WARNING

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

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

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    the complainant or a witness shall not be published in any document or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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.F., 2012 ONCA 807

DATE:  20121123

DOCKET: C53102 & C53370

Doherty, Epstein JJ.A. and Cavarzan J. (a
d hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

P.F.

Appellant

and

M.F.

Appellant

Neil Jones, for the appellant, P.F.

Crystal Tomusiak, for the appellant, M.F.

Robin Flumerfelt, for the respondent

Heard:  October 24, 2012

On appeal from the conviction entered by Justice Douglas
    K. Gray of the Superior Court of Justice on August 25, 2010, with reasons
    reported at 2010 ONSC 4018, and from the sentence imposed on October 28, 2010.

By the Court:

[1]

The appellants, who were married at one time, were charged with a series
    of sexual assaults against three young girls who lived in their home from time
    to time.  According to the dates in the indictment, the assaults occurred
    sometime between November 2000 and March 2005.

[2]

Some of the charges involved only P.F., some involved only M.F., and
    some involved both.  The Crowns case was based largely on the evidence of the
    three complainants.  The trial judge ultimately convicted the appellants on
    most charges.  He did, however, acquit M.F. on the allegations on which she was
    charged alone.

[3]

The appellants appeal their convictions and the sentences imposed at
    trial.  Counsel for the appellants advised during oral argument that they would
    make no submissions in support of the sentence appeals.

[4]

P.F. testified and M.F. did not testify.  According to P.F.s testimony,
    there was no sexual activity with the complainant T.K., and the alleged assault
    on the complainant A.L. involved an inadvertent touching.  Most of P.F.s evidence
    related to the complainant A.P.  He testified that he did engage in sexual
    activity with A.P. and that M.F. was involved in some of that sexual activity.
    It was P.F.s evidence, however, that all of the activity was consensual and some
    of it was initiated by A.P.  At the time of the alleged assaults, A.P. was 15 years
    old, was living in the appellants home and was the girlfriend of M.F.s son
    who also lived in the home.

[5]

Counsel for the appellants raised several grounds of appeal.  In oral
    argument, they helpfully distilled their arguments down to two main submissions.
    First, counsel submit that the trial judge erred in drawing an adverse
    inference against the credibility of P.F. because the complainant A.P. was not
    cross-examined about certain documents referred to and relied on by P.F. in his
    testimony to demonstrate the consensual nature of the sexual activity with A.P.
    This submission raises the proper application of the so-called rule in
Browne
    v. Dunn
, [1893] 6 R. 67 H.L. (Eng.).

[6]

The second argument raised by counsel for M.F. rests on the contention
    that the trial judge failed to give adequate, separate consideration to the
    case against M.F. and misapprehended evidence relevant to her defence.  Counsel
    submits that the trial judge moved directly from findings of fact made against P.F.
    to the same findings against M.F.  Counsel acknowledges that M.F. relied on P.F.s
    testimony but submits that she had defences that were distinct from those
    advanced by P.F. in his evidence.  Counsel contends that the trial judge failed
    to address those issues.

the
brown
E
v. dunn
complaint

[7]

P.F. testified that on several occasions, A.P. signed documents
    consenting to sexual activity with him.  It is unclear whether those consents
    extended to M.F.  According to P.F., he took the precaution of obtaining
    written consents because he had been accused of sexual assault in the past.  P.F.
    also testified that the documents had been lost some time prior to trial.

[8]

A.P. had testified during the case for the Crown.  She was
    cross-examined at length.  She was not, however, asked any questions about the
    alleged consent forms and it was not suggested to her that she had signed
    anything at any time agreeing to sexual activity with the F.s.

[9]

The defence did not seek to recall A.P. after P.F. had testified.  The
    Crown did not attempt to call A.P. in reply.

[10]

In
    the course of closing submissions, the trial judge raised the question of the
    effect, if any, of the failure to cross-examine A.P. on the written consents
    she had allegedly given to P.F.  The trial judge indicated that the failure to
    cross-examine A.P. raised a real dilemma. He suggested various possibilities,
    including the possibility of drawing an inference against the credibility of P.F.s
    testimony that A.P. had signed the consents.  Defence counsel argued that no
    such inference should be drawn.  In contrast, Crown counsel urged the trial
    judge to draw that adverse inference.  No one suggested that the evidence should
    be reopened to recall A.P.

[11]

The
    trial judge ultimately determined, at para. 29 of his reasons, that the
    failure of counsel for the accused to cross-examine [A.P.] on certain matters
    testified to by Mr. [F.] does effect, to some extent, the credibility of the
    evidence given by Mr. [F.].

[12]

In
    his oral submissions, counsel for P.F., properly in our view, conceded that the
    nature of P.F.s evidence about the consents and the failure to cross-examine
    A.P. on those consents could, in law, attract a negative inference against the
    credibility of that part of Mr. F.s evidence.  Counsel submits, however, that the
    drawing of that adverse inference in this case rendered the trial unfair.

[13]

Counsel
    submits that the unfairness to the appellants flowing from the trial judges
    ruling lies primarily in the drawing of an adverse inference against P.F.s
    testimony after denying him the opportunity to put the contested evidence to
    A.P.  Counsel further submits that unfairness also flows from the drawing of an
    adverse inference when the Crown did not object to P.F.s evidence about the consents
    during his examination-in-chief.

