges failure to provide the parties with an opportunity to make
    further submissions in such an instance is an error in principle. Ideally, if
    the trial judge does impose a sentence in excess of the Crowns position, the trial
    judge should explain the reason for doing so. Here he did not. See
R. v.
    Hagen
,

2011 ONCA
    749, at para.5;
R. v. Menary
,

2012 ONCA 706, 298 O.A.C. 108, at para. 3,
R. v. Grant
,

2016 ONCA 639, 351 O.A.C. 345,
    at paras. 164-167.

[20]

Clearly the error in principle resulted in procedural unfairness and
    also had an impact on the sentence such that appellate intervention is justified.
    See
R. v. Lacasse
[2015] 3 S.C.R. 1089. Having regard to the trial
    judges error in principle, this court is entitled to reassess the sentence
    imposed and to impose a fit sentence.

[21]

In
R. v. D.D.
(2002), 58 O.R. (3d) 788 (C.A.), at para. 44,
    Moldaver J.A., as he then was,

explained 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. In
    this case, the number of times the abuse occurred, namely, ten times, and the
    seven month period of time over which the abuse occurred in proportion to the
    little girls age, 36 months, is substantial. The nature of the offence was
    serious, invasive, and the degrading nature of the offence was added to by the
    appellants demand that she swallow his semen. Although the appellant, an adult
    of about 35 at the time, did not overtly threaten the little girl, he is a
    large man who used an angry tone towards her that was frightening. She was
    taught to refer to the appellant as uncle and he was in a position of trust
    towards her, albeit at the low end of the spectrum. In our opinion a fit
    sentence is a global sentence of six years.

[22]

Accordingly, we grant leave to appeal sentence, allow the appeal as to
    sentence, set aside the sentence imposed and substitute a sentence of 44 months
    consecutive.

Karen M. Weiler J.A.

S.E. Pepall J.A.

B.W. Miller 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.B., 2017 ONCA 75

DATE: 20170126

DOCKET: C58815

Weiler, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

Jill D. Makepeace, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 9, 2017

On appeal from the conviction entered on March 6, 2014 by
    Justice Patricia C. Hennessy of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and invitation to sexual
    touching on K.O., the daughter of his former girlfriend.

[2]

He appeals his conviction and raises two broad grounds of appeal. The
    first ground of appeal alleges that the trial judge interfered with defence
    counsels cross-examination of the complainant such that she diverted counsel
    from pursuing relevant lines of inquiry and impeded the dynamic flow. The second
    ground of appeal alleges that the trial judges approach to the case in her
    reasons was unbalanced, favoured the Crown and undermined trial fairness. She
    failed to resolve conflicts between the complainants evidence and the evidence
    of defence witnesses on material issues and she failed to meaningfully
    scrutinize aspects of the complainants evidence.

[3]

We rejected these contentions and we did not call upon the Crown to
    respond. Accordingly, we dismissed the appeal with reasons to follow shortly. These
    are those reasons.

(1)

The trial judges instructions did not interfere with the ability to
    cross-examine

[4]

There is a strong presumption that a judge has not unduly intervened in
    a trial. The question of whether the interventions led to an unfair trial is
    undertaken from the perspective of a reasonable observer who was present
    throughout the trial:
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d)
    208, at paras. 29-30. Intervening frequently, without more, does not lead to a
    miscarriage of justice:
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14
    (Ont. C.A.). The presence or absence of objections from defence counsel to the
    judges interventions is a relevant factor, although it is not determinative:
R.
    v. Lahouri
,

2013 ONSC 2085,
280 C.R.R. (2d) 249
    (S.C.), at para. 10.

[5]

A full review of the cross-examination leads us to conclude that defence
    counsel conducted a thorough cross-examination. Defence counsel at trial never
    complained that he was prevented from exploring a relevant issue, nor does the
    transcript suggest such interference.

[6]

Although the appellant suggests that the judge placed the authority of
    her office on the side of the prosecution, the record reflects no such error. The
    judge did not engage in questioning of the witness, nor take on the role of
    counsel as discussed in
Lahouri
,

at para. 8.

