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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. L.M., 2019 ONCA 945

DATE: 20191202

DOCKET: C65651

Benotto, Brown and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

L.M.

Respondent

Andrew Cappell, for the appellant

Maija Martin and David M. Reeve, for
    the respondent

Heard: October 30, 2019

On appeal
    from the acquittal entered on June 28, 2018 by Justice Gary W. Tranmer of the Superior
    Court of Justice.

Benotto J.A.:

[1]

The trial judge acquitted the respondent of
    sexual assault, sexual interference, invitation to sexual touching, and assault.
    The four charges against the respondent arose from allegations of sexual
    activity with his girlfriends daughter, who was between the ages of 11 and 14
    years old at the time of the alleged offences. The Crown appeals.

[2]

In a voluntary statement to the police, the
    respondent admitted to one instance of oral sex and one instance of
    penetration. He testified at trial and denied the allegations. The trial judge
    did not believe him and agreed with the trial Crowns characterization of
    specific pages within the police statement as a confession to a sexual
    crime upon the complainant.

[3]

The Crown submits that the trial judge failed to
    give effect to his own findings and seeks a conviction on two of the counts
    (sexual assault and sexual interference) or a new trial on all counts. The
    respondent submits that the trial judge had a reasonable doubt with respect to all
    counts and the appeal should be dismissed.

[4]

As I will explain, the trial judge engaged in
    faulty reasoning, which led to errors of law. Specifically, the trial judge
    failed to make necessary findings of fact and failed to reconcile the evidence with
    his conclusion. Consequently, his reasons are insufficient to permit appellate
    review. They are also insufficient to substitute a conviction on any of the
    counts. On this basis, I would allow the appeal and order a new trial.

FACTS

[5]

The complainant was placed in foster care when
    she was in grade two. Three years later, she returned to live with her mother,
    who began dating the respondent the following year. Within a short time
    thereafter, the complainants mother invited the respondent to move in with her.
    He was in his late forties at the time. Approximately two and a half years
    later, the complainant disclosed several incidents of sexual abuse by the
    respondent that began when she was 11 years old.

[6]

The following four incidents described by the
    complainant formed the basis of the charges:

(1)

The movie night

[7]

The respondent and the complainant were watching
    a movie on the couch sitting next to each other under a blanket. He reached
    down her tank top and played with her breasts. He then pulled out his penis and
    pushed her head down to it so that she could perform oral sex.

(2)

In the bunk bed

[8]

About one month after the movie night incident,
    while the complainant was lying on the top bunk of her bunk bed, the respondent
    started to play with her breasts and vagina. She tried to move away but he then
    put his penis in her mouth.

(3)

The two bed incident

[9]

At some point the bunk bed was replaced with two
    beds. The complainant was lying on top of one of the beds. The respondent got
    on top of her, took her pants off, then had intercourse with her and ejaculated
    on her stomach.

(4)

Moving day

[10]

During a move to a new house, the complainant
    and the respondent returned to the old house to retrieve items. The complainant
    was lying on a bed playing games on her phone. The respondent got on top of her
    and had vaginal intercourse with her from behind.

[11]

The complainant initially recanted the
    allegations but later said it was because she was worried about being taken
    away from her mother, who did not believe her allegations and had said that the
    complainant would cause them financial problems. As it turns out, after she
    made her second statement to the police resulting in the respondents arrest, the
    complainant returned to foster care.

[12]

The respondent was charged that he:

Count 1

DID
commit

sexual assault on [the complainant] contrary to
    Section 271, subsection (1) of the
Criminal
    Code of Canada
.

Count 2

AND FURTHER THAT,
he
    did with a part of his body, namely his penis for a sexual purpose, directly
    touch the body of a person under the age of sixteen years, namely [the
    complainant], contrary to Section 151 of the
Criminal Code of Canada
.

Count 3

AND FURTHER THAT,
he
    did for a sexual purpose, invite a person under the age of sixteen years,
    namely [the complainant], to directly or indirectly touch with a part of her
    body the body of [the respondent], contrary to Section 152 of the Criminal Code
    of Canada.

Count 4

AND
    FURTHER THAT,
he did commit assault on [the complainant],
    contrary to Section 266 of the Criminal Code of Canada
.

[13]

The respondent made three statements to the
    police that were admitted into evidence. In the first two statements, the
    respondent denied the allegations. Defence counsel acknowledged that these two
    statements were voluntary. The third statement, referred to at trial as the
    polygraph statement, is at issue in this appeal. At trial, following a
voir
    dire
,

the trial judge
found the statement to be
    voluntary. All three statements were admitted into evidence for the truth of
    their contents.

[14]

I
n the
polygraph
st
a
t
e
m
e
nt,
Warrant
    Officer Rose asked the respondent questions
. With respect to the movie
    night, the following exchange took place:

L.M.
:
And
a
s
I
m sitting li
k
e this
a
nd she
gra
bs
m
y
ar
m
a
nd
    pulls it down

Oh
c
ome on. And
I
m
N
o.

Th
e
n th
a
t

s
    wh
e
n she
s
pun
ar
ound
a
nd w
e
nt  down on m
e

a
nd th
e
n I
    jump
e
d up
a
nd I w
e
nt,

No. No. I love
y
o
u
r moth
er
not
y
ou.

DC Ros
e
:

Mmm hmm

L.M.:
I
n
    th
a
t
way
.

DC Ros
e
:

And
a
h wh
e
n she w
e
nt
    down on
y
ou how lon
g
did th
a
t
a
h t
a
ke pl
ace?

L.M.
:
Sec
onds. Not
e
v
e
n. As
s
oon
a
s
    I umm
rea
li
ze
d wh
a
t she w
a
s
g
oi
n
g to do umm wh
e
th
e
r
    she just put h
e
r ton
g
ue down
o
r h
e
r lips tou
c
h
e
d I just b
r
oke h
e
r
c
onn
ec
tion

L.M.:
S
h
e
s
fac
i
n
g the
    tv s
a
me
a
s I
am

a
nd sh
e
s not
rea
l
l
y l
ay
i
n
g on m
e
... b
u
t I h
av
e
m
y
ar
m up
o
n
    the
c
ou
c
h like this
a
nd she
gra
bs
m
y
    h
a
nd
an
d b
r
in
g
s it down
a
nd puts in onto h
e
r b
rea
sts
a
nd
    I move
m
y h
a
nd I put it b
ac
k

DC Ros
e
:

Mmm hmm

L.M.:
S
he
gra
bs it
aga
in
an
d put it down. I put it
bac
k up
a
nd I s
a
id,

[complainants
    name] no
.
 T
ha
t

s wh
e
n s
h
e
    spun
ar
o
u
nd like tu
r
n
e
d
fr
om h
e
r b
ac
k to h
e
r
face

co
v
ere
d
her
s
e
l
f

a
nd t
he
n she
wa
s
g
oi
n
g dow
n
she w
a
s smilin
g

a
t m
e

a
nd
a
nd
I
m lik
e

W
h
a
t
ar
e
y
ou doin
g?
 And th
e
n soons
a
s I
fe
lt
    she w
a
s tou
c
hing me th
ere
I stood up
a
nd
lef
t
    the
r
oom.

DC Rose:

And th
e
n she put h
e
r mouth on
y
our p
e
nis?

L.M.:
O
r
som
e
thing tou
c
h
e
d m
e
I don

t
    know if it w
a
s h
e
r v
ag
i
na
o
r

DC Rose:

Oh
y
ou know
n
ow
y
ou know
(
in
a
udibl
e
)
wa
s.

L.M.:
I
t
wa
s som
e

DC Rose:

H
e
r h
ea
d

s
g
oi
n
g down?

L.M.:
S
om
e
thin
g
w
e
nt
we
t
I
I
    don

t know
a
nd it w
a
s just the tou
c
h
a
nd
    soon
a
s sh
e
tou
c
h
e
d m
e
I jump
e
d up. I did not l
e
t h
er

DC Rose:

Down onto h
e
r
brea
st
    not on
ce
but twi
ce

a
nd
y
ou still n
e
v
e
r did
any
thi
n
g
a
bout it
y
ou still s
a
t th
ere

a
nd
    th
e
n she
en
g
age
d
    in o
ra
l s
e
x with
y
ou

L.M.:

T
r
i
e
d to. I didn

t
    l
e
t it h
a
pp
e
n.

DC Ros
e
:

Good
f
or
y
ou but she w
e
nt
    down on
y
ou
an
d
y
ou s
a
id
y
ou
fe
lt som
e
thing lik
e
to
uc
h
y
o
u
r
    p
e
nis

L.M.:

Y
ea
h.
Yea
h.