[14]

The
    record does not support the premise underlying the first basis upon which
    unfairness is alleged.  Neither counsel for the Crown nor counsel for the
    appellants sought to recall A.P. after P.F. had testified.  During argument, when
    the trial judge raised the question of the effect of the failure to
    cross-examine A.P. on the alleged consents, there was some discussion about the
    Crowns ability to recall the complainant at that stage of the trial.  We do
    not, however, read that exchange as in any way foreclosing counsel for the
    appellants from asking that A.P. be recalled to give evidence concerning the
    consents.  Quite simply, counsel never sought to recall A.P. and the trial
    judge was never called upon to determine whether A.P. could be recalled.

[15]

The
    second basis upon which the unfairness claim is advanced must also be rejected.
    It is unclear to us that the Crown had any grounds to object to P.F.s evidence
    about the consents.  In any event, the Crown may have viewed the evidence as
    ultimately favourable to the Crown because it was so patently unbelievable.  However,
    whatever the Crown may have thought of the evidence has no relevance to the
    inference, if any, that the trial judge, as the trier of fact, should draw from
    the failure to put the consents to A.P. when she was testifying.

[16]

We
    also do not accept counsels characterization of the trial judges ruling as
    effectively placing the burden of a lawyers tactical error on the appellants.
    There is nothing in the record to suggest that counsel made any error in
    judgment in not cross-examining A.P. about the consents referred to in P.F.s
    evidence, or in not asking the trial judge to recall A.P. for the purpose of
    putting P.F.s evidence about the consents to her.  The adverse inference drawn
    by the trial judge had nothing to do with an assessment of the wisdom of any
    tactical choices.  The inference was drawn in the course of the trial judges
    weighing of the evidence that had been placed before him.  He was fact finding,
    not assigning blame for the manner in which the defence was conducted.

[17]

Counsel
    for M.F. submits that even if the trial judge properly drew the adverse
    inference against P.F., he should not have drawn that inference in respect of
    the case against M.F.  We see no basis for that distinction.  P.F.s evidence
    was admissible for and against M.F.  She relied on large parts of his testimony
    including his evidence that the sexual activity with A.P. was consensual.  To
    the extent that the failure to cross-examine A.P. on the alleged consents
    undermined the credibility of P.F.s evidence that the sexual activity was
    consensual, it was bound to adversely affect M.F.s case.

[18]

The
    submissions based on the alleged misapplication of the so-called rule in
Browne
    v. Dunn
fail.

M.F.s other arguments

[19]

Counsel
    for M.F. argues that the trial judge misapprehended material evidence in
    finding that M.F. was a party to two assaults against A.P.  Counsel further
    contends that the trial judge failed to give M.F.s case adequate separate
    consideration from that of P.F.  Counsel contends that the trial judge moved
    directly from her findings against P.F. to the same findings against M.F.  She
    argues that M.F. was in a somewhat different position as there was evidence,
    particularly from P.F.s nephew, to support the contention that M.F. was not
    involved in the sexual activity with A.P.

[20]

In
    support of the argument that the trial judge misapprehended material evidence,
    counsel referred to para. 327 of his reasons:

According to Mr. [F.], there were two consensual threesomes
    involving [M.F.], and the incident involving the dildo was a consensual act
    that involved only [A.P.] and himself.

[21]

Counsel
    submits that in his evidence P.F. described only one consensual threesome and
    not two.

[22]

Counsel
    is correct in the sense that P.F. referred to only one threesome during which
    M.F. was an active participant in the sexual activity.  He did testify,
    however, M.F. was on the bed with him and A.P. on a second occasion when P.F.
    and A.P. were engaged in consensual sexual activity.  We read the trial judge
    as referring to these two incidents in his summary of the evidence at para.
    327.  Read in this way, there was no misapprehension of the evidence.

[23]

In
    any event, even if there was some misapprehension of P.F.s testimony, that
    misapprehension was not material to the result.  The trial judge did not rely
    on only P.F.s evidence to establish the participation of M.F. in the sexual
    activity involving A.P.  The trial judge relied on A.P.s evidence, which
    clearly established that participation.  Even the most narrow reading of P.F.s
    testimony offered strong support for A.P.s evidence that M.F. was involved in
    two of the assaults.

[24]

We
    also reject the submission that the trial judge failed to give adequate
    separate consideration to M.F.s culpability.  While it is true that much of
    the trial judges reasons focused on P.F.s testimony, that focus was
    inevitable given that P.F. testified and M.F. did not.

[25]

The
    trial judges careful credibility findings as they related to the three
    complainants and P.F., applied to the Crowns case against M.F.  Given those
    findings, any claim that M.F. was unaware of the assaults on A.P. was bound to
    fail.  Having found that M.F. was present during two of the assaults and having
    accepted A.P.s evidence that she was actively involved in those assaults, the
    trial judge implicitly rejected any suggestion based on the evidence of the
    nephew that M.F. only became aware of the assaults some time after they
    occurred.

conclusion

[26]

The conviction appeals are dismissed.  We see no merit to the sentence
    appeals and they are also dismissed.