[7]

The appellants objections focus on three areas of cross-examination of
    the complainant. The first relates to the complainants relationship with her
    mother. Given the fact that the complainant, then a teenager, became visibly
    upset and needed to slow down and gain control of her emotions, the trial
    judges intervention was appropriate. It was necessary to have clarity in the
    evidence and the trial judge was entitled to ascertain how the complainants
    relationship with her mother was relevant and the trial judge explained that
    she was prepared to allow counsel to put propositions to the complainant so
    that they could later be contradicted by other witnesses. Defence counsel never
    objected to this approach, nor did he suggest it would prevent him from
    eliciting relevant evidence.

[8]

The trial judge also interjected to ensure that the witness listened to
    the question and did not begin to answer the question before it had been fully
    put. For example, the trial judge was entitled to ensure that the question put
    in cross-examination by defence counsel about a conversation the complainant
    had with her mother, that the complainant began to answer before he finished,
    related to a conversation in the presence of Vanessa Legault, a friend of the
    mother. The need for the complainant to slow down and wait for the questions is
    further borne out by defence counsel himself saying to the complainant at a
    later point, Maybe you just want to wait until I ask the question, okay?.

[9]

A third area of complaint relates to questions about whether the
    complainant spat out the appellants ejaculate into the toilet or the sink or
    the bathroom after he forced her to perform fellatio on him in the bedroom when
    she was between the ages of four and six. The complainant testified that the
    appellant had told her to swallow it but that she said she had to go to the
    bathroom and had spat it out. She further testified in her evidence in chief
    that she was going to try spitting in the toilet but then had stood on something
    that enabled her to spit into the sink. In her cross-examination, the
    complainant said she had spat the ejaculate into the toilet too. She said, It
    was kind of like I was spitting it out in the toilet and then I was kind of
    spitting it out and like throwing up kind of. So I was getting ready to swallow
    it and then I started spitting it a little bit in the toilet and then I run  and
    then I went to the sink. Defence counsel put to the complainant that she had
    not said she spat into the toilet in her evidence in chief. She agreed. Defence
    counsel then followed up with further questioning on whether she had ever spat
    into the toilet, on what occasion, and whether it was after the first time she
    spat in the toilet. After this the trial judge intervened telling defence
    counsel that his questions were not helpful to her assessment of the
    credibility of the complainant and that she worried his questions were to throw
    the witness off. The trial judge asked counsel the purpose of the questioning
    and he indicated that it went to credibility, the unreliability of her memory,
    and whether she was making the incident up. The trial judge told him he could
    put a proposition to the witness and if it was contradicted by the evidence he
    could go on and make it a subject of argument. Defence counsel agreed that he
    did not need any further evidence on this point.

[10]

In re-examination, the Crown showed the complainant her June 9, 2010
    statement to the police which indicated that she told the officer, I just spit
    it out into the sink or the toilet or something.

[11]

A judge may intervene in the proceedings for numerous reasons. For
    example, a need to control the courts process, a need to focus the questions
    being asked so that the evidence is received in a clear and cohesive manner, a
    need to avoid repetitive or irrelevant questions. The trial judge has a role to
    play in ensuring that a complainant, like any other witness, is treated fairly.
    The examples of the trial judges interjections discussed above and the other
    interjections by her show that she was engaging in that task. The appellant has
    not identified any relevant issue that he was prevented from exploring. A
    reasonable observer would not have concluded from the trial judges
    interjections that they rendered the appellants trial unfair.

(2)

The trial judges reasons were careful, detailed, and balanced and did
    not reflect an uneven standard of scrutiny

[12]

As explained by this court in
R. v. Aird
,

2013 ONCA 447, 307 O.A.C. 183,
    at para. 39, citing
R. v. Howe
(2005),

192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the uneven scrutiny
    argument is a difficult argument to make successfully, first, because
    credibility findings are the province of the trial judge and attract a very
    high degree of deference on appeal and secondly, such arguments are seen by
    appellate courts with skepticism and as a veiled invitation to reassess the
    trial judges credibility determinations.