[15]

With respect to a second incident of sexual contact,
    the following exchange took place:

L.M.:

I tu
r
n
ar
ound
a
nd w
e
nt downst
a
i
r
s she
f
ollow
e
d
y
ou know pu
r
su
e
d m
e

a
nd umm
    w
a
nt
e
d to
e
ng
age

a
nd I
ke
pt
    d
eny
i
n
g h
er

a
nd d
eny
i
n
g
    h
er

a
nd d
eny
i
n
g h
er
. I
g
u
es
s I just must h
a
ve
g
ot w
ea
k
a
t one
    tim
e

a
nd
a
h
    I did
n
t lik
e

ac
tu
a
l
l
y
s
lip it into h
er
she
cam
e
a
nd s
a
t
    onto m
e

a
nd th
a
t

s wh
e
n I push
e
d
he
r
a
w
ay
.

L.M.:

You
    know umm it w
a
s p
r
ob
a
b
l
y just a b
a
d
    d
a
y
fo
r m
e
.
    You know?
I
m
ay
be I h
a
d a
c
ouple d
r
inks
    o
r

a
nd
I
w
ea
k. I must h
a
ve b
ee
n w
ea
k
a
n
d
she did th
a
t
a
nd
    s
a
t on m
e

a
nd
    th
e
n I push
e
d h
e
r o
ff
. I s
a
id,

No. This is just w
r
o
ng
. This is w
r
on
g
on so m
an
y l
e
v
e
ls
y
ou do not
y
ou don

t I do
n
t know w
h
y
y
o
ur
e doi
n
g
    this to m
e
.

DC Ros
e
:

Mmm hmm

L.M.
:

I
fee
l vi
c
timi
ze
d
i
n the
    s
e
nse th
a
t I
ke
pt pushing it
a
w
ay
pushing
a
w
ay
pushing
a
w
ay

a
nd th
e
n I
g
u
e
ss I
    just
fa
il
e
d h
er

y
ou know
a
s b
e
in
g
hono
ura
ble
e
nou
g
h... to
pre
v
e
nt
he
r
fr
om
g
oi
n
g
f
u
r
t
her.

DC Ros
e
:
[J]
ust a minute
ag
o
yo
u s
a
id
    th
a
t
y
ou did t
a
ke
    it out
a
nd slide it insid
e
?

L.M.:

No.
    I didn

t do th
a
t.
S
he did.

DC Ros
e
:

Ok
ay
. T
e
ll me wh
a
t

L.M.
:

S
he did.

DC Ros
e:

Th
a
t

s w
h
y I n
ee
d
y
ou to t
e
ll me wh
a
t h
a
pp
ene
d.

L.M.
:
A
f
t
e
r th
a
t I
we
nt downst
a
i
r
s
    s[
a]
t onto the
c
ou
c
h
a
nd she
ca
me
    ov
er

a
nd she
sa
t
r
i
g
ht di
rec
t
ly
on top o
f

m
y
gr
oin
area
.

DC Rose:

Mmm hmm

L.M.:

And
    she st
ar
t
e
d
r
ubbi
n
g it.

DC Rose
:

Mmm hmm

L.M.:

R
i
g
ht? And th
e
n
    sh
e
s she pulls down the p
a
nts
    su
c
ks it in
a
nd th
e
n I push
e
d
he
r
away

DC Rose
:

Did
y
ou
ge
t
ar
ous
e
d?

L.M.:
S
he
    st
ar
t
e
d
ar
ousing
    m
e
. Y
e
s. Of
c
ou
r
s
e
. An
d
th
e
n wh
e
n th
a
t
    h
a
pp
e
n
e
d
    she p
u
ll
e
d down h
e
r p
a
nt
s

a
nd
a
h sh
e
s
reac
hi
n
g b
e
hind
    like this
a
nd
gra
bs m
e

a
nd puts it in
a
nd
g
o
e
s to sit do
w
n
    on m
e

a
nd th
a
t

s wh
e
n I push
e
d
    h
e
r
away

a
nd
    w
e
nt,

No.
P
l
ea
se [name of the complainant] I don

t
    w
a
nt to do this. I don

t. No. I
    don

t n
ee
d to do th
a
t.
I
m
I
m
wa
y too bi
g
b
i
g
anyway
s
anyt
hi
n
g
    lik
e
I would
r
ip
y
ou
apar
t.

L.M.:

S
h
e
she didnt like
get
the
full
p
e
n
e
t
ra
tion of
m
y
endowment
no sir.
S
he just s
a
t onto it
an
d I pus
he
d h
e
r
a
w
ay
.

DC Rose:
W
h
e
n she st
ra
ddl
e
d
y
o
u

a
nd put
y
o
u
r p
e
nis inside of h
er

L.M.:

Y
e
s.

DC Ros
e:

Did
you ejaculate?

L.M.:

No.

L.M.:

Yeah.
    The
second
time she... I just like ok
ay
.
I
f thats what
you
    want
what the
you
know
and
    then
sin
c
e she put it in it w
a
s
    like

owe

like
Well

ca
use
I
m
fucking way
too big
f
or
you
. I would rip you.

DC Ros
e
:
Hmm she h
a
d
a
a
har
d time putting
it
in?

L.M.:
Mmm
    hmm
S
o I s
a
id, It

s not
e
v
e
n like
    I
said
... h
a
lf
a
n in
c
h in it... just to s
ay
it w
a
s there.

[16]

At trial, the respondent denied the allegations
    against him. He acknowledged making the statements to Warrant Officer Rose, but
    said that at all times the complainant was the aggressor and he attempted to
    push her away.

THE REASONS FOR JUDGMENT

[17]

The trial judge began with a summary of the
    evidence.

[18]

He identified considerations that would support
    the reliability of the polygraph statement when he said:

Having watched the entire post-polygraph
    interview conducted by Warrant Officer Rose, I am completely satisfied that
    [the respondent] was engaged, responsive, attentive, and fully understanding of
    the conversation he was having with the officer. There is no indication
    whatsoever of a breaking down of the will of [the respondent], or of an
    oppressive atmosphere, or of [the respondent] saying whatever the officer
    wanted to get the interview over with.

In the
    cross-examination, [the respondent] testified that he told Warrant Officer Rose
    the truth. The examples I gave are real.

[19]

The trial judge then instructed himself as to
    the three stages in the
W.(D.)
analysis:
R. v. W.(D.)
, [1991]
    1 S.C.R. 742. At the first stage of
W.(D.)
, if the trial judge
    believes the evidence of the accused, he must acquit. The second stage of
W.(D.)
requires the trial judge to acquit the accused if he does not believe the
    accuseds evidence, but was left in reasonable doubt by it. Finally, at the
    third stage of
W.(D.)
, even if the accuseds evidence did not leave
    the trial judge with a reasonable doubt, the trial judge must decide whether
    the entirety of the evidence he accepted left him without reasonable doubt of
    the accuseds guilt:
W.(D.)
, at p. 758.

Stage one

[20]

At stage one, the trial judge again referred to
    the polygraph statement. He rejected the respondents claim that some of his
    statements were inaccurate because he was confused or stressed or hungry or
    thirsty or needed a break or too cold. Moreover, the trial judge agreed that
    the respondent used words that depicted an abnormal relationship with a
    stepdaughter, including:

·

This is like wrong on so many levels. This is
    not possible. Sorry, not doing this with you.

·

I feel victimized.

·

Shes asking for it and I refused her. I have enough problems in my
    life.

[21]

In addition, the trial judge found as follows:

[The respondent] made eight clear references
    to oral sex and eight clear references to penetration in his statement to
    Warrant Officer Rose. He denied such conduct in his trial testimony.

I agree with the
    Crown characterization of [the respondents] statement to Warrant Officer Rose
    as transcribed from pages 142 to 144 as a confession by him to a sexual crime
    against [the complainant].

[22]

After reviewing his concerns with the
    respondents testimony and the testimony of the complainants mother, the trial
    judge then commented that:

The Crown
    specifically seeks convictions based on [the complainants] allegations and did
    not specifically advance a position for conviction on the basis of his
    admissions. As indicated, there are some inculpatory statements made to Warrant
    Officer Rose in the course of that interview.

[23]

At the end of his stage one analysis, the trial
    judge concluded that he did not believe the respondents denials of the
    substantive allegations.

Stage two

[24]

At the second stage of
W.(D.)
, the
    trial judge stated that the defence evidence and the evidence favourable to the
    defence did not leave him with a reasonable doubt as to the respondents guilt.

Stage three

[25]

The trial judge began the third stage of the
W.(D.)
analysis as follows:

At this step, the
    court must give close scrutiny to the testimony of the complainant and the
    difficulties that arise in the complainants evidence.

[26]

He proceeded to analyze the complainants
    credibility and reliability. When listing the concerns with her credibility, he
    said:

Interest in sex

On her evidence,
    she has an interest in sex. She volunteered that she was taking sex education
    in school. She commented positively on [another individuals] statement as to
    size. She volunteered that an average boys penis is five and a half inches in
    explaining how the oral sex in the top bunk could have occurred.

[27]

Following the
W.(D.)
analysis, the
    trial judge concluded he must acquit the respondent because he was left with a
    reasonable doubt on the whole of the evidence.

