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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. J.H., 2018 ONCA 245

DATE: 20180314

DOCKET: C62212

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.

Appellant

Jill Presser and Daniel Stein, for the appellant

Lisa Joyal, for the respondent

Heard: October 30, 2017

On appeal
    from the conviction entered by Justice M.T. Devlin of the Ontario Court of
    Justice on February 18, 2016 and from the sentence imposed on May 12, 2016.

van
    Rensburg J.A.:

INTRODUCTION

[1]

The appellant, after a judge-alone trial, was
    convicted of nine historical sexual offences against his two biological
    daughters, C and D, and his step-daughter, S. He was acquitted of two charges
    in relation to his third biological daughter, A. He was sentenced to six years
    imprisonment concurrent on all charges. The appellant appeals his conviction
    and sentence.

[2]

For the reasons that follow, I would dismiss the
    appeal.

THE CONVICTION APPEAL

[3]

The appellants assaults on his biological
    daughters, C, D and A, were alleged to have occurred in the 1980s and 1990s,
    when they were between the ages of five and 18. His step-daughter, S, alleged
    she was sexually assaulted by the appellant in 2006/2007 and 2009, when she was
    in her early twenties.

[4]

The abuse described by C consisted primarily of
    vigorous rubbing of her breasts for many years and, on one occasion when she
    was 16 or 17, digital penetration. D described a continuous pattern of her
    father touching her breasts and vagina over and under her clothing from the
    time she was six until she was approximately 15 or 16, many incidents where he
    had her masturbate him and of mutual masturbation, one incident where he put
    his penis between her legs, and one incident where he put his penis in her
    mouth. A described one incident where the appellant touched As breasts and
    vagina while tickling her before D intervened. Finally, S described incidents
    that occurred many years later, and while she was in her twenties, where the
    appellant touched her breasts over and under her clothing and put his fingers
    in her vagina, and two years later when he rubbed her breasts under her clothing
    and touched her vagina with his penis.

[5]

The appellant admitted some of the offences in
    relation to C, D and S, but not the full extent of the conduct they described.
    At trial the appellant testified that he touched Cs breasts inappropriately
    about two or three times a month, but without sexual intent and always over her
    clothing. He also testified that on one occasion he put his hand inside Cs
    pants and touched her pubic hair. He admitted that he fondled Ds breasts and
    vagina on one occasion outside her clothing when she walked in on him
    masturbating his exposed penis, and that on other occasions he would touch her
    inappropriately on her breasts and vagina, again always outside her clothes. He
    admitted speaking with D about their inappropriate behaviour, and insisting
    it not continue. With respect to S, the appellant testified that he fondled her
    breasts and vagina over her clothes on impulse on one occasion in 2007 when she
    was lying on his bed, and that after that he apologized, admitted what he had
    done to his wife (Ss mother) and sought counselling. He also admitted that he frequently
    engaged in tickling and roughhousing with all his daughters. He denied any inappropriate
    sexual conduct towards A.

[6]

The trial judge accepted the evidence of S, C
    and D and convicted the appellant on all charges relating to these
    complainants. She found that the evidence in relation to A left her with a
    reasonable doubt and acquitted him on those charges.

[7]

Concerning the conviction appeal, the appellant contends
    that he was convicted of the various offences based on bad character or general
    discreditable conduct evidence. Counsel asserts that the trial judge made three
    specific errors: (i) she erred in admitting the evidence of each complainant as
    similar fact evidence across counts; (ii) she relied improperly on evidence of other
    uncharged bad conduct, including similar fact evidence that fell outside the
    scope of the information and general bad character evidence; and (iii) she
    reversed the burden of proof in finding the appellant guilty.

[8]

I will address each of these grounds in turn.

(1)

Did the trial judge err in her similar fact evidence
    ruling?

[9]

As his first ground of appeal, the appellant
    challenges the trial judges similar fact evidence ruling.

[10]

The Crown sought to use the similar fact
    evidence in support of the credibility of each complainant as to whether the
    offences occurred to the extent they described. The application was opposed by
    the defence, who asserted that there were insufficient similarities between the
    accounts provided by each complainant and that there was evidence of collusion.

[11]

A
trial judges ruling on similar fact evidence is entitled
    to a high degree of deference. Interference by this court is justified only if
    the analysis is unreasonable or if there is legal error or a misapprehension of
    material evidence:
R. v. Cresswell
, 2009 ONCA 95, at para. 7. The
    appellant says there were such errors here.

[12]

The appellant says that the trial judge: (i)
    failed to specifically identify the live issue to which the similar fact
    evidence was said to relate, with the result that her analysis of the question
    was unfocussed; (ii) failed to acknowledge meaningful dissimilarities between
    the incidents the complainants described; and (iii) erred in her assessment of
    prejudicial effect.

[13]

I would not give effect to these arguments.

[14]

First, there was no question about the live
    issue to which the similar fact evidence related in this case: whether, in
    addition to the abuse the appellant acknowledged had occurred, any or all of
    the other abusive conduct the complainants described, and which the appellant
    denied, had also occurred. While it would have been preferable for the trial
    judge to have framed her analysis of the admissibility of the similar fact
    evidence with reference to the specific issue, it was not a reversible error
    for her to fail to do so in the circumstances of this case.

[15]

The trial judges ruling on similar fact
    evidence was responsive to the arguments of counsel. The appellants trial
    counsel focused his submissions on two points  that the incidents described by
    the complainants were too dissimilar to be used as similar fact evidence, and
    that there was a possibility of collusion.

[16]

The trial judge adverted to the applicable legal
    principles in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908,
recognizing that similar fact evidence is presumptively inadmissible
    and that the Crown has the onus to establish that the probative value of the
    evidence outweighs its prejudicial effect. She concluded that, while none of
    the sexual abuse described by the complainants was exactly the same, there were
    similarities, namely: grabbing breasts, tickling and touching the breast and
    vaginal areas over and under clothing. She noted that the allegations involved
    all of the appellants children
[1]
and his step-child, that virtually all of the abuse occurred inside the family
    home, that the abuse occurred when the daughters were between six and 17 years
    old (she was referring here to the biological children), and that some of the
    conduct described was very similar.

[17]

The trial judge observed that there was no
    evidence to support collusion or collaboration among the complainants (a
    finding not challenged on appeal). Noting that the appellant admitted that he
    did engage in some of the sexual abuse that was described, the trial judge
    concluded that the probative value of the evidence significantly outweighed its
    prejudicial effect.

[18]

The appellants second argument on this ground
    of appeal is that the events described by the complainants were too dissimilar
    to be used as cross-count similar fact evidence.

[19]

The appellant points to the dissimilarities
    between the accounts of the various complainants: the time lapse of 15 years
    between the alleged assaults on the appellants biological daughters and on S;
    the variation in surrounding circumstances, with some incidents occurring in
    secret, while others occurred in the context of roughhousing out in the open;
    and the variation in the specific details of the assaults, with Ds allegations
    of oral sex and mutual masturbation being far more serious than the incidents
    involving the other complainants. The appellant says that the trial judge
    placed too much emphasis on similarities that were generic only: that he was
    in
loco parentis
, that the complainants were
    female, and that the assaults took place in the home.

[20]

I disagree. The judges task [was] not to add
    up similarities and dissimilarities and then, like an accountant, derive a net
    balance:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at
    para. 60.
The question is whether there were connecting
    factors between the alleged assaults, and whether there was a persuasive
    degree of connection between the similar fact evidence and the offence charged:
Shearing
, at para. 48. The trial judge
    concluded that there was such a connection.

