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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. C.K., 2015 ONCA 747

DATE: 20151105

DOCKET: C59693

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.K.

Appellant

John K. Lefurgey, for the appellant

Gavin MacDonald, for the respondent

Heard: October 9, 2015

On appeal from the conviction entered by Justice Anne
    Tucker of the Superior Court of Justice on May 6, 2014, and from the sentence
    imposed on July 30, 2014.

Pardu J.A.:

[1]

C.K. appeals from his convictions for sexual assault of his two
    grandsons, DL. and DD. He submits that the trial judge erred in admitting
    similar fact and bad character evidence. He also appeals the ten year sentence
    imposed by the trial judge. His appeal was dismissed following argument for
    reasons to follow. These are those reasons, on behalf of the panel.

[2]

The appellants two grandsons allege that the appellant sexually abused
    them over a period of approximately ten years, beginning when DL. was about
    five years old and DD. was a few years older. The acts of sexual abuse included
    touching, masturbation, oral sex, and anal sex.

[3]

At trial, the Crown brought an application to admit similar fact
    evidence. The Crown sought the admission of: (a) the evidence of DD. and DL.
    across counts; (b) the evidence of R.L., the complainants father, as extrinsic,
    uncharged similar fact evidence; and (c) the evidence of A.G. as further
    extrinsic, uncharged similar fact evidence. The latter two witnesses testified
    to separate sexual encounters with the appellant in the past. The trial judge
    admitted all of the evidence in question as similar fact evidence. The Crown
    also called a witness, K.C., who testified to an encounter with the appellant
    during which he made inappropriate sexual remarks. The trial judge convicted
    the appellant of eight counts of sexual assault, sexual interference, and
    sexual exploitation. She sentenced him to ten years on each count, to be served
    concurrently.

A.

Nature of the Appeal

[4]

The appellant advances three grounds on appeal.

[5]

First, the appellant argues that the trial judge erred by admitting the
    evidence of R.L. and A.G. The complainants father, R.L., a former son-in-law
    of the appellant, and A.G., a former babysitter for the appellants children,
    both testified to separate sexual encounters with the appellant. The trial
    judge admitted their testimony as similar fact evidence. The appellant submits
    that the trial judge misapprehended the evidence of R.L. and A.G., misapplied
    the framework set out in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, and improperly admitted their evidence.

[6]

Second, the appellant argues that the trial judge erred by admitting the
    evidence of K.C. K.C. testified about an encounter where the appellant made
    inappropriate sexual remarks to K.C. The appellant submits that this evidence
    was bad character evidence and was tendered without any legitimate purpose.

[7]

Third, the appellant seeks leave to appeal the sentence imposed. The
    appellant submits that the trial judge imposed a sentence that is harsh and
    excessive in light of his age and health, did not give appropriate weight to
    the absence of violence or threats, and improperly relied on the allegations of
    A.G. and R.L.

B.

FACTS

[8]

The complainants testified that the appellant began to sexually abuse
    them when DL. was five or six years old and DD. was perhaps nine. The abuse continued
    until their mid-teens. At the time, neither knew about the others abuse. DL.
    reported it to the police in 2007 and DD. came forward two years later.

[9]

According to the complainants testimony, the sexual abuse began with
    fondling or touching. Over time, the sexual abuse progressed to masturbation,
    oral sex, and anal sex, performed both upon them by the appellant and by them
    on the appellant. The assaults occurred in the appellants home (usually in the
    basement), in the appellants car, and in a tour bus that the appellant drove.
    They also testified that their grandfather showed them pornography and that
    they received money, gifts, and cigarettes from him. He called each his buddy
    and both felt that they were special to him. The appellant told them that what
    had occurred was [their] little secret, and they both had the same secret
    handshake that they did with their grandfather after sexual activity.

(1)

Evidence of R.L.

[10]

R.L.
    testified that, for an eight year period, beginning when he was about 20, he
    engaged in sexual activity with the appellant, his father-in-law.

[11]

The
    first sexual encounter occurred while R.L. and the appellant were drinking in
    the basement of the latters home. The appellant put on pornography, and then
    asked R.L. if the appellant could perform oral sex on him. R.L. agreed.

[12]

Thereafter,
    R.L. engaged in occasional sexual activity with the appellant. R.L. was often in
    difficult financial circumstances and needed to ask the appellant for
    assistance to help R.L.s family stay afloat. Whenever he asked the appellant
    for money, the appellant would demand sexual favours in return. R.L. testified
    that the encounters left him feeling disgusted; however, he had nowhere else to
    turn, and so he continued returning to the appellant for financial assistance.

[13]

The
    sexual activity between R.L. and the appellant progressed to R.L. performing oral
    sex on the appellant, and then to mutual anal sex. R.L. testified to a number
    of sexual encounters, some of which occurred in the basement of the appellants
    home, while his wife was upstairs, as well as in the appellants car.

[14]

Like
    the complainants, R.L. did not have a relationship with his biological father.
    The relationship between his own mother and step-father ended when he was 17,
    shortly after he began dating the appellants daughter.

[15]

R.L.s
    relationship with the appellant, before their sexual activity began, was
    uneven. Initially, the relationship was not particularly warm; however, it
    improved over time. R.L. moved to another city with the appellants family when
    he was 18. Before the move, the appellant took R.L. on a number of trips to that
    city to help him find work; the appellant paid for their rooms and meals during
    these trips. R.L. moved in with the appellant and his family after the move. The
    appellant hired R.L. to work at a store where the appellant worked as a
    supervisor. R.L.s relationship with the appellant and his family was settled
    and supportive at this time. Though there was a period of estrangement when
    R.L. and the appellants daughter eloped, any estrangement ended with the birth
    of their first son.

[16]

The
    sexual encounters between R.L. and the appellant ended when R.L. told his wife
    J.L. about his sexual relations with her father. Their marriage likewise ended
    at that point.

(2)

Evidence of A.G.

[17]

A.G.
    first met the appellant when he was 10 years old. Their families lived close by
    at the time. When A.G. was 12 or 13 years old, he was asked by the appellant to
    babysit his two children on a few occasions. According to A.G., the appellant sexually
    assaulted him on three occasions while he was babysitting the appellants
    children.

[18]

At
    the time of the first assault, the appellants wife was in the hospital. A.G.
    had been babysitting the appellants children and had fallen asleep in a chair.
    When he woke up, the appellant was lying on a couch with his pants undone and
    his genitals exposed. The appellant asked A.G. to touch his penis. A.G.
    complied for about five seconds.

[19]

A
    similar incident occurred within a week of the first assault. After this second
    incident, the appellant paid him an extra 50 cents and told him that what had
    occurred was [their] little secret.

[20]

The
    third incident occurred shortly thereafter. A.G. slept over at the appellants
    home while babysitting. The appellant woke him up and brought him into a bathroom,
    where he pulled down A.G.s pants and performed oral sex on A.G. for a couple
    of minutes. The appellant gave him six dollars and told him that what had
    occurred was their secret.

[21]

A.G.
    testified about his familys circumstances at the time of the sexual assaults.
    His father had left when A.G. was about 12 years old, and his mother was
    raising six children on her own. A.G. testified that his family was broke and
    he was excited to spend the six dollars paid to him by the appellant to buy milk,
    bread, and cigarettes for his mother.

(3)

Evidence of K.C.

[22]

K.C.
    testified that, in the summer of 1999 and when he was 17 years old, he met the
    appellant while at work. K.C. and the appellant were having a conversation when
    the appellant told him that he had a cigar that spits. K.C. understood the
    appellants statement as referring to the appellants penis. Later on the same
    day, the appellant brought up pornography as a topic of conversation. Finally,
    when K.C. was leaving, the appellant gave K.C. his card with his phone number
    on it and suggested that they should get together.

[23]

K.C.
    testified that he felt uncomfortable and awkward after his encounter with the
    appellant. He reported the appellant to his employer, who then called the
    police.

C.

ground #1: Similar fact Evidence

[24]

At
    trial, the Crown applied to admit the evidence of each complainant as similar
    fact evidence for the counts involving the other. The Crown also applied to
    admit as similar fact evidence the testimony of R.L. and A.G. The trial judge allowed
    the application and admitted the evidence.

[25]

Before
    this court, the appellant does not challenge the decision to admit the evidence
    of both complainants as similar fact evidence; however, the appellant maintains
    his challenge to the evidence of R.L. and A.G.

(1)

Trial judges
    decision on similar fact evidence

[26]

The
    trial judge looked at the evidence of R.L. and A.G. in the context of the
    analysis set out in
Handy
for the admission of similar fact evidence.

[27]

The
    trial judge noted that, as a starting point, similar fact evidence based on
    discreditable conduct of an accused is inadmissible. However, the evidence is
    admissible if the Crown can prove sufficient similarities between the acts the
    accused is charged with and the offered evidence in relation to a live issue in
    the trial. She also noted that that the Crown must prove that the probative
    value of the evidence outweighs any prejudicial effect.