ISSUES

[28]

The Crown submits that the trial judge erred by:
    (i) failing to give legal effect to his own factual findings; (ii) failing to
    consider the evidence as a whole in relation to the ultimate issue of guilt or
    innocence; and, (iii) taking into account the complainants interest in sex
    as a factor detracting from her credibility. The Crown seeks a conviction on counts
    one and two or a new trial on all counts.

[29]

The respondent submits that the trial judge had
    a reasonable doubt as to his guilt on the whole of the evidence and the appeal
    should be dismissed.

[30]

As I will explain,
the
    issues in this appeal arise from the trial judges analysis, which discloses
    three faults: (i) a failure to correctly address the third stage of
W.(D.)
;
    (ii) a reliance on a misunderstanding of the trial Crowns position; and, (iii)
    a reference to the complainants interest in sex. These issues led directly to a
    more general error that encompasses the Crowns grounds of appeal: the trial
    judges failure to make the findings of fact necessary to explain why he was
    left with a reasonable doubt. The reasons are not sufficient to permit
    appellate review.

ANALYSIS

[31]

I begin by setting out the considerations when
    the Crown appeals an acquittal. I then address the three faults in the trial
    judges reasoning and the insufficiency of his reasons that stemmed from these
    errors. Finally, I consider the appropriate remedy in allowing this appeal.

Appeal against acquittal

[32]

The Crowns right of appeal against an acquittal
    is restricted to questions of law alone:
Criminal Code
, R.S.C.
    1985, c. C-46, s. 676(1)(a). As this court has made clear in
R. v. Trachy
,
    2019 ONCA 622, at para. 68, questions of law include:

misinterpretation
    or misapplication of salient legal standards, including the elements of the
    offences; assessing evidence based on erroneous legal principles; making
    findings of fact not based on the evidence; failing to give legal effect to
    findings of fact or of undisputed facts; failing to consider all the evidence
    bearing on guilt or innocence; failing to properly admit evidence; and, failing
    to provide adequate reasons:
R. v. Fitton
,

[1956]
    S.C.R. 958;
R. v. Audet
,

[1996] 2 S.C.R. 171;
R.
    v. Ewanchuk
, 1999 SCC 711,
[1999]
    1 S.C.R. 330;
R. v. Graveline
,

2006 SCC 16
,
[2006]
    1 S.C.R. 609;
R. v. Walker
, 2008 SCC 34, [2008] 2 S.C.R.
    245;
R. v. Lutoslawski
, 2010 SCC 49, [2010] 3 S.C.R.
    60;
R. v. J.M.H
., 2011 SCC 45, [2011] 3 S.C.R. 197.

The trial judges analysis

[33]

I turn to the trial judges three errors set out
    above.

W.(D.) analysis

[34]

At the third stage of the
W.(D.)
analysis,
    the trial judge said that he must give close scrutiny to the testimony of the
    complainant and the difficulties that arise in the complainants evidence. At
    this stage, he was required to consider the whole of the evidence, including the
    admissions made by the appellant in his polygraph statement. Had he done so, the
    trial judge would have had to reconcile his findings with these statements and
    the ultimate acquittal.

[35]

I recognize that
W.(D.)
does not
    prescribe a sacrosanct formula. However, as the Supreme Court of Canada
    explained in
R. v. Dinardo
,
2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 23:

What matters is
    that the substance of the
W.(D.)
instruction be respected. In
    a case that turns on credibility, such as this one, the trial judge must direct
    his or her mind to the decisive question of whether the accuseds evidence,
considered in the context of
    the evidence as a whole
, raises a reasonable doubt as to his
    guilt. Put differently,
the trial judge must consider whether the evidence
    as a whole establishes the accuseds guilt beyond a reasonable doubt
. In my
    view, the substantive concerns with the trial judges decision in this case can
    better be dealt with under the rubric of the sufficiency of his reasons for
    judgment. [Emphasis added.]

[36]

That the trial judge focused exclusively on the
    complainants evidence at the third stage of
W.(D.)
, without considering the polygraph statement
    admissions,

is evident in his reasons when he referred to the decision
R. v. Nyznik,
2017 ONSC 4392:

[The trial judge]
    spoke of the difficulties that the court faces in assessing the credibility and
    reliability of the complainants evidence,
which stands
    largely on its own
, as [the trial judge] pointed out was often the case.
    [Emphasis added.]

[37]

In
Nyznik,
the sole contentious issue was
    the complainants consent. On this issue, the trial judge said that the
    complainants evidence stands alone: at para.  2. In the present appeal,
    consent was not an issue. The complainant was incapable of giving consent
    because she was under the age of 16 when the alleged offences occurred, and the
    respondent was in a position of trust towards her. Here, the issue was the
    sexual contact between the respondent and a child, and the complainants
    evidence did not stand alone. It had to be considered in the context of all the
    evidence that the trial judge accepted, including the polygraph statement.

[38]

The respondent submits that the trial judge must
    have rejected most of the polygraph statement because he only referred to a few
    pages as a confession when he said:

I agree with the
    Crown characterization of [the respondents] statement to Warrant Officer Rose
    as transcribed from pages 142 to 144 as a confession by him to a sexual crime
    against [the complainant].

[39]

I do not agree that, by referring to the three
    pages in the statement, the trial judge limited his characterization of a
    confession. These pages come at the end of a 147-page statement and clearly
    incorporate the rest of the statement. They include the following statements
    made by the respondent:

·

It wasnt something that I asked for.

·

I had a weak moment I was vulnerable.

·

[She] took advantage of that.

·

Im not sure what umm... the law will look at
    meas beingnot an aggressoryou knowa person ofummsexual crime I suppose
    but I dont hopefully they have leniency.

·

Ive been a a great person my whole life until thisIll be
    judged in the end.  So whatever the punishment is for thispunished for
    being a victim?  cause I wasnt strong enough to break it down to walk
    away from it. it wouldnt have occurred if that child hadnt have come on to
    me...and found that Im weak.

[40]

The statements on pages 142 to 144 are part of
    and incorporate the entire narrative. Further, had the trial judge taken such a
    narrow view of the statement, he would not  and could not  have said that the
    respondents statement was a confession by him to a sexual crime. In my view,
    the confession contained on those pages has no meaning unless it is interpreted
    in light of the respondents previous comments in the polygraph statement.

[41]

It appears that the trial judge may have been
    under the mistaken belief that he was required to be satisfied beyond a
    reasonable doubt of what actually happened when he referred again to

the trial judges guidance in
Nyznik
, at para. 12:

It is possible
    that the judge might not fully believe the defendants version of events and
    might find the complainants version to be more credible, but still be
    uncertain as to
what actually happened
. [Emphasis added.]

[42]

As jurors are repeatedly instructed, the
    evidence does not have to answer every question raised in the case, but only
    those matters that are essential to say whether the crime has been proven beyond
    a reasonable doubt: David Watt,
Watts Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015), at p. 231.

[43]

At the third stage of
W.(D.)
, the trial
    judge must determine whether, on the whole of the accepted evidence, the Crown
    has proven the elements of the offences beyond a reasonable doubt, not the
    details of what actually happened.

[44]

The Crown submits that the respondent is guilty
    of the first two counts: sexual assault and sexual interference.

[45]

Touching of a sexual nature is a requisite element
    of the offence of sexual assault. At the time of the alleged offence, the
    complainant was incapable of consent. The trial judges acceptance of portions
    of the polygraph statement as a truthful confession to a sexual crime coupled
    with his rejection of the respondents denials at trial could have satisfied
    the elements of this offence.

[46]

Likewise, there was evidence to support the
    elements of the offence of sexual interference. In the polygraph statement, the
    respondent admitted that he touched part of the complainants body, she was
    under the age of 16, and he did so for an arguably sexual purpose.

[47]

However, as I will discuss below, the trial
    judge neither made the requisite findings of fact nor explained his conclusion
    in a manner sufficient for this court to enter a conviction on the first two
    counts. There is no way of knowing why the trial judge said that he had a
    reasonable doubt with respect to the elements of the offences. As I will set
    out later, this court is left with only questions and consequently, the
    substantive concerns with the trial judges decision in this case can better be
    dealt with under the rubric of the sufficiency of his reasons for judgment:
Dinardo
,
    at para. 23.

Misunderstanding the Crowns submissions

[48]

The trial judge also appears to have misunderstood the trial Crowns
    position as being based exclusively on the complainants testimony, which
    further compounded his error. Contrary to the trial judges view, at trial the
Crown
did
place significant reliance upon the polygraph
    statement in seeking convictions. In fact, the trial Crown closed her
    submissions by emphasizing the importance of the admissions contained in the
    statement:

You have the transcript so Ive
    just paused it there and my concluding remarks are in this inculpatory
    statement, January the 18th, that was voluntary and informed and  the result of
    two other police interviews and an interest in clearing his name and no reason
    to doubt the veracity of any of the things that he said and the details that he
    went over again and again, that what youre hearing right here are the
    self-reflective, introspective remarks of a guilty man whos acknowledging his
    guilt for the first time and coming to terms with it and Im asking Your Honour
    to return verdicts of guilty on all counts.