RELEASED: DD NOV 23 2012

Doherty
    J.A.

Gloria
    Epstein J.A.

Cavarzan
    J. (per Doherty J.A.)

CORRECTED DECISION:

Correction made on March 29,
    2021: In light of the publication ban, the appellants names have been put into
    initials.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Pham, 2012
    ONCA 746

DATE: 20121102

DOCKET: C53440

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thai Quoc Pham

Appellant

Christi Hunter, for the appellant

Sarah Shaikh, for the respondent

Heard: November 2, 2012

On appeal from the sentence imposed on June 29, 2010 by
    Justice Bruce Durno of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that the trial judge considered the principle of parity
    and its application to the appellant and the others involved in the conspiracy
    (see pp. 20-24 of the trial judges reasons).  We are not persuaded that he
    erred in the sentence he imposed.

[2]

Leave to appeal sentence is granted but the sentence appeal is
    dismissed.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.M., 2012 ONCA
    762

DATE: 20121109

DOCKET: C53987

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Delmar Doucette, for the appellant

Scott Latimer, for the respondent

Heard: November 5, 2012

On appeal from the conviction entered on April 1, 2011 by
    Justice G.M. Mulligan of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant and his wife were foster parents to the complainant and
    her three siblings. The complainant was approximately eight years old when she
    became their foster child. When the complainant was 15 years old, she left the
    foster home after an argument about cell phone use. She did not return to the
    foster home. She did not report any sexual improprieties to foster home staff,
    Childrens Aid Society staff or the police, prior to or on her departure from
    the home.

[2]

Eighteen months later, when the complainant was 17 years old, she told
    police that the appellant had sexual intercourse with her on many occasions
    over a three-year period when she was 12 to 15 years old.

[3]

The appellant was charged with one count of sexual assault and sexual
    exploitation and two counts of sexual interference. On April 1, 2011, the trial
    judge found the appellant guilty on all four counts.

[4]

On September 16, 2011, the trial judge imposed a custodial sentence of four
    and one-half years imprisonment on the sexual assault count and two years imprisonment
    concurrent on the sexual exploitation count. He entered conditional stays on
    the two sexual interference counts pursuant to
R. v. Kineapple
, [1975]
    1 S.C.R. 729.

[5]

The appellant appeals against conviction. He advances five grounds of
    appeal.

[6]

First, the appellant contends that the trial judge failed to properly
    consider the evidence relating to the appellants erectile dysfunction.

[7]

We do not accept this submission. The trial judge expressly considered
    this evidence in his decision. He summarized all the evidence in this regard,
    including the appellants ex-wifes testimony that the appellant had a
    diminished sex life but was still able to perform. He also noted the
    appellants family doctors testimony that the appellant complained about a
    partial erection or an unpredictable erection. All this was consistent with
    the complainants description of the appellants sexual assaults on her  brief
    penetration with no ejaculation.

[8]

Second, the appellant asserts that the trial judge failed to properly
    consider the complainants inconsistent statements in three domains: (1) a
    false allegation made in her initial police statement; (2) her previous denials
    to her sister and police that she had been sexually assaulted by the appellant;
    and (3) her inconsistent statements about the number and frequency of the
    sexual assaults.

[9]

We disagree. The complainant did not assert that a sexual assault took
    place on December 17, 2007, her last day in the foster home; what she described
    was her belief that the appellant intended to assault her on that day. The
    trial judge dealt with the second point at some length, noting specifically
    that the complainant considered herself to be lucky to be in the ... home...
    with three siblings and all the other advantages that home offered, and was
    understandably reluctant to complain of abuse.

[10]

On
    the third alleged inconsistency, it is true that the complainants statements
    about the frequency of the sexual assaults changed over time, beginning at 20
    to 50 times over a three-year period and rising to two to three times a week or
    even more than three times a week. It is also true that in his reasons the
    trial judge appeared to record both of these frequency frameworks as factual
    findings.

[11]

Early
    in his reasons, the trial judge said: It was [the complainants] evidence that
    there was sexual touching or sexual intercourse between 20 and 50 times over
    these years. This was an error; this was the frequency the complainant
    reported in her initial statement to the police. However, near the end of his
    reasons when he was summarizing his conclusions, the trial judge said that she
    allowed that the number of sexual contacts increased to eventually being three
    times or more per week.

[12]

The
    appellants more substantial complaint on this issue is that the trial judge
    did not grapple with the credibility-related implications of the complainants
    shifting statements regarding the number of alleged assaults over the years.

[13]

We
    disagree. After reviewing, accurately, the complainants various estimates relating
    to the frequency of sexual assaults, the trial judge concluded:

I accept her evidence as credible and truthful, on the basis
    that she was recalling events that happened when she was between 12 and 15
    years old, events that she tried to block out of her mind. Her age and lack of
    sophistication, especially when she was younger, provide context for her
    evidence. Although she expressed uncertainties about the number of times sexual
    intercourse took place, I accept that a young person would not keep an accurate
    count of intercourse with a foster father, and would be reluctant to provide
    any more intimate details than would be absolutely necessary when speaking to a
    police officer.

In our view, it was open to the trial judge to reach
    this conclusion.