[13]

The trial judge gave lengthy, detailed and careful reasons for her
    findings. On the specifics raised by the appellant, it is clear that the trial
    judge viewed the evidence of Vanessa Legault as being deeply flawed and
    incapable of undermining the complainants evidence. As for the one time
    conversation with Ashley Smith four years earlier in which it was alleged that the
    complainant said she had been raped at knife point, the trial judge was not
    required to make an express finding in this regard; it is clear that she did
    not place much weight on this alleged conversation. Having regard to the
    evidence of the complainants statement to her step-mother, her statement to
    the police, and her sworn testimony, the trial judge was entitled to do so.
    Regarding the appellants eye colour and an incident in which she was struck
    with a TV antennae, the findings made by the trial judge were open for her to
    make.

[14]

We conclude that the trial judges reasons were balanced and did not
    undermine the fairness of the trial.  We reject this ground of appeal.

[15]

The appeal is dismissed.

Karen M. Weiler
    J.A.

S.E. Pepall J.A.

B.W. Miller 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of the

Criminal
    Code
provide:

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Roy, 2017 ONCA 30

DATE: 20170117

DOCKET: C60927

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michel Roy

Appellant

Michael A. Crystal, for the appellant

Peter Scrutton, for the respondent

Heard: October 11, 2016

On appeal from the conviction entered on June 15, 2015 by
    Justice Laurie Lacelle of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals against convictions for touching a person under
    the age of 16 years for a sexual purpose in relation to the complainant J.S.
    and sexual assault in relation to the complainant E.J.
[1]

BACKGROUND

[2]

The complainants were friends  15 and 16 years old, respectively  at
    the time of the events. They were sleeping together on a table that converted into
    a bed in the appellants camping trailer when the events occurred. They had attended
    a birthday party the previous evening at the campground where the appellants
    trailer was located. J.S.s mother, J.B., knew the appellant from high school.
    A close friend of hers, D.G., was a good friend of the appellants. Through
    this connection, arrangements were made for J.B., D.G. and the complainants to
    stay overnight at the appellants campsite so the complainants could attend the
    party. J.B. had not seen the appellant in years. The complainants had not
    previously met the appellant.

[3]

The complainants went to bed in the early morning hours on the day the
    events occurred. J.B. slept on a couch in the trailer a few steps diagonally
    across from where the complainants were sleeping; the appellant and his
    girlfriend were to sleep in a bedroom in the trailer; D.G. slept outside the
    trailer, in a truck.

[4]

J.S. testified that she woke up around 4 a.m. feeling a pushing and
    rubbing sensation on her stomach. Her shirt was pulled up just below her
    breasts and the appellant was rubbing her stomach with his hand in a circular
    motion. She pulled a blanket over her and turned her Blackberry on to let him
    know she was awake. Within a short time, after her Blackberry light went out,
    J.S. saw the appellant touch E.J., first, by putting his hand down her pants on
    her butt area, then by putting his hand down the front of her pants.

[5]

E.J. testified that she woke up to the feeling of the appellants hand
    down the back of her pants. She rolled over; the appellant moved away and he
    then put his hand down the front of her pants. His hand stopped short of her
    genital area because she moved. She then grabbed her iPod and the appellant moved
    away.

[6]

A short time later, E.J. woke J.B. up and told her the appellant touched
    us. J.B. started screaming at the appellant and calling him names. The
    confrontation continued outside of the trailer. The appellant got into his
    vehicle and drove away. The complainants and J.B. drove away around the same
    time. When they got home, J.B. called the police. The complainants and J.B.
    went to the police station and gave statements later the same day.

[7]

In addition to the complainants, J.B., the appellant, D.G. and two other
    defence witnesses testified at trial.

[8]

At the close of the Crowns case, the trial judge dismissed a Crown
    application to admit, as similar fact evidence, evidence concerning a prior
    sexual assault by the appellant on his stepdaughter.

[9]

In his evidence, the appellant denied that the events described by the
    complainants had occurred. He and the other defence witnesses testified that
    both complainants had been drinking during the evening of the birthday party;
    he and some of the defence witnesses also claimed the complainants had smoked
    marijuana. Further, both the appellant and D.G. testified that over the course
    of the evening, J.B. had been behaving unusually and talking about protecting
    the complainants.