[49]

The
    trial judge clearly misunderstood these submissions. But even if he did not
    misunderstand, and the trial Crown did rest on the complainants evidence, the
    trial judge was still required to consider the evidence as a whole.

The complainants interest in sex

[50]

Finally,
    the trial judge erred in law by referring to the complainants interest in
    sex when considering her credibility.

[51]

Evidence
    of a complainants prior sexual activity is never admissible to support the
    twin myths that the complainant is less worthy of belief or more likely to have
    consented to the activity. Consent of a child is irrelevant and, in these
    circumstances, impossible at law. Yet, the trial judge considered this evidence
    in reference to her credibility. It appears in the section of the reasons
    dealing with the complainants credibility. Other underlined headings include
    Lies and Motivated by Money.

[52]

Consideration of this evidence was an error of law.
[1]

Sufficiency of reasons

[53]

The flaws in the trial judges analysis lead
    directly to the insufficiency of his reasons
.
For example, had he
    considered the whole of the evidence at stage three of
W.(D.)
, he
    would have been required to reconcile the respondents polygraph statement and
    his disbelief of the respondents testimony with his conclusion of reasonable
    doubt. His failure to do so, preclude[s] meaningful appellate review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 50.

[54]

This is not a case where the trial judge accepts
    the evidence of the complainant and thus inferentially rejects the denials of
    the accused:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639;
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3. Here the trial judge flatly rejected the
    denials of the respondent, found his polygraph statement to be voluntary,
    called parts of it a confession, and never reconciled this evidence with an
    acquittal. Nor did he articulate the basis for his verdict.

[55]

This court is left with only questions. Did the
    trial judge mistakenly think that only the complainants evidence was
    significant at the third stage of
W.(D.)
? Did he think he had to be
    satisfied of exactly what occurred between the respondent and the complainant,
    rather than consider the elements of the offences? Did he misunderstand the
    trial Crowns position that the case rested on the allegations of the
    complainant? Did he misunderstand the law that he was required to look at the
    whole of the evidence
even if
the trial Crown had made submissions
    that the case rested on the complainants allegations? Did he conclude that
    despite his indications in his reasons to the contrary  the polygraph
    statement was unreliable?

[56]

In short, the reasons do not reveal an
    intelligible basis for the verdict or explain how the trial judge could be
    left with a reasonable doubt despite his acknowledgement of the mountain of
    suspicion as to [the respondents] guilt:
Sheppard
, at para. 28;
R.E.M.
,
    at para. 53. The reasons are insufficient for appellate review. The reasons are
    not responsive to the central issues raised at trial. Although the trial judges
    credibility findings are entitled to deference, in this case the reasons do not
    sufficiently articulate how credibility concerns were resolved:
Dinardo
,
    at para. 26. This constitutes a reversible error.

By failing to
    address significant inconsistencies in the evidence, the trial judge did not
    provide a satisfactory explanation for the respondents acquittal, nor did he demonstrate
    he understood the parties respective positions:
R. v. D.H.
, 2016 ONCA
    569, at para. 35;
R. v. Morrissey

(1995), 22 O.R. (3d) 514 (C.A.), at
    para. 29;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21;
Dinardo
,
    at paras. 26, 30;
Sheppard
, at para. 28;
R.E.M.
, at paras.
    50, 53.

The Remedy

[57]

On appeal from a judge alone, an appellate court
    may enter a verdict of guilty with respect to the offence of which, in its
    opinion, the accused should have been found guilty but for the error in law:
Criminal
    Code
, s. 686(4)(b)(ii). As this court has explained, In that event, the
    court is authorized to either sentence the accused directly or remit the matter
    back to the trial court for sentencing (citations omitted):
Trachy
,
    at para. 86.

[58]

The Crown submits the trial judge made all the
    findings necessary to convict the respondent of the first two counts. Having
    made the finding that the respondent confessed to a sexual crime and that he
    did not believe the respondents denials of the complainants allegations, the
    trial judge was bound to convict because the elements of the offences had been
    proven. Therefore, the Crown submits that this court should enter convictions
    on counts one and two.

[59]

There are two impediments to the Crowns request
    for a conviction: (i) the trial judge never made the required findings of fact;
    and, (ii) he never reconciled the conflicting evidence.

Failure to make findings of fact

[60]

In his reasons referenced above, the trial judge
    makes findings that support the reliability of the polygraph statement.
    However, he does not make a finding about whether he accepts the respondents
    statements (or portions thereof) as the truth.

[61]

Likewise, the trial judge adopts the trial
    Crowns characterization of the statement as a confession to a sexual crime. He
    does not go on to make a finding about whether he accepts the respondents
    confession (or portions thereof) as the truth.

[62]

Similarly, the trial judge uses the terms
    admissions and inculpatory statement but fails to make a finding as to
    whether he accepts any portion as the truth. The trial judges use of familiar
    labels used to describe the kinds of evidence presented by the Crown
    admissions and inculpatory statement - cannot be substituted for factual
    findings. Nor does the fact that the trial judge rejected the respondents
    evidence lead directly to a conviction. In my view, the trial judge was
    required to make findings as to what evidence  all, some, or none  he accepted
    as true.

Failure to explain reasons

[63]

In addition to the failure to make factual
    findings, the trial judge also failed to explain why  in light of the polygraph
    statement and his rejection of the defence evidence  he had a reasonable
    doubt. In his reasons, he alludes to two opposite conclusions: the respondent
    committed a sexual crime on the complainant, and he had a reasonable doubt as
    to the respondents guilt.

[64]

The fact that the trial judge never reconciled
    these two conflicting conclusions is the reason that I would allow the appeal. This
    omission is also an impediment to entering a conviction for it is impossible to
    know what the result would have been but for these errors in law.
This is not a case where there is a clear error of law
    which  but for the trial judges error  would have resulted in a conviction:
    see
R. v. Cassidy
, [1989] 2 S.C.R. 345, at pp. 354-355.

[65]

Clearly, there was enough evidence to convict.
    However, that is not the test. Ultimately, this court must ask the question:
    but for the error in law would a conviction be inevitable? I am unable to
    answer that question.

DISPOSITION

[66]

I would allow the appeal and order a new trial
    on all counts.

Released:
    December 02, 2019

M.L. Benotto J.A.:

I agree David Brown J.A.

I agree David M. Paciocco J.A.

[1]

It also would have been an error had the complainant been an
    adult for it would not have survived the tests in s. 276 of the
Criminal Code
.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Miarecki, 2019 ONCA
    1019

DATE: 20191224

DOCKET: C63184

MacPherson, Sharpe and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Konrad Miarecki

Appellant

Konrad Miarecki, in person

Ian Smith, duty counsel

Benita Wassenaar, for the respondent

Heard: December 11, 2019

On appeal from the conviction entered on June 14, 2016
    and the sentence imposed on January 5, 2017 by Justice Robert Wadden of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We do not accept the submissions that the trial judge erred in rejecting
    the s.35(1) defence of property defence. The appellant had invited the
    complainants son to return his property to be paid for work he had done. The
    complainants accompanied their son to the appellants property. The appellant
    did not testify at his trial.

[2]

Even if the appellant believed that the complainants were about to enter
    his home without being entitled to do so, we agree with the trial judge that
    the appellants act in pointing a gun at the head of the female complainant and
    pulling the trigger was unreasonable in the circumstances. The trial judge
    found that the appellants actions went well beyond what would be reasonable
    in the circumstances as required by s. 35(1)(d).

[3]

This case is distinguishable from
R. v. Weare
, (1993) CCC (3d)
    494, where the accused pointed a gun at strangers who were about to enter his
    home. In this case, the appellant had invited the son to return and he knew
    precisely why the complainants appeared at his door and that they posed no
    unlawful threat.

[4]

The appeal is dismissed. The sentence has been served and is dismissed
    as moot.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monney, 2020 ONCA 6

DATE: 20200106

DOCKET: C65929

Watt, Brown and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Monney

Appellant

Daniel C. Santoro, for Michael Monney
    (deceased)

No one appearing for the Crown

Heard: In writing

On appeal from the conviction entered on
    November 30, 2016 by Justice Robert A. Clark of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

On November 30, 2016 a jury found Michael Monney
    (the appellant) guilty of second degree murder. On February 10, 2017 the
    trial judge sentenced the appellant to imprisonment for life.

[2]

In accordance with s. 745.4 of the
Criminal

Code
, the judge ordered that the appellant serve 15 years of his
    sentence before he would become eligible for release on parole.

[3]

The appellant filed an inmate notice of appeal
    against conviction. On October 1, 2018 a solicitors notice of appeal against
    conviction was filed. As a result, the court file created when the inmate
    notice of appeal was filed was closed.