[14]

Third,
    the appellant argues that the trial judge failed to consider the complainants
    new false allegation, made during her cross-examination, that sexual abuse also
    took place some mornings before she went to school.

[15]

In
    our view, when this issue arose the appellants testimony was halting and
    uncertain and, at its highest, was that there was a chance that sexual activity
    took place in the morning because he had me alone at home. The trial judge
    dealt comprehensively with the issue of the complainants credibility; he did
    not have to discuss every aspect of her testimony.

[16]

Fourth,
    the appellant contends that the trial judge did not properly consider the
    improbability of the complainants allegation, given the alleged location and
    frequency of the sexual assaults and the large number of people residing in the
    family home.

[17]

We
    disagree. The trial judge addressed this issue under the heading
The
    Opportunity To Be Alone
. He reviewed the evidence about the opportunity
    the appellant had to abuse the complainant when there was nobody else in the
    house as well as when others were at home. He pointed out that the abuse
    allegedly occurred from 2003 to 2007. (In fact, it was from 2004 to 2007).

[18]

The
    trial judge concluded as follows: Im satisfied that over this prolonged period
    of time, there were many occasions when [the appellant and the complainant]
    were at home without anyone else present or nearby. Further on he continued I
    am satisfied that there were sufficient number of evenings when [the
    complainant and the appellant] were alone in the basement recreation room.

[19]

The
    appellant points out that in reaching these conclusions, the trial judge
    incorrectly said that the complainants evidence was that there had been sexual
    touching or intercourse between 20 and 50 times over the years. In fact, the
    complainant ultimately testified that there had been sexual contact much more
    frequently than that, probably on about 200 occasions.

[20]

We
    are not persuaded that this error infected the trial judges overall conclusion
    that the complainant was a credible witness. It is clear from his reasons that
    he understood that the complainant had given different estimates as to the
    number of times she had been abused and that, nonetheless, he believed her
    evidence. Implicit in his belief of her evidence is the conclusion that the
    appellant had the opportunities to abuse her on the number of occasions she
    described. Thus, while the trial judge did misstate the complainants evidence
    on one occasion in his reasons, we are not persuaded that this mistake made a
    difference in the result.

[21]

Fifth,
    the appellant submits that the trial judge erred by rejecting the appellants
    credibility on an improper basis. In particular, he challenges this passage
    from the trial judges reasons:

A close analysis of [the appellants] evidence raised serious
    issues about his credibility as to the denial of sexual assault on [the
    complainant]. The inconsistencies in his evidence lead me to conclude that I do
    not believe his evidence with respect to the key issue of whether or not sexual
    assaults took place.

[22]

The
    appellant submits that the references to his evidence in this passage mean
    the appellants testimony and there were no inconsistencies in that testimony,
    nor did the trial judge point to any in his reasons.

[23]

Although
    on a plain reading of only the words of this passage the appellants
    interpretation is certainly possible, against the backdrop of the trial judges
    reasons read as a whole we are inclined to reject it.

[24]

The
    reality is that the appellant testified at his trial and called several
    witnesses, including his ex-wife (his wife at the relevant time), his two
    daughters, his son, and his current girlfriend. Over the course of about 15
    pages in his reasons before stating the conclusion set out in the passage
    above, the trial judge reviewed the appellants testimony and regularly
    compared it with the testimony of these defence witnesses. In this context, the
    trial judge identified several inconsistencies: for example, the appellants
    testimony that he did not shave his pubic hair versus the complainants
    testimony to the contrary as confirmed by the appellants ex-wife; the
    appellants testimony that he did not use the Viagra and Cialis he had been
    prescribed because it gave him headaches versus his ex-wifes testimony that he
    did not complain about headaches caused by this medication; and the appellants
    testimony that there was limited opportunity for the complainant to be alone
    with him after school versus his ex-wifes testimony that she was not always
    there after school.

[25]

Importantly,
    in addition to these inconsistencies, the trial judge noted that the
    complainant, who left the home at age 15, testified that the appellant was
    circumcised, had a scar on his penis and a mole on his buttocks, shaved his
    pubic hair, and had had a vasectomy. All of this was accurate; it is a
    remarkable constellation of intimate physical facts for a 15-year-old foster
    child to know about a foster father.

[26]

Taking
    these factors together, we cannot say that the trial judge erred by rejecting
    the appellants credibility.

[27]

The
    appeal is dismissed.

Released: November 9, 2012 (D.OC.)

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Sipos, 2012 ONCA 751

DATE:  20121107

DOCKET: C30833

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Peter Sipos

Appellant

James Lockyer and Michael Dineen, for the appellant

Roger A. Pinnock, for the respondent

Heard:  August 2, 2012

On appeal from the sentence imposed on March 6, 1998 by
    Justice Thomas R. Lofchik of the Superior Court of Justice.

Doherty J.A.:

I

overview

[1]

In 1998, the appellant was declared a dangerous offender and sentenced
    to an indeterminate sentence.  A risk assessment done some 12 years later in
    2010 suggests that the appellant could be released into the community under
    strict controls in about 2016.  The appellant, relying on this assessment and
    an admitted legal error made by the trial judge at the dangerous offender
    proceedings, submits that he is entitled to a new sentencing hearing.