[21]

Here, the context in which the alleged behaviour
    occurred was similar  the appellant was a parent or step-parent of each
    complainant, in a position of trust or authority, and engaging in sexual
    touching in the home. As this court noted in
R. v. B.(L.)
(1997),
116 C.C.C (3d) 481
(C.A.)
,
    at para. 37,
in cases of sexual assault, the similarities or
    dissimilarities between the sexual acts that are alleged are, of course,
    relevant, but often not as compelling as the circumstances surrounding the
    incidents. While there were some differences between the sexual acts
    described, and while S was older than the other complainants at the time of the
    assaults she recounted, this does not materially diminish the level of
    connectedness that would make the evidence on other counts admissible on the
    question of whether a particular assault took place. See for example
R.
    v. R.B
. (2005), 77 O.R. (3d) 171 (C.A.), where this court
    upheld a trial judges similar fact ruling on evidence across counts
    notwithstanding that the assaults described by two of four complainants
    occurred when they no longer lived in the appellants home, and where the types
    of sexual misconduct varied between complainants. The similarity or
    connectedness was in the fact that the assaults occurred when the appellant was
    a father figure, beginning in the appellants home while the complainants were
    vulnerable (at paras. 13 to 16). Finally, in the present case the probative
    value of the evidence was significant, and its reliability was enhanced by the
    fact that the appellant admitted certain abusive conduct in relation to each of
    C, D and S.

[22]

The appellants third argument on the similar
    fact evidence ruling is that the trial judge erred in failing to dismiss the
    application on the basis that the prejudice caused by such evidence outweighed
    its probative value.

[23]

I disagree. Prejudice in the similar fact
    context involves the two distinct concepts of reasoning prejudice and moral
    prejudice:
R. v. T.B.
, 2009 ONCA 177, 243
    C.C.C. (3d) 158, at para. 26. This was a non-jury case where the similar fact
    evidence related to the counts in the information and the evidence was already
    before the court.
[2]
As noted by this court in
T.B
., at
    para. 27, there is little risk of reasoning prejudice in a judge-alone case, as
    the trial judge is presumed to know the law and the proper and improper use of
    evidence.

[24]

Further, the risk that the appellant would be
    convicted solely on the basis of his general bad behaviour (moral prejudice) is
    also not a significant concern in a judge-alone trial:
T.B.,
at para. 33. See also:
R. v. MacCormack
, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 68 and 69. And, both
    moral and reasoning prejudice are significantly reduced in a count-to-count
    similar fact application, as the evidence is admissible independent of its
    status as similar fact.

[25]

I do not see any error in the trial judges
    conclusion that the probative value of the similar fact evidence in this
    multi-count, multi-victim sexual assault trial outweighed any prejudice that
    could result from the admission of such evidence

(2)

Did the trial judge improperly admit and rely on
    evidence of uncharged bad conduct?

[26]

The second error alleged by the appellant is
    that the trial judge improperly admitted and relied on evidence of other
    uncharged bad conduct. This evidence falls within two categories:  (i) evidence
    of disposition (i.e. similar fact evidence) that fell outside the scope of the
    information; and (ii) general bad character evidence.

[27]

The first category of evidence arises from the
    trial judges request, at the conclusion of closing submissions, that counsel
    link the evidence to the specific counts in the information. The appellant
    asserts that, in responding to this request, the Crown particularized the
    counts in the information, notwithstanding that the appellant did not at any
    time request particulars or object to the information as drafted. The appellant
    submits that the Crowns failure to link certain incidents described by the
    complainants to a particular count turned evidence of those incidents into
    extrinsic (uncharged), and therefore inadmissible, bad character evidence, and
    the admission of this evidence resulted in an unfair trial.

[28]

I disagree. First, contrary to how the appellant
    seeks to characterize what occurred, there was no particularization of the
    charges. The defence never requested particulars, and it was not prejudiced by
    the form of the information. The appellant received disclosure, including the
    complainants statements to police, and had a preliminary inquiry. He knew the
    case against him. After closing submissions the trial judge asked both Crown
    and defence counsel for assistance in linking the evidence to the particular
    counts, which covered various locations and time periods during which there had
    been changes to the provisions of the
Criminal Code
. Counsel responded by identifying specific incidents that were
    relied on to support each charge. For example, counts 7 through 11 all dealt
    with D, with different offences in sometimes overlapping locations and time
    periods. Counsel identified specific incidents referred to in Ds evidence and
    relied on by the Crown, together with the appellants position in respect of
    each incident.

[29]

The assistance provided by counsel linking the
    evidence to the specific counts did not mean that the counts were then
    particularized. And, more to the point of the appellants argument, the process
    of tying evidence to specific counts did not mean that all of the complainants
    other evidence about the appellants conduct was automatically transformed into
    inadmissible discreditable conduct evidence. Indeed, there was no objection
    during the trial to what the appellant now says was extraneous discreditable
    conduct evidence.

[30]

With one exception, which I discuss below, the
    incidents that were admitted as similar fact evidence fell within the scope of
    the charges set out in the information; evidence of those incidents was
    therefore properly admitted by the trial judge in her ruling on the
    count-to-count similar fact evidence application.

[3]

[31]

The
    exception relates to Cs evidence about massages that the appellant had her give
    him when she was six or seven years old, while the family was living in
    Corunna. Because the offences with which the appellant was charged in relation
    to C (sexual assault and sexual exploitation) did not even exist at the time of
    the alleged massages, these incidents fall outside the scope of the information.
    The Crown sought, and the trial judge allowed, the massage evidence to be
    admitted as similar fact evidence without anyone adverting to the fact that this
    was extrinsic, rather than count-to-count, similar fact evidence.

[32]

However,
    I am satisfied that, had counsel and the trial judge adverted to this issue, the
    massage evidence would have been properly admitted as extrinsic similar fact
    evidence. In addition, the admission of this evidence caused the appellant no
    prejudice in terms of how he conducted his defence. He knew that the Crown was
    seeking to have the massage evidence admitted as similar fact; the Crowns
    factum in support of the similar fact application indicated that the Crown was
    seeking to have the massage evidence admitted as similar fact, and the
    appellants responding factum addressed this particular piece of evidence. Even
    if the trial judge may have relied on the underlying conduct in sentencing the
    appellant, I am satisfied that it would not have materially affected the
    sentence that was imposed. I therefore find that admitting the massage
    incidents as similar fact evidence did not amount to reversible error:
R.
    v. Graham
, 2015 ONCA 113.

[33]

I
    also reject the appellants contention that a mass of general bad character
    evidence was admitted at trial without a Crown application, causing him
    prejudice. Much of the evidence was admissible because it was inextricably
    connected to the incidents of abuse described by the complainants. For example,
    evidence that the appellant had pornographic magazines and videos was directly connected
    to Ds description of two incidents of abuse (during which, she testified, she
    was shown the pornography) and was relevant to show the sexual nature of the
    contact. The evidence of D and A that the appellant struck D after she
    intervened while the appellant was tickling A was part of their account of the
    very incident that gave rise to the charges involving A. Evidence of the
    appellants bullying and belittling behaviour was part of the factual
    circumstances of the offences charged, and was offered by the appellant as an
    explanation for why he did certain things, especially to C  to bug and
    tease, rather than for a sexual purpose.

[34]

By
    far the majority
of the other evidence the appellant complains
    about, such as
why his marriages failed and his alcohol abuse, was evidence
    he introduced in his own testimony or it was elicited in his counsels cross-examination
    of the complainants. Other evidence, including Ds reference to her mothers
    admission to a psychiatric hospital following her disclosure of the sexual
    abuse, was part of the narrative, and no objection was taken to this evidence at
    trial. Finally, the defence pointed to a great deal of what is characterized on
    appeal as bad character evidence to argue
animus
that the complainants
    had reasons other than the alleged sexual misconduct to have terminated contact
    with the appellant, and to make false and exaggerated claims of sexual abuse.

[35]

In
R. v. J.A.T
., 2012 ONCA 177, 290 O.A.C. 130, a
    case relied on by the appellant, this court allowed an appeal where evidence of
    uncharged misconduct and other morally reprehensible behaviour over nearly a
    decade (characterized by Watt J.A. as an evidentiary swamp) included
    irrelevant evidence, double hearsay, opinion and prior consistent statements,
    and the jury was not properly cautioned about its use of the evidence. The
    combined serious errors were prejudicial and required a new trial. By contrast,
    there was no such evidentiary swamp in this judge-alone trial. Finally, I
    note that there is nothing in the trial judges reasons to suggest that she
    improperly relied on such evidence in determining the appellants guilt.