[4]

On November 19, 2019 counsel for the appellant
    notified the Registrar of this court that the appellant had died. The
    notification was given by filing a document, styled Notice of Abatement,
    which reads:

TAKE NOTICE that the Appellant, Michael
    Monney, is deceased, and therefore the appeal should be noted as abated.

This notice was served on the
    respondent Crown.

The Positions of the Parties

[5]

In accordance with the notice he has filed,
    counsel for the appellant asks that the appealbe noted as abated. The Crown
    respondent, although served with the notice filed on the appellants behalf,
    has filed no material in response to the notice.

The Governing Principles

[6]

The traditional view in Canada is that a
    criminal appeal ought never to survive the death of an accused. The death of
    the accused causes the appeal to abate whether the accused is the appellant or
    respondent, and abatement occurs even if the appeal has been argued and the
    decision reserved:
R. v. Cadeddu
(1983), 3 C.C.C. (3d) 112 (Ont.
    C.A.), at p. 114;
R. v. Smith
, 2004 SCC 14, [2004] 1 S.C.R. 385, at
    para. 11. Under this traditional rule, the courts nonetheless have recognized
    some discretion to proceed to judgment despite the death of the accused:
Cadeddu
,
    at pp. 118-119.

[7]

In
Smith
, where the accused was the
    appellant, the Supreme Court of Canada held that the appellants death rendered
    the appeal moot. But the court acknowledged a discretion to proceed with a moot
    appeal, provided the discretion was exercised in accordance with judicial
    principles. The court emphasized, however, that this discretion should be
    exercised only in exceptional circumstances where the appellants death is survived
    by a continuing controversy which requires resolution in the interests of
    justice:
Smith
, at paras. 4, 20.

[8]

Three principal rationalia underlie the policy
    or practice governing the continuance of moot appeals and inform the exercise
    of the circumscribed discretion to determine the appeal despite the party
    litigants death:

1.

the existence of a truly adversarial context;

2.

the presence of particular circumstances which justify the
  expenditure of limited judicial resources to resolve the issue; and

3.

the respect shown by courts to limit themselves to their proper
  adjudicative role, as opposed to making freestanding legislative-type
  pronouncements.

See
Borowski v. Canada
    (Attorney General)
,
[1989] 1 S.C.R. 342, at p. 358;
Smith
, at
    para. 39.
[9]

The
Borowski

court outlined a
    two-step approach to the hearing of moot appeals. The first step involves an
    inquiry and determination whether the required tangible and concrete dispute
    has disappeared and the issues have become academic. If the case ascends the
    first step, the court should then determine whether it should exercise its
    discretion to hear the case:
Borowski
,
at p. 353;
Smith
,
at para. 33.
[10]

In the end, the general test an appellate court
    should apply when considering whether to proceed with an appeal rendered moot
    by the death of an accused, is whether there exist special circumstances that
    make it in the interests of justice to proceed:
Smith
, at para. 50.
The Principles Applied
[11]

In our view, the record in this case reveals no
    exceptional circumstances which would warrant a departure from the general rule
    that the death of an accused appellant renders his appeal from conviction moot.
[12]

First, the controversy in this appeal does not survive
    the appellants unfortunate death. He would obtain no apparent benefit were his
    appeal from conviction to be allowed.
[13]

Second, the grounds of appeal advanced do not
    transcend the circumstances of this case in their significance to the
    administration of criminal justice. Each of the grounds is governed by
    well-established and binding precedent in no apparent need of re-examination or
    repair. Nothing has a constitutional dimension. Nothing requires the
    interpretation of a statutory provision or common law rule of frequent
    application and unresolved controversy in the daily business of our trial
    courts. And no issue to be advanced is elusive of appellate review save in the
    circumstances apparent here.
[14]

Third, while we readily acknowledge that a
    conviction of second degree murder carries with it a stigma, most serious
    crimes bear a similar brand. But if stigma were sufficient on its own to engage
    the exception to the rule which generally forecloses continuation of an appeal
    by a deceased party, then the exception would overtake the rule. Said in
    another way, the rule would become the exception, and the exception, the rule.
Disposition
[15]

In the result, we see no reason to depart from
    the general rule that the death of an accused appellant renders his appeal from
    conviction moot. The appeal from conviction abates with the appellants death
    and is dismissed as moot.
David Watt J.A.
David Brown J.A.
I.V.B Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nolan, 2019 ONCA 969

DATE: 20191210

DOCKET: C67047 & C67058

Feldman, Gillese and Miller
    JJ.A.

DOCKET:
    C67047

BETWEEN

Her Majesty the Queen

Respondent

and

William Nolan

Appellant

DOCKET:
    C67058

AND BETWEEN

Her Majesty the Queen

Appellant

and

William Nolan

Respondent

Ravin Pillay, for William Nolan

Caitlin Sharawy, for the Crown

Heard: November 21, 2019

On appeal by William Nolan from the
    convictions entered on December 19, 2018, by Justice Lawrence T. Feldman of the
    Ontario Court of Justice, with reasons reported at 2018 ONCJ 898.

On appeal by the Crown from the sentence
    imposed on May 7, 2019, with reasons reported at 2019 ONCJ 338.

Gillese J.A.:

A.

overview

[1]

Mr. Nolan (the appellant) was convicted of
    threatening death, intimidation by threats of violence, obstruction of justice,
    and criminal harassment. The first three convictions (threaten death, intimidation
    and obstruction of justice) arose from an incident in the Family Court of the
    Ontario Court of Justice on January 7, 2013 (the Family Court incident). The
    threaten death conviction was stayed pursuant to
Kienapple v. R
,

[1975] 1 S.C.R. 729
. The criminal harassment conviction
    arose from an incident on January 7, 2015, in which copies of a nude photograph
    bearing the complainants name were spread around the school yard of the school
    where she taught (the 2015 nude photo incident).

[2]

A jail sentence of 12 months was imposed for the
    criminal harassment conviction. An 18-month conditional sentence was imposed for
    each of the intimidation and obstruction of justice convictions, to be served
    consecutively to the jail sentence but concurrently with one another. These
    were to be followed by 12 months of probation. The trial judge also imposed a weapons
    prohibition order under s. 109 of the
Criminal Code
,
R.S.C.,
    1985, c. C-46.

[3]

The appellant appeals against conviction. The
    Crown seeks leave to appeal against sentence.

[4]

At the conclusion of the oral hearing of these
    appeals, the court advised that the conviction appeal was dismissed with written
    reasons to follow. The court also advised that it would address the sentence
    appeal in those reasons. These are the promised reasons.

B.

Background in Brief

[5]

The appellant and the complainant began a romantic
    relationship in 2004. They had two sons, the first born in 2006 and the second
    in 2007. In 2009, the appellant was sentenced to a four-year period of imprisonment.
    While the appellant was in prison, the complainant went to teachers college
    and by 2012, she was employed as a grade 5 and 6 teacher at CJPS. The
    relationship between the two ended shortly after the appellant was released
    from prison in 2012.

(1)

The 2013 Family Court Incident

[6]

Following the appellants release from jail,
    there were custody and access disputes between the two. These disputes led the
    complainant to seek full custody of the children.

[7]

According to the complainant, on January 7, 2013,
    while she waited outside the courtroom for her custody application to be heard,
    the appellant arrived unexpectedly and told her not to go through with the
    application. He pressured her to drop outstanding criminal charges against him,
    told her to withdraw a restraining order that she had obtained against him, and
    threatened to shoot her family if she did not comply.

[8]

The parties then appeared before Paulseth J.,
    the presiding judge. A copy of the transcript of the hearing before Paulseth J.
    was introduced into evidence at the appellants trial on these matters.

[9]

During the Family Court hearing, the appellants
    behaviour led Paulseth J. to tell him not to try to intimidate the complainant.
    Paulseth J. also asked the appellant to sit down but he refused, saying he was
    angry and needed to pace, which he then did. When a court officer entered the
    courtroom, the appellant told him to get the fuck out and carried on until
    Paulseth J. was forced to close the court. The appellant then left the
    courtroom and attacked the officer, causing him injury.

[10]

The appellant was later convicted of assaulting
    a peace officer and assault with intent to resist arrest in relation to the
    altercation with the court officer.

(2)

The 2015 Nude Photo Incident

[11]

On January 7, 2015, exactly two years after the
    Family Court incident, nude photographs purporting to be of the complainant
    were spread around the parking lot of the CJPS school yard where she was working
    as a teacher. The following words had been typed on the photograph:

This is your jr kg teacher, [the complainants
    first and last names were then written out in full, using capital letters]. This
    will keep happening as long as shes at TDSB. Find more of [the complainants
    name] www.dirty.com.