[28]

The
    trial judge concluded that the issue in question, in support of which the
    similar fact evidence was being proffered, was the
actus reus
of the
    alleged offences and whether the appellants expected blanket denial was
    credible.

[29]

The
    trial judge then examined the probative value of the evidence in light of the
    factors identified in
Handy
and made the following findings:

(1)

Proximity
: The sexual contact between R.L. and the
    appellant was proximate in time to the assaults against the complainants. A.G.s
    allegations were not.

(2)

Similarity in details
: Both complainants and A.G. were
    children at the time of the alleged acts and the appellant was a father-figure
    to all three. The appellant also assumed a father-figure role towards R.L. The
    assaults all began with fondling, and progressed to oral and then anal sex in
    the case of the complainants and R.L. The assaults occurred in the appellants home
    in the case of all four witnesses and also in public places in the case of the
    complainants and R.L. The assaults were numerous in the case of both
    complainants and R.L. The three children were all told that what had occurred
    was a secret. Money was always involved. The assaults took place over a long
    period of time, except in the case of A.G.

(3)

Number of occurrences
: There were numerous sexual acts
    in the case of R.L., but not in the case of A.G.

(4)

Circumstances surrounding the acts
: All of the alleged
    victims were essentially fatherless. The appellant played the role of a
    father-figure in the case of all four, as the giver of money and affection and
    the one with whom the complainants and R.L. had a special bond. She noted that
    A.G. did not have a special bond with the appellant, but he respected his
    elders and did what he was told. The acts occurred where they could be
    discovered  in the basement, or, in the case of A.G., a bathroom of the appellants
    home, in the appellants car, in parking lots, and in his tour bus.

(5)

Distinctive features
: The alleged acts often occurred
    in public areas. The complainants and A.G. were told that the sexual acts were
    a secret. There was a financial benefit involved for all four, either cash or
    presents for the complainants, various forms of financial support for R.L., and
    money for A.G. The trial judge noted that the date and frequency of the sexual acts
    described by A.G were different from the conduct described by the complainants,
    and that R.L was older when the sexual activity began.

[30]

The
    trial judge found that the alleged events and the relationship described by R.L.
    were strikingly similar to those described by the complainants. Moreover, while
    A.G.s evidence was separated in time, there was clear similarity to the
    initial approach to the other three. The trial judge concluded that the Crown
    had proven on a balance of probabilities that the probative value of the
    evidence exceeded its prejudicial effect.

(2)

Appellants submissions

[31]

The
    appellant accepts that the Supreme Courts decision in
Handy
governs
    the admissibility of similar fact evidence. However, the appellant argues that
    the trial judge erred when applying the framework outlined in
Handy
.

[32]

Broadly
    speaking, the appellant makes three submissions. First, the trial judge erred in
    characterizing the issue to which the similar fact related too broadly. Second,
    the trial judge misapprehended the relevant evidence, and erred by focusing on
    generic similarities and ignoring differences between the evidence of the
    complainants on the one hand and R.L. and A.G. on the other. Third, the
    appellant submits that the evidence admitted was extremely prejudicial.

(3)

The trial judge did
    not characterize the issue too broadly

[33]

The
    trial judge identified the issue in question as the
actus reus
of the
    alleged offences in light of the appellants blanket denial that there was ever
    any inappropriate activity between him and his grandsons. As long as its
    probative value outweighs its prejudicial impact, similar fact evidence may be
    admitted for the purpose of proving the
actus reus
of the offence
    charged and to assess the credibility of a blanket denial:
R. v. Shearing
,
    2002 SCC 58, [2002] 3 S.C.R. 33, at para. 46.

[34]

This
    case is distinguishable from
R. v. R.B.
(2003)
,
68 O.R. (3d)
    75 (C.A.), relied on by the appellant. As noted by Simmons J.A., at paras.
    52-54, the trial judge in that case had erred by framing the issue too widely
    as the credibility of the complainant and the accused. That, in turn, led to
    the threshold for admitting similar fact evidence being set too low. Here, the
    trial judge properly confined the issue in question to whether the
actus
    reus
of the offences had occurred.

(4)

The trial judge did
    not misapprehend the evidence or err when considering the
Handy
factors

[35]

As
    noted, the appellant submits that the trial judge misapprehended the evidence
    before her, and that she focused on generic similarities and ignored differences
    in the evidence of the complainants on the one hand and each of R.L. and A.G.
    on the other. I would reject the appellants arguments.

[36]

The
    crucial question when determining the admissibility of similar fact evidence is
    whether, in the specific context under consideration, the probative value of
    the [similar fact] evidence in relation to a particular issue outweighs its
    potential prejudice, thus [warranting] its reception:
R. v. J.M.
, 2010
    ONCA 117, 251 C.C.C. (3d) 325, at para. 89. The similarity may reside in the
    distinctive nature of the acts at issue or in the circumstances in which those
    acts occurred:
J.M.
, at para. 91. The degree of similarity required
    will depend on the issue to which the evidence is directed. This court has held
    that where the evidence is directed to the
actus reus
, the
    similarities do not need to amount to a signature for similar fact evidence
    to be admissible:
R. v. J.W.
, 2013 ONCA 89, 302 O.A.C. 205, at para.
    54.

[37]

As
    noted by this court in
R. v. Creswell
, 2009 ONCA 95, at para. 7, the
    ruling of a trial judge admitting similar fact evidence is entitled to
    substantial deference:

It is well-established that a similar fact ruling is entitled
    to a high degree of deference and that an appellate court will not intervene
    with the trial judges ruling unless the trial judges analysis is
    unreasonable, or is undermined bylegal error or misapprehension of material
    evidence. [Citations omitted.]

[38]

In
    effect, the appellants submissions ask this court to reinterpret the evidence
    and engage in a
Handy
-analysis afresh. The trial judge conducted a
    thorough and cogent analysis based firmly in the evidence. The appellant has
    not demonstrated a legal error in her analysis. Her conclusion, that the
    connecting factors between the accounts of the complainants on the one hand and
    those of R.L. and A.G. on the other were so strong that the probative value of
    the evidence outweighed its prejudicial effect, was reasonable and is entitled
    to deference. Contrary to the appellants assertions, the trial judge properly
    concluded that there was a considerable degree of connectedness between the
    evidence of R.L., A.G., and the complainants:

(1)

The appellant argues that he did not have a fatherly role with respect
    to R.L., but there was significant evidence to suggest that he had assumed that
    role over R.L. after the latter began dating the appellants daughter at age
    16.

(2)

The appellant also argues that he did not have a fatherly role towards
    A.G., but A.G. testified that he was very respectful of his elders. The trial
    judge clearly had this in mind when finding that the appellant played a
    fatherly role towards A.G., particularly given that she noted the absence of
    any special bond between them.

(3)

The appellant takes issue with the trial judges finding that the
    assaults all began with fondling and escalated from there. It is true that the
    sexual activity between the appellant and R.L. began with oral sex, not
    fondling. But this misstatement of the evidence was minor and immaterial. The
    point is that, in each case, the invasiveness of the acts increased over time.

(4)

The appellant asserts that there was no grooming in the case of R.L.
    However, there was an element of grooming, as R.L. (like the complainants) was
    shown pornography by the appellant.

(5)

Contrary to the appellants assertions, the trial judge did not ignore
    the dissimilarities between the evidence. She noted the discrepancies, but
    clearly did not consider them to be sufficiently disparate to make a material
    difference in the analysis. Her decision is entitled to deference.

(6)

The appellant argues that by focusing on the fact that sexual contact
    occurred in the appellants home and in public places, the trial judge focused
    on generic observations that did not disclose any similarity. However, I would
    reject that argument. The location where the sexual contacts occurred reveals
    that, in all cases, the appellant was not inhibited by the possibility that his
    acts might be discovered by his wife or a member of the public. At the same
    time, the appellant took advantage of opportunities for privacy in each case.

[39]

In
    this case, the circumstances surrounding the acts bore a striking
    connectedness. The appellant exploited a privileged position over vulnerable
    young males  who had little to no relationship with their own fathers and who
    were in circumstances of financial disadvantage  for his own sexual
    gratification. Each received some material benefit from the appellant as a
    result of their sexual interactions with him. He was the giver of money and
    affection and he exploited this role for his own purposes. The present case is
    very similar to the decision in
R. v. B.(C.R.)
, [1990] 1 S.C.R. 717,
    at p. 739, admitting similar fact evidence that demonstrated a pattern of
    behaviour in which the accused established a parental relationship with young
    girls before engaging in sexual activities with them. The similar fact evidence
    in this case was capable of raising the inference that the appellant had a
    situation-specific propensity to sexually exploit young males over whom he
    exerted financial or emotional influence.