(3)

Did the trial judge reverse the burden of proof?

[36]

As his third ground of appeal, relying on
    comments made by the trial judge in her discussion of his credibility in
    respect of the charges relating to C and D, the appellant contends that the
    trial judge erred by shifting the burden of proof.

[37]

The appellant relies on a number of cases where
    this court concluded that it was a reversible error for a trial judge to find
    an accused guilty, after accepting the evidence of a complainant, and without
    properly assessing whether the accuseds evidence, or the evidence as a whole,
    raised a reasonable doubt. In
R. v. V.Y
., 2010
    ONCA 544, 258 C.C.C. (3d) 281, a majority of this court analyzed the reasons of
    the trial judge and found that the accused was disbelieved simply because the
    complainant was believed. In
R. v. Stewart

(1994),
    70 O.A.C. 370 (C.A.), although allowing the appeal on the basis of unreasonable
    verdict, the court noted that the trial judge shifted the onus to the appellant
    to give an explanation as to why the complainant would lie (at para. 26). In
R.
    v. A.J.S
., 2011 ONCA 566, 106 O.R. (3d) 586, this court
    criticized the trial judges comment that the appellant made an unvarnished
    denial rather than giving an interpretation of what may have happened, which
    he characterized as a denial of convenience. The appeal was ultimately
    allowed on the basis of insufficient reasons.

[38]

This case is quite different from those relied
    on by the appellant. When the impugned statements are reviewed in the context
    of the reasons as a whole, this was not a case of a trial judge reversing the
    burden of proof. The trial judge did not disbelieve the appellant simply
    because she accepted the evidence of some of the complainants. She did not
    shift the onus to the appellant to explain why the complainants would lie.

[39]

The trial judges reasons set out in some detail
    the evidence of the complainants in support of the charges. After referring to
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, she considered the
    appellants evidence and concluded that she did not accept the evidence, and
    that it did not raise a reasonable doubt. I note here that no objection is
    taken by the appellant to the trial judges reasoning in respect of the charges
    concerning S and A, or to her assessment of the credibility of the
    complainants. The concern is with respect to the trial judges discussion of
    the appellants evidence denying the extent of his abuse in relation to C and
    D.

[40]

In relation to C and D, the trial judge stated
    that she did not accept the appellants evidence and that it did not raise a
    reasonable doubt, and she referred to six reasons. Among those reasons were
    the two statements the appellant finds objectionable: (1) that the appellant
    minimized the sexual activity with C and D by, for example, claiming all of the
    touching occurred over the clothing and it only occurred two to three times per
    month and that he meant it as a teasing gesture, not as abuse; and (2) that the
    appellants denials did not include any details, and that when he denied the
    incident with D, which she said was the first instance of sexual abuse, he did
    not offer an alternative scenario of when and how the abuse began.

[41]

Contrary to the appellants submission, I do not
    regard these statements as the trial judge reversing the onus of proof to the
    appellant to disprove the complainants allegations. It is important to
    remember here that the appellant acknowledged improper behaviour with C and D
    over a significant number of years. With respect to C, he not only admitted to regularly
    grabbing her breasts, he testified that he put his hand down her pants
    (although he denied fingering her). With respect to D he admitted that for
    years he touched her breasts and vagina (albeit over her clothes), that his
    behaviour was wrong, and that on one occasion, after she caught him
    masturbating while fully exposed, he touched her breasts and vagina. The
    appellants emphasis throughout his evidence on how he was teasing and
    roughhousing with his daughters is difficult to reconcile with the specific
    incidents he admitted, his telling D when she was 12 that their inappropriate
    behaviour had to stop, and the counselling he later sought out. It was not
    inappropriate for the trial judge in these circumstances to characterize the
    appellants emphasis on him merely teasing and roughhousing with his daughters
    as minimizing and to find that it weighed against the credibility of the
    appellants evidence about the extent of his abuse of C and D.

[42]

As for the trial judges comment on the
    appellants failure to provide details of his abuse of D, including how it
    started, the appellant on his own evidence had been touching D in a sexual
    manner from when she was a small child until at least the age of 12. He denied
    the French fry incident (where he offered D a French fry if she would let him
    touch her) as the first incident of abuse, simply saying that it did not
    happen. It was not unreasonable for the trial judge to take into consideration
    in assessing the appellants credibility about such evidence, his failure to
    provide any evidence at all about how his conduct with D, which he
    characterized as inappropriate and acknowledged had continued over many years,
    had started. This is unlike the cases referred to by the appellant where
    nothing more than a bald denial might have been expected.

[43]

In any event I do not regard these comments as
    reversing the onus of proof, when considered in the context of the reasons as a
    whole, and in particular the other reasons the trial judge gave for
    disbelieving the appellant and finding his evidence did not raise a reasonable
    doubt (which included his bizarre and illogical explanations for incidents he
    recalled differently, such as that he put his hand down Cs pants because she
    was bugging him about his interaction with a female guest, and he decided to
    show her). The trial judge took into consideration the appellants efforts to
    cast his daughters in a negative light, to portray himself as both a victim and
    a great father, and his admitted binge-drinking that he blamed for at least one
    incident of sexually abusive behaviour, and that the trial judge found
    difficult to believe was the only incident where alcohol was a factor. Contrary
    to the appellants assertions, there was nothing wrong with the trial judge
    taking these factors into account in her assessment of the appellants
    credibility.

[44]

Finally, the appellant complains about two other
    features of the trial judges assessment of his credibility in relation to the
    allegations concerning C and D. First, he says that the trial judge failed to mention
    two factors that were favourable to him: that he admitted to having engaged in
    sexually inappropriate behaviour with his daughters, and that he sought and
    obtained treatment for his sex offending behaviour prior to being charged.
    Second, he contends that the trial judge misapprehended the evidence when she
    stated that the appellant blamed his daughters for breaking off contact, when the
    evidence was to the contrary.

[45]

The appellants testimony that he engaged in
    inappropriate sexual misconduct (although he characterized it largely as
    non-sexual rough-housing and teasing) was more of a denial of an intention to
    sexually abuse his daughters than an admission of wrongdoing. As for his
    participation in sex offender treatment, this occurred after the 2007 incident
    with S, many years after the sexual abuse of his biological daughters, and very
    little information was provided about the content of the counselling and
    treatment. The relevance of this evidence to the appellants credibility on the
    extent of what occurred, is not apparent. The trial judge did not err in these
    circumstances by failing to mention any of this evidence, which could not have
    had a material effect on her assessment of the appellants credibility.

[46]

As for the assertion that the trial judge misapprehended
    the evidence when she said that the appellant blamed his daughters for breaking
    off contact, I do not see an error here. In the context of her comments about
    the appellant taking pains to cast the complainants in a negative light, the
    trial judge said that he seemed to blame his daughters for not keeping in
    touch, not contacting him when their mother died, and with respect to [A] not
    inviting him to her graduation. It is a fair and available inference from the
    evidence that the appellant, while asserting that he respected the
    complainants choices to break contact with him, did in fact suggest that the
    complainants were unreasonable in not informing him of their mothers death and
    excluding him from such events in their lives as a graduation and contact with
    his grandchildren.

SENTENCE APPEAL

[47]

In his sentence appeal the appellant asserts
    that the trial judge erred in two ways. First, he says that she started with a
    global sentence and then imposed a sentence of six years on each count to run
    concurrently, instead of considering a fit sentence for each count and then
    applying the principle of totality. The appellant contends that
the
    seriousness of the offences varied, and that each of the counts, individually, ought
    to have attracted lesser sentences, and resulted in a  total sentence of less
    than six years imprisonment.

[48]

I would not give effect to this ground of appeal.