(3)

Trial Ruling on Prior Discreditable Conduct

[12]

At the close of its case, the trial Crown applied
    to have admitted two bodies of evidence of the appellants prior discreditable
    conduct. The evidence in support of the application was blended with the trial
    evidence. The two bodies of evidence were: (1) evidence relating to an incident
    in September 2012 in which copies of a nude photograph of the complainant were
    distributed in the parking lot of the CJPS schoolyard (the 2012 nude photo
    incident) and (2) transcripts of the facts admitted by the appellant when he
    entered pleas of guilt, before Otter J. on November 15, 2012, to charges of intimidation
    and criminal harassment of the complainant arising from a different incident in
    September 2012.

[13]

The trial judge granted the application in part.
    He ruled admissible all evidence relating to the 2012 nude photo incident. This
    evidence came from the complainant who testified that after his release from
    prison in September 2012, the appellant was angry about lack of access to the
    children and he threatened the complainant that he would destroy [her] life by
    spreading sexually explicit photographs of her at the school where she worked,
    the childrens school, the daycare, and her gym. The following day, copies of a
    nude photograph of her that had her name and phone number written on it, were
    scattered in the parking lot of the CJPS school yard. The photo was one that the
    complainant had sent to the appellant while he was in prison. The complainant
    testified that in January 2013, before the Family Court hearing, the appellant admitted
    that he was responsible for the 2012 nude photo incident and apologized.

[14]

The trial judge admitted the evidence of the
    2012 nude photo incident, finding that it was strikingly similar in nature and
    detail to the allegations in the 2015 nude photo incident. In his ruling, the
    trial judge said that he accepted the complainants evidence set out in the
    above paragraph and that it permitted the inference that in perpetrating these
    distinctive acts, the appellant was motivated by an intent to humiliate the
    complainant and threaten her livelihood. The trial judge also found that this
    evidence tended to enhance the complainants testimonial credibility on the
    material facts in issue. He concluded that the cogency of the evidence, its
    unique facts and relevance to the nature of the relationship and the
    appellants animus supported its threshold admission as prior discreditable
    conduct. He described its probative value as high.

[15]

The trial judge ruled the second body of
    evidence inadmissible. He described this body of evidence as showing the
    appellant as derogatory, confrontational and intimidating in his dealings with
    the complainant over the issue of access. Further, the trial judge said that
    the appellant displayed animus when he threatened to destroy the complainants
    life. However, the trial judge found that while the evidence was similar in nature
    to the allegations in the 2015 nude photo incident, the facts were not
    proximate in time, similar in detail, nor did they have distinctive features
    that elevated their probative value over the prejudicial effect of propensity evidence.

(4)

The Defence Position at Trial

[16]

The appellant did not testify at trial nor did
    he call defence evidence. His defence was a straight denial. He challenged the
    complainants credibility regarding the Family Court incident. In particular,
    he pointed to the complainants failure to report that incident until two years
    later, when the 2015 nude photo incident occurred. He challenged the criminal
    harassment charge on the basis that the Crown had not proven beyond a
    reasonable doubt that he had anything to do with the 2015 nude photo incident. At
    trial, the defence did not dispute that the complainant was the subject of the 2015
    nude photographs.

C.

The Conviction Appeal

[17]

The appellant raises a number of grounds of appeal
    against both his convictions arising from the Family Law incident and his
    conviction for criminal harassment arising from the 2015 nude photo incident.

(1)

The Convictions
    Arising from the Family Court Incident

[18]

The appellant submits that the trial judge erred
    in convicting him of the offences arising from the Family Court incident
    (threaten death, intimidation and obstruction of justice) by (1) improperly
    relying on the transcript of the Family Court proceedings for the truth of its
    contents and (2) finding him guilty when the counts were not proven as
    particularized on the information.

[19]

I do not accept this submission.

(a)

Use of the Family Court Proceedings Transcript

[20]

At para. 10 of his reasons, the trial judge explained
    how he used the transcript:

The defence denies that the [appellant]
    threatened the complainant in the hallway of the courthouse and challenges the
    reliability of her testimony in this regard, but in my view,
on this
    evidence, [the complainants] credibility is, rather, enhanced by an assessment
    of the [appellants] behaviour during the course of the proceedings before
    Justice Paulseth
. Given that behaviour, it is understandable that the
    complainant felt pressured into reversing her position on custody in court by
    [the appellants] threats and intimidation  [Emphasis added.]

[21]

The trial judge then reviewed the transcript,
    focusing on the appellants behaviour and what was said during the Family Court
    hearing. He concluded by finding that the appellants behaviour during the
    hearing enhanced the complainants credibility with regard to what had happened
    immediately prior to it and gave rise to the strong inference that [the
    appellant] gave the complainant her marching orders prior to the commencement
    of the [family law] proceedings in a manner consistent with [the appellants] subsequent
    overbearing behaviour during the hearing.

[22]

Thus, the trial judges use of the Family Court
    proceeding transcript was entirely proper. He did not use it for the truth of
    its contents. Rather, he relied on it to draw permissible inferences about the
    appellants aggressive and controlling demeanour in the hearing before Paulseth
    J. He then used those inferences to bolster the complainants credibility about
    what happened outside the courtroom before the hearing. This limited use of the
    Family Court proceedings transcript was permissible. Transcripts of judicial
    proceedings may be admissible to prove what was actually said or what actually
    happened in an earlier proceeding:
R v. Tsekouras
,
2017 ONCA 290,
    353 C.C.C. (3d) 349, at para. 179, leave to appeal refused, [2017] S.C.C.A. No.
    225.

[23]

The appellant also argues that the trial judge erred
    in finding that the appellant had injured the court officer after he left the Family
    Court courtroom in which the hearing before Paulseth J. had taken place. The
    Crown agrees that there was no evidence at trial that the officer had been
    injured but says that it was undisputed that a physical altercation between the
    appellant and the court officer had taken place outside the courtroom in which
    the hearing took place.

[24]

I do not accept the appellants submission on
    this matter. During an exchange with defence counsel, the trial judge indicated
    that he understood from the transcript that there had been a physical
    altercation. His mention of the officers injury was not a material
    misapprehension of the evidence. It had little bearing on his overall analysis,
    coming as it did in his recitation of how the Family Court hearing unfolded.

[25]

Reading the trial judges reasons as a whole, it
    is apparent that his reliance on the Family Court transcript was proper. His
    primary focus was on the appellants statements and behaviour during the Family
    Court hearing. He drew permissible inferences about the appellants aggressive
    and controlling demeanour which he used to bolster the complainants
    credibility about what had happened outside the courtroom before the Family
    Court hearing took place.

(b)

Particularization of the Counts Arising from the
    Family Court Incident

[26]

The wording of the obstruction of justice count on
    the information was that the appellant did wilfully dissuade [the complainant]
    by threats from giving evidence in a judicial proceeding. At para. 26 of his reasons,
    the trial judge rejected defence counsels submission that this count had not
    been proven as particularized. He explained that while the complainant had been
    able to give evidence through the affidavits she filed in the Family Court
    proceedings, he found that she had not been able to give full and candid
    evidence free of outside pressure in the hearing before Paulseth J. He
    concluded that the course of justice had been affected by the appellants
    actions prior to and during the hearing.

[27]

I see no error in the trial judges reasoning on
    this matter. The appellant threatened to shoot the complainants family if she
    did not drop the restraining order and agree to joint custody. As a result, the
    complainant agreed to the restraining order being withdrawn and resiled from
    her position seeking full custody of the children. On the findings of the trial
    judge, the complainant had been wilfully dissuaded from giving evidence in
    the family law proceeding.

[28]

Different considerations apply, however, in respect
    of the threaten death and intimidation counts. These counts recited that the
    threat of violence was to the complainant. However, on the evidence at trial, the
    threats were directed at the complainants family, not her.

[29]

Before the close of its case, the trial Crown
    brought an application to amend the information to conform to the evidence.
    Defence counsel initially opposed the motion. The trial judge ruled that he was
    inclined to grant the amendment if the complainant [was] recalled to cure any
    potential prejudice to the defence. The defence ultimately stated, on the
    record, that he would no longer pursue the matter and that he did not wish to
    cross-examine the complainant. Thereafter, the parties proceeded on the
    understanding that the threaten death and intimidation counts had been amended
    to conform to the evidence.

[30]

In the circumstances of this case, the
    information was amended in substance  any lack of a formal amendment to the
    physical information was a clerical error or oversight. Out of an abundance of
    caution, the Crown asks that this court amend the information to reflect that
    the threaten death and intimidation counts relate to the complainants family.
    An amendment at this stage will cause no prejudice to the appellant and I would
    make the amendment as sought under s. 683(1)(g) of the
Criminal Code
.

(2)

The Criminal Harassment Conviction

[31]

The appellant challenges his conviction for criminal
    harassment  which was based on the 2015 nude photo incident  on the grounds
    that the trial judge improperly relied on (1) cross-count prior discreditable
    conduct in the absence of a Crown application, and (2) extrinsic prior
    discreditable conduct that he had ruled inadmissible.

(a)

Use of cross-count prior discreditable conduct

i.