(5)

The probative value
    of the evidence outweighed any prejudicial impact

[40]

The
    appellant submits that, as a result of the trial judges decision, extremely
    prejudicial testimony  in particular, evidence about a relationship between
    the appellant and his son-in-law, R.L.  was admitted into evidence. To the
    extent that this argument challenges the trial judges decision that the
    probative value of the similar fact evidence outweighed any prejudicial impact,
    I would reject it.

[41]

The
    trial judge turned her mind to the prejudicial impact of the evidence. When it
    comes to similar fact evidence, the potential for prejudicial effect
    encompasses both reasoning prejudice and moral prejudice. This was a judge
    alone trial. In trials by judge alone, the danger that a conviction will be
    rooted in either reasoning or moral prejudice is significantly lessened;
J.M.
,
    at para. 88.

[42]

The
    appellants defence was not prejudiced by the similar fact evidence. The
    Crowns evidence was already complete by the time it made its similar fact
    evidence application. The trial judge was alive to the issue of prejudice and
    appropriately weighed it against the evidences probative value. She did not
    conflate the subject matter of the allegations between charged and uncharged
    conduct, nor did she use the evidence of R.L. and A.G. to assess the
    appellants character.

[43]

The
    evidence of the two grandsons was powerful and compelling because of the
    distinctive behaviour, such as the secret handshake described by each. A.G.s
    evidence described a far more limited and less invasive series of assaults.
    R.L.s evidence described conduct that was not criminal. The risk of prejudice
    associated with their evidence was small. All of the trial judges references
    to the evidence were confined to her consideration of whether the abuse as
    alleged by the complainants, and as denied by the appellant, actually occurred.

D.

Ground #2: Bad character evidence

(1)

Appellants submissions

[44]

The
    appellant submits that the testimony of K.C. served no purpose other than to
    paint him as the kind of man who makes off-colour suggestions to teenage boys
    and tries to encourage them to have a relationship with him, the inference
    being that he is also the kind of man who would abuse his grandsons. There was
    no legitimate purpose for the introduction of the evidence.

[45]

As
    a result of the admission of the evidence, the appellant had to testify and be
    cross-examined on a matter that should not have been before the court in the
    first place, with potential adverse credibility findings as a result.

[46]

Even
    though the trial judge did not refer to K.C.s evidence or the
    cross-examination of the appellant on K.C.s evidence in her ruling on similar
    fact evidence or her final judgment, the appellant submits the introduction of
    the evidence might have influenced the outcome. Even where a trial judge
    indicates they are not going to give much weight to evidence, the impact of it
    cannot simply be ignored.

(2)

The evidence of K.C.
    did not prejudice the appellant

[47]

The
    Crown introduced the evidence of K.C. because it was concerned that it would be
    relevant to defences suggested in cross-examination of Crown witnesses but
    could not be called in reply because of the rule preventing the Crown from
    splitting its case.

[48]

Ultimately,
    the trial judge did not refer to K.C.s evidence in her ruling admitting the
    similar fact evidence or in her final judgment. The absence of any reference to
    the evidence is explained by the trial judges concerns about it. She
    explicitly questioned the propriety of the evidence and the use to which it
    could be put other than to blacken the accused. The trial judge noted the
    limited purpose for which the evidence had been led and stated that she had to
    be really cautious about using it at all.

[49]

From
    these statements and the complete lack of reference to the evidence in her
    reasons, it is clear that it played no role in the trial judges credibility assessments
    and her decision to convict the appellant. As noted by McLachlin J. (as she
    then was) in
R. v. Leaney
, [1989] 2 S.C.R. 393, at pp. 415-416, trial
    judges will often hear evidence which turns out to be inadmissible; so long as
    the judge does not rely on the inadmissible evidence when arriving at her
    conclusion, no unfairness can be said to arise, nor has there been a
    miscarriage of justice. Furthermore, where a trial judge states that she will
    not rely on certain evidence, she is entitled to be taken at her word:
R.
    v. OBrien
, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 18. Therefore, in
    this case, K.C.s evidence about the exchange between him and the appellant did
    not prejudice the appellant.

E.

Ground #3: Appeal from sentence

(1)

Appellants submissions

[50]

The
    appellant submits that the trial judge imposed a sentence at the high end of
    the appropriate range. However, the appellant argues, she improperly took into
    account the allegations of A.G. and R.L. in imposing a sentence, even though
    they were not part of the charges and, in the case of R.L., even though the
    acts were not criminal. The trial judge also misunderstood the number of
    occurrences of anal sex and gave insufficient weight to the lack of violence or
    brutality, the lack of threats, and the appellants advanced age (72 years).

(2)

The sentence imposed
    was fit

[51]

Absent
    an error in principle, a failure to consider a relevant factor, or an
    over-emphasis of appropriate factors, a trial judges sentence is entitled to
    deference:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 90. An
    appellate court should vary a sentence only if it is clearly unreasonable,
    demonstrably unfit, or if it represents a substantial and marked departure from
    sentences customarily imposed for similar offenders committing similar crimes:
R.
    v. Hall
, 2007 ONCA 8, 83 O.R. (3d) 641, at para. 29.

[52]

In
R. v. Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, Charron J. held
    that, in the course of sentencing, a court may consider evidence establishing
    that the accused has committed another offence of which he has not been
    convicted. However, as noted at para. 32, these aggravating circumstances must
    be proven beyond a reasonable doubt and their use is carefully circumscribed:

If the extrinsic evidence is contested, the
    prosecution must prove it. Since the facts in question will doubtless be
    aggravating facts, they must be proved beyond a reasonable doubtThe court can
    sentence the offender only for the offence of which he or she has been
    convicted, and the sentence must be proportionate to the gravity of that
    offence. In addition, the judge can and must exclude otherwise relevant
    evidence if its prejudicial effect outweighs its probative value such that the
    offenders right to a fair trial is jeopardized. Finally, the court must draw a
    distinction between considering facts establishing the commission of an
    uncharged offence for the purpose of punishing the accused
for that other
    offence
, and considering them to establish the offenders character and
    reputation or risk of re‑offending for the purpose of determining the
    appropriate sentence for
the offence of which he or she has been convicted
.
    [Emphasis in original.]

[53]

Here the trial judge considered the appellants sexual acts in relation
    to A.G. and R.L. as aggravating factors, without making an express finding that
    the acts had been proven beyond a reasonable doubt. Absent such a finding and
    absent a finding that the behavior towards R.L. was criminal, that conduct
    should not have been treated as an aggravating factor.

[54]

Despite this error, I would uphold the sentence on the ground that it
    was appropriate, without regard to the extrinsic misconduct.

[55]

The
    sentence imposed was within the range identified by this court for offences
    involving prolonged and damaging sexual assaults of children by adults:
R.
    v. D.D.
(2002),
58 O.R. (3d) 788
(C.A.), at
    para. 44;
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d) 81, at para.
    34. The appellant, in a position of trust, subjected two of his grandsons to
    prolonged sexual abuse over the course of nearly 10 years. This abuse included
    masturbation, oral sex, and anal sex. As is evident from the victim impact
    statements, the abuse caused incalculable damage to the complainants lives.
    The trial judge did not ignore the appellants age in sentencing, nor err in
    refusing to discount an otherwise appropriate sentence because of his age. She
    imposed a sentence that was fit in the circumstances of the offences.

F.

Disposition

[56]

Accordingly,
    for these reasons, the appeal from conviction was dismissed and leave to appeal
    sentence was granted but the appeal of sentence was dismissed.

Released: (AH) November 5, 2015

G. Pardu J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree K.M. Weiler
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cain, 2015 ONCA 815

DATE: 20151125

DOCKET: C53181 and C53369

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Cain and Mark Cain

Appellants

Jack Gemmell, for the appellant Jason Cain

James Lockyer, for the appellant Mark Cain

Alexander Alvaro and Karen Papadopoulos, for the
    respondent

Heard: November 2 and 3, 2015

On appeal from the convictions entered on December 21,
    2009 by Justice John B. McMahon of the Superior Court of Justice, sitting with
    a jury.

By the Court:

[1]

Colves Meggoe (the deceased) was murdered on Tuesday, November 14,
    2006. After a trial by jury, Jason Cain was convicted of first degree murder in
    respect of the killing and Mark Cain was convicted of second degree murder. Both
    appeal against conviction.

[2]

For the reasons that follow, the appeals are dismissed.

BACKGROUND

The Shooting

[3]

Shortly before 7:30 p.m. on November 14, 2006, three men invaded the
    living room of the deceaseds home. The lead assailant, wearing a bandana as a
    mask, carried a sawed-off 12-gauge shotgun. He ordered the people in the living
    room to get down on the floor.