[49]

The trial judge concluded that a global
    sentence of six years was warranted. To the extent that she began with a global
    sentence, and then determined the appropriate sentence for each count, she did
    not err in principle. This approach was endorsed by this court in
R.
    v. Jewell

(1995),
    100 C.C.C. (3d) 270
(Ont. C.A.), at p. 279: "[h]aving
    determined the appropriate total sentence, the trial judge should impose
    sentences with respect to each offence which result in that total sentence and
    which appropriately reflect the gravamen of the overall criminal conduct".
    See also
R. v. Ahmed,
2017 ONCA 76, 346 C.C.C. (3d) 504, at para. 85.

[50]

It
    was not a reversible error for the trial judge to determine a global sentence first
    and then to impose concurrent sentences of equal length. Concurrent sentences
    can reflect a trial judges view that the offences were sufficiently
    interrelated to merit concurrent dispositions:
R. v. Taylor
, 2010
    MBCA 103, 263 C.C.C. (3d) 307, at para. 12. And, the determination of whether
    sentences should run concurrently or consecutively is entitled to deference:
R.
    v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46. In cases of multi-victim
    sexual abuse where the offender was engaged in a pattern of conduct over many
    years with various victims, there may be good reason to impose concurrent
    sentences of equivalent length, after the court considers an appropriate global
    sentence. See, for example:
R. v. Stuckless
, 2016 ONCJ 338 and
R.
    v. D.D.
(2002), 58 O.R. (3d) 788, 163 C.C.C. (3d) 371 (C.A.).

[51]

I
    would not, however, endorse an approach where a trial judge starts with a
    global sentence and then applies the same sentence across the board on a
    concurrent basis. In this case, the conduct underlying the counts differed in
    seriousness and, standing alone, any given count could arguably have attracted
    a different and lesser sentence. Here, the trial judge ought to have explained
    why concurrent sentences of equivalent length were imposed for these offences.
    Instead, her sentencing reasons addressed only the question of a global
    sentence, and she then endorsed on the information sentences of six years on
    each count to run concurrently. The practice of not differentiating between the
    various counts in terms of the sentence imposed makes it difficult for this
    court, on appeal, to properly address the appropriate sentence should an appeal
    succeed on some, but not all, of the convictions.

[52]

None
    of this, however, affects my view that the total sentence imposed in this case
    was appropriate. The sentence was within the range of mid to upper single digit
    penitentiary terms for the regular and persistent sexual abuse by a person in a
    position of trust of young children over a substantial period of time: see
D.D.
at para. 44; and
R. v. Woodward
, 2011 ONCA 610, 276 C.C.C. (3d) 86, at
    para. 75.

[53]

The
    appellants second argument on his sentence appeal is that the trial judge
    erred in relying on at least two uncharged acts  the French kissing and
    attempted intercourse allegations by D, which the appellant says were excluded
    when the Crown particularized the information. As I have already rejected the
    argument that there were uncharged acts, I see no merit to this argument. The
    incidents the appellant says were uncharged were not excluded. They were
    referred to in the trial judges reasons for judgment and, in addition to all
    of the other incidents of repeated sexual abuse of D, were relevant to her
    findings of guilt in respect of the counts relating to D. In any event, the
    exclusion of these two incidents would not have had any material effect on the
    length of the appellants custodial sentence.

[54]

The appellant also contends (and the Crown agrees) that
the
    condition in the ancillary order under s. 161(d) of the
Criminal Code
,
    which appears to have been included as a result of an administrative error,
    should be deleted from the s. 161 order. I agree.

CONCLUSION AND DISPOSITION

[55]

For
    these reasons, I would dismiss the conviction appeal. I would grant leave to
    appeal sentence, and allow the sentence appeal in part, to remove the condition
    under s. 161(d) from the appellants s. 161 order.

K. van Rensburg J.A.

I agree Janet Simmons
    J.A.

I agree I.V.B, Nordheimer

Released: March 14, 2018

[1]
Although not argued by the appellant, I note that the fact that the trial judge
    ultimately acquitted the appellant on the counts relating to A does not mean
    that she erred in admitting As evidence as similar fact:
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 79. In her reasons for judgment, the trial judge
    indicated that she relied on the evidence of each individual complainant to
    corroborate the evidence of the others. The appellant took no issue with this
    statement and I do not interpret it as an indication that the trial judge
    improperly used As similar fact evidence, as this statement was made after the
    trial judge had made her findings regarding As evidence about to the incident
    involving A. In addition, other aspects of As evidence corroborated the other
    complainants evidence. For example, A testified that she saw the appellant
    grab Cs breasts.

[2]
In the next section, I address
the appellants argument that
    the similar fact evidence included uncharged conduct that had been excluded by
    the Crown when he particularized the information.

[3]
The appellant took issue with Cs evidence
about one occasion
    when the family was living in Scarborough and the appellant rubbed her breasts
.
    C
testified that this occurred when she was ten or 11 years
    old (i.e. between June 23, 1983  June 23, 1985), a portion of which timeframe
    falls outside of the dates in count four (June 23/84  June 22/90). However, I
    agree with the Crown that, in the absence of any suggestion that the dates were
    an essential element of the offence, or that the appellant was misled and
    therefore prejudiced, the discrepancy in dates does not affect the validity of
    the charge or the conviction:
R. v. B.G.
, [1990] 2 S.C.R. 30 at paras.
    38-40;
R. v. S.D.
, 2011 SCC 14, [2011] 1 S.C.R. 527, at paras. 1-2.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jeeva, 2018 ONCA 308

DATE: 20180327

DOCKET: C57439

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kisantharuby Jeeva

Appellant

Dean Embry, for the appellant

Brett Cohen, for the respondent

Heard: March 16, 2018

On appeal from the conviction entered on July 9, 2013 by
    Justice Peter A. J. Harris of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Thirty-eight defendants, plus Ms. Jeeva, were charged separately as the
    result of an insurance fraud conspiracy investigation, Project Whiplash, into
    allegedly staged motor vehicle collisions. The charges against Ms. Jeeva were
    laid on March 9, 2012. Until October 12, 2012, her charges were processed
    together with other Project Whiplash defendants, and she had been advised from
    the outset that if a trial was held, she would be tried jointly with other
    defendants. Initially the Crown indicated, on the record, that she would be
    tried with the occupants of the vehicle she allegedly drove. Later, when the Crown
    and those other occupants were working towards a resolution of their charges,
    the Crown announced its intention to prosecute the various alleged drivers together.
    On September 20, 2012, the Crown agreed to Ms. Jeevas first request to process
    her charges alone. A pre-trial was held and on July 9, 2013, the trial took
    place. She was convicted that day of one count of fraud over $5,000.

[2]

Ms. Jeeva now appeals her conviction. She alleges that the trial judge
    erred in rejecting her s. 11(b)
Charter
application. Ms. Jeeva does
    not contest the proposition of law relied upon by the trial judge prior to
R.
    v. Jordan
, 2016 SCC 27, [216] 1 S.C.R. 631 that ordinarily delay caused
    by the actions of co-accused is considered to be neutral in the s. 11(b)
    analysis.
[1]
She says that the trial judge erred by applying that principle, which is confined
    to co-accused persons, to persons individually charged in Project Whiplash, and
    by treating delay caused by these individually charged defendants as delay
    inherent in her prosecution.

[3]

We need not settle the broader legal question of whether individually
    charged but related defendants being processed with a view to joint trials should
    be treated the same as co-accused persons in characterizing trial delay. Even
    if we were to accept Ms. Jeevas position that they should not be treated in the
    same way, there is insufficient institutional or Crown delay in this case to
    support a finding that s. 11(b) of the
Charter

was violated.
    The trial judge identified only two periods of neutral delay in Ms. Jeevas
    case attributable to the actions of other accused. Those two periods total 89
    days. If this approximate three months of delay is not treated as inherent in
    the prosecution of Ms. Jeeva, and is added to the seven months of institutional
    delay the trial judge found, the net delay is still only approximately ten
    months. A ten month net delay falls within the
R. v. Morin
, [1992] 1
    S.C.R. 771 guidelines for provincial court trials and would not be unreasonable
    under the pre-
Jordan
law in place when Ms. Jeevas s. 11(b)
    application was decided.

