WARNING

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

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

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the complainant or a witness shall not be published in any document or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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
346 or 347,

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

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

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

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

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

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

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

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

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. Hartman, 2015 ONCA 498

DATE: 20150706

DOCKET: C56949

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Hartman

Appellant

Danielle Robitaille, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: February 12, 2015

On appeal from the order of Justice Wolfram Tausendfreund
of the Superior Court of Justice, dated December 5, 2012, dismissing an appeal
from the conviction entered on May 24, 2012, by Justice Charles D. Anderson of
the Ontario Court of Justice.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant, Ryan Hartman, was charged with sexually assaulting R.C. The
Crown proceeded summarily. The appellant testified and denied that he had
sexually assaulted R.C. The trial judge convicted. The appellant appealed to
the Summary Conviction Appeal Court alleging various errors in the trial
judges reasons. That court dismissed the appeal. The appellant was
subsequently sentenced to 14 months imprisonment and 3 years probation by the
trial judge.

[2]

The appellant seeks leave to appeal the decision of the Summary
Conviction Appeal Court. His position has changed dramatically. He now admits,
contrary to his evidence at trial, that he sexually assaulted R.C. as she
alleged, but contends that he was asleep when it happened. Relying on expert
evidence developed by new counsel retained after the failed first appeal, the
appellant submits that he was in a parasomnic state when he sexually assaulted
R.C. and should be found not criminally responsible on account of mental
disorder (NCR-MD).

[3]

New defences advanced years after the relevant events, only when other
defences have been tried and failed and the convicted offender stands at the
prison gate, must be viewed with considerable judicial suspicion. However,
there will be cases in which the interests of justice require that an appellant
be allowed to present a new defence on appeal. For the reasons that follow,
this is one of those rare cases. I would grant leave to appeal, admit the fresh
evidence, allow the appeal and order a new trial. I would direct that the new
trial be limited to a determination of whether the appellant is NCR-MD or
guilty.

II

the evidence at trial

[4]

The appellant and R.C. were at a party at a home in the country outside
of Brockville, Ontario. The appellant knew the host and a few of the others
present at the party. He did not know R.C. and they had minimal contact during
the party. R.C. was with her boyfriend.

[5]

Everyone, including the appellant and R.C., were drinking during the
party. The appellant gave somewhat conflicting evidence about his alcohol
consumption, but it is fair to say he had quite a bit to drink over several
hours that evening. It was eventually decided that the partygoers should spend
the night, rather than drive home.

[6]

As the party was winding down, the appellant was seated on a chair in
the living room watching television. His host gave him a pillow and he fell
asleep in front of the television.

[7]

R.C. and her boyfriend fell asleep on a double sized air mattress on the
kitchen floor at about 2:30 a.m. R.C. was fully clothed, but had removed her
shoes. She had her arm around her boyfriend and was sleeping facing him.

[8]

Sometime later, R.C. woke up feeling a pain in her anus. Her belt was
undone and her pants were pulled down to her upper thigh. R.C. felt a persons
hand on her hip and she pushed the person away with her hand. When R.C. touched
him, the person behind her immediately removed his hand and withdrew from her
body.

[9]

R.C. stood up, pulling up her pants as she rose. She went into the
bathroom. As R.C. turned the bathroom light on, she saw that the person who was
behind her when she awoke had dark hair. Her boyfriend was blonde. R.C.
identified the appellant as the person who was lying behind her when she awoke
and felt something in her anus.

[10]

R.C.
realized what had happened to her. She became very upset and started to cry. When
her boyfriend asked her what had happened, she yelled I just woke up with that
guys dick in my ass. She repeated the same allegation to the host.

[11]

The
appellant heard R.C.s allegation. In the presence of R.C., he said to her
boyfriend:

Im sorry man I just woke up making out with your girlfriend.

[12]

In cross-examination, R.C. agreed that she told the police that the
appellant was just pretending like he was sleeping when she awoke. She also
told the police that the appellant was pretending to snore and breathe heavily.

[13]

R.C. and her boyfriend left the party and returned to his house. Later
that day, she went to the hospital and spoke with the police. Two samples were taken
from R.C.s underwear for DNA testing. One sample revealed DNA belonging to at
least three individuals, one of whom was male and could have been her boyfriend,
but not the appellant. The other sample was so small that the identity of the DNA
contributors could not be determined.

[14]

The
appellant testified. According to him, as the party was coming to an end, he
found himself in the chair watching television in the basement. He fell asleep
only to awake sometime later with a sore neck. The appellant decided to find a
place to lie down and sleep. He saw R.C. and her boyfriend on the air mattress
in the kitchen. They were both on one side of the double air mattress, so the
appellant decided to go into the kitchen and sleep on the other side of the air
mattress. He testified that he made his way into the kitchen and fell asleep on
the air mattress facing away from R.C. and her boyfriend. He was not touching
R.C. when he fell asleep.

[15]

The appellant woke up sometime later to the sounds of a commotion. He
was lying on his back, alone on the double mattress. He noticed that his pants
were unzipped and he had an erection. After some confusion, the appellant
realized that R.C. was accusing him of raping her. The appellant turned to
R.C.s boyfriend and said, I think I just made out with your girlfriend. When
asked by counsel to explain this statement, the appellant testified that it was
in response to R.C.s accusation. The appellant went on to testify that he had
no reason to think that anything untoward had happened. Despite testifying that
he had significant gaps in his memory of the relevant events, the appellant was
adamant that he did not touch R.C. while she was asleep, did not pull her pants
down and did not put his penis anywhere near her body.

[16]

In
closing submissions, counsel for the appellant argued that R.C. was dreaming
and that the events she described had not actually occurred. On the defence
theory, R.C. awoke from the dream and saw the appellant lying behind her. Thinking
the dream was real, she immediately believed that the appellant had assaulted
her. The defence argued that from that point forward, R.C. and her friends were
convinced that the appellant had sexually assaulted her and shaped their
testimony accordingly. Counsel also argued that the DNA results supported the
appellants claim that he had not assaulted R.C. In fact, as recognized by the
Summary Conviction Appeal Judge, those results were neutral. They did not
advance the Crowns case, but did not exculpate the appellant.

III

should the sexsomnia evidence be admitted on appeal?

[17]

I
need not address the trial judges reasons or the reasons of the Summary
Conviction Appeal Court. Neither is challenged in this court.
[1]
The appeal turns entirely on the admissibility of the evidence proffered by the
appellant on appeal, and particularly the admissibility of
Dr. Julian Gojers evidence
opining that the appellant was
asleep when he assaulted R.C. On Dr. Gojers evidence, the appellants conduct
was involuntary and not culpable. If Dr. Gojers evidence is admitted, leave to
appeal must be granted and the appeal allowed:
R. v. Stolar
, [1988] 1
S.C.R 480, at pp. 491-93.

(a)

The legal principles

[18]

Evidence
is admissible on appeal if it is in the interests of justice to receive the
evidence:
Criminal Code
, R.S.C.,
1985, c. C-46,
s. 683(1).
[2]
The reliability of verdicts is an essential aspect of the interests of
justice. When, as in this case, the evidence proffered on appeal challenges a factual
finding essential to the verdict reached at trial, the admissibility of the evidence
will depend on three inquiries (see
R. v. Truscott
, 2007 ONCA 575, 225
C.C.C. (3d) 321, at paras. 80-125;
R. v. Reeve
, 2008 ONCA 340, 233
C.C.C. (3d) 104, at paras. 65-68):

·

Is the proffered evidence admissible under the generally
applicable rules of evidence governing criminal proceedings?

·

Is the evidence sufficiently cogent to warrant its admission?

·

What is the explanation for the failure to tender the evidence at
trial, and should that explanation affect the admissibility of the evidence on
appeal?

[19]

The
first two inquiries address prerequisites to admissibility. It will never be in
the interests of justice to admit evidence on appeal that is not legally admissible
under the normal rules of evidence. Nor will the interests of justice ever be
served by admitting evidence that lacks sufficient cogency. The third inquiry
does not go to a prerequisite to admissibility, but instead considers the
explanation for the failure to lead the evidence at trial and whether that
explanation compels the exclusion of the evidence even though it would
otherwise be admissible on appeal. This inquiry, often referred to as the due
diligence inquiry, recognizes that the interests of justice in s. 683(1)
embrace administration of justice concerns such as finality that go beyond the
specific interests of the appellant. For example, it may not be in the
interests of justice to receive evidence on appeal, even though it is legally
admissible and could reasonably be expected to have affected the result, if
that evidence was available at trial and a tactical decision was made to not
lead that evidence: e.g. see
R. v. Maciel
, 2007 ONCA 196
, 219 C.C.C. (3d) 516, at paras. 36-55,
leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.

[20]

The
cogency inquiry addresses three features of the evidence tendered on appeal. The
proffered evidence must be relevant, in that it bears upon a potentially
decisive issue at trial. The evidence must also be credible, in that it is
reasonably capable of belief. Finally, the evidence must be sufficiently
probative, in that it could reasonably be expected to have affected the result
when taken with the other evidence adduced at trial and on appeal. On this
appeal, the Crown and appellants disagreement centres on the probative value
of Dr. Gojers opinion. They otherwise agree that his evidence is legally
admissible, relevant and reasonably capable of belief.

(b)

The allegations against trial counsel

[21]

Before
turning to a consideration of the probative value of Dr. Gojers evidence, I
will address a second aspect of the fresh evidence. The appellant, in an effort
to explain the failure to lead the evidence at trial, contends that his trial
lawyer (not Ms. Robitaille) provided ineffective legal assistance. He argues
that because of that incompetent representation, a sexsomnia defence was not
investigated and advanced as it should have been. The appellant submits that because
the failure to lead the evidence at trial is attributable to counsels
ineffective representation, that failure cannot adversely affect the
admissibility of the evidence on appeal.

[22]

The
Crown takes issue with the appellants claim that trial counsel provided
ineffective assistance. Trial counsel filed an affidavit and was cross-examined
on that affidavit.

[23]

There
is no credible and admissible evidence establishing that the appellant or any
member of his family spoke with trial counsel about the appellants alleged
history of parasomnia before the trial, or suggested to trial counsel that the
appellant may have been asleep when the incident occurred. The appellants
sister, who apparently raised and spearheaded the advancement of the sexsomnia
defence on appeal, did not file an affidavit.

[24]

In
cross-examination on her affidavit, trial counsel candidly acknowledged that
she was unaware of the defence of sexsomnia. The defence is rare, but as a
practising criminal lawyer, counsel should have been aware of its existence. However,
I do not think trial counsels ignorance of the defence is significant in this
case. Even if she were aware of sexsomnia, on the facts known to her, the
failure to pursue it did not fall below the level of competence.

[25]

I
do not agree that the references in R.C.s police statement about the appellant
pretending to be asleep and snoring would have necessarily led a reasonably
competent counsel to investigate the sexsomnia defence. Having regard to the
entirety of the complainants statement and the detailed written statement given
by the appellant to his trial counsel, there was little reason for trial
counsel to believe that the appellant was asleep when he assaulted R.C.

[26]

Nor
do I accept that the appellants assertions in his statement to counsel that he
had no memory of how this happened and that everything is a bit of a blur were
sufficient to necessarily cause a reasonable counsel to investigate the defence
of sexsomnia. In the same statement, the appellant described himself at various
points in the evening as having been pretty drunk, blacked out and really
drunk. The appellants admitted excessive alcohol consumption provided a more obvious
explanation for his memory lapses and confusion at the time of the incident than
parasomnia. Trial lawyers, like medical clinicians, are trained to look for
horses, not zebras. While some lawyers may have twigged to the possibility of a
parasomnia defence, in the circumstances, I cannot conclude that it was
incompetent for counsel to fail to recognize it as a potential defence.

[27]

Although
I would reject the appellants contention that he was the victim of ineffective
assistance of counsel at trial, I do not think that the failure to lead the
sexsomnia defence at trial should preclude the admissibility of the evidence on
appeal. There is no suggestion that the failure to lead the sexsomnia defence
was the result of a tactical decision made by trial counsel. Nor is there any
suggestion that the appellant deliberately withheld the relevant information
from trial counsel for some ulterior reason.

[28]

The
appellant did not tell his trial lawyer about the information that is said to
be relevant to the sexsomnia defence because he did not appreciate the
availability of that defence. Trial counsel did not make the inquiries that
might have revealed that information, first, because she did not know that
sexsomnia was a defence and, second, because there was nothing in the
information given to her that would cause a reasonable lawyer who was aware of
the sexsomnia defence to make inquiries into the availability of that defence. In
those circumstances, nothing relating to the failure to lead evidence of
sexsomnia at trial requires that evidence which would otherwise be admissible
on appeal be excluded in the interests of justice: see
R. v. J.A.A.
,
2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8.

[29]

Dr.
Gojers evidence should be admitted on appeal if, considered along with the rest
of the evidence, his opinion could cause a reasonable trier of fact to
conclude, on a balance of probabilities, that the appellant was asleep when he
assaulted R.C.: see
R. v. Stone
, [1999] 2 S.C.R. 290, at para. 179.

(c)

The evidence

[30]

The
appellant filed a sworn affidavit, as well as affidavits from his mother, his
girlfriend, and two reports and three affidavits from Dr. Gojer. The Crown
cross-examined on all of the affidavits. The Crown filed two affidavits and
reports from Dr. Mark Pressman. Counsel for the appellant cross-examined Dr.
Pressman. The affidavits and cross-examinations of Dr. Gojer and Dr. Pressman express
their competing opinions. Dr. Gojer says the appellant was probably asleep when
he assaulted R.C. Dr. Pressman says the appellant was awake, but drunk. The
other affidavits filed by the appellant provide evidence of the appellants
history of sleepwalking as a child, the family history of sleepwalking, and
other incidents of sexsomnia witnessed by the appellants girlfriend. Dr. Gojer
relied on some of that evidence in forming his opinion. Dr. Pressman discounted
much of that evidence as having little, if any, value.

[31]

Dr.
Gojer defined parasomnia as the term used to describe complex motor behaviours
originating during sleep. Sleepwalking, sleep eating and sleep sex (sexsomnia)
are examples of parasomnia. People who engage in motor activity while asleep,
even complex motor activity, have no ability to control that activity. In most
cases, persons have no recollection of that activity, although fragmented
awareness is possible.

[32]

Dr.
Gojer explained that a diagnosis of parasomnia is made based on clinical
information. Sleep study results can sometimes offer support for the clinical
diagnosis.

[33]

Dr.
Gojer interviewed the appellant, his mother, his sister and his girlfriend. He
read the reasons for judgment, the evidence of the complainant and the
appellant, and the complainants statement to the police. He also considered
certain sleep studies done by Dr. Shapiro on the appellant at Dr. Gojers
request, which concluded the appellant suffered from mild sleep apnea and other
abnormal sleep arousals. Relying on all of this information, Dr. Gojer opined
that it was more likely that the sexual activity reported by the complainant
occurred when the appellant was asleep. During re-examination on his affidavit,
Dr. Gojer said:

So its not just what the client tells you which would be a
fatal error in a clinical setting or in a forensic setting. You want to look at
what the bystanders have seen, what the victim reports and what family members
report, so you have information intersecting from different areas merely to
confirm the diagnosis of a parasomnia. So there is really no doubt in my mind
that this individual had parasomnia. And given that we werent there on the day
in question, the question is, Would he have had a parasomnia on the day in
question? The answer is highly likely that he would have. And a parasomnia, in
my opinion, would equate to a person not being in a state where he would be in
control of his physical activities, which would also be labelled as an automatism
for a legal purpose.

[34]

My
review of Dr. Gojers reports and evidence reveals nine factors relied on by
Dr. Gojer in coming to his opinion:

1)

the family history, including the appellants mother sleepwalking as a
child;

2)

the appellants sleepwalking as a young child;

3)

the appellants other associated sleep disorders: e.g. nightmares and
sleep paralysis;

4)

the appellants girlfriends evidence that the appellant had engaged in
sexual activity on prior occasions while he was asleep. On one occasion, she
awoke to find the appellant, apparently asleep, masturbating beside her in bed;

5)

alcohol consumption as a triggering factor for parasomnia and the appellants
reported drinking before he went to sleep;

6)

the appellants lack of recollection of any sexual interaction with the
complainant;

7)

the absence of other allegations of sexual misconduct and the
inconsistency of the sexual assault with the appellants character;

8)

some of the circumstances of the assault, as described by both the
complainant and the appellant, were consistent with the appellant being asleep;
and

9)

the brazenness of the assault also suggested it was not volitional.

[35]

In
addition to the factors set out above, Dr. Gojer testified that the mild sleep
apnea reported by Dr. Shapiro and some of the readings on the electroencephalograph
administered by Dr. Shapiro supported his clinical diagnosis of parasomnia.

[36]

Taken
at face value, Dr. Gojers opinion that the appellant was asleep would clear
the probative value component of the cogency inquiry. However, Ms.
Bartlett-Hughes, Crown counsel, has marshalled a detailed and powerful attack
on the probative value of that evidence. She points to weaknesses and failings
in Dr. Gojers opinion which she contends undermine many of the nine factors he
relied on. Crown counsel also relies on the evidence of Dr. Pressman. She accepts
that both Dr. Gojer and Dr. Pressman are qualified experts, but submits that,
on a fair reading, Dr. Pressman clearly knows a lot more about sleep disorders
and the interpretation of sleep studies. She submits that Dr. Pressmans
opinion is entitled to much more weight than Dr. Gojers.

[37]

To
succeed on the appeal, the appellant does not have to convince the court that
Dr. Gojers opinion should be accepted and preferred over Dr. Pressmans. If
the appellant satisfies this court that a reasonable trier of fact could, in
the context of the entirety of the record, including Dr. Pressmans opinion,
accept Dr. Gojers opinion that the appellant was asleep on a balance of
probabilities, the appeal must be allowed and the matter returned to the trial
court. It would be for the trial court to decide whether Dr. Gojers evidence should
ultimately be accepted.

[38]

I
think the appellant has cleared that hurdle. Given this conclusion and the relatively
narrow function of this court, I am reluctant to engage in a detailed analysis
of Dr. Gojers opinion. I do, however, acknowledge the force of several points
made by Crown counsel in her analysis of Dr. Gojers evidence.

[39]

Dr.
Gojer appears to have uncritically accepted the appellants assertion that he
had no recollection of any sexual interaction with R.C. (factor 6). This
assertion is contradicted by the appellants evidence under oath at his trial and
his description of the interaction with R.C. in his statement to trial counsel provided
within days of the incident. Dr. Gojer mentions neither.

[40]

Dr.
Gojers opinion that alcohol is a trigger of parasomnia (factor 5) appears
contrary to the current understanding of sleep disorder experts, as set out in
the generally recognized authoritative literature. Dr. Pressmans opinion
contains an impressive summary of that literature.

[41]

Dr.
Gojer does not explain how his expertise in sleep disorders, and specifically sexsomnia,
allows him to comment on the appellants character as it relates to sexual
conduct, or the significance of the apparent brazenness of the assault (factors
7, 9). Both factors involve judgments that have nothing to do with an expertise
in sleep disorders.

[42]

Finally,
there is merit to the Crowns submission that Dr. Gojers unexplained and outright
dismissal of intoxication as a possible explanation for the appellants conduct
suggests a less than objective assessment of those events. Alcohol is perhaps
the most obvious explanation.
[3]

[43]

Despite
these criticisms of Dr. Gojers opinion, I am satisfied the appellant has met his
burden on the fresh evidence application. A reasonable trier of fact might well
disagree with the criticisms outlined above. Furthermore, apart from those
criticisms, there was believable evidence that the appellant had a family
history of parasomnia, a personal history of parasomnia and associated sleep
disorders, and that he had on other occasions engaged in sexual activity while
asleep (factors 1, 2, 3 and 4).

[44]

R.C.s
statement to the police and her evidence at trial also provided some
independent support for the appellants sexsomnia claim. She described the
appellant as sleeping and snoring at the time of the assault. Although she opined
that he was only pretending, R.C.s observations of the appellant, placed in
the context of his personal and family history of parasomnia and the
appellants other episodes of sexsomnia, could cause a reasonable trier of fact
to accept Dr. Gojers opinion.

[45]

For the sake of completeness, I should add that counsel for the
appellant also made a vigorous and effective attack on several aspects of Dr.
Pressmans opinion. She argues that his insistence that the appellants
activities in the course of the assault were too complicated to have occurred
during sleep was unsupported by the evidence and based on a series of
assumptions seemingly designed to make the incident appear much more
complicated than it was. Counsel also refers to Dr. Pressmans unwillingness to
ascribe any significance to the complainants description of the appellant at
the time of the incident, as not only inconsistent with Dr. Pressmans earlier
indication that independent eyewitness descriptions provide important, direct
evidence of parasomnia, but as contrary to common sense.

[46]

My
analysis of the proffered evidence, considered in the context of the trial
record, leads to the conclusion that there are valid reasons to accept or
reject the opinions of Dr. Gojer and Dr. Pressman. That conclusion compels the
finding that the appellant has met his onus of showing that a reasonable trier
of fact could accept Dr. Gojers opinion and find on the balance of
probabilities that the appellant was asleep at the time of the assault. That
finding renders the verdict a miscarriage of justice. The evidence should be
received under s. 683(1) and the conviction quashed.

IV

the appropriate order

[47]

The
Criminal Code
provides for three possible orders when the
Court of Appeal allows an appeal from conviction.
[4]
The court may enter an outright acquittal, make a finding of NCR-MD, or order a
new trial: see
R. v. Warsing
, [1998] 3 S.C.R. 579, at paras. 61-68. Counsel
for the appellant does not suggest that an acquittal should be entered. She
acknowledges that if the sexsomnia defence were to succeed, it would lead to a
finding of NCR-MD and not an outright acquittal: see
R. v. Luedecke
,
2008 ONCA 716, 93 O.R. (3d) 89.

[48]

This
is also not a case in which this court should enter an NCR-MD finding:
Criminal
Code
,
s. 686(1)(d). As
discussed above, the Crown and the appellant have presented competing opinions,
either of which could reasonably carry the day. The evidentiary assessments
necessary to determine which of the two opinions should carry the day can only
be made in the trial venue:
Warsing
, at para. 65;
Stolar
, at
p. 493.

[49]

A
new trial is the appropriate order in these circumstances.

[50]

The
question remains whether the new trial can and should be limited to a
determination of whether the appellant is guilty as charged or NCR-MD. Counsel
for the appellant takes the position that if the court has jurisdiction to make
that order, the appellant does not oppose that order. Crown counsel takes the
position that if the court is ordering a new trial, it should be limited to a
determination of whether the appellant is guilty or NCR-MD.

[51]

When
this court allows an appeal and orders a new trial pursuant to s. 686(2) of the
Criminal Code
, the court may, under s. 686(8), make any order, in
addition, that justice requires. In
Warsing
, at paras. 72-74, the Supreme
Court held that where an NCR-MD defence was raised for the first time on appeal
from conviction, the court could not, in ordering a new trial based on the
evidence of mental disorder, rely on s. 686(8) to limit the new trial to a
choice between a verdict of NCR-MD and a verdict of guilty. In so holding, the Supreme
Court concluded that an order foreclosing the possibility of an acquittal on
the new trial would interfere with the accuseds right to control his own
defence and the presumption of innocence, and could not be in the interests of
justice. In
Warsing
, the appellant wanted an opportunity at the second
trial to secure an acquittal on the merits.

[52]

In
Luedecke
, this court considered the
Warsing
analysis of the
scope of s. 686(8) in circumstances that have some similarity to the present
case. In
Luedecke
, the Crown appealed from an acquittal based on a
sexsomnia defence. The court held that the appeal should succeed as the trial
judge had misapplied
Stone
in entering an acquittal, as opposed to a
finding of NCR-MD. The respondent (the accused) argued that the new trial
should be limited to a choice between NCR-MD and not guilty. He took the
position that the trial judges finding that his actions were not voluntary
should stand and that he should not be exposed to the risk of a conviction at a
new trial. This court accepted this submission holding, at paras. 137-38:

The accused supports the order limiting the scope of the new
trial. He does not seek to re-litigate the voluntariness issue. In those
circumstances, it cannot be said that a limit on the scope of the new trial
would interfere with the accuseds conduct of his own defence. To the contrary,
the proposed order would reflect the manner in which the accused wishes to
conduct his defence.

The submissions made on behalf of the respondent have convinced
me that s. 686(8) does authorize an order ancillary to an order for a new trial
made under s. 686(4) limiting the scope of the new trial. That ancillary order
may be made only where it does not interfere with any of the accuseds rights
and is otherwise consistent with the demands of justice in the circumstances.

[53]

Through
counsel, the appellant has acknowledged the assault on R.C. in this court. He
does not seek the opportunity to gain an acquittal at the new trial, but rather
seeks an opportunity to show that he was not criminally responsible for the
assault on R.C. In light of the position taken on appeal, I do not think an
order limiting the new trial to a choice between NCR-MD and guilty would offend
the presumption of innocence or interfere with the accuseds right to control
his own defence. To the contrary, as in
Luedecke
, an order limiting
the scope of the new trial would reflect the manner in which the appellant
wishes to conduct his defence at the new trial.

[54]

This
is also not a situation in which an order limiting the new trial to a choice
between NCR-MD and guilty could create practical problems, as in cases where
evidence relevant to an NCR-MD finding would also be relevant to
mens rea
:
see
Warsing
, at para. 74. Counsel for the appellant and the Crown
agree, correctly in my view, that the sexsomnia-related evidence, if accepted,
can lead only to an NCR-MD verdict and cannot justify an acquittal.

[55]

Finally,
I think an order limiting the new trial would serve the administration of
justice in one additional way. R.C. has asserted from the moment it happened
that she was sexually assaulted by the appellant. Now, after many years and
contrary to the position taken throughout, the appellant acknowledges that he
did indeed sexually assault R.C. He seeks an opportunity to show that he was
not criminally responsible for that action because he was asleep. For the
reasons set out above, I think the appellant should have that opportunity.

[56]

That
opportunity is not, however, in any way compromised by an acknowledgement of
the validity of R.C.s complaint. An order limiting the new trial to a
determination of whether the appellant was NCR-MD or guilty as charged would
provide that acknowledgement to the complainant and remove the possibility,
however small, that at the new trial the validity of R.C.s assertion that she
was sexually assaulted would once again be tested, despite the admission made
on behalf of the appellant in this court.

V

conclusion

[57]

I
would grant leave to appeal, allow the appeal and quash the conviction. I would
direct a new trial, but limit the new trial to a determination of whether the
appellant was NCR-MD at the time he assaulted R.C. or guilty as charged.

RELEASED:  DD  JUL 06 2015

Doherty J.A.

I agree E.A. Cronk
J.A.

I agree H.S. LaForme
J.A.

[1]
In her factum, counsel argued that the trial judge should have raised the
sexsomnia defence on his own motion. She did not pursue that argument in her
oral submissions.

[2]
Section 683 is incorporated into the provisions governing appeals to the Court
of Appeal in Summary Conviction matters: see s. 839(2).

[3]
Interestingly, Dr. Pressman takes the opposite but equally unequivocal position
that because the appellant was drunk, he could not have been asleep.

[4]
The remedial provisions in Part XXI of the
Criminal Code
, dealing with
appeals in indictable matters are incorporated into s. 839: see s. 839(2).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2015 ONCA 534

DATE: 20150717

DOCKET: C58939

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario

Appellant

and

Ahmed Hafizi

Respondent

Troy Harrison and Ann Christian-Brown, for the appellant

Dominic Lamb and Solomon Friedman, for the respondent

Heard: June 26, 2015

On appeal from the order of Justice Monique Métivier of
    the Superior Court of Justice, dated May 22, 2014, with reasons reported at 2014
    ONSC 3121.

ENDORSEMENT

Introduction

[1]

In granting the respondents
Rowbotham
application, the
    application judge appointed his counsel of choice as state-funded counsel. She
    conditionally stayed his first degree murder charge until the state negotiated
    compensation in good faith with the respondents chosen counsel.

[2]

Ontario no longer disputes that the respondent could not fully fund
    counsel from his own resources and that he required counsel to ensure a fair trial.
    In other words, Ontario no longer contests the application judges decision to
    order state-funded counsel under
Rowbotham
. Ontario only seeks leave
    of this court to appeal the counsel of choice appointment  the
Fisher
order
     arguing that the application judge erred in ordering Ontario to pay for the
    specific counsel the respondent wished to represent him.

[3]

In the interests of moving this case along, Ontario has agreed to fund
    the respondents chosen counsel even if successful on this appeal.

Leave to Appeal

[4]

Ontario seeks to appeal only the
Fisher
order, with leave,
    under s. 676.1 of the
Criminal Code
, R.S.C. 1985, c. C-46. This
    section provides:

A party who is ordered to pay costs may, with leave of the
    court of appeal or a judge of a court of appeal, appeal the order or the amount
    of costs ordered.

[5]

The term costs in
s.676.1
covers obligations to make future payments imposed by judicial decision:
R.
    v. Beauchamps
, 2002 SCC 52,
[2002] 2 S.C.R. 762, at para.
14;
R. v. Figueroa
(2003), 64 O.R. (3d) 321
(C.A.)
, at para.
16.

[6]

Leave to appeal is granted. In our view, the application judges
    decision to order publicly-funded counsel of choice in this case is contrary to
    the binding decision of this court in
R. v. Peterman
(2004), 70 O.R.
    (3d) 481 (C.A.).

Publicly Funded Counsel (and Counsel of Choice) in Criminal
    Proceedings

[7]

Where a court is satisfied that an accused persons right to a fair
    trial guaranteed by
ss. 7
and
11
(d) of the
Charter
would be infringed if he or she was not represented by counsel, the court can
    make what is called a
Rowbotham
order. That is, pursuant to
R. v.
    Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.)
,
the court may order the state to fund counsel to represent the accused person
    so as to ensure trial fairness.

[8]

Justice Rosenberg in
Peterman
expanded upon
Rowbotham
.
    Beginning at para. 21, he describes the
Rowbotham
principle set out
    above. At paras. 26-27, he restates the fundamental right of an accused person
    to choose his or her counsel, a right zealously protected by the court. As
    Rosenberg J.A. explains at para. 28, however, the right of an accused person to
    choose his or her counsel does not require the state to pay for an accused
    persons chosen counsel, even where the accused person wins a
Rowbotham
order. At paras. 29-30 of
Peterman
, Rosenberg J.A. goes on to describe
    the two very narrow exceptions to that general rule, which he variously
    observes will be unique, unusual and exceedingly rare.

[9]

The first exception is where an accused person can show that he or she
    will only receive a fair trial if represented by a specific lawyer. In other
    words, no other counsel is able to, or will, protect the fair trial rights of
    the accused person. Justice Rosenberg notes that this exception applies only in
    unusual circumstances. Such rare circumstances underlay
R. v. Fisher
,
[1997] S.J. No. 530 (Q.B.)
, the genesis of the
Fisher
order:
Peterman
, at para. 29.

[10]

The
    second exception that Rosenberg J.A. describes is where an accused person
    satisfies the court that he or she cannot find competent counsel under Legal
    Aid rates and conditions:
Peterman
,

at para. 30.

[11]

Finally,
    as Rosenberg J.A. emphasized at paras. 31-32 and 37 in
Peterman
, the
    onus lies on the accused person to produce evidence justifying an order under either
    of the two exceptions. In our view, the respondent in the case before us failed
    to produce sufficient evidence to fit into either exception.

Discussion

[12]

The
    application judge relied on the following facts in granting the counsel of
    choice application:

·

The respondent is facing a serious charge and a complex case;

·

His family, after spending $147,000 on his defence, cannot or
    will not spend more money on his legal fees;

·

His counsel of choice have taken part in the case for two years
    and have participated in pre-trial proceedings; and,

·

The respondent was denied Legal Aid and has exhausted all
    available appeals.

[13]

We
    do not think that the facts support either of the narrow and rare exceptions
    outlined in
Peterman
. Respectfully, the application judges reasons do
    not refer specifically to the
Peterman
test; they do not include any
    analysis of its components; and they do not reference any evidence capable of satisfying
    either
Peterman
exception.

[14]

The
    respondent in this court relies simply on the complexity of the case and the familiarity
    of his counsel of choice with the details of it. The respondent does not
    explain why it would not be possible for other competent counsel to protect his
    fair trial rights.

[15]

On
    the application judges reasoning, nearly any accused person facing a serious
    charge and a complex trial could succeed on a counsel of choice application
    once he or she ran out of money to pay his or her lawyer. That broad
    availability does not fit with the intended rarity of a counsel of choice order.

[16]

Finally,
    there is nothing in the application judges reasons to support the need for
    payment of enhanced rates above those authorized by Legal Aid to ensure that the
    respondent receives competent counsel: see
Peterman
, at para. 30;
Ontario
    v. Criminal Lawyers Association of Ontario
, 2013 SCC 43, [2013] 3
    S.C.R. 3, at para. 66. Despite that, we again acknowledge that Ontario has
    agreed to fund the respondents counsel of choice even if successful on this
    appeal.

Disposition

[17]

Leave
    to appeal is granted and the appeal is allowed. The order appointing the
    respondents counsel of choice as state-funded counsel, at a rate to be
    negotiated in good faith, is set aside. In accordance with Ontarios position
    on this appeal, the respondents counsel will not be removed.

J.C.
    MacPherson J.A.

J.
    Simmons J.A.

"H.S.
    LaForme J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Laine, 2015 ONCA 519

DATE: 20150709

DOCKET: C58184

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Laine

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Greg Skerkowski, for the respondent

Heard: May 26, 2015

On appeal from the convictions entered on July 12, 2013 and
    the sentence imposed on January 15, 2014 by Justice Myrna L. Lack of the
    Superior Court of Justice, sitting without a jury.

MacFarland J.A.:

A.      OVERVIEW

[1]

This appeal arises out of a tragic motor vehicle accident that took
    place on June 29, 2009. The appellant, who was then 21 years old, was driving
    home from his familys cottage with five friends. He was travelling southbound
    on Baseline Road in the City of Kawartha Lakes. As he approached the third
    curve on Baseline Road, a gradual curve to the left, he lost control of his
    vehicle and ultimately crashed into a hydro pole. Two of his passengers were
    killed and a third was seriously injured.

[2]

The appellant was convicted of two counts of criminal negligence causing
    death and one count of criminal negligence causing bodily harm. He was
    sentenced to four years imprisonment.

[3]

He appeals both his convictions and sentence.

[4]

For the following reasons, I would dismiss the conviction appeals. I
    would grant leave to appeal sentence and allow the sentence appeal.

b.      The facts

[5]

The appellant and five friends had been at his familys cottage, outside
    of Coboconk on Shadow Lake Road #8. The route home from the cottage travels along
    Shadow Lake Road #8 to Baseline Road, and then continues south on Baseline Road.

[6]

Baseline Road, where the accident occurred, is an asphalt road without
    painted lane markings or fog lines. There are small gravel shoulders on either
    side. It is narrow: Baseline Road is 5.48 meters wide in the vicinity of the
    accident, whereas a regular two-lane highway road is generally about 7.2 meters
    wide between the painted fog lines. At the time of the collision, the speed
    limit on Baseline Road was 80 km/h.
[1]

[7]

The appellants vehicle travelled approximately 1.7 km, or one mile, from
    the point where it entered Baseline Road to the accident location. In that
    stretch of Baseline Road, there are three curves. The first curve is a sharp,
    almost ninety degree, curve to the right (Curve 1). The second curve (Curve
    2) and the third curve (Curve 3) are more gentle curves to the left.

[8]

When the appellant turned onto Baseline Road, he accelerated. According
    to Kassandra Sheppard, one of the backseat passengers in the appellants
    vehicle, he accelerated so they could get the rush feeling when they went
    over hills, like on a roller coaster.

[9]

The appellant nearly had an accident at Curve 1. He was driving too
    quickly to clear it. To negotiate the curve, he encroached on the opposite lane,
    and had to swerve off the road onto the gravel shoulder to avoid an oncoming
    car. Coming out of Curve 1, however, he accelerated, and reached a speed of
    approximately 140 km/h. The passenger seated in the front, Carlito, egged him
    on and videotaped the events. At least one of his other passengers urged him to
    slow down.

[10]

As
    the appellant entered Curve 3, he lost control of his vehicle. Just before the
    accident, the appellants vehicle had been passed by a northbound vehicle
    occupied by the Meyer family. At Curve 3, the appellant ran off the west
    (right) side of the road, turned back onto the pavement and crossed over the
    road to the east side, where his vehicle flipped over and ultimately crashed
    into a hydro pole.

[11]

The
    positions of the parties were clearly set out by the trial judge at the
    beginning of her reasons as follows:

The prosecutions theory of criminal liability rests on
    establishing that Mr. Laine engaged in a pattern of driving so fast along the
    Baseline Road that he exceeded the critical curve speed on the third curve on
    the road and lost control of his vehicle, which was foreseeable in the circumstances,
    and caused the injuries and deaths.

The defence position is that there is no criminal liability. The
    defence contends that the collision was not caused because of Mr. Laines
    speed. Instead, the defence says Mr. Laine was forced off the road by the
    passing Meyer vehicle and when Mr. Laine was attempting to get back on the
    road, he tried to avoid a hydro pole at the west side of the road and lost
    control of his vehicle and hit the hydro pole on the east side of the road.

[12]

Officer
    Brad Pearsall, an expert called by the Crown, explained that the critical curve
    speed is the maximum speed at which a motor vehicle can negotiate a corner and
    remain centered within its own lane. The critical curve speed on Curve 3 was
    107 km/h, though Officer Pearsall observed that a vehicle with a higher centre
    of gravity, like the appellants SUV, could have a lower critical curve speed. A
    vehicle that exceeds the critical curve speed through Curve 3, a left-hand
    curve, will go off onto the west (right) side of the road way. The vehicle may
    be able to stay on the road by moving to the east (left) side of the road, into
    the opposite lane, as it enters the curve.

C.      THE REASONS BELOW

[13]

In
    lengthy and careful reasons, the trial judge thoroughly canvassed the evidence
    of each of the witnesses, including the appellant. After reviewing the evidence,
    the trial judge noted:

An overriding issue in this case is the credibility and
    reliability of all of the witnesses. I have considered each witnesss testimony
    for those features in the context of all of the evidence.

[14]

The
    trial judge then went on to analyze the evidence each of the witnesses had
    given. She considered the frailties alleged, inconsistencies with earlier
    statements, the conflicting evidence given by other witnesses, and the physical
    evidence at the scene, including grass patterns where the appellants vehicle
    left the road and the brake markings left on the asphalt. She explained why she
    accepted some evidence and rejected other evidence. She concluded:

I find that the Laine vehicle left the road because
    Mr. Laine drove at such an excessive speed that he exceeded the critical
    curve speed on Curve 3 and could not negotiate the curve, and that alone
    accounted for the ultimate impact with the pole. No reasonable doubt arises
    about this on any of the evidence, including Mr. Laines testimony. I am
    satisfied of this beyond a reasonable doubt on all of the evidence.

[15]

The
    trial judge then set out the test for criminal negligence and reviewed authorities
    involving charges of criminal negligence in the operation of a motor vehicle.
    There is no issue raised on this appeal that she misstated the law in any way.

[16]

She
    then applied the law to the facts as she found them and concluded:

Mr. Laine was familiar with Baseline Road to the extent that he
    had travelled on it many times throughout his life, albeit as a passenger. The
    trip on which the accident took place was at least the fourth time he had
    driven the road in two days, either coming or going. He had his drivers
    licence for less than a year. The marked speed limit of 80 kilometers an hour
    was too fast for Curve 1, but Curve 3 could have been safely travelled at that
    speed. The curves were marked. Curve 1 was very sharp, and two other curves
    followed it. The road was narrow, but not untypical of roads in cottage country.
    Mr. Laine only drove on the Baseline Road for a very short period of time,
    under two minutes. His manner of driving from the time he entered Baseline Road
    with five passengers in his care was a performance for the benefit of and at
    the encouragement of one of his passengers. He described his actions in
    speeding at various times as stupid. He felt that way at the time. He had a
    near-miss at Curve 1 when he had to swerve off the road to miss an oncoming
    car. Instead of heeding this as a warning of the consequences of his speeding,
    he sped up coming out of Curve 1 and reached a speed of at least 140 kilometers
    an hour. He knew what the road ahead was like. He drove into Curve 3 at a speed
    that exceeded the speed limit and the critical curve speed. He could not stay
    in his own lane, first driving in the oncoming lane and then going off the
    road. I am satisfied beyond a reasonable doubt that a person in similar
    circumstances would have been aware of the risk and danger involved in driving
    at the speed at which Mr. Laine drove on that road. His driving at the time was
    a marked departure and a substantial departure from the standard of care that a
    reasonable person would have exercised at the time.

The risks of what Mr. Laine was doing were very obvious to him
    and would have been obvious to anyone. By the time he went into Curve 3, he had
    already had a near-miss just moments before. He knew that it was stupid to
    listen to Carlito. He knew that his manner of driving was making at least one
    of his passengers uncomfortable. I find that he was told to slow down. No
    reasonable doubt arises on any of the evidence, including Mr. Laines evidence,
    and I am satisfied beyond a reasonable doubt on all of the evidence that Mr.
    Laines conduct in driving on Curve 3 as he did amounted to a wanton and
    reckless disregard for the lives or safety of others.

D.      THE GROUNDS OF APPEAL

[17]

The
    appellant raises five grounds of appeal. First, the appellant submits that the
    trial judge erred in her assessment and acceptance of the evidence of Kassandra
    Sheppard, one of the passengers in his vehicle. He says her evidence was
    unreliable.

[18]

Second,
    the appellant submits that the trial judge applied a more exacting standard of
    scrutiny to his evidence than she did to the evidence of other witnesses,
    particularly Ms. Sheppard.

[19]

Third,
    the appellant submits that the trial judge erred in failing to allow the
    defences application to re-open the trial following the Crowns closing
    submissions.

[20]

Fourth,
    the appellant submits that the verdicts are unreasonable.

[21]

Fifth
    and finally, the appellant appeals his sentence and submits that the trial
    judge erred in overemphasizing general deterrence.

E.      DID THE TRIAL JUDGE ERR IN ASSESSING Ms. Sheppards Evidence?

(a)     Overview of Ms. Sheppards
    evidence

[22]

In
    her testimony, Ms. Sheppard described the appellants driving from the moment he
    entered Baseline Road.

[23]

She
    said he was speeding so they could get the rush feeling when they went over
    hills. As the appellant turned into Curve 1  a nearly 90 degree right-hand
    curve  they met a vehicle coming in the opposite direction. Both vehicles were
    over the middle line by about a foot, she estimated, and the appellant swerved
    sharply to the right to avoid a collision.

[24]

The
    appellants arguments on appeal focus on three aspects of Ms. Sheppards
    evidence about the near-miss at Curve 1.

[25]

First,
    Ms. Sheppard testified that, when the appellant swerved sharply to the right at
    Curve 1, it felt like the drivers side of the vehicle lifted and that they
    were going to roll over to the right.  Second, Ms. Sheppard testified that,
    after they left Curve 1, she put on the middle seatbelt in the backseat because
    she feared an accident. Third, she testified that she looked at the speedometer
    shortly after they cleared Curve 1, and observed that the vehicle was
    travelling at about 140 km/h.

(b)     The tilting
    evidence

[26]

Officer
    Pearsall testified that, on Curve 1, the weight of the vehicle would have shifted
    to the drivers side and the drivers side would not feel like it was about to
    lift. That would only happen if the driver suddenly steered back the other way.

[27]

The
    appellant argues that Ms. Sheppards evidence cannot, on this point, be
    reconciled with that of Officer Pearsall. Again, Ms. Sheppard said it felt like
    the drivers side of the vehicle lifted when the appellant swerved to the right
    to avoid the oncoming vehicle.

[28]

The
    trial judge concluded that Ms. Sheppards evidence about the drivers side of
    the vehicle lifting was a perception on her part. Ms. Sheppard testified that
    she did not know whether the drivers side tires in fact left the ground; it
    merely felt that way. The trial judge concluded that, after steering off the
    road to the right to avoid the oncoming vehicle, the appellant would have had
    to re-enter the roadway to continue the journey. This would necessarily involve
    steering to the left as a matter of common sense. As Officer Pearsall
    testified, a sudden turn back to the left could have caused a sensation of the
    drivers side tires lifting.

(c)     The seatbelt
    evidence

[29]

Next,
    the appellant submits that the trial judge erred in accepting Ms. Sheppards
    evidence that she put on the middle backseat lap seatbelt. Officer Boyd testified
    that the middle backseat lap belt was found tucked in under the seat and
    retracted after the accident, without any loading marks. Had the seatbelt been
    worn, Officer Boyd testified, it would have locked into place after the
    accident and not retracted. Officer Boyd concluded that the middle backseat
    seatbelt was not in use at the time of the accident.

[30]

There
    were four people in the backseat of the appellants vehicle and only three
    seatbelts. Ms. Sheppards evidence was that she put on the middle seatbelt only
    after the near-miss at Curve 1, because she feared an accident. She also
    testified that, when she regained consciousness after the accident, she was no
    longer wearing her seatbelt. She found herself on the ceiling of the vehicle,
    pinned underneath the seat.

[31]

The
    appellant submits that, despite the evidence that Ms. Sheppard was not wearing
    a seatbelt at the time of the accident, the trial judge wrongly concluded that Ms.
    Sheppard was in fact wearing a seatbelt. This error is important, the appellant
    argues, because Ms. Sheppard testified that she put on the seatbelt because she
    was scared of the appellants driving. If Ms. Sheppards evidence about her
    seatbelt use was unreliable, all of her evidence about what occurred at Curve 1
    is called into question.

[32]

I
    disagree with the appellants characterization of the trial judges reasons. In
    my reading of the relevant passage, the trial judge never concluded that Ms.
    Sheppard in fact put on the middle seatbelt.  Rather, the trial judge concluded
    that, although Ms. Sheppard
thought
she put on the middle seatbelt,
    she in fact did not. What the trial judge said was:

I am convinced [Ms. Sheppard] took some action and thought she
    put on a seatbelt although she did not put on the middle seatbelt, as she
    thought.

[33]

Accordingly,
    I do not agree that the trial judge misapprehended this aspect of Ms.
    Sheppards evidence.

(d)     The speedometer
    evidence

[34]

Finally,
    the appellant submits that the trial judge erred in accepting
    Ms. Sheppards evidence that, when she looked at the speedometer shortly
    after the near-miss at Curve 1, she noted the speed registered at a notch
    above 140 [km/h]. Ms. Sheppard was firm on this point and was not budged in
    cross-examination. She had no doubt and had seen [the speedometer] with my own
    two eyes.

[35]

The
    trial judge accepted that after Curve 1, Ms. Sheppard looked at the speedometer
    and at that time it read between 140 and 145 km/h. Ms. Sheppard thought the
    vehicle was about fifty feet beyond Curve 1 when she looked at the speedometer.
    In view of Officer Pearsalls evidence, the vehicle would likely not have
    achieved such a speed until it was further along the straightaway between Curves
    1 and 2.

[36]

While
    Ms. Sheppard, who said several times during her evidence that she was not good
    at estimating distances, was mistaken about how far the vehicle was beyond
    Curve 1 when she observed the speedometer, it does not follow that her
    observation was inaccurate. Indeed, Officer Pearsall confirmed that it would
    be possible to reach 140 km/h on the straightaway between Curves 1 and 2.

[37]

In
    my view, the trial judge did not err in assessing Ms. Sheppards evidence. She
    weighed it, compared it with other evidence, considered inconsistences,
    accepted some and rejected some.

[38]

This
    is the role that trial judges have in our system of justice. It is for them to
    weigh and consider the evidence and make findings of fact. Absent a palpable
    and overriding error, and there is none here, this court will not interfere.

F.       DID THE TRIAL JUDGE APPLY A stricter standard of scrutiny to the
    appellants evidence than to the crowns evidence?

[39]

It
    is an error of law for a trial judge to subject the accuseds evidence to a stricter
    standard of scrutiny than the Crowns evidence:
R. v. J.S.W.
, 2013 ONCA
    593, 301 C.C.C. (3d) 252, at para. 56;
R. v. H.C.
, 2009 ONCA 56, 241
    C.C.C. (3d) 45, at para. 62.

[40]

The
    appellant argues that the trial judge was not troubled by problems with Ms.
    Sheppards evidence but, by contrast, found the appellant neither credible nor
    reliable, even when his evidence was in part supported by Ms. Sheppards
    evidence.

[41]

For
    example, Ms. Sheppard testified that, at Curve 3, the Meyer vehicle was partly
    in the appellants lane as it approached from the opposite direction.

[42]

The
    appellant also testified that the Meyer vehicle was in his lane and was the
    cause of the accident. The appellant said he had to turn off the road, to the
    right, to avoid a collision with the Meyer vehicle. This set in motion the chain
    of events that ended with the appellants vehicle crashed into the hydro pole.

[43]

As
    to Ms. Sheppards evidence on this point, the trial judge said:

I found her evidence that the Meyer vehicle was at least
    partially on Mr. Laines side of the road on Curve 3 to be confusing. She was
    uncertain about the extent of the overlap and her testimony changed. She
    appeared confused. In the end, she said she did not know where either vehicle
    was on the road.

[]

Ms. Sheppards evidence was that the Meyer vehicle was in the
    oncoming lane. Over the course of her testimony, she showed that she was
    confused about the location of the Meyer vehicle. In the end, she said she did
    not know exactly where the Laine or Meyer vehicles were on the road. In any
    event, I found her evidence on the issue of the location of the Meyer vehicle
    was not reliable. Her confusion perhaps is explained by the crowding phenomenon
    that Officer Pearsall spoke about.
[2]

[44]

In
    dealing with the appellants evidence on this point, the trial judge said:

Mr. Laine testified that he was forced off the road by the
    Meyer vehicle, which he said was driving in the middle of the road.

Mr. Laine testified that his action in leaving the road was a
    swerve. Later he said it was gradual and smooth. Later he said the movement was
    pretty decent big. His evidence was inconsistent. He could not seem to get it
    straight. It would make sense to me that a driver would swerve, make a pretty
    decent big movement to get out of the way of a vehicle encroaching in its lane.
    However, Officer Pearsalls evidence was that the tire marks he observed showed
    a gradual run-off of the Laine vehicle from the road and not the sharper angle
    of divergence that he would have expected if there had been a sharp steering
    manoeuvre to get off the road. Mr. Laines evidence did not accord with the
    physical evidence on the road.

[45]

The
    appellant submits that the trial judge rejected one aspect of Ms. Sheppards
    evidence  the evidence about the location of the Meyer vehicle  that could
    support the appellants version of events. However, the trial judge nonetheless
    accepted other aspects of Ms. Sheppards evidence, while she concluded the
    appellant was neither credible nor reliable. This demonstrates uneven treatment
    of the appellants evidence.

[46]

I
    do not accept this submission. There was more than simply the evidence of Ms.
    Sheppard and the appellant on the location of the Meyer vehicle. Mr. Meyer and
    Ms. Davis (Mr. Meyers spouse and passenger) both testified that the
    appellants vehicle approached theirs, initially in their lane of travel, and returned
    to its own lane as it passed the Meyer vehicle. Mr. Meyer estimated that the
    appellants vehicle was travelling at around 120 km/h. Officer Pearsall
    testified about the physical evidence at the scene, including the tire marks
    the appellants vehicle left as it ran off the west side of the road.  Office
    Pearsall also remarked on the way the grass appeared along the west side of the
    highway and the tire marks that the appellants vehicle left on the asphalt as
    it crossed from the west to the east side of the road. This evidence did not
    support the appellants version of events.

[47]

A
    trial judge is entitled to accept some, none or all of a witnesss evidence. It
    was open to the trial judge to accept some of Ms. Sheppards evidence but to
    reject her evidence on the point about the location of the Meyer vehicle before
    the crash.

[48]

Similarly,
    it was open to her to reject the appellants evidence. His evidence was
    internally inconsistent, as is demonstrated by the brief passage referenced in
    the trial judges reasons noted above. Furthermore, the trial judge was
    astound[ed] by the appellants lack of recall at trial. She concluded that he
    was evasive on key issues, including his driving speed on Baseline Road, and
    when he lost control of the vehicle.

[49]

These
    were matters for the trial judge to decide. Her job was to weigh and assess the
    evidence. That she preferred the evidence of certain witnesses over others does
    not demonstrate uneven treatment, nor does the fact that she accepted some of
    Ms. Sheppards evidence but not all. This is the prerogative of the trial
    judge.

[50]

I
    would dismiss this ground of appeal.

G.      DID THE TRIAL JUDGE ERR IN REFUSING to Permit the Defence to
    Re-open THE TRIAL?

[51]

The
    appellant submits that the trial judge erred in refusing to allow his application
    to re-open the trial following the Crowns closing submissions.

[52]

The
    appellant testified that, after he went off the west side of the road at Curve
    3, he accelerated in order to get back onto the road. In her closing
    submissions, the Crown said that the appellants evidence on his acceleration
    was fabricated and specifically intended in order to undermine [Officer
    Pearsalls] speed calculation.

[53]

Officer
    Pearsall had provided an estimate of how quickly the appellant was travelling
    when he entered Curve 3. His estimate was based on an assumption about how fast
    the appellant was travelling after he left the road. If the appellant in fact
    accelerated after he left the road, the effect would be to reduce Officer
    Pearsalls estimate of how quickly he was travelling when he entered Curve 3.

[54]

There
    was evidence available (a prior statement the appellant had given to police)
    that the appellant had said he accelerated while off the road, before he knew
    of Officer Pearsalls report  that is, before he had a motive to lie.

[55]

Prior
    consistent statements are generally inadmissible. However, they can be admitted
    in order to rebut an allegation of recent fabrication:
R. v. Jackson
,
    2013 ONCA 632, 301 C.C.C. (3d) 358, at para. 85, affd 2014 SCC 30, [2014] 1
    S.C.R. 672. Where it is alleged that a witness recently fabricated his or her
    testimony, the prior consistent statement has probative value because it
    indicates that the witnesss story was the same before the motive to fabricate
    arose:
Jackson
, at para. 85.

[56]

After
    closing submissions, the defence brought an application to re-open the trial. The
    defence sought to lead evidence of the appellants prior consistent statement
    in order to rebut the Crowns allegation of recent fabrication.

[57]

The
    appellant submits that, while the application to re-open would have been more
    compelling with a proper record that included the evidence of the prior
    consistent statement, and a transcript of the relevant portion of the Crowns
    closing submissions, the absence of those materials should not have been fatal to
    his application.

[58]

The
    record discloses that the Crowns allegation was fully and openly discussed.
    The appellant is correct that the allegation of recent fabrication arose for
    the first time during the Crowns closing submissions. The Crowns submission
    was improper. However, after a protracted discussion, the Crown agreed to
    withdraw her submission, as the following exchange indicates:

THE COURT:        I have not misunderstood the Crowns position
    on this, is that correct, that there is no allegation here of recent
    fabrication?

THE CROWN:       That is correct. That is, that I did not make
    any allegation of recent fabrication in my submissions, and nor was the issue
    raised at trial during cross-examination of Mr. Laine. That is correct.

THE COURT:        And if you said something that could be
    interpreted that way in your final submissions, I am not to interpret it that
    way.

THE CROWN:       Thats correct, yes.

[59]

The
    trial judge then concluded this discussion with the following:

This is a judge alone trial. Submissions are not evidence. I
    have not and will not consider this as a case of alleged recent fabrication. It
    does not arise on the evidence. What is alleged is fabrication, pure and simple.
    The application is therefore dismissed.

[60]

The
    appellant can point to nothing in the trial judges reasons to suggest that she
    did not do what she said she would do.

[61]

I
    do not accept this submission. As the trial judge herself noted, this was a
    judge-alone trial and she would not consider the case as one of recent
    fabrication. Her reasons demonstrate that she did not do so. I would not give
    effect to this ground of appeal.

H.      are the VerdictS
    unreasonable?

[62]

The
    appellant submits that the trial judges finding of criminal negligence was
    unreasonable.

[63]

He
    submits that the trial judge concluded that he exceeded the critical curve
    speed on Curve 3, and that is why he crashed into the pole. The appellant
    submits that this finding is not supported by the evidence. The expert evidence
    was that the appellants vehicle slightly exceeded