The Parties Positions

[32]

The appellant submits that in convicting him of
    criminal harassment, the trial judge erred by relying on presumptively
    inadmissible cross-count prior discreditable conduct, namely, the threats,
    intimidation and aggression the appellant exhibited prior to and during the
    Family Court proceedings. That evidence formed the basis of the threaten death,
    intimidation and obstruction counts. He points out that the Crown did not apply
    to use the evidence across counts, the trial judge did not conduct an
    admissibility inquiry regarding the use that could be made of the evidence cross-counts
    and he had no opportunity to respond to the use of the evidence. He says that
    resort to this evidence was critical to the trial judges finding of guilt on
    the criminal harassment count and, as a result, the conviction must be set
    aside.  The appellant relies on
R v. Tsigirlash
, 2019 ONCA 650 in
    support of his position.

[33]

The Crown concedes that there was no formal Crown
    application to use evidence across counts as prior discreditable conduct.
    However, it submits that in the circumstances of this case, the trial judges
    use of this evidence occasioned no prejudice to the appellant. The Crown says that
    the evidence would have been admissible across counts had an application been
    brought and the trial judges use of it discloses no error. If this court finds
    that the trial judge erred, the Crown submits the error was harmless and relies
    on the proviso.

ii.

The Applicable Legal Principles

[34]

In
Tsigirlash
,
Zarnett J.A.,
    writing for the court, thoroughly reviewed the legal principles relating to the
    use of evidence across counts. I summarize below the principles, as discussed
    in
Tsigirlash
, that are relevant to this case.

[35]

The general rule is one of presumptive
    inadmissibility: evidence of the accuseds discreditable conduct is inadmissible,
    unless that conduct is the subject-matter of the charge in question. In
    multi-count indictments, already admissible evidence can be used only on the
    count to which it relates. Before that evidence can be used to prove guilt on
    another count, the Crown should bring an application and the trial judge
    conduct an admissibility inquiry. In this way, the defence has a meaningful
    opportunity to respond to the use of the evidence across counts and no prejudice
    will have occurred (
Tsigirlash
, at paras. 23-27).

[36]

However, while it is an error for a trial judge
    to rely on cross-count prior discreditable conduct in the absence of a Crown
    application, that error is not necessarily fatal. This principle is evident in
    paragraphs 46 and 48 of
Tsigirlash
.

[37]

In paragraph 46 of
Tsigirlash
, Zarnett
    J. A. discusses
R v Graham
,
2015

ONCA 113. In
Graham
,
    this court upheld a conviction where the trial judge used extrinsic evidence
    and count-to-count evidence of specific acts without the Crown having sought a
    formal ruling on the use of that evidence. At paragraph 32 of
Graham
,
    this court stated that while it would have been preferable for the trial judge
    to have conducted an admissibility inquiry, the evidence was admissible,
    properly used, and caused no procedural unfairness. Its finding of no
    procedural unfairness was based on the fact that defence counsel at trial did
    not object to the Crowns failure to bring an application and, in closing
    submissions, the Crown relied on propensity reasoning. Defence was thereby
    alerted and given the opportunity to respond.

[38]

At paragraph 48 of
Tsigirlash
,
Zarnett
    J.A. explains that the absence of a Crown application provides important
    context for a consideration of the trial judges admission of the evidence and
    removes the basis for the appellate deference normally afforded to trial judges.
    Put another way, he does not say that the absence of a Crown application is
    fatal. Rather, he signals how an appellate court is to approach its
    consideration of the trial judges admission of the evidence.

[39]

See also
R v. T.C.
, 2019 ONCA 898, a
    recent decision written by Zarnett J.A. that addresses the issue of reliance on
    cross-count discreditable conduct.  In
T.C.
,
this court upheld
    convictions in which the trial judge relied on cross-count evidence despite the
    absence of a formal Crown application. At paragraph 30 of
T.C.
, the
    court affirms the importance of a Crown application to admit evidence across
    counts and the need for an appropriate process to determine whether the
    presumption should be displaced and the evidence admitted. It concludes by
    noting that, on appellate review, the absence of a formal application may not
    be fatal if the defence had a meaningful opportunity to respond.

iii.

Analysis

[40]

In my view, in the circumstances of this case,
    despite the absence of a Crown application, the trial judge did not err in
    relying on the cross-count prior discreditable conduct. As I explain below, that
    evidence was admissible across counts, the trial judge made no error in his use
    of it and, despite the absence of a formal application, given the way in which
    this trial unfolded, there was no prejudice to the appellant.

Was the evidence admissible across counts?

[41]

I begin by considering whether the evidence
    would have been admissible across counts had the Crown brought a formal application.
    There is no doubt in my mind that if such an application had been brought at
    trial, the cross-count evidence would have been admissible across counts. It
    was relevant to an issue at trial (the identity of the perpetrator of the 2015
    nude photo incident) and its probative value was greater than its prejudicial
    effect.

[42]

Such evidence is frequently admitted in domestic
    cases to assist the court in understanding the relationship between the parties,
    the context in which the alleged wrongdoing took place, and to prove animus and
    motive. See, for example,
R. v. Sandhu
, 2009 ONCA 102, 242 C.C.C. (3d)
    262, at para. 16 and
R. v. F.(D.S.)

(1999)
,
43 O.R. (3d)
    609 (C.A.), at pp. 616-617.

[43]

This case was no different. The cross-count
    evidence fulfilled all the purposes for which it was admissible. The
    appellants aggressive and threatening behaviour before and during the Family
    Court hearing provided important context within which the alleged wrongdoing
    took place, an understanding of the relationship between the appellant and the
    complainant, and evidence of the appellants animus and motive.

[44]

In terms of prejudice, there is little risk of
    reasoning prejudice in a judge-alone trial because the trial judge is presumed
    to know the law and the proper and improper use of evidence. Moreover, the risk
    of moral prejudice is also not a significant concern in a judge-alone trial.
    See
R. v. J.H.
,
2018 ONCA 245, at paras. 22-24;
R. v. T.B.
,
    2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 26; and
R. v. MacCormack
,
    2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 69.

Did the trial judge err in his use of the cross-count
    evidence?

[45]

Next, I must assess the trial judges use of the
    cross-count evidence. In my view, it was entirely proper. As you will see from
    my review of his reasons, below, the trial judge did not engage in any
    prohibited propensity reasoning. Instead, he used the evidence to draw
    inferences about the appellants animus and motive, which were directly
    relevant to the sole live issue of identity.

[46]

To make out the offence of criminal harassment,
    the Crown at trial had to prove that the appellant was responsible for the 2015
    nude photo incident in which copies of a sexually explicit photo of the
    complainant were spread around the parking lot of the school yard where she
    worked. Defence counsel had conceded that the complainant was the person in the
    photo. Thus, the sole issue was the identity of the perpetrator.

[47]

The trial judge found circumstantial evidence
    that it was the appellant who spread or arranged for the spread of the copies
    of the nude photo in 2015. This evidence included the fact that the appellant
    knew the complainants first name (both the complainants first and last names
    had been typed on the photo), the history of conflict and intimidation by the
    appellant of the complainant, and the unique nature of this cruel act (reasons,
    paras. 29,31).

[48]

However, the trial judge identified weaknesses that
    made the evidence of identify insufficient, without more, to support a finding
    of guilt. One weakness he identified was that the complainant could only say
    that the face in the photo looked like her. (I add parenthetically that in light
    of defence counsels concession that it was her, I do not view this as a weakness
    in the evidence.) The other weaknesses the trial judged noted were: the
    complainant did not teach kindergarten, she had not seen the appellant since
    the Family Court hearing, she had remarried, and the appellant had a
    girlfriend. However, the trial judge added, tension over custody remained
    because the complainant was in charge and the appellant was not (reasons, para
    30).

[49]

The trial judge then turned to the evidence of
    prior discreditable conduct that he had ruled admissible, namely, the complainants
    evidence on the 2012 nude photo incident. He summarized that evidence as
    follows. In the course of a continuing dispute over custody in 2012, the
    appellant threatened to destroy the complainants life by distributing nude
    photos of her at work. The complainant had sent the appellant a nude photo of
    her while he was incarcerated. The complainants name and phone number were
    written on the nude photo before copies were made and strewn about the parking
    lot of the school yard where the complainant worked, the same location as the
    distribution of the nude photos in 2015. The appellant acknowledged to the
    complainant that he was responsible for the 2012 nude photo incident (reasons,
    para. 32)

[50]

The trial judge then stated, The whole of this
    evidence provides a credible basis to infer motive and animus on the [appellants]
    part. He accepted that the appellant was the sole individual with the motive
    to perpetrate the 2012 nude photo incident that was uniquely similar in nature
    and modus to the 2015 criminal harassment allegations (reasons, para. 34).