[10]

In closing argument, in addition to relying on the appellants denial,
    defence counsel at trial pointed to numerous alleged internal and external inconsistencies
    in the evidence of the complainants and J.B. and submitted that their evidence
    was not sufficiently reliable to support a conviction. He also argued that the
    witnesses had obviously discussed the events  shortly after they occurred,
    during the car ride home and once they were home  and asserted that the Crown
    had failed to disprove collusion or inadvertent tainting, thus rendering the
    evidence inadmissible across counts.

[11]

In her reasons for judgment, the trial judge ruled that the trial
    evidence was admissible across counts. She rejected defence evidence asserting
    that J.B. behaved oddly that evening. Although she commented on some idiosyncrasies
    in the appellants evidence, relying on
R. v. J.J.R.D.

(2006), 215
    C.C.C. (3d) 252 (C.A.), leave to appeal to SCC refused, [2007] S.C.C.A. No. 69,
    she rejected the appellants denial of the allegations essentially because she
    was satisfied that the Crowns evidence proved the elements of the offences beyond
    a reasonable doubt.

ISSUES AND DISCUSSION

[12]

The appellant raises three main issues on appeal.

[13]

First, the appellant argues that the trial judge placed undue emphasis
    on the complainants demeanour and failed to adequately scrutinize the
    reliability of the Crown's evidence. Concerning the latter issue, the appellant
    points to the multiple alleged discrepancies in the evidence of the
    complainants and J.B. that were raised at trial and asserts, in effect, that
    those discrepancies and what he claims was an evolution in the complainants
    stories should have given rise to a reasonable doubt.

[14]

We do not accept these submissions. The trial judge gave extensive
    reasons in which she not only reviewed the evidence of each witness but also
    analyzed the defence submissions concerning alleged discrepancies and
    inconsistencies in the complainants evidence and the evidence of J.B. After
    reviewing the alleged discrepancies and inconsistencies, the trial judge was
    not satisfied that any of them detracted from the complainants' core assertions
    about what had happened to them. In any event, we agree with the trial judge
    that the alleged contradictions were either not truly contradictory, or related
    to peripheral matters. On the entirety of the evidence, the allegations
    remained intact:
R. v. Barua
,
2014 ONCA 34 at paras. 7-8. This
    was the trial judge's call to make. She saw and heard the witnesses testify.
    She was uniquely positioned to assess both the reliability and credibility of
    their evidence.

[15]

Further, on our review of the record, the appellants assertion that
    there was an evolution in the complainants stories, which demonstrated the
    likelihood of collusion or tainting and even fabrication, is not borne out by
    the record and the trial judges findings concerning the complainants
    evidence. For example, the trial judge disagreed with the defence assertion
    that the tenor of E.J.s evidence at trial was that there was one continuous
    touching of her body by the accused and found that E.J.s evidence was not
    inconsistent with her police statement describing two touching events. She
    also found that E.J. was initially touched as she was waking up and that that
    fact accounted for some of the alleged inconsistencies in E.J.s account.

[16]

Based on our review of the record, these findings were open to the trial
    judge. The trial judge saw and heard E.J. testify. While there was some
    inconsistency in E.J.s account of the events at the trial, what the trial judge
    found significant was her account of how and where she was touched and not
    peripheral details. In any event, in our view, the fact of inconsistencies in
    E.J.s evidence at the trial does not support the appellants theory that she
    modified her evidence to match J.S.s version of events. Had that been her
    intention, she would have given a consistent version of events at trial that
    matched J.S.s version. As noted by the trial judge, inconsistencies in the
    complainants evidence at trial supported the finding that their evidence was
    not the product of either deliberate or unintentional collusion.

[17]

Finally, on our reading of the trial judge's reasons, she did not focus
    unduly on demeanour but rather gave extensive and detailed reasons analyzing
    the evidence of the various witnesses. Concerning the complainants, her finding
    that they were good witnesses was much more focused on the fairness of their
    evidence rather than demeanour.

[18]

Therefore, we do not agree that the trial judge placed undue emphasis on
    the complainants demeanour and failed to adequately scrutinize the reliability
    of the Crown's evidence.

[19]

Second, the appellant argues that the trial judge erred in permitting
    the evidence to apply across counts where there was evidence of collusion. In
    the alternative, if the trial judge was entitled to apply the evidence across
    counts, the trial judge erred in failing to caution herself to treat the
    evidence with care in assessing the weight to be afforded to it because of the
    possibility of collusion.