[4]

The deceased was in the kitchen of his small home, just around the
    corner from the living room. He went into the living room and called out to the
    assailants, saying either Buju or Buju and Nookie, what are you doing? As
    the deceased approached the lead assailant, that assailant shot him in the
    abdomen with the shotgun. One of the other assailants fired a .22 calibre
    bullet through the deceaseds thigh or upper leg. The third assailant was at
    the door to the home throughout, keeping watch.

[5]

The assailants then fled.

[6]

The deceased died, prior to reaching hospital, as a result of the
    shotgun blast to his abdomen.

[7]

In convicting Jason Cain of first degree murder, the jury found that he was
    the lead assailant who fired the shotgun blast that killed the deceased. Mark
    Cain was convicted of second degree murder as an aider.

Events earlier in the Day of the Shooting

[8]

During the afternoon of the day of the murder, Jason Cain visited the
    deceaseds home and asked to buy crack cocaine. Jason Cain is also known by the
    nickname Buju. Following a confrontation with the deceaseds brother, Glenroy
    Meggoe, the deceased told Buju to leave and escorted him from the house.

[9]

Later that same afternoon, Mark Cain and Shaun Williams
[1]
went to the deceaseds house and asked to buy beer. The deceased said he did
    not have any beer and did not let them into the house. Mark Cain is Jason
    Cains uncle and has the nickname Nookie.

The Alibi Evidence

Jason Cain (Buju)

[10]

Jason
    Cain was arrested on November 27, 2006. In his police interview, he gave some
    details of what he was doing around the time of the homicide  that he was
    watching Tiger Claw movies  but he would not tell the police where he was or with
    whom he was watching the movies.

[11]

On
    December 3, 2006, Jason Cains mother, Loretta Cain Williams, went to Damion Mairss
    home. She told Mairs and his mother, Althea Richard,
[2]
that Jason Cains lawyer wanted to speak with them. Loretta Cain Williams drove
    Mairs and Richard to the office of Jason Cains lawyers, where they gave private
    videotaped statements to counsel.

[12]

The
    appellants were committed for trial on October 24, 2007.

[13]

Jason
    Cains counsel first advised the Crown and police of the existence of his alibi
    defence on December 3, 2007. However, the names of the alibi witnesses (Mairs
    and Richard) and the details of the alibi were not disclosed to the Crown and
    police until a year later  December 10, 2008  on the eve of the original
    trial date of January 4, 2009. The alibi witnesses made themselves available for
    a police interview on February 25, 2009.

[14]

The
    videotaped interviews that defence counsel for Jason Cain conducted of Mairs
    and Richard in December 2006 were not provided to the Crown until trial.

[15]

During
    Mairss cross-examination at trial, the Crown drew attention to several
    inconsistencies between Mairss videotaped statement from December 2006, his
    police interview in February 2009, and his trial testimony.

[16]

In
    Mairss videotaped statement, he said that he answered the door when Jason Cain
    arrived at his home on the evening of the shooting. He said he thought that Cindy,
    his daughters babysitter, was at his home that evening, and that his mother
    usually got home from work around 9:00 p.m. or 9:30 p.m. Mairs said that he
    received a call from his mother on his cell phone around 8:00 p.m., before she returned
    home from work, telling him that the shooting was on the news. He said that he
    watched the news in his bedroom with Jason Cain, and afterwards he and Jason
    Cain continued watching a Tiger Claw movie.

[17]

In
    Mairss interview with the police, he said that he was in his bedroom shortly
    before 6:00 p.m. on the evening of the shooting when he received a call from
    Jason Cain, who was on his way over to Mairss house. When Mairs walked out of
    his bedroom five or ten minutes later, Jason Cain was sitting at the computer
    desk near the front door. Mairs said that his mother was home at the time,
    because she finished work around 4:30 p.m. that day, and that she answered the
    door for Jason Cain. Mairs made no mention of Cindy in the police interview. He
    said that his mother called him on his cell phone, from her bedroom, and told
    him about the shooting. He and Jason Cain went into Richards bedroom, watched
    the news, and returned to Mairss bedroom.

[18]

Mairss
    testimony at trial was generally consistent with the statements he gave to
    police in February 2009. He also stated in cross-examination that Cindy was not
    at his home when Jason Cain arrived. He explained the inconsistencies between
    his testimony and the December 2006 videotaped statement by saying he must
    have mixed up the days.

[19]

Similarly,
    the Crowns cross-examination of Richard drew attention to inconsistencies
    between her videotaped statement from December 2006, her statement to the
    police, and her evidence at trial. In her videotaped statement, Richard stated
    that she first found out about the shooting around 10:00 p.m. while watching CP
    24 news on television in her bedroom. In her later statement to police, Richard
    said that she watched the breaking news at 8:00 p.m.

[20]

In
    all of her statements, however, Richard stated that she was home from work
    shortly after 4:30 p.m. on the day of the shooting. She spent most of the
    evening tending to her granddaughter and watching television in her bedroom. She
    acknowledged that she was not watching Jason Cain for the entire evening, but said
    that she never saw him leave the house.

Mark Cain (Nookie)

[21]

Mark
    Cain was arrested on November 18, 2006. That evening, police interviewed Paul
    Clancy, a tenant in the rooming house where Mark Cain lived. Paul Clancy, an
    admitted alcoholic, told police that he was home at 7:30 p.m. on the evening of
    the homicide and saw Mark Cain with another man. Paul Clancy said that Mark
    Cain and the other man were in the kitchen and offered him food, which he
    accepted. When he had finished eating, he walked to The Beer Store and then
    returned home. The Beer Store closed at 8:00 p.m. that day. Paul Clancy said he
    arrived at the store just before it closed.

[22]

On
    November 20, 2006, Shaun Williams provided Mark Cains counsel with a private videotaped
    statement under oath.

[23]

On
    November 27, 2007, Williams was killed.

[24]

On
    November 30, 2007, Mark Cains counsel told the Crown that his client would be
    relying on an alibi defence but provided no particulars.

[25]

On
    December 3, 2007, Mark Cains counsel advised the Crown that Williams was the
    alibi witness and that he was dead.

[26]

The
    Crown was given Williamss videotaped statement in June 2008.

[27]

At
    trial, Williamss statement was played to the jury and admitted for the truth
    of its contents. In his statement, Williams said that he spent most of the
    evening in question with Mark Cain. Around 5:30 p.m., they went to the
    deceaseds home to buy beer and were told that he didnt have any for sale. They
    left the deceaseds home and went to the home of Edmund Williams, arriving a few
    minutes before 6:00 p.m. They stayed there for 10 to 15 minutes, then went to a
    convenience store to buy some food. After leaving the convenience store, they
    took a bus to Mark Cains home, stopping at a liquor store along the way to buy
    beer. During his interview with counsel, Williams produced an LCBO receipt that
    placed the time of their purchase at 6:34 p.m. Williams said they arrived at
    Mark Cains house, which was a short walk from the LCBO, around 6:45 p.m. They
    had a beer in Mark Cains room, and Mark Cain went down to the shared kitchen
    to make food. Williams went downstairs after he finished his beer and noticed
    another tenant, Paul Clancy, in the kitchen speaking with Mark Cain. Williams
    and Mark Cain offered Paul Clancy some food, left the kitchen, and ate their
    meal in Mark Cains room. They spent the remainder of the evening in Mark
    Cains room, drinking and smoking cigarettes and marijuana. They were joined by
    an acquaintance of Mark Cain name Joe, who shared in the food and drink. After
    approximately one hour, Williams and Joe left the rooming house.

[28]

Paul
    Clancy testified at trial and stated that he saw Williams and Mark Cain in the
    kitchen around 7:30 p.m. on the evening in question. His testimony was
    generally consistent with his statement to police.

[29]

Mark
    Cain testified to having spent the evening with Williams in a manner similar to
    that described above. He was, however, unable to answer questions regarding the
    specific timing of events throughout the evening, noting that he wasnt
    looking at the time and was not wearing a watch.

THE ISSUES

[30]

The
    appellants raise the following grounds of appeal, with the exception of the
    sixth issue, which relates only to Mark Cain.

1.

Did the trial judge wrongly give late alibi adverse inference instructions?

2.

Did the trial judge err in allowing the Crown to undermine Jason Cains
    alibi by urging a speculative theory of concoction by its proponents?

3.

Did the trial judge err in permitting the Crown to allege that Mark
    Cains primary alibi witness (Shaun Williams) may have been a party to the
    murder?

4.

Did the Crown present a fabricated alibi theory in the absence of
    evidence of fabrication?

5.

Did the trial judge err in admitting an unrelated discreditable conduct
    allegation against Mark Cain?

6.

Did the trial judge err in failing to give a
Vetrovec
warning for
    the evidence of Mohamed Abbas?

7.

Was the jury properly directed on the dangers of reliance on voice and
    eyewitness identification evidence?