[2]

I would dismiss the appeal.  This courts jurisdiction requires it to
    review the decision made by the trial judge at the dangerous offender
    proceeding.  That review takes into account the record before the judge and any
    fresh evidence admitted on appeal.  Despite the legal error made by the trial
    judge, I am satisfied, having regard to the evidence before the trial judge and
    the fresh evidence admitted on appeal, that there is no reasonable possibility
    that the result of the dangerous offender hearing would have been any
    different.

[3]

The 2010 risk assessment indicates that there is reason to believe,
    based on the appellants progress over the last decade, that the risk posed by
    the appellant could be adequately addressed in the foreseeable future were the
    appellant to return to the community on strict conditions.  That assessment,
    however, casts no doubt on the correctness of the decision made at the
    dangerous offender proceedings.  The
Criminal Code
expressly provides that the P
arole Board
    must review the appellants status on a regular basis.  If the risk posed by
    the appellant has lowered to a level justifying his release into the community,
    the Parole Board can make the appropriate order.  The 2010 risk assessment will
    be of assistance to the Parole Board in exercising its statutory duties.

II

procedural history

[4]

These proceedings have a long history.  The appellant was convicted of seven
    sexual offences in April 1996.  He has a lengthy record for similar offences.
    In March 1998, the trial judge found that the appellant was a dangerous
    offender and imposed an indeterminate sentence.

[5]

The appellant appealed his convictions.  He also appealed his sentence,
    however, that appeal was contingent on the appellant having at least some
    success on his conviction appeal.  The conviction appeal was dismissed in May
    2001:
R. v. J.P.S.
(2001),

50 W.C.B. (2d) 161 (Ont. C.A.).  The
    court did not address the merits of the appellants sentence appeal given the
    dismissal of the conviction appeal.

[6]

In September 2003, the Supreme Court of Canada released its judgment in
R.
    v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.  In
Johnson
, the
    court held that when the long-term offender (LTO) provisions were in effect
    at the time a dangerous offender application was heard, the trial judge was
    required to consider the LTO option even if the offences giving rise to the
    dangerous offender application occurred before the LTO provisions came into
    effect.  The LTO provisions give the trial judge the option of imposing a
    determinate sentence of at least two years combined with a long-term
    supervision order of up to ten years even though the offender meets the dangerous
    offender criteria.

[7]

The LTO provisions were introduced in 1997 (S.C. 1997, c. 17, s. 4) and
    were in effect when this dangerous offender application was heard.  It does not
    appear that the trial judge was asked to consider the LTO option and he did not
    do so.  In light of
Johnson
, he erred in law in failing to consider
    the LTO option.

[8]

The appellant brought a motion to reopen the sentence portion of his appeal
    in July 2007.  The appellant relied on the admitted
Johnson
error
    and a preliminary report prepared by Dr. McMaster, a psychiatrist.  Counsel
    have provided a detailed explanation for the delay between the release of the
    reasons in
Johnson
and the appellants motion to reopen his sentence
    appeal.  No fault can be assigned to the appellant for that delay.

[9]

In April 2008, this court set aside its previous order dismissing the appellants
    appeal from the imposition of an indeterminate sentence and granted the appellant
    leave to appeal his indeterminate sentence:
R. v. Sipos
, 2008 ONCA 325,
    235 O.A.C. 277.

[10]

In
    November 2010, Dr. McMaster provided counsel for the appellant with a detailed risk
    assessment.  About a year later, counsel for the Crown advised the appellant
    that the Crown would not seek to cross-examine Dr. McMaster or file any
    evidence in response to his 2010 report.  The appeal was perfected in March
    2012 and heard in August 2012.  Dr. McMasters assessment was admitted on
    appeal with the consent of the Crown.

III

THE IMPACT OF
R. v. JOHNSON

[11]

Before
    the LTO provisions were introduced in 1997, s. 753 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, provided that if the criteria set out in that section
    were met, the court may thereupon impose a sentence of detention in a
    penitentiary for an indeterminate period.  That section had been interpreted by
    some courts as meaning that when the trial judge found that the dangerous
    offender criteria were met, he or she had a discretion to impose either a
    determinate prison term or an indeterminate sentence: see e.g.
R. v.
    Poutsoungas
(1989), 49 C.C.C. (3d) 388, at pp. 389-390 (Ont. C.A.).  A
    determinate sentence was appropriate if a sentence of a determinate length
    could reduce the risk to society posed by the offender to an acceptable level,
    thereby rendering the imposition of the more punitive indeterminate sentence
    unnecessary to protect society.  The trial judge on this dangerous offender
    application considered and rejected the determinate sentence option.

[12]

The
    1997 amendments introduced the LTO as a third sentencing option.  As observed
    in
Johnson
, at para. 32, an individual who met the criteria for designation
    as a dangerous offender could also meet the LTO criteria.  If the offender met
    both, the LTO option had to be imposed if designation as an LTO could
    adequately protect the public:

In those instances where both the dangerous and long-term
    offender provisions are satisfied, it may be that the sentencing sanctions
    available under the long-term offender provisions are capable of reducing the
    threat to the life, safety or physical or mental well-being of other persons to
    an acceptable level.  The very purpose of a long-term supervision order, then,
    is to protect society from the threat that the offender currently poses  and
    to do so without resort to the blunt instrument of indeterminate detention.  If
    the public threat can be
reduced to an acceptable level
    though either a determinate period of detention or a determinate period of
    detention followed by a long-term supervision order, a sentencing judge cannot
    properly declare an offender dangerous and sentence him or her to an
    indeterminate period of detention.
[Emphasis added.]