[4]

If, instead, the
Jordan
regime is applied, the total delay of
    16 months is not presumptively unreasonable. Nor can it be said that a transitional
    case involving 10 months of
Morin

delay is one of those
    exceptional cases where a presumptively reasonable delay offends s. 11(b)
    because the case took markedly longer than required.

[5]

The trial judge came to the correct conclusion. The appeal is therefore
    dismissed.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.

[1]

In
R. v.
    Gopie
, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 142
    this court held that post-
Jordan
, the Crown has the burden of proving that delays caused by
    co-accused persons fall within the exceptional circumstances analysis.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jennings, 2018 ONCA 260

DATE: 20180319

DOCKET: C63177

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Steven Jennings

Respondent

David Friesen, for the appellant

Noah Schachter, for the respondent

Heard: November 23, 2017

On appeal from the decision of the Summary Convictions Appeal Court dated December 12, 2016 by Justice J. Christopher Corkery of the Superior Court of Justice, dismissing the appeal from the acquittal entered on June 16, 2015 by Justice Robert W. Beninger of the Ontario Court of Justice.

B.W. Miller J.A.:

OVERVIEW AND BACKGROUND

[1]

An OPP constable observed a vehicle driven by the respondent straying
    significantly out of its lane. After following it for a time, he pulled the
    vehicle over. Detecting alcohol on the respondents breath, he asked the
    respondent if he had been consuming alcohol, and received a positive reply. The
    constable concluded that he had a reasonable suspicion that the respondent had
    alcohol in his body, and issued a demand that the respondent provide a breath
    sample into an approved screening device (ASD). The respondent registered a
    fail on the ASD and was arrested and taken to an O.P.P. detachment where he
    provided two breath samples into a breathalyzer administered by a qualified
    breath technician. Both samples tested significantly in excess of 80 mg of
    alcohol in 100 ml of blood.

[2]

The only issues at trial were whether the breath sample demand
    constituted an unreasonable search or seizure under s.8 of the
Charter of
    Rights and Freedoms
, and if so, whether the breath samples should be
    excluded as evidence under s. 24(2). The trial judge concluded that the
    constable did not have reasonable and probable grounds to believe the
    respondent had committed the offence of driving over 80 from the results of
    the roadside test with the ASD, and that the taking of the subsequent breath
    sample at the police station accordingly violated s.8. Although the parties
    agreed that the constable honestly believed the respondent had committed the
    offence, satisfying the subjective component of the test, the trial judge
    accepted the defence argument that the constables belief was not objectively
    reasonable because he had not followed three procedures set out in the O.P.P.
    manual for using the specific ASD, the Drager Alcotest 6810. The failure to
    follow these procedures, the trial judge concluded, meant that the constable
    could not have reasonably believed that the ASD was in proper working order,
    and therefore could not have used the results of the roadside test as a reason
    to believe the respondent had a blood alcohol level over .80.

[3]

The trial judge excluded the breath samples under s. 24(2). Following
    the three part structured analysis set out in
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, the trial judge concluded that (i) the breach of the
    respondents
Charter
rights was serious, as was (ii) the impact of the
    breach on the respondent. Although the trial judge found (iii) the societal
    interests in the adjudication on the merits to be strong, he concluded that the
    impact of the breach on the respondent weighed heavily in favour of the
    exclusion of the evidence, and he excluded the breath samples.

[4]

In considering the second
Grant
factor, assessing the impact of
    the breach, the trial judge followed a line of cases from
R. v. Au-Yeung
,
    2010 ONSC 2292, 75 C.R. (6th) 78, holding that the seriousness of the impact of
    a s. 8 breach in a breath sample case should not focus only on the
immediate
impact of providing a breath sample, but on the
overall
impact on the
    accused of the breach, including such matters as detention in the back of a
    police cruiser, transportation to the police station for breath-testing, and
    subsequent detention at the police station. He rejected a contrary line of
    authority that restricts the analysis to the breath sample procedure, which in
    itself is minimally intrusive.

[5]

On appeal by the Crown, the summary conviction appeal court held that
    the trial judge did not err in finding that the constables subjective belief
    that the fail result was reasonable was not supported by the objective facts.
    The summary conviction appeal judge (SCAJ) also upheld the trial judges
    decision to exclude the evidence under s. 24(2). The appeal was dismissed.

[6]

Leave to appeal to this court was granted.

[7]

For the reasons set out below, I would allow the appeal, enter a conviction,
    and remit the matter to the trial judge for sentencing.

Analysis

[8]

There are two issues on this appeal: did the SCAJ err in upholding the
    trial judges finding: (1) of a s. 8 violation in the taking of the
    respondents breath sample at the police station; and (2) that the breath
    samples obtained at the police station should be excluded as evidence under s.
    24(2).

(1)

The s. 8 breach

[9]

The investigation of over 80 offences follows a two-stage process.
    Initially, an officer with a reasonable suspicion that a driver has alcohol in
    his or her body is authorized by s. 254(2) of the
Criminal Code
to
    demand the driver provide a breath sample into an ASD. This is a preliminary
    screen only, and registering a fail on the ASD cannot be used as evidence that
    the driver was impaired or that his or her blood/alcohol level was over the
    legal limit. But an ASD failure  either alone or in combination with an
    officers other observations  may provide the officer with reasonable and
    probable grounds to conclude that an impaired driving offence has been
    committed. If the officer forms reasonable and probable grounds for an arrest,
    the officer is authorized to arrest the driver and demand breath samples on an
    approved instrument pursuant to s. 254(3):
R. v. Einarson
(2004), 70 O.R.
    (3d) 286 (C.A.), at paras. 10-11.

[10]

The
    determination of whether there are reasonable and probable grounds to demand a
    breath sample under s. 254(3) of the
Criminal Code
has a subjective
    and an objective component: (i) the officer must have an honest belief that the
    suspect committed an offence, and (ii) there must be reasonable grounds for
    that belief:
R. v. Wang
: 2010 ONCA 435, 263 O.A.C. 194, at para. 14.

[11]

Here,
    there is no dispute that the constable had the requisite subjective belief that
    the respondent had been driving with a blood/alcohol level over .80. No issue
    is taken with the officers ASD demand under s. 254(2). However, the trial
    judge found there was no evidence of objective grounds to support the
    constables subjective belief.

[12]

The
    determination of whether the constables belief was objectively reasonable
    largely turns on whether it was reasonable for him to believe that the ASD was
    functioning properly. In
Bernshaw
, [1995] 1 S.C.R. 254, at para. 80, Sopinka
    J. observed that an officer is entitled to rely on [the accuracy of an ASD]
    unless there is credible evidence to the contrary. However, if an officer
    cannot rely on the accuracy of the ASD test results, those results cannot
    assist the officer in determining whether there were reasonable and probable
    grounds to arrest a driver and demand a subsequent breath test:
Einarson,
at
    para. 14.

[13]

The
    trial judge found the constables belief that the ASD was functioning properly
    was not reasonable, because of his failure to follow three of the steps set out
    in the O.P.P. policy manual. The trial judge found that contrary to the
    procedures set out in the ASD manual, the constable did not:

1. perform a self-test of the ASD at the beginning of his
    shift;

2. record the particulars of the ASD calibration check in his
    notebook; or

3. perform a second self-test after the respondent provided his
    breath sample.

[14]

In
    support of the reasonableness of his belief that the ASD was properly
    functioning, the constable testified at trial that if the ASD was not properly
    calibrated, it would shut down and could not be operated. The trial judge,
    however, rejected this evidence, finding that there was no evidence that the
    constable was aware of this feature at the time of the search. He found that
    there were no objective grounds to support either the constables belief that
    the ASD was properly functioning, or the constables belief that the respondent
    had been driving with a blood\alcohol level over .80. The trial judge reached
    this conclusion because of his view that the constables failure to follow the three
    procedures in the O.P.P. manual provided credible evidence to the contrary,
    such that the ASD results could not be relied upon to form reasonable and
    probable grounds for the search:
R. v. Gundy,
2008 ONCA 284, 235
    O.A.C. 236, at para. 50.