ISSUE #1: THE LATE ALIBI ADVERSE INFERENCE INSTRUCTIONS

[31]

The
    appellants contend that the trial judge erred by giving late alibi adverse
    inference instructions in the absence of Crown evidence that late disclosure of
    the alibis impeded their proper investigation. They contend that the police had
    sufficient time to investigate both alibis. As the Crown called no evidence in
    support of its contention that it had been prejudiced by the late disclosure,
    the appellants say the jury was left to speculate as to the nature of any police
    investigations into the alibis, the extent the investigations were impeded by
    the late disclosure, the effect any impediment might have had on the weight of
    the defence, and the effect of all these factors on whether one or both alibis
    raised a reasonable doubt.

[32]

In
    respect of Mark Cain, it is submitted that this error was a double whammy
    because of a further instruction to be cautious in considering Williamss
    videotaped testimony, which had not been subject to cross-examination.

[33]

We
    do not agree that the trial judge erred in giving late alibi adverse inference
    instructions.

[34]

It
    was obvious on the record that investigation of both alibis was hampered by the
    late disclosure. This was a case in which early disclosure was critical to a
    proper investigation of both alibis. The police had to be able to assess the
    accuracy of each alibi witnesss estimate of the timing of the movements of the
    accused. Witnesses who were present testified that the home invasion and murder
    occurred within a matter of minutes. The alibis of both accused involved being
    at a location close to the murder scene. From the perspective of the alibi
    witnesses, the events about which they would have been testifying would
    otherwise have been ordinary and easily forgettable.

[35]

Jason
    Cains alibi placed him at the home of Mairs and Richard during the evening the
    shooting took place. Had police been able to interview Richard and Mairs closer
    to the time of the murder, they may have been able to resolve significant
    discrepancies concerning the presence of Cindy the babysitter, the time that Richard
    returned home from work on the day in question, and the time at which the news
    of the shooting appeared on television.

[36]

Late
    disclosure of Mark Cains alibi deprived police of the ability to speak with
    Williams as disclosure that Williams was the alibi witness was not made until
    after he was dead. While the police were able to interview Paul Clancy, there
    was no hint that the defence was going to rely upon him as an alibi witness.

[37]

In
    any event, the instructions were appropriate and can scarcely be termed adverse.
    The jury was told that there was no evidence that police investigation was
    frustrated by the late disclosure or that the investigation was compromised by
    the delay and that, depending on their view of the timeliness of disclosure,
    they may, not must, accord less weight to the alibi. This can be seen in the
    trial judges instruction given in respect of Jason Cain:

Proper disclosure of an alibi has two components, adequacy and
    timeliness. In this case, the more important component is timeliness.

Depending on your view of the timeliness of the disclosure of
    the alibi, you may, not must, accord less weight to the alibi. It will be for
    you to determine whether the alibi was disclosed in adequate time to permit the
    police to conduct a meaningful investigation. You will recall that both Ms.
    Richard and Mr. Mairs were interviewed by the police in February of 2009. There
    is no other evidence of the police efforts to investigate, or evidence of their
    investigation being frustrated.

[38]

Accordingly,
    we reject this ground of appeal.

ISSUE #2: THE CONCOCTION THEORY

[39]

On
    September 26, 2006, Jason Cain was stabbed and severely injured. Dezroy
    Williams, a cousin of Mairs, was charged with Jason Cains attempted murder,
    but was discharged at his preliminary hearing.

[40]

In
    her closing address, the Crown suggested that Richard, Mairs, Jason Cain and his
    mother, Loretta Cain Williams, conspired to concoct an alibi for Jason Cain in
    exchange for Jason Cain refusing to identify Dezroy Williams as the man who
    stabbed him. She asked the jury to disbelieve the alibi witnesses because they
    had a motive to lie. She also invited the jury to reject the alibi as
    incredible and unworthy of belief.

[41]

The
    appellants submit that there was no evidentiary basis for the Crowns theory
    and no evidence that Dezroy Williams was Jason Cains assailant. Dezroy
    Williams was not called as a witness at trial. Jason Cain never identified
    Dezroy Williams as one of his assailants. Accordingly, the appellants contend, the
    Crowns jury address was improper and the trial judge erred in putting the
    Crowns theory to the jury.

[42]

In
    his jury charge, the trial judge stated:

The other case involving Dezroy Williams being charged with the
    attempt murder of Jason Cain has limited relevancy to your deliberations. It
    may be used in your assessment of the witnesses Althea Richard and Damion
    Mairs credibility. It may or may not assist you in assessing whether either or
    both had any motive to assist Jason Cain in providing an alibi. It may or may not
    help you understand the state of mind of either of these witnesses. The Dezroy
    Williams case cannot be used for any other purpose. In the end, you can accept
    some, all or none of what Ms. Richard and/or Damion Mairs said.

[43]

We
    do not accept this submission. In our view, neither the trial judges charge on
    this matter nor the Crowns closing address to the jury was inappropriate.

[44]

There
    was a basis in the record for the Crowns contention that the alibi evidence
    was not worthy of belief. Any possibility that the jury might have erroneously
    taken the impermissible step of inferring guilt from a rejected alibi was
    overcome by the trial judges strong instruction to the contrary.

[45]

Moreover,
    the Crown did not exceed the limits placed on Crown advocacy. While the Crown did
    suggest that the alibi witnesses had concocted their evidence, at no point did
    she ask the jury to use the concocted alibi against the accused. There was a
    reasonable, good faith basis for the Crown to pursue, as a line of
    cross-examination, a theory that the witnesses colluded to concoct an alibi for
    Jason Cain. The Crown was entitled to rely upon fabrication and collusion as an
    explanation for the frailties in the witnesses evidence.

[46]

Finally,
    deficiencies in a closing address may be overcome by a timely and focused
    correction by the trial judge. Here, the judge instructed the jury that there
    was no independent evidence of concoction and explained to them the limited use
    they could make of evidence that Richard and Mairs had a motive to lie.

ISSUE #3: THE ALLEGATION THAT SHAUN WILLIAMS WAS A PARTY TO
    THE MURDER

[47]

At
    trial, Mohamed Abass, a witness to the shooting, said that he saw three
    intruders during the home invasion. Abass said that he had lied when he told
    the police on November 14, 2006, that he saw only one or two, neither of whom
    he could identify. He testified that the third man stood on the porch of the
    home, holding the door open, and did not say anything. He recognized the man,
    but did not know his name.

[48]

At
    the preliminary hearing, Abass also testified that he saw three intruders at
    the shooting. A few weeks after testifying at the preliminary hearing, Abass
    told authorities that he had seen the third man at the Malvern Mall.
[3]
He gave them the licence plate number of the car which he saw the third man
    enter.

[49]

On
    June 30, 2007, Williams was investigated by police. He was in the company of
    three other men, one of whom was recorded as driving a car with the same
    licence plate number as that which Abass had given.

[50]

During
    cross-examination of Mark Cain, the Crown alleged that Williams was the third
    assailant. Mark Cains counsel requested that the trial judge instruct the jury
    that there was no evidentiary basis to the Crowns theory.

[51]

The
    trial judge ruled otherwise. He was satisfied that there [was] some evidence
    upon which the Crown could rely to make the assertion and that it [was] not
    speculation. In his charge, the trial judge put the Crowns theory to the jury
    and outlined the opposing position of Mark Cains counsel.

[52]

The
    appellants contend that the Crowns theory, if accepted, was devastating to the
    defence. The Crown was effectively alleging that Williams was a third party
    suspect. The appellants submit that the Crown was required to demonstrate, at a
    minimum, a
prima facie
case and proof on a balance of probabilities that
    Williams was the third assailant:
R. v. Evans
, [1993] 3 S.C.R. 653, 85 C.C.C.
    (3d) 97. While the trial judge found the evidence amounted to more than
    speculation, it is unclear whether he meant that it constituted a
prima
    facie
case of Williamss involvement.

[53]

The
    appellants submit that the trial judges ruling on this issue put Mark Cains
    defence in the position of having to raise a reasonable doubt that neither he
    nor Williams were involved in the homicide. They say that if a probative
    value/prejudicial effect analysis had been applied, the equities overwhelmingly
    favoured Mark Cains position. His right to a fair trial was undermined as a
    result of the Crown alleging Williams was a party to the murder.

[54]

We
    do not accept this submission. The Crown was not bound by any special test
    before it could call the evidence of Abass identifying Williams as the third
    party to the deceaseds murder. The evidence was relevant, admissible and
    possessed significant probative value, as it rebutted Mark Cains alibi. If the
    Crown was obliged to meet the sufficient connection test, it was met in this
    case. There was evidence that Williams was at the crime scene, aiding the
    appellants, when the deceased was murdered. Abass recognized Williams as he had
    previously met him  it was not a case of a stranger being identified.