[13]

The
    parties accept that the appellant met the criteria for a dangerous offender finding.
    As
Johnson
instructs, however, meeting these criteria does not
    preclude an LTO.  The distinction between offenders who meet the dangerous
    offender criteria and should be sentenced to an indeterminate sentence and
    those who meet these criteria but should be sentenced to an LTO lies mainly in
    the requirement that before an LTO order can be made, the trial judge must be
    satisfied that there is a reasonable possibility of eventual control of the
    risk in the community: s. 753.1(c).

[14]

The
    court explained the meaning of reasonable possibility of eventual control of
    the risk of the community in
Johnson
,
at para. 40:

If a sentencing judge is satisfied that the sentencing options
    available under the long-term offender provisions are sufficient to reduce the
    threat to the life, safety or physical or mental well-being of other persons to
    an acceptable level, the sentencing judge cannot properly declare an offender
    dangerous and thereupon impose an indeterminate sentence, even if all of the statutory
    criteria have been satisfied.

[15]

The
    distinction between those persons who meet the dangerous offender criteria and
    should receive an indeterminate sentence and those who should receive an LTO is
    much the same as the distinction that existed before the introduction of the LTO
    option between persons found to be dangerous offenders who should receive a determinate
    sentence and those who should receive an indeterminate sentence.  There is one
    difference.  Under the LTO option, the determinate sentence is followed by long-term
    supervision of up to ten years in the community, a potentially important
    feature when considering whether risk to the community can be reduced to a
    tolerable level.

[16]

After
Johnson
, there can be no doubt that the trial judge erred in law in failing
    to consider the LTO option before imposing an indeterminate sentence.  However,
    as
Johnson
explains, at paras. 47-50, the failure to consider the LTO
    option does not automatically compel an order directing a new dangerous
    offender hearing.  Like any error in law, the failure to consider the LTO
    option will not require appellate intervention if the Crown can demonstrate
    that the error occasioned no substantial wrong or miscarriage of justice.  To
    do so, the Crown must show that there was no reasonable possibility that the
    trial judge would have found the offender to be an LTO had the trial judge considered
    that option.
Johnson
, at para. 50, describes the potential application
    of the
curative proviso
to the
Johnson
error in these terms:

Where the error of law consists of the sentencing judges
    failure to consider the availability of the long-term offender provisions,
it is in only the rarest of circumstances, if any, that there
    will be no reasonable possibility that the sentencing judge would have imposed
    a different sentence but for the error.
The criteria set out in the
    long-term offender provisions are substantially different from the criteria set
    out in the dangerous offender provisions.  Therefore, the evidence and
    arguments that are relevant under the long-term offender application are not
    precisely the same as the evidence and arguments that are relevant under the
    dangerous offender application.  Absent a thorough inquiry into the suitability
    of the long-term offender provisions at the sentencing hearing, it will be
    difficult, if not impossible, for an appellate court to be satisfied that the
    sentencing options available pursuant to the long-term offender provisions
    would have been incapable of reducing the threat of harm to an acceptable
    level.  [Emphasis added.]

[17]

This
    court has considered the
Johnson
error in several cases.  Most have
    led to orders allowing the appeal and directing a new dangerous offender
    hearing: see e.g.
R. v. Ferguson
(2005), 207 O.A.C. 380 (C.A.);
R.
    v. Robinson
(2006), 212 C.C.C. (3d) 439 (Ont. C.A.).  This court has,
    however, on occasion applied the
curative
    proviso
and dismissed the appeal: see e.g.
R. v. Saddlemire
,
    2007 ONCA 36, 216 C.C.C. (3d) 119;
R. v. N.P.C.
, 2007 ONCA 457, 83
    O.R. (3d) 571;
R. v. T.G.
, 2011 ONCA 317.

IV

CAN the curative proviso be applied?

[18]

I
    think the potential application of the
curative
    proviso
to the
Johnson
error must be examined in the
    context of three different scenarios.  First, it may be that on a review of the
    record that was before the trial judge on the dangerous offender proceedings,
    it cannot be said that there is no reasonable possibility that the trial judge
    would not have found the offender to be an LTO had he or she considered that
    option.  Second, it may be that on an examination of the record before the
    trial judge as supplemented by fresh evidence adduced on appeal, it cannot be
    said that there is no reasonable possibility that the trial judge would have
    found the offender to be a long-term offender had he or she considered that
    possibility in light of the trial record as augmented by the evidence offered
    on appeal.  Third, it may be that on a review of the evidence tendered at the
    initial dangerous offender proceedings as supplemented by the fresh evidence adduced
    on appeal, it can be said there is no reasonable possibility that the trial
    judge would have found the accused to be an LTO, but it cannot be said that there
    is no reasonable possibility that the offender would be found to be an LTO were
    a new sentencing hearing ordered by the appeal court.