[15]

The
    SCAJ held that the trial judge made no error in so concluding.

[16]

I
    disagree, for the reasons set out below, and would hold that the trial judge
    erred in finding that there were no objective grounds to support the
    constables subjective belief in both the proper functioning of the ASD, and in
    the presence of reasonable and probable grounds to believe the respondent had
    been driving over .80.

[17]

Failure
    to follow policy or practice manual directions does not automatically render
    reliance on test results unreasonable. What matters is whether the officer had
    a reasonable belief that the device was calibrated properly and in good working
    order, and whether the test was properly administered:
Bernshaw,
at
    paras. 59-60, 83
; R. v. Topaltsis (2006),
34 M.V.R. (5th) 27 (Ont.
    C.A.) at paras. 7,9. A failure to follow a practice manual direction can serve
    as
some
evidence undermining the reasonableness of an officers
    belief. But the fact that an officer failed to follow a practice manual
    direction is not itself dispositive. Not every failure to follow a direction is
    necessarily fatal to reasonableness of belief. Not all practice manual
    directions will bear equally, or perhaps at all, on the reasonableness of an
    officers belief that the ASD is properly functioning. It is necessary to take
    the further step and determine how or whether each of the specific failures identified
    undermine the reasonableness of the officers belief that the ASD was
    functioning properly.

[18]

The
    first omission by the constable was his failure to perform a self-test of the
    ASD at the beginning of his shift. Assuming the officer has no alcohol in his
    or her body, the self-test should result in a zero reading. Here, the constable
    performed the self-test, but it was at roadside and immediately before
    administering the test to the respondent. He obtained a zero reading. There was
    no evidence that, for the purposes of ensuring proper functioning of the ASD at
    the time the test is administered, there is any advantage to performing the
    self-test at the beginning of the shift rather than at roadside. The beginning
    of the shift requirement appears simply to be a matter of operational
    efficiency  of avoiding the inconvenience of finding oneself in the field with
    malfunctioning equipment. The failure to follow the directive in this
    particular respect could not have had any bearing on the officers belief that
    the ASD was functioning when the test was administered.

[19]

The
    second failure was in not recording the calibration particulars of the ASD. The
    calibration and accuracy of the device must be verified before use. The
    constable testified that he did check these at the time of the stop, but that
    he did not record the details in his notebook as required. Again, recording
    calibration results is an administrative matter. There may be good reason for
    it, presumably of an evidentiary nature, but a failure to record does not
    automatically negate a constables testimony that he performed the necessary
    checks.

[20]

Furthermore,
    the constable testified that the ASD had a fail-safe feature that would not
    allow it to be operated at all if it was not properly calibrated:

I know at the time
that I did check the calibration
    and the accuracy and that, uh, the device will not operate if  if its not
    calibrated and the accuracy isnt checked, um, so,
at the time
, if
    if the calibration and the accuracy isnt proper, then the device actually
    wont  wont work. [Emphasis added.]

The constables testimony, though not in every respect
    a model of grammatical precision, is some evidence that he knew about the
    fail-safe feature at the time he administered the roadside test. Precisely how
    or when he learned this is not important.

[21]

The
    third failure was in not performing a second self-test immediately after the
    respondent provided a breath sample. Again, this is a matter of best practices,
    to confirm that the ASD remains in working order, and would provide
some
evidence that the ASD was properly functioning at the time of the test. But
    absent something happening to the ASD in the brief period after the first
    self-test, the constable would have no reason to believe that the ASD was no
    longer in proper working order. The failure to perform the second self-test
    does not negate the objective reasonableness of the constables subjective
    belief that it was in working order when the test was administered.

[22]

Accordingly,
    the SCAJ and the trial judge erred in concluding that the constables
    subjective belief that the respondent had committed the offence of driving over
    .80 was not objectively reasonable. The uncontested evidence was: (i) the
    constable observed the respondents vehicle swaying into the wrong lane; (ii)
    the constable detected alcohol on the respondents breath; (iii) the respondent
    admitted to having consumed alcohol; (iv) the constable followed the procedures
    for use of the ASD, with the exception of those noted above; (v) the results of
    the self-test and the calibration check indicated the device was working; and
    (vi) the breath sample provided by the respondent registered over .80.

[23]

I
    would hold that the SCAJ erred in law in upholding the trial judges ruling
    that there was a breach of the respondents s. 8 rights.

(2)

Exclusion under section 24(2)

[24]

The
    conclusion on the s. 8 issue is sufficient to dispose of the appeal. However, a
    divergence in the lower courts on how to approach s. 24(2) analysis in breath
    sample cases makes it necessary for this court to address the reasons of the
    trial judge and the SCAJ on this issue.

[25]

The
    trial judge excluded the breath samples from evidence, a decision that was
    upheld by the SCAJ. The SCAJs reasons on this issue were brief, simply stating
    that the trial judge correctly considered the factors articulated by the
    Supreme Court of Canada in
R. v. Grant
. The trial judges application
    of the
Grant
test, however, was problematic in two respects.

[26]

On
    the first branch of the
Grant
test, although the trial judge concluded
    that the s. 8 breach was serious and favoured exclusion of the evidence, he did
    not explain how he arrived at this conclusion. He appears to have taken it as
    axiomatic that a warrantless roadside search which formed the basis of the
    reasonable and probable grounds of the arresting officer was
per se
a
    serious breach. But
Grant
requires more: there must be some
    examination of the police conduct and a determination of where it fits on a
    spectrum from mere technical breaches at one end to bad faith violations at the
    other. As the Crown argues, the circumstances of this case are notably
    different from those in
Au-Yeung
, where the officer administering the
    roadside test did not perform a self-test at all, did not check when the device
    was last calibrated, did not know how to read the device, had last received
    training on the use of ASDs 22 years earlier, and was unsure if he had used the
    device properly. The SCAJ in that case held that the officer had not acted in
    good faith, and that his actions bordered on wilful blindness:
Au-Yeung
,
    at paras. 39-40, 52-56. As explained above, the actions of the constable in the
    present case are radically different. Although the constable did not abide by
    the strict letter of the policy manual, he subjectively believed that the ASD
    reading was accurate, took steps to ensure that it was, and acted in good
    faith. The trial judge fell into the error identified by Leach J. in
R. v.
    Molakandov
, [2013] O.J. No. 2482, (S.C.) at para. 59, of finding any
    breach of s. 254(3) of the
Criminal Code
sufficient reason to favour
    exclusion of evidence under the first
Grant
factor. The first
Grant
factor favours admission of the evidence.

[27]

The
    second
Grant
factor addresses the impact of the breach on the
    interests of the accused. The trial judge discerned two competing lines of
    authority setting out the methodology for assessing the seriousness of the
    impact of the accused in breath sample cases. In the line followed by the trial
    judge, led by
Au-Yeung
, the trial judge is to consider not just the
    impact of the administration of the breath sample procedure, which is itself
    minimally intrusive, but the entirety of the procedure faced by the accused
    after arrest. In this case, it would include the initial detention, the
    respondents being placed in the back of a police cruiser and transported to a
    police station, and detention at the police station for a substantial period of
    time. The trial judge, in keeping with the
Au-Yeung
line of authority,
    viewed the entirety of procedures as constituting a serious impact on the
    respondent, and strongly indicating exclusion of the evidence.

[28]

The
    second line of authority rejects the
Au-Yeung
approach and would limit
    the second
Grant
factor to addressing the intrusiveness of the breath
    sample procedure itself: for example,
Molakandov
;
R. v. Ramsammy
,
    2013 ONSC 7374;
R. v. Marchi
, 2016 ONCJ 757;
R. v. Ho
, 2014
    ONSC 5034, revd on other grounds 2015 ONCA 559.