ISSUE #4: THE FABRICATED ALIBI THEORY

[55]

The
    appellants say that after the Crown accused the appellants of having fabricating
    their alibis, the trial judge gave the jury the appropriate
Parrington
[4]
instruction for how to approach the alibi evidence if they were to disbelieve
    it. He explained that the jury could not conclude that the alibis were concocted
    because there was no independent evidence of concoction.

[56]

It
    is the appellants position, however, that this instruction only served to
    confuse the jury because the trial judge did not explain what constituted independent
    evidence of concoction. Relying on
R. v. OConnor
(2002), 62 O.R. (3d)
    263, 2002 CanLII 3540 (C.A.), they say that the trial judge was required to
    inform the jury of the danger of blurring the Crowns burden to prove the
    offence with the appellants failure to provide a credible alibi. They contend
    that if the jury accepted the Crowns theory of fabrication, it is likely that they
    would have moved straight to guilty verdicts without proper consideration of
    whether the Crown had proven its case beyond a reasonable doubt.

[57]

We
    see nothing in this ground of appeal. The jury was instructed that there was no
    independent evidence that either alibi was concocted and that, if they rejected
    the alibis, they could not use that as positive evidence of guilt. This would
    not have confused the jury.

ISSUE #5: THE UNRELATED DISCREDITABLE CONDUCT ALLEGATION

[58]

More
    than two years after the deceased was killed, Edmund Williams told police about
    an earlier altercation that he had witnessed between Mark Cain and the deceased.
    Edmund Williams, Mark Cain, the deceased and an unidentified fourth man were in
    Edmund Williamss kitchen. Mark Cain and the deceased became agitated. Mark
    Cain produced a gun and pointed it at the deceaseds stomach. Edmund Williams
    separated them and asked Mark Cain to leave.

[59]

It
    is unclear precisely when this event occurred. When interviewed by police,
    Edmund Williams stated it happened ten months before the homicide but during a
voir
    dire
he said that it occurred three or four months prior to the homicide.

[60]

Following
    the
voir dire
, the trial judge ruled that this discreditable conduct
    evidence was admissible. He found that the evidence was extremely relevant and
    probative of key issues in [the] trial  in particular the relationship
    between Mark Cain and the deceased  such that its probative value outweighed
    its prejudicial effect.

[61]

This
    ruling was made early in the trial. As the trial proceeded, further evidence
    indicated that Mark Cain visited the deceased often and attended the deceaseds
    birthday party, which was ten days before the homicide.

[62]

The
    appellants asked the trial judge to reconsider his ruling. They argued that the
    frequency of innocuous contact between Mark Cain and the deceased following the
    alleged incident removed any possibility that the incident contributed to the
    homicide.

[63]

The
    trial judge again found the evidence was admissible.

[64]

The
    appellants submit that the trial judges analysis of the probative value and
    prejudicial effect of admitting the evidence was unreasonable and undermined by
    legal error. The evidence, if true, described an isolated event in a setting of
    social contact and amicability between the deceased and Mark Cain. Edmund
    Williamss testimony suffered from a number of deficiencies which further
    undermined its probative value. He gave conflicting time frames for the event
    and did not report it until over two years after it occurred. He claimed there
    were witnesses but provided no names. Further, the trial judge relied on three
    decisions of this court concerning domestic violence in which a previous
    history of violence was alleged. The appellants say this was in error, in light
    of this courts more recent decision in
R. v. Johnson
, 2010 ONCA 646,
    262 C.C.C. (3d) 404.

[65]

In
Johnson
, Rouleau J.A. discussed the admissibility of motive evidence in
    the context of past misconduct allegations. At paras. 99-101, he stated:

It is not sufficient for the Crown to identify some past
    conflict between an accused and a victim, and then speculate that it
    establishes animus and therefore motive. The Supreme Court in

R.
    v. Barbour
,

1938 CanLII 29 (SCC)
,

[1938] S.C.R.
    465
, at p. 469
, warned that it is
    rather important that the court should not slip into a habit of admitting
    evidence which, reasonably viewed, cannot tend to prove motive or explain the
    acts charged merely because it discloses some incident in the history of the
    relations of the parties.

Thus, evidence of past misconduct that is woven into a
    speculative theory of motive does nothing more than bring in the bad character
    of the accused, and ought to be excluded on the basis that its prejudicial
    value exceeds any small probative value it might have: see, e.g.

R. v. Smith
,

1992 CanLII
    79 (SCC)
,

[1992]
2 S.C.R. 915
, at pp. 938-941
.

On the other hand, evidence that provides the trier of fact
    with real insight into the background and relationship between the accused and
    the victim, and which genuinely helps to establish a

bona
    fide

theory
    of motive is highly probative, even in the absence of similarity with the
    charged offence: see, e.g.

R. v. Moo

(2009),

247 C.C.C. (3d) 109 (Ont. C.A.)
, at paras. 70-109
.

[66]

The
    appellants say that evidence of a single previous act of threatening behaviour
    towards the deceased, months before the homicide, in an unknown context that
    differed from the homicide, should not have been admitted. They further contend
    that the trial judge erred in his prejudicial effect analysis. The lack of
    information provided by Edmund Williams meant that, besides denying that the
    event had occurred, there was little else Mark Cain could do. The chances of
    the defence being able to investigate such an incident with no date, no names
    and no leads, in the hope that it could prove the event did not happen, were
    virtually non-existent.

[67]

In
    our view, evidence that Mark Cain pressed a gun into the deceaseds stomach a
    few months prior to the shooting was plainly admissible. It was highly
    probative of the nature of the relationship between Mark Cain and the deceased;
    it showed some animus between the deceased and Mark Cain, which relates to
    motive; it was evidence of Mark Cains means to commit the offence; and it is
    some circumstantial evidence suggesting a disposition for the act in issue.

[68]

Further,
    the trial judge reasonably concluded that any prejudice flowing from admission
    of the evidence was limited. That limited prejudice was further reduced by the trial
    judges clear instruction to the jury that, if believed, the evidence was just
    one piece of evidence about the relationship between Mark Cain and the deceased
    and was to be assessed in light of its frailties.

ISSUE #6: NO
VETROVEC
WARNING ON MOHAMED ABASSS
    EVIDENCE

[69]

Mohamed
    Abass was a central Crown witness. The appellants contend that the trial judge
    should have viewed a
Vetrovec
warning for this witness as mandatory: the
    trial was lengthy, the verdict was likely to turn on Abasss testimony, and Abass
    was an admitted perjurer on the most material issue at trial, namely, the
    identification of Mark Cain and Shaun Williams as two of the perpetrators.

[70]

The
    appellants submit that the trial judge made three legal errors in exercising
    his discretion and failing to give a
Vetrovec
caution. First, he
    accepted the Crowns submission that lying under oath happens frequently in
    Scarborough, which was not a legitimate basis on which to deny a
Vetrovec
warning. Second, the trial judge apparently accepted Abasss explanation for
    his lies. (Abass testified that he did not tell the truth to police in the
    interview right after the shooting because he was afraid for his own safety and
    that of his family.)  It was for the jury, with the assistance of a
Vetrovec
caution, to decide whether Abass was truthful to the police or truthful at
    trial. Third, the trial judge incorrectly stated that he would have been
    obliged to list the evidence capable of supporting Abasss testimony had he
    given the
Vetrovec
caution.

[71]

We
    see nothing in this ground of appeal.

[72]

We
    accept that it would be improper for the court to proceed on that basis that
    lying under oath happens frequently in Scarborough.  However, we do not read
    the charge as indicating that the trial judge acted on that basis.

[73]

The
    trial judge acted within his broad discretion in refusing to give the standard
Vetrovec
caution. Abass was not an unsavoury character. The manner in which his
    final account of the shooting developed, as compared to his initial police
    interview, was fully explored during cross-examination, closing submissions and
    the jury charge. The trial judges caution was sufficient to equip the jury
    with an understanding as to why they should proceed with caution before relying
    on Abasss evidence. Moreover, had he given the formal warning, it would have
    been accompanied by a list of supporting evidence:
R. v. Khela
, 2009 SCC
    4, [2009] 1 S.C.R. 104, at para. 46. The prejudicial impact of repeating that
    evidence on the other appellant, Jason Cain, was necessarily a factor that the
    trial judge considered in deciding whether to issue the
Vetrovec
caution.

ISSUE #7: THE VOICE AND EYEWITNESS IDENTIFICATION EVIDENCE
    INSTRUCTION

[74]

Eron
    Oliver was in the deceaseds kitchen at the time of the shooting. He testified
    that he heard Jason Cain and Mark Cain in the living room, telling everybody to
    get down on the ground, and that he recognize[d] the voices, because [he] knew
    the voices. He also said that after the shots were fired, he went into the
    living room and saw Mark Cains back as he left through the front door. On the
    night of the homicide, however, Oliver told police that he could not see the
    person responsible, but recognized the voices.