[51]

It was at this point in the reasons that the
    trial judge referred to the cross-count evidence. At paragraph 35 of the
    reasons, the trial judge wrote:

Mindful of the
    weaknesses in the evidence regarding the 2015 school incident,
I take into
    account the threats, intimidation and aggression exhibited by the [appellant]
    prior to and during the course of the Family Court proceedings
, the
    continuing tensions over custody and access and the distinctly similar nature
    of the prior act that was so exceptionally unique to the personal circumstances
    of the parties and to the commission of the subject offence. [Emphasis added.]

[52]

He concluded that the evidence was compelling in
    enhancing proof of identity in relation to the 2015 nude photo incident and
    that no one but the appellant had the motive and animus to perpetrate the
    spreading of the photos in the schoolyard in 2015 (reasons, para. 36).

[53]

As this review of the reasons shows, the trial
    judge made little use of the cross-count evidence. His only reference to it is
    at paragraph 35 of the reasons, when he took into account the appellants
    threats, intimidation and aggression in the Family Court proceeding.
    Immediately prior to that, however, at paragraph 34 of the reasons, the trial
    judge had concluded that the whole of the evidence provides a credible basis
    to infer motive and animus on the part of the appellant. In reaching this
    conclusion, the trial judge had relied on the evidence of the 2012 nude photo
    incident evidence, admitted after a contested Crown application.

Was the appellant prejudiced?

[54]

Despite the absence of a formal Crown
    application, given the way in which this trial unfolded, in my view there was
    no prejudice to the appellant.

[55]

In this case, the Crown made no request, formal
    or informal, to use the cross-count evidence. Further, the Crown did not rely
    on the evidence in the Family Court incident in her closing submissions on the
    criminal harassment charge. Thus, unlike cases such as
Graham
, it
    cannot be said that the Crowns actions had alerted the defence and given it a
    chance to respond to the use of evidence across counts.

[56]

However, in his closing submissions, after
    acknowledging that the trial judge had ruled admissible the evidence of the
    2012 nude photo incident and would consider it, defence counsel argued that the
    appellant should not be found guilty of distributing the nude photos in 2015
    because after all that stuff happened back in 2012  there was nothing going
    on as between the two of them.

[57]

The defence position that nothing transpired
    between the two after the 2012 incident all but invited the trial judge to use the
    evidence across counts  that is, to consider the evidence in the 2013 Family
    Court incident. Put another way, for the trial judge to fairly consider the
    defence position, he needed to refer to that evidence.

[58]

In these circumstances, while it would have been
    preferable for the trial Crown to have brought the appropriate application and
    the trial judge run an admissibility inquiry, I see no procedural unfairness in
    the trial judges very limited use of the cross-count evidence.

[59]

Because of the appellants heavy reliance on
Tsigirlash
,
I would close by simply stating that it is a very different case than the
    present one.  In
Tsigirlash
, the trial judge made numerous errors in
    the way he considered and used evidence across counts as similar fact evidence.
    See paragraph 64 of
Tsigirlash
in which Zarnett J.A. summarizes the
    numerous errors and his conclusion that they were neither harmless nor trivial.
    The errors included deciding each count on the basis of evidence related to
    that count and 48 others. And, importantly, Zarnett J.A. states that the court
    could not be assured that the similar fact inferences drawn by the trial judge
    would have been available to him if a proper admissibility inquiry had been
    undertaken. As I have explained, the trial judge in this case made no such
    errors, the evidence would have been admissible had an application been
    brought, and the inferences he drew from the evidence were fully available to
    him.

(b)

Use of extrinsic prior discreditable conduct

[60]

The appellant argues that the trial judge erred
    by relying on the appellants 2012 threat to destroy the complainants life by
    distributing nude photos of her at work in order to find that he was the
    perpetrator of the 2015 nude photo incident. He contends that in his ruling on
    the Crowns application to admit prior discreditable conduct, the trial judge
    ruled that the threat, as opposed to the actual distribution of the photos, was
    inadmissible.

[61]

The Crown does not accept that the trial judge relied
    on extrinsic prior discreditable conduct that he had ruled inadmissible. Nor do
    I. As I explain above, the trial judge ruled admissible all evidence pertaining
    to the 2012 nude photo incident, including evidence of the appellants threat
    in 2012 to the complainant that he would spread nude photographs of her at her
    place of work.

D.

The Sentence Appeal

(1)

The
    Parties Positions

[62]

The Crown seeks leave to appeal against sentence
    on two grounds:

1.

the sentence is illegal because it is a blended custodial and conditional
    sentence that exceeds two years and because a period of probation was imposed
    where the global sentence exceeded two years; and

2.

the 18-month conditional sentences for intimidation and obstruction
    of justice are demonstrably unfit.

[63]

The Crown asks this court to impose a global
    sentence of two years imprisonment  a 12-month custodial sentence for
    criminal harassment and two 12-month custodial sentences for intimidation by
    threats of violence and obstruction of justice, to be served concurrently to
    one another and consecutively to the 12-month sentence for criminal harassment.
    It also asks that a 12-month probation order be imposed.

[64]

The appellant concedes that the sentence is
    illegal for both of the reasons given by the Crown and that, as a result, he
    must be re-sentenced. He submits that a fit and just sentence is a global
    custodial sentence of 12 months followed by a period of probation. He disagrees
    that a conditional sentence is inappropriate. Thus, if this court finds that a
    further period of custody is required, he asks that any period greater than 12
    months be served by way of a conditional sentence.

(2)

The Sentence

[65]

I begin by considering the principles that guide
    sentences for criminal harassment. As the sentencing judge indicated at para.
    29 of his reasons for sentence, this court has made clear that behaviour of
    this sort must be denounced in clear terms, a heavy sentence is required, and
    general and specific deterrence are overriding considerations. It is necessary
    to signal to the offender and the public that this conduct is not to be
    tolerated:
R v. Bates

(2000), 134 O.A.C. 156 (C.A.), at paras.
    30-31.

[66]

At para. 30 of the reasons for sentence, the
    sentencing judge wrote:

What [the appellant] subjected [the
    complainant] to was heartless. His motivation was loathsome. The irreparable
    harm perpetrated on his own boys was shameful. It is also significant that it
    wasnt the first time.

[67]

Nonetheless, the sentencing judge did not impose
    a penitentiary term. Giving as much weight as he could to the appellants more
    recent efforts to reform and despite the gravity of the offence, he imposed a
    sentence of 12 months in prison for the criminal harassment conviction.

[68]

The Crown urges this court to impose the same sentence
    for the criminal harassment conviction as was imposed by the sentencing judge. I
    accept that sentence is fit, for the reasons given by the sentencing judge.

[69]

I turn next to the question of a fit sentence for
    the convictions for intimidation by threats of violence and obstruction of
    justice. In my view, the prerequisites for a conditional sentence set out in s.
    742.1(a) of the
Criminal Code

are not met. The appellant is a
    repeat offender with over 30 prior convictions which include crimes of
    violence, weapons-related offences, and breaches of court orders. I am not
    satisfied that service in the community would not endanger the safety of the
    community nor is service in the community consistent with the fundamental
    purpose and principles of sentencing for offences such as these. A custodial sentence
    is necessary to reflect the primary sentencing objectives of deterrence,
    denunciation, and the need to separate this violent offender from society.

[70]

In recognition of the appellants efforts at
    reform, I would not accede to the Crowns request for a penitentiary term. In my
    view, a fit and just sentence is a global custodial sentence of two years less
    a day, broken down as follows: a 12-month custodial sentence for criminal
    harassment, and two 12-month less a day custodial sentences for intimidation by
    threats of violence and obstruction of justice, to be served concurrently to
    one another and consecutively to the sentence for criminal harassment. Like the
    trial judge, I would impose a 12-month probation period following imprisonment
    and make a s. 109 order.

E.

Disposition

[71]

Accordingly, I would dismiss the conviction
    appeal and order that count 1 of the information be amended to read that the complainant
    received a threat to cause death to her family (rather than to her) and count 2
    be amended to show intimidation by threats that violence would be done to the
    complainants family (rather than her).

[72]

I would grant leave to appeal sentence and allow
    the sentence appeal. I would sentence the appellant to a global custodial
    sentence of two years less a day, broken down as follows: a 12-month custodial
    sentence for criminal harassment, and two 12-month less a day custodial
    sentences for intimidation by threats of violence and obstruction of justice,
    to be served concurrently to one another and consecutively to the sentence for
    criminal harassment.

[73]

Further, I would order 12 months of probation to
    follow the prison sentences on the same terms and conditions as those imposed by
    the trial judge with one exception: I would change the wording of the condition
    prohibiting the appellant from contacting or communicating with the complainant
    to that proposed by the Crown at the oral hearing of the appeal. As the
    proposed wording includes the names of close family members, for the sake of
    their privacy, I will not repeat the proposed wording here. The Crown may
    submit a draft probation order to me for signature.

[74]

Finally, I would also impose the s. 109 order on
    the same terms as those of the trial judge.

Released: December 10, 2019

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. B.W. Miller J.A.