[29]

Much
    of the debate between these two lines of cases focuses on the significance of
    statements in
Grant
, in which the Supreme Court identifies breath
    samples as a central or paradigmatic example of a minimally intrusive search:
    see paras. 106-111. Although, as the respondent argued, the proposition that
    breath sample procedures are minimally intrusive is simply
dicta
in
Grant
,
    it should be noted that the statement was no mere throwaway line. The Supreme
    Court chose the example of breath sample procedure as an apt and economical
    means of illustrating the concept of a minimally intrusive search. And the Court
    assuredly did so in the knowledge that most formal demands for breath samples
    would be accompanied by an arrest and by all of the accompanying incidents
    itemized by the trial judge.

[30]

This
    reading of
Grant
is consistent with other judgments of this court,
    such as
R. v. Manchulenko,
2013 ONCA 543,116 O.R. (3d) 721, where Watt
    J.A. refers to the general rule with respect to the admissibility of breath
    samples due to their non-obtrusiveness (at para. 100)  and, citing
Grant
at
    para. 111, says that as a general rule, reliable evidence obtained by less
    egregious and invasive intrusions into privacy, bodily integrity and dignity,
    such as the taking of breath samples, may be admitted.

[31]

Similarly,
    in
R. v. Guenter,
2016 ONCA 572, 350 O.A.C. 318,

Brown J.A.
    notes, at para. 98, that [t]he collection of the breath samples amounted to no
    more than a minimal intrusion upon the appellants privacy, bodily integrity
    and human dignity:
Grant,
at para. 111.

[32]

To
    find otherwise would be to create a categorical rule that s. 8 breaches in
    breath sample cases automatically favour the exclusion of evidence under the
    second
Grant
factor, since drivers in these cases are almost
    invariably arrested and taken to the police station to provide further breath
    samples. This would be contrary to the approach taken by the Supreme Court in
Grant
and to a sound characterization of what is at stake for the individual in
    providing a breath sample. Accordingly, it was an error for the trial judge,
    and the SCAJ, to have followed
Au-Yeung
in this respect and not to
    have found the impact of the breach to have been minimal, favouring admission.

[33]

With
    respect to the third
Grant
factor, the societal interest in an
    adjudication on the merits, the trial judge made no error in finding the breath
    samples to be reliable evidence, favouring admission.

[34]

Accordingly,
    all three
Grant
factors favour admission, and the breath samples ought
    not to have been excluded from evidence.

Disposition

[35]

I
    would allow the appeal, enter a conviction, and remit the matter to the trial
    judge for sentencing.

Released: March 19, 2018

B.W. Miller J.A.

I agree David Watt
    J.A.

I agree C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kassam, 2018 ONCA 266

DATE: 20180316

DOCKET: C63288

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Inayat Al-Nashir Kassam

Appellant

Mark Hogan, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: March 15, 2018

On appeal from the conviction entered on December 21,
    2016 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with
    a jury.

REASONS FOR DECISION

[1]

Mr. Inayat Kassam, the appellant, appeals his convictions on two counts
    of fraud, and a count of uttering a forged document. He claims that application
    judges erred in denying his pre-
Jordan
s. 11(b) application, and his
Rowbatham
application for state funded legal representation.

[2]

Dealing first with the s. 11(b) challenge, both counsel on this appeal
    agree that this is a transitional
Jordan
case. Its outcome essentially
    turns on whether the application judges decision complied with the
Morin
regime,
    in place when the s. 11(b) decision was made.

[3]

The total delay from charge until the end of trial was 35 months. After
    removing inherent and neutral delay, the application judge identified under six
    months of institutional delay, and held that, given the seriousness of the
    offences and the degree of prejudice caused by the delay, a stay was not
    appropriate.

[4]

The appellant takes issue with the application judges prejudice
    evaluation. He also disputes the application judges delay calculation.
    Although the appellant has not raised issue with respect to 14 months of the
    delay, his essential complaint is that the remaining 21 months of delay
    exceeded the
Morin
18 month guideline and is unreasonable, given the
    prejudice he has suffered.

[5]

We do not agree. We can find no error with the application judges
    prejudice findings. Moreover, after consideration of the appellants challenges
    to the application judges delay calculations, the period of delay remains far
    under the
Morin
guidelines, making a stay of proceedings inappropriate.

[6]

One of the periods of delay the appellant identifies as unreasonable
    runs from January 27, 2016 when the superior court trial date was set, to June
    16, 2016, when the impugned s. 11(b) application was argued and denied. We do
    not agree that this delay counts against the Crown as institutional delay. It
    is clear from the record that the date of the s. 11(b) application was agreed
    to by the parties to accommodate the appellant, who was studying law in the
    United Kingdom for most of this period, and who required the balance of this
    period to prepare for the s. 11(b) application, upon his return. As he was
    unavailable during this period, cannot attribute this period of delay to the
    Crown.

[7]

Another period of delay the appellant argues for is the eight months and
    12 days of delay between December 12, 2014 and August 24, 2015 that the
    application judge found to be neutral. The appellant argues that the
    application judge concluded improperly that this delay was attributable to the
    appellants re-election to have a preliminary inquiry instead of a provincial
    court trial. He submits that there is no evidence that earlier dates would have
    been available if he had elected a preliminary inquiry from the outset.

[8]

Again, the application judge characterized this period as neutral delay
    on the basis that the appellant was not ready to proceed with the preliminary
    inquiry until August 24, 2015, making it impossible for the case to move
    forward before then. We see no error in that characterization. During the
    relevant period the appellant was initially attempting to retain counsel, and
    then preparing, as a self-represented litigant, for the filing of a Statement
    of Issues and a focus hearing.

[9]

Neither of the impugned periods of delay, which together total 13
    months, count against the Crown as institutional delay. When this 13-month
    period is deducted from the 21 months of total delay complained of, the net
    delay is dramatically under the
Morin
guideline. In this context, given
    the seriousness of the charges and the absence of significant prejudice, the
    application judges decision to reject the s. 11(b) application was inevitable.

[10]

The
Rowbotham
ground of appeal fares no better. A
Rowbotham
application
    for court-ordered, state-funded legal representation can succeed only if the
    applicant demonstrates that he is indigent and has no means to retain counsel
    otherwise. The application judge properly held that the appellant had not
    established this, as he had not filed supporting documentation confirming his
    claims of indigence. Simply put, the record offered by the appellant was
    insufficient to meet the burden he carried on this point. On this basis alone
    the
Rowbotham
appeal must be denied.

[11]

Nor
    has the appellant demonstrated that the application judge erred in finding that
    the appellant had not established that his fair trial right would be materially
    compromised if forced to proceed to trial without counsel. The application
    judge made considered findings about the appellants capability for
    self-representation in light of the complexity of the trial, properly noting
    the duty of the trial judge to assist the appellant, when necessary. The
    appellant has provided no basis for concern that the trial that was conducted
    proved to be unfair.

[12]

The
    appeal is therefore dismissed.

K.
    Feldman J.A.

David
    Watt J.A.

David
    M. Paciocco J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.C., 2018 ONCA 311

DATE: 20180327

DOCKET: C63387

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

L.C.

Respondent

Melissa Adams, for the appellant

Geneviève McInnes, for the respondent

Heard: March 23, 2018

On appeal from the sentence imposed on January 20, 2017
    by Justice R.N. Beaudoin of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The Crown appeals from a decision refusing to
    impose a s. 161(1)
Criminal Code
prohibition order. The appellant
    alleges that the trial judge erroneously failed to take into account public
    safety concerns when he refused to impose the order.

[2]

The respondent was found guilty by a jury of
    sexual assault and sexual interference. At the sentencing hearing, the trial
    judge found as a fact that the appellant engaged in more than twenty acts of sexual
    intercourse with his step-daughter over a 2.5 year period. She was between six
    and eight years of age at the time of these assaults.

[3]

The sexual interference count was conditionally
    stayed and a 6.5 year sentence was imposed on the sexual assault count. DNA,
    firearms and
Sex Offender Information Registration Act
, S.C. 2004, c. 10

orders were made. The s. 161 prohibition order was refused. The
    trial judges reasons for refusing to make the order are as follows:

As to the prohibition order sought pursuant to
    s. 161 of the
Code,
I agree with Daley J.
    where he held in
R. v. M.A.J.,
2012 ONSC 6415
     that this is not a proper or necessary order in the circumstances. Such an
    order represents a considerable interference with personal liberty, and it
    would be most difficult for this offender to completely avoid places accessible
    to the public for recreational use like public parks or community centres if he
    is ever allowed to renew contact with his children.