[20]

We do not accept this argument. The trial judge recognized that discussions
    between the Crown witnesses were natural given the circumstances of this
    case. However, she found nothing in the individualized accounts of J.S. and
    E.J. to suggest any tainting of their evidence had occurred as a result of
    their communications with one another. On our reading of her reasons, the
    trial judge considered the issue of collusion, both in relation to the
    admissibility of the evidence across counts as well as in relation to her
    ultimate assessment of the evidence. In the end, she found no evidence to
    support a finding of deliberate collusion and no evidence to support even a
    motive for the girls to behave in that fashion. Noting that the defence
    argument at trial focused on unintentional collusion, the trial judge found
    nothing in their accounts to support that conclusion but rather that the
    inconsistencies in their account support the finding that their evidence was
    not the product of either deliberate or unintentional collusion. Once again,
    these were the trial judges calls to make. We see no basis on which to
    interfere with her conclusions. We note as well that J.S.s eyewitness evidence
    that she saw the appellant assault E.J. was not similar act evidence and did
    not require a threshold admissibility inquiry.

[21]

Third, the appellant argues that the trial judge misapplied the test in
W.(D
.)
[2]

and failed to provide adequate reasons for her findings of guilt. The appellant
    points in particular to the following paragraphs of the trial judges reasons:

Giving consideration to the evidence of the accused in the
    context of all of the evidence heard at trial, I do not believe his account,
    nor does it leave me with a reasonable doubt.
The
    accuseds denial of these events is difficult to accept in the face of the
    evidence of two witnesses who describe him hovering over and touching them.

The evidence of the accused also cannot be reconciled with the
    one fact that every witnesses in this trial agrees about, which is that J.B.
    began yelling and screaming at the accused and accusing him of touching the
    girls in the early morning hours of July 20
th
, 2013. There can be no
    doubt that J.B. behaved in this fashion.
On the account
    of the accused, this conduct by J.B. makes no sense at all. It only makes sense
    in the context of the evidence given by J.S., E.J. and J.B.
[Emphasis
    added.]

[22]

In particular, the appellant takes issue with the trial judges
    rejection of his evidence based on her acceptance of the complainants evidence
    in the context of a case where he alleges there were numerous discrepancies and
    inconsistences in the Crowns evidence and where, unlike the situation in
J.J.R.D
.
,
    there was nothing to corroborate or support the complainants allegations. The
    appellant also argues that the fact that J.B. yelled at the appellant after
    learning about the alleged incident has no bearing on whether the touching
    occurred and does not in any way negate the appellants theory that the
    complainants fabricated their allegations.

[23]

We do not accept these submissions. For the reasons we have already
    explained, we are satisfied that the trial judge addressed the appellants
    arguments concerning discrepancies, inconsistencies and tainting. Both this
    court and the Supreme Court of Canada have made it clear that a considered and
    reasoned acceptance beyond a reasonable doubt of the truth of conflicting
    credible evidence is a sufficient basis for rejecting an accuseds evidence:
R.
    v. R.E.M
.
, 2008 SCC 51, 2008 S.C.R. 3, at para. 66;
J.J.R.D
.
,
    at para. 53.

[24]

Finally, as we read her reasons, the trial judge had rejected the
    possibility of fabrication or collusion before pointing to J.B.s reaction,
    which she found supported the complainants version of the events. The
    paragraph of the trial judges reasons on which the appellant relies is an
    introductory paragraph that foreshadows her subsequent reasons.

[25]

We do not give effect to this ground of appeal.

DISPOSITION

[26]

Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons
    J.A.

G. Pardu J.A.

B.W. Miller J.A.

[1]

The trial judge found the appellant guilty of a third count,
    sexual assault in relation to the complainant J.S. Although the trial judges
    sentencing reasons are not before us, the sexual assault charge in relation to
    J.S. arose from the same events as the sexual touching charge. Both counsel
    acknowledge that the sexual assault charge in relation to the complainant J.S.
    would have been stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

R. v. W.(D.)
,
[1991] 1 S.C.R. 742.