[19]

The
    first two situations raise no juristic difficulties.  In both, it cannot be
    said that there is no reasonable possibility that a trial judge would have
    opted for an LTO finding.  The curative proviso cannot be applied and the
Johnson
error would require an order directing a new dangerous offender hearing.

[20]

The
    third scenario is fundamentally different from the first two.  In the third
    scenario, the focus of the appellants claim is not on whether there is a
    reasonable possibility that the sentencing judge would have imposed a different
    sentence but for the error,
Johnson
, at para. 50, but on whether an
    LTO order would be possible were a dangerous offender hearing to be held as of
    the hearing of the appeal.  On this third scenario, the claim is not that the
    appellant was wrongly sentenced to an indefinite period of incarceration
    because the trial judge made a legal error, but that because the judge made a
    legal error the appellant should have his status reassessed as of the time of
    the appeal.

[21]

Appellate
    review is fundamentally an error correcting exercise.  It looks backward to the
    decision under appeal.  While appellate review is sometimes undertaken with the
    benefit of evidence not before the trial judge, the question always remains
    did the court below fall into reversible error when it made the decision under
    appeal?  The possibility that a different decision might be made were the
    appellate court to consider the same issue
de novo
as of the time of
    the appeal (in this case some 14 years after the trial judgment) is irrelevant
    to appellate review.

[22]

The
    distinction between review for an error at the original proceeding and an
    assessment of the offenders status at the time of the appeal is no mere
    formalism.  The distinction is essential to the principle of finality, a core
    value in the justice system.  If this court decides to allow the appeal, there
    must be a new sentencing hearing.  Everyone involved in that hearing, including
    the victims caught up in the relevant matters underlying the dangerous offender
    proceedings, will be brought back to the dangerous offender hearing stage of
    the process.  The Crown must attempt to reconstitute its case years after the
    fact.  More importantly to the proper administration of justice, victims may be
    required to undergo the further trauma of new proceedings at a time when they
    could justifiably have believed that the horror, no doubt associated with reliving
    the relevant events in a courtroom, was long behind them.

[23]

I
    accept that the difficulties described above are inherent in appellate review
    whenever it leads to an order for a new hearing.  They are not, in my view,
    however, necessary to do justice to the appellant in a case like this one, where
    material relied on to support the claim for a new hearing offers no support for
    the assertion that there was a meaningful error made at the initial proceeding.
    Where an offenders real claim is that he has progressed to the point that his
    status should be reassessed, an appeal from the original decision is not the
    appropriate mechanism by which to achieve that new assessment.

[24]

Part
    XXIV of the
Criminal Code
includes a provision for the release on
    parole of individuals sentenced to indeterminate sentences.  The relevant
    provision, as it applies to the appellant (s. 761(1)
[1]
),
    provides in part:

[W]here a person is in custody under a sentence of detention in
    a penitentiary for an indeterminate period, the National Parole Board shall,
    forthwith after the expiration of three years from the day on which the person
    was taken into custody and not later than every two years thereafter, review
    the condition, history and circumstances of that person for the purpose of
    determining whether he should be granted parole under Part II of the
Corrections
    and Conditional Release Act
and, if so, on what conditions.
[2]

[25]

In
    its policy manual, the Parole Board recognizes that the possibility of parole
    is essential to the constitutionality of the dangerous offender provisions:
    see
R. v. Lyons
, [1987] 2 S.C.R. 309, at p. 341.  The manual sets out,
    albeit in general terms, the duties and responsibilities of Parole Board members
    considering parole applications brought by offenders serving an indeterminate
    sentence: Parole Board of Canada,
PBC Policy Manual
, vol. 1, no. 25
    (2012).

[26]

It
    may be argued that the potential for parole is illusory.  Certainly, parole is
    rarely granted to offenders serving an indeterminate sentence.  As of 2011,
    only 15 of the 437 persons serving indeterminate sentences in Canada had been released
    into the community.  Three were on day parole and twelve were on full parole:
    Public Safety Canada Portfolio Corrections Statistics Committee,
Corrections
    and Conditional Release Statistical Overview, Annual Report 2011
, (2011),
    at p. 58.  These figures do not assist in determining the outcome of this
    appeal.  This court proceeds on the basis that the Parole Board properly performs
    its statutory duties.  It is hardly surprising that few offenders serving
    indeterminate sentences obtain parole.  The statistics say nothing about
    whether a particular offender, such as the appellant, will be released on some
    form of community supervision at the appropriate time by the Parole Board.  In
    any event, this court cannot expand upon its legitimate appellate function to
    compensate for some assumed failure by the Parole Board to properly perform its
    function.

(i)

Was there a reasonable possibility that the trial judge could have made
    an LTO order on the evidence adduced on the dangerous offender hearing?

[27]

As pointed out in
Johnson
, in most cases in which the trial
    judge has failed to consider the LTO option, it cannot be said what evidence
    might have been led or what order might have been made had the LTO been
    addressed by the parties and the trial judge.  In this case, however, the
    parties and the trial judge did address the possibility that the appellants
    risk could be adequately controlled in the community at some time in the future
    in the context of determining whether the trial judge, having found that the
    appellant met the dangerous offender criteria, should impose a determinate
    sentence rather than an indeterminate sentence.