[4]

The appellant does not object to the trial judge
    considering the impact that a s. 161 prohibition order would have on the
    respondent. Rather, the objection lies in what the appellant says that the
    trial judge did not consider. It is said that the trial judge committed
    reversible error when he failed to consider the respondents threat to public
    safety. The appellant argues that had the respondents risk factors been
    properly considered, a prohibition order would have been imposed.

[5]

In
R. v. K.R.J.,
2016 SCC 31, [2016] 1 S.C.R. 906,
at
    para. 72, Karakatsanis J. reviewed the purpose of prohibition orders under s.
    161:

Prohibitions listed in s. 161(1) are to be
    imposed only when a judge is satisfied that the specific offender poses a
    continued risk to children upon his release into the community
and
that the specific terms of the order are a reasonable attempt to
    minimize the risk. [emphasis in original]

[6]

We agree that the trial judge failed to have
    regard to all of the appropriate considerations when he refused to impose a s.
    161 prohibition order. In fairness to the trial judge, he received no
    assistance from counsel on this issue. Indeed, the trial Crown did little more
    than ask for the imposition of a blanket order.

[7]

The respondent correctly points out that, in
    arriving upon his overall disposition, the trial judge carefully reviewed the
    factual record before him, including the circumstances of the offence and the
    offender. The respondent maintains that, considered in context, the trial judge
    should be taken to have considered the public safety concerns when dismissing
    the s. 161 order.

[8]

Although the trial judge recounted many of the
    facts informing the respondents ongoing risk to children, having regard to the
    reasons given, we are not satisfied that he took that risk into account when he
    refused to impose the s. 161 order.  We find that the appellant poses a
    continued risk to children.

[9]

In relation to the risk factors, we have
    particular regard to the pre-sentence report that refers to the respondents denial
    of sexually inappropriate behavior, something that increases his risk of
    re-offence. Drawing from the psychiatric opinion, the probation officer
    commented upon the respondents deviant sexual preference that will require
    programming to assist the development of self-management strategies to avoid
    future behaviours.

[10]

Dr. J. Gray, the psychiatrist who assessed the
    respondent, commented upon the diagnosis of pedophilic disorder, concluding
    that the respondent is at a moderate risk of sexual or violent reoffending. Dr.
    Gray also expressed the opinion that the respondent should not have
    unsupervised contact with females under the age of 18 years.

[11]

Moreover, this was not the respondents first
    offence. In 1989 he was convicted on two counts of break and enter with intent
    and sexual assault. He was highly intoxicated when he entered a home and went into
    a young girls bedroom. He kissed her on the cheek and attempted to remove her
    bedcovers when she pushed him away and told him to leave. He then went to the
    mothers bedroom, attempted to get into bed with her and was told to leave. He
    pled guilty and received a suspended sentence and two years probation.

[12]

Since the offending conduct occurred, the
    respondent has become involved in another relationship with a woman with whom
    he now shares a child. His wife also has a daughter who is around the same age as
    the victim, when the victim was assaulted. Following the charges being laid in
    this matter, the Childrens Aid Society became involved. Since that time, the
    respondent has been required to live away from the family.

[13]

Although we agree with the trial judge that a prohibition
    order would represent a considerable interference with the respondents
    liberty, the imposition of a s. 161 order is a necessary measure to minimize
    the risk he poses to child safety. The order can and should be tailored to
    address the liberty concerns.

[14]

The appellant asks for an order to be imposed in
    accordance with the versions of s. 161(1)(a) and (b) that were in force at the
    time that the offences were committed. Having regard to all of the
    circumstances, including the circumstances underlying the offence, the
    respondents past, and the psychiatric evidence filed, we impose a prohibition
    order as follows:

(a) The
    respondent is prohibited from attending a public park or public swimming area
    where persons under the age of 16 years are present or can reasonably be
    expected to be present, or a daycare centre, schoolground, playground or
    community centre, unless he is in the company of another adult; and

(b) The
    respondent is prohibited from seeking, obtaining or continuing any employment,
    whether or not the employment is remunerated or becoming or being a volunteer
    in a capacity that involves being in a position of trust or authority towards
    persons under the age of 16 years.

[15]

The appeal is granted, the refusal to impose a
    s. 161 order is set aside and a s. 161 order is granted in accordance with these
    reasons for a duration of 15 years from the date the respondent is released
    from imprisonment, including release on parole, mandatory supervision or
    statutory release.

Robert
    J. Sharpe J.A

G.
    Pardu J.A.

Fairburn
    J.A.


WARNING

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

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

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

(a)       any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leung, 2018 ONCA 298

DATE: 20180323

DOCKET: C62694

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryn Leung

Appellant

Jennifer Penman, for the appellant

Avene Derwa, for the respondent

Heard and released orally: March 22, 2018

On appeal from the conviction entered on December 15,
    2015 and the sentence imposed on February 24, 2016 by Justice Minden of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted on 16 of 17 charges,
    including exercising control, procuring, receive material benefit from
    procuring, sexual assault, robbery, theft under $5,000, fraud under $5,000,
    utter threats, and assault. He was sentenced to 8.5 years imprisonment less 3
    years pre-trial custody.

[2]

The appellant appeals against conviction and
    seeks leave to appeal his sentence.

[3]

This was primarily a credibility case. The trial
    judge accepted the evidence of the two complainants, L.S. and M.B.S. He found
    the appellant to be incredible and unreliable and rejected his evidence on all
    matters of significance. The trial judge accepted the evidence of both
    complainants where it conflicted with that of the appellant. Counsel for the
    appellant pointed to specific text messages suggesting that L.S. was not under
    the control of the appellant, but we note that there were an equal if not
    greater number of messages that demonstrated the contrary. The trial judges
    findings were open on the record before him and there is no basis to interfere
    with them. Nor is there any basis to conclude that the trial judge
    misapprehended the evidence of M.B.S.

[4]

The trial judge did not apply different levels of
    scrutiny to the evidence of the complainants and the appellant. The appellants
    complaint is, in essence, that his evidence was not believed. However, the
    trial judge had ample basis for rejecting his evidence. He found the
    appellants testimony self-serving, illogical, and occasionally nonsensical;
    furthermore, it was contrived, calculated to deceive, and in some instances
    completely fabricated.

He
    carefully considered all of the evidence and found that the appellants
    evidence did not give rise to a reasonable doubt, and that the Crown had proven
    the charges beyond a reasonable doubt.

[5]

The trial judge made no error in granting the
    cross-count similar fact application. It was not contested that the
    complainants did not know each other and that there was no possibility of
    collusion. The trial judge found that the appellant took advantage of the
    complainants vulnerability to co-opt each of them in order to obtain money
    from them for their performance of sexual services. His decision that the
    probative value of the evidence outweighed its prejudicial effect is entitled
    to deference. In any event, the trial judge found that the cross-count evidence
    was not essential to the appellants convictions.

[6]

The trial judges sentencing decision is also
    entitled to deference. This court may intervene only if the trial judge made an
    error in law or principle that had an impact on the sentence, or imposed a
    sentence that is demonstrably unfit.

[7]

We see no such error. The circumstances of this
    case were egregious. The appellant preyed upon vulnerable young women who had
    feelings for him and used them for his benefit. He committed several acts of assault
    and sexual assault. He has a lengthy criminal record and the seriousness of his
    crimes had escalated. There were few mitigating factors, and the trial judge
    found that the appellants prospects for rehabilitation were uncertain.

[8]

In all of these circumstances, it was
    appropriate to emphasize denunciation, deterrence, and protection of the
    public. In our view, although the sentence is high it cannot be said to be
    demonstrably unfit.

[9]

The appeal from conviction is dismissed.  Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.