[75]

The
    trial judge instructed the jury that they must be very cautious about relying
    on eyewitness or earwitness testimony to find Mark or Jason Cain guilty of the
    offence charged. He explained that wrongful convictions and miscarriages of
    justice have occurred because eyewitnesses have made mistakes in identifying
    persons who they saw committing a crime.

[76]

The
    appellants submit that the trial judges instruction regarding this type of evidence
    was insufficient. They say that Olivers voice identification evidence was of
    minimal probative value but dangerously convincing. His testimony changed
    significantly over time and a stronger caution was required on the basis of
    this courts statement in
R. v. Masters
, 2014 ONCA 556, at para. 47:

We agree that it might have been preferable for the trial judge
    to have cautioned the jury about the dangers inherent in voice comparisons and
    voice identification evidence. Such instructions might have included reference
    to the risk of relying on their own untrained ears, or those of a witness, none
    of whom had the benefit of equipment or training that would be available to an
    acoustic phonetician; the fact that witness confidence in voice identification
    does not make the identification reliable; the importance of considering the
    length and quality of the voice samples; the availability of high quality
    non-distorting playback systems; and, if applicable, the difficulties inherent
    in cross-racial voice identification:
Pinch
at para. 75.
Nonetheless,
    having regard to the other evidence implicating the appellant we are not
    satisfied that such a caution was mandatory in this case
. [Emphasis added.]

[77]

The
    appellants further submit that the trial judge should have instructed the jury
    that Olivers eyewitness testimony did not constitute evidence of eyewitness
    identification. They say the trial judges instruction that it would be
    dangerous to rely on Olivers eyewitness identification of Mark Cain by seeing
    the back of his head was insufficient.

[78]

Finally,
    the appellants submit that the trial judge erred by giving the jury
    insufficient instructions regarding the eyewitness evidence of Cecil Graham. Graham
    described the second assailant in a manner that starkly contrasted with Mark
    Cains appearance. He believed the man was six feet tall, built like a football
    player, and 18 years of age or younger. Mark Cain was five feet, six inches
    tall, 120 pounds, and 36 years of age at the time of the shooting. Graham also
    described a third person standing near the door.

[79]

The
    trial judge instructed the jury that [i]t is for you to decide, but [Cecil
    Grahams] description of [the second assailant] does not appear in any way to
    match Mark Cain either in age or height. He also noted that Graham described
    a third person at the front door, who he described as a person he believed was
    wearing something red.

[80]

The
    appellants contend that this instruction was insufficient. They say the trial
    judge should have explained that, if the jury accepted Cecil Grahams
    description of the second assailant as being inconsistent with Mark Cains
    appearance, there was a fatal flaw in the Crowns theory that Mark Cain was one
    of the men who entered the home.

[81]

Again,
    we see nothing in this ground of appeal.

[82]

The
    instructions to the jury generally, and with respect to Graham and Oliver
    specifically, were sufficient to highlight the potential dangers of relying on
    their evidence. The trial judge stressed that the jury was to be very
    cautious about relying on eyewitness and voice identification. He also told
    the jury to consider the circumstances in which the witness made the
    observation, the description given by the witness after making the
    observations, and the circumstances of the witnesss identification of the
    accused as the person whom he saw.

[83]

The
    appellants attacks on Olivers evidence were squarely before the jury as a
    result of cross-examination and both defence closing statements. Furthermore, in
    his instruction regarding Grahams identification evidence, the trial judge
    highlighted the very concerns raised by the appellants on appeal.

DISPOSITION

[84]

Accordingly,
    the appeals are dismissed.

Released: November 25, 2015 (E.E.G.)

E.E. Gillese
    J.A.

David Watt J.A.

G. Pardu J.A.

[1]
There is some discrepancy in the record as to whether Williamss first name is
    Shaun or Shawn. The spelling Shaun adopted in these reasons is that used
    in his videotaped statement to counsel dated November 20, 2006. For simplicity,
    we refer to him as Williams in these reasons. Other individuals with the same
    last name are referred to by their first and last names to avoid confusion.

[2]
There is some discrepancy in the record as to whether Altheas last name is
    Richard or Richards. The spelling Richard is used in these reasons, based
    on the trial transcript of her examination-in-chief.

[3]
Abass testified that he attempted to call a detective involved in the
    investigation to provide him with the licence plate, but the detective was
    unavailable so he called the victim-witness coordinator instead.

[4]

R. v. Parrington
(1985), 20
    C.C.C. (3d) 184 (Ont. C.A.).


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cox, 2015 ONCA 769

DATE: 20151110

DOCKET: C58141

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Cox

Appellant

Richard A. Fedorowicz, for the appellant

Craig Harper, for the respondent

Heard and released orally: November 6, 2015

On appeal from the conviction entered on August 1, 2012,
    with reasons reported at 2012 ONSC 4397, and the sentence imposed on September
    7, 2012 by Justice Michael Code of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant, Tristan Cox, appeals from his conviction on robbery and
    firearm-related charges stemming from the robbery and shooting of Arif Berkedle
    in a FIDO retail store in the Jane-Finch Mall.  The appellant also seeks leave
    to appeal from the sentence imposed of 11 years imprisonment, less 22 months
    pre-sentence custody.

CONVICTION APPEAL

[2]

On his conviction appeal, the appellant advances two main arguments.

Misapprehension of Evidence

[3]

First, the appellant submits that the trial judge misapprehended
    material evidence by disregarding two pieces of evidence.  The first was the
    medical evidence concerning the entry point and trajectory of the bullet in the
    thigh of the shooting victim, Berkedle.  The treating surgeon testified that
    the gunshot had entered the lower, back portion of Berkedles right thigh and
    exited the front of the thigh just above the knee.  The appellant submits that
    this evidence corroborated the appellants testimony that Berkedle had produced
    and discharged the firearm, yet the trial judge gave it no weight.

[4]

The second piece of evidence was the agreed fact that no gunshot residue
    (GSR) particles were identified on the tapelift samples from the hands of the
    appellant.  The appellant submits that trial judge made no reference to the GSR
    evidence, yet that evidence undermined the Crowns theory that the appellant
    shot Berkedle.

[5]

We do not accept the appellants argument.  The trial judge did not
    disregard the medical evidence about the trajectory of the gunshot.  He fully
    and accurately summarized the evidence in paras. 45 and 46 of his reasons.  He took
    it into account, but concluded that the evidence did not assist in resolving
    the central issue of credibility concerning who fired the gun during the
    robbery because the evidence was just as consistent with the appellant firing
    the gun while Berkedle turned away.

[6]

The evidence could not reasonably be understood as demonstrating the
    exact positions of the appellant and Berkedle when the shot was fired.
    According to the appellant and the co-accused, they were struggling, and
    according to the evidence of Berkedles sister, which was accepted by the trial
    judge, they were pushing.  Given the state of that evidence, it was open to the
    trial judge to place greater weight on the other evidence to resolve the
    central issue of credibility.

[7]

Although the trial judge did not refer to the GSR evidence in his
    reasons, during an exchange with appellants counsel in closing submissions the
    trial judge explained that he could not take judicial notice of whether a
    person should or should not have GSR on his hands after firing a gun.  Expert
    evidence was required, in the trial judges view, and the appellant did not
    call any on that issue.  We agree with the trial judges approach to the GSR
    evidence.

Application of Different Standards of Scrutiny to the Evidence

[8]

The appellants second submission is that the trial judge subjected the
    evidence of the defence to a stricter level of scrutiny than that of the
    Crown.  We see no merit in that argument.  In his reasons, the trial judge
    meticulously reviewed the evidence and explained clearly how he resolved the
    central issue of credibility concerning who was carrying the gun during the
    robbery.  In paragraphs 24 through 35 of its factum, the Crown argues that when
    the specific impugned findings of the trial judge are read within his larger
    treatment of the evidence, no uneven scrutiny of the evidence is disclosed.  We
    accept that submission of the Crown.  When read in their totality, the trial
    judges reasons disclose that he scrutinized the evidence with an even hand.

[9]

The appellants appeal from conviction therefore is dismissed.

SENTENCE APPEAL

[10]

The
    appellant advances three grounds of appeal in respect of the 11-year sentence
    imposed on him.

Treatment of Aggravating and Mitigating Factors

[11]

First,
    the appellant submits the trial judge erred in his treatment of the aggravating
    and mitigating factors for sentencing.  Specifically, the appellant contends
    the trial judge erred in finding that the offence was planned to some extent,
    thereby acting as an aggravating factor, while at the same time giving
    insufficient weight to the appellants youth and prospects for rehabilitation.

[12]

We
    do not accept this submission.  Ample evidence supported the trial judges
    finding that the robbery was planned to some extent, including the evidence of a
    store owner, Mr. Saini, who testified that he saw the appellant and his co-accused,
    Mr. Koroma, walk and talk together for about five minutes in the vicinity of
    the FIDO store, as well as the evidence of his co-accused who told the
    appellant he was going to punk off Mr. Berkedle and take money from him.

[13]

The
    trial judge expressly identified the appellants youth and status as a first
    offender as mitigating factors.  He observed that given the appellants age,
    there was still hope he could change.  However, he concluded that the
    appellants prospects of rehabilitation were not particularly strong.  That
    finding was open to the trial judge to make on the evidence before him, as was
    his finding that the fact the appellant was a first offender was far
    outweighed by the fact that he fired the gun in a crowded public place causing
    life-threatening injuries to the victim, all in furtherance of some petty or
    criminal grievance.

Fitness of Sentence

[14]

The
    appellants second submission is that the total sentence imposed was excessive
    because the trial judge misidentified the upper range of sentence for the
    offence of discharging a firearm with intent to endanger life. According to the
    appellant, the established range of sentence for the discharge of a firearm in
    the course of a robbery, resulting in the wounding of a person, is seven to
    eleven years.

[15]

The
    appellant concedes the sentence imposed of 11 years does fall within that
    range, although at the upper end.  We agree with that concession to the extent
    that most sentences will fall within the 7 to 11 year range, although there may
    be significantly higher sentences: see
R. v. Young
, 2009 ONCA 891,
    leave to appeal refused 2011 CanLII 80853 (S.C.C.).

[16]

The
    trial judge gave lengthy reasons for the sentence he imposed.  He situated the
    appellants offences in the mid-range as they were very serious, and he arrived
    at a range of 11 years concurrent for Counts 1 and 3  robbery while armed with
    a firearm and the discharge of a firearm at Berkedle with the intent to
    endanger his life.  We see no error in his reasons.  The sentence was entirely
    fit given the nature and location of the offences.

Credit for Pre-Sentence Custody

[17]

The
    final ground of appeal of the sentence concerns the trial judges award of
    credit for pre-sentence custody at 1:1 for the 22 months of pre-sentence
    custody.  Sentencing in this case took place before the decision of the Supreme
    Court of Canada in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.
    In light of that decision, the appellant submits that he is entitled to credit
    at a rate of 1.5:1.  The Crown concedes the point, and we see no reason in this
    case to depart from the general approach set out in
Summers
of
    awarding credit for pre-sentence custody at the rate of 1.5:1.

[18]

We
    agree that the effective sentence should be 11 years as imposed by the trial
    judge.  Giving full credit for the presentence custody, the actual sentence on
    Count 3 is varied from 9 years, 2 months to 8 years, 3 months.  The sentences
    on the other counts, which were all concurrent to the sentence on Count 3,
    remain the same.

[19]

Accordingly,
    we grant the appellant leave to appeal his sentence, and the sentence is varied
    accordingly.

Doherty
    J.A.

S.E.
    Pepall J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D'Souza, 2015 ONCA 805

DATE: 20151123

DOCKET: C57869

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sherwin DSouza

Appellant

Mark Halfyard, for the appellant

Andrew Wiese, for the respondent

Heard and released orally: November 20, 2015

On appeal from the sentence imposed on October 8, 2013 by
    Justice S. Rebecca Shamai of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of trafficking marijuana. He placed an
    advertisement on the website Craigslist offering to sell half an ounce (14 to
    28 grams) of marijuana. An undercover officer responded to the ad, saying that
    he needed a quarter pound (110 grams approximately). The appellant agreed to
    sell this amount for $750. The appellant and the undercover officer met at the
    Scarborough Town Centre and the transaction took place. The appellant was
    arrested immediately thereafter.

[2]

The appellant pleaded guilty. The Crown proposed a conditional sentence
    of 120 days. The defence argued for a conditional discharge. The sentencing
    judge imposed a $750 fine, with six months to pay.

[3]

The appellant appeals the sentence. He contends that a youthful first
    offender with good prospects does not deserve a criminal record. He says that
    the sentencing judge erred in principle by interpreting the public interest too
    narrowly and by ruling that the nature of the offence, on its own, could not
    warrant a discharge.

[4]

We accept the appellants submission. The appellant has taken remarkable
    steps to change his way of life, including successful treatment for his
    addiction to marijuana, substantial volunteer work, part-time employment, and
    full-time university studies. The trial judge recognized the appellants
    progress, but seemed focussed heavily on general deterrence. In the
    circumstances of this case, we think there was room to recognize that a
    criminal record for this first time youthful offender was not necessary.

[5]

The appeal is allowed. The conviction and the $750 fine are set aside.
    We would impose a conditional discharge with the condition only that he keep
    the peace and be of good behaviour for one year.

J.C.
    MacPherson J.A.

M. Tulloch
    J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Filipovic, 2015 ONCA 761

DATE: 20151109

DOCKET: C55263

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marko Filipovic

Appellant

Otto Mok, for the appellant

Brock Jones, for the respondent

Heard and released orally: November 5, 2015

On appeal from the conviction entered on December 19,
    2011 and the sentence imposed on March 20, 2012 by Justice Donald J. Taliano of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of a single count of break, enter and
    theft arising out of the unlawful entry of a Rogers Wireless store in Niagara
    Falls and the theft of about 140 cellphones.

The Background Facts

[2]

The principal witness for the Crown at the appellants trial was a
    former employee of Rogers Wireless who admitted responsibility for the unlawful
    entry and theft. During the police investigation that followed discovery of the
    theft, this person, Julian Sniegocki, provided two statements to the police.
    The first was exculpatory. The second, which took place after police confronted
    him with more evidence, was inculpatory of Sniegocki, but also alleged culpable
    participation by the appellant.

[3]

Prior to the appellants trial, Sniegocki pleaded guilty to break, enter
    and theft and was sentenced to a term of imprisonment.

The Trial Proceedings

[4]

At the appellants trial, Sniegocki testified that nobody was with him
    when he unlawfully entered the Rogers Wireless outlet and stole the cellphones.

[5]

Crown counsel at trial applied to cross-examine Sniegocki in accordance
    with the procedure enacted by s. 9(2) of the
Canada Evidence Act
. The
    trial judge granted the Crown leave to do so. Sniegocki never adopted as true
    that portion of his statement in which he had implicated the appellant in the
    break, entry and theft. He insisted that he acted alone.

[6]

The trial judge permitted the Crown to file the statement on which he
    had granted Crown counsel leave to cross-examine Sniegocki as an exhibit in the
    proceedings. The exhibit included a DVD and a transcript of the statement.
    Crown counsel did not apply to have the statement admitted under the principled
    exception to the hearsay rule.

The Jury Instructions

[7]

The trial judge instructed the jury that they could make substantive use
    of Sniegockis unadopted prior inconsistent statement. The judge said:

It is important for you to understand how to deal with
    testimony of Julian Sniegocki and the inconsistencies with his prior
    statements.

Both the testimony and the prior statements can be used as
    evidence of what happened. In deciding whether or how much to believe of or
    rely upon the testimony of Julian, you should apply the same principles in the
    same way that you do with any other witness who testifies. You should also
    consider the fact, nature, and extent of any differences that you find between
    what the witness said here and what he said in the earlier statements in
    deciding how much or little you will believe of or rely upon as testimony at
    trial.

You may also consider the statements and exhibits as evidence
    of what happened. Like the witnesss testimony, it is for you to say how much
    or little you will believe of and rely upon the statements in deciding this
    case.

The Grounds of Appeal

[8]

The appellant did not advance either the filing of the prior
    inconsistent statement as an exhibit or the trial judges instructions about
    its use as a ground of appeal.

The Concession

[9]

In the best traditions of his office, Crown counsel in this court
    acknowledged that the trial judge erred in:

i.

admitting the statement as substantive evidence without proof of the
    conditions precedent to its admissibility; and

ii.

instructing the jury that they could use the statement substantively,
    that is to say, as proof of the truth of its contents.

Discussion

[10]

We
    agree with the concessions of Crown counsel. The unadopted prior inconsistent
    statement should not have been admitted as an exhibit in the proceedings. It
    had no intrinsic evidentiary value. Unadopted and not established to be within
    the principled exception to the hearsay rule, it was not and could not be used
    as proof of the truth of its contents. To be more specific, it was not and
    could not be used to establish, or to help to establish that the appellant
    committed the offence with which he was charged. The trial judge erred in law
    in instructing the jury that they could use the statement as proof of the truth
    of its contents in reaching their decision.

Conclusion

[11]

For
    these reasons, we allow the appeal from conviction, set aside the conviction
    and enter a verdict of acquittal. In the circumstances, we do not reach the
    sentence appeal.

E.E. Gillese J.A.

David
    Watt J.A.

G.
    Pardu J.A.