[28]

The
    trial judge instructed himself that he must impose a determinate sentence
    rather than an indeterminate sentence if the risk to society could be reduced
    to an acceptable level by the imposition of a determinate sentence.  The
    parties adduced evidence and made submissions on that issue.  In doing so, the
    parties effectively addressed the key consideration when choosing between an
    indeterminate sentence and an LTO where the offender meets the criteria for a
    dangerous offender finding.  It is true that the experts did not consider the
    potential impact of a long-term supervision order when assessing the
    appellants risk were he to be released into the community.  However, I see
    nothing in the evidence adduced by the experts that would suggest that the
    potential for a long-term supervision order would have had any effect on their
    risk assessment as of the time of the sentencing hearing.

[29]

The
    trial judge reviewed the relevant evidence and decided, based on the evidence
    he accepted, that it could not support a finding that at some determinate point
    in the future, the risk to society posed by the appellant, were he allowed to
    live in the community, could be reduced to an acceptable level.  I need not
    review the trial judges analysis as counsel for the appellant does not argue
    that an LTO finding could have been made on the evidence relied on by the trial
    judge.  On the trial judges analysis of the evidence, he would inevitably have
    rejected the LTO option for the very same reasons that he rejected the
    determinate sentence option.

(ii)

Was
    there a reasonable possibility that the trial judge could have made an LTO
    order if he had the benefit of Dr. McMasters risk assessment?

[30]

Dr.
    McMaster provided a detailed risk assessment.  It is clear, however, that he
    was not asked to comment on the findings made in 1998 by the trial judge, or
    the evidence adduced in support of those findings.  He was asked to consider
    whether, as of 2010, the appellant could meet the criteria for an LTO.  He said:

In the current assessment, the question is whether Mr. Sipos
    presents with a substantial risk of re-offence and if there is a reasonable
    possibility of eventual control of that risk in the community.

[31]

Dr.
    McMaster was cautiously optimistic about the appellants prospects as of 2010.
    He opined that the appellants risk to the community could be reduced to a
    tolerable level in about six years, that is, in about 2016.  Dr. McMaster based
    this opinion on the appellants positive treatment progress since his
    incarceration in 1998 and the mitigating effect of the aging process:

The following factors suggest that Mr. Sipos is now suitable
    for gradual release and reintegration into the community.  Mr. Sipos risk has
    been lowered, in my opinion, by factors including: his increased age, his
    successful treatment at sex offender and other groups, successful treatment
    with sex drive reducing medication, and his plans which will assist him in
    adjusting to living in the community (e.g. has learned a skilled trade; in the
    process of arranging supports).

[32]

Dr.
    McMaster did not diminish the risk posed by the appellant.  In his view, the
    appellant continues to pose a substantial risk to reoffend and were he to reoffend,
    a very serious personal injury offence could occur.  In Dr. McMasters
    opinion, these concerns suggest that a high degree of caution, treatment, and
    supervision should be undertaken to manage his risk, should he be released into
    the community.

[33]

Dr.
    McMaster summarized his assessment in these terms:

Accordingly, from a psychiatric perspective, I would not consider
    Mr. Sipos an assumable risk for the community (absent his placement in a CCC [Community
    Correctional Centre]) until approximately the age of 60.  This would equate to
    a further period of incarceration of about 6 years, or less, allowing him to
    enter a CCC at the age of 58.  It is further recommended that his release from
    the CCC take place at a time approaching his 60
th
birthday.  In the
    event that Mr. Sipos was granted an LTSO [Long Term Supervising Order] under
    such circumstances, his LTSO would expire at about the age of 68, which would
    be in keeping with public safety in my opinion.

[34]

I
    do not think that Dr. McMasters risk assessment casts any doubt on the trial
    judges assessment that as of 1998, an indeterminate sentence was the
    appropriate sentence.  Despite the positive treatment developments, Dr.
    McMaster still viewed the appellants potential release into the community as about
    six years distant.  We now know, with the benefit of hindsight, and accepting
    Dr. McMasters opinion, that on a best case scenario, the appellants potential
    for release into the community was at least some 18 years away in 1998.

[35]

As
    I read Dr. McMasters assessment, it sheds valuable light on the appellants progress
    since his incarceration and his potential for release into the community several
    years from now.  That assessment does not speak to what order could have been
    made in 1998 had the trial judge addressed the LTO option.

V

conclusion

[36]

Hopefully, the appellant will continue the progress described by Dr.
    McMaster and will, in keeping with Dr. McMasters opinion, be a suitable
    candidate for some form of release into the community in the not too distant
    future.  That hope is not, however, a reason to order a new sentencing
    hearing.  Any change in the appellants status based on the progress described
    by Dr. McMaster must come from the Parole Board.  I would dismiss the appeal.

RELEASED: NOV 07 2012  DD

Doherty J.A.

I agree David Watt
    J.A.

I agree Sarah Pepall
    J.A.

[1]

Criminal Code
, R.S.C. 1985, c. C-46, as amended by
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20, s. 215.

[2]
The present provision calls for review by the Parole Board after seven years:
    s. 761(1).
Johnson
, at para. 46, provides that persons in the
    position of the appellant are entitled to the more generous statutory terms
    found in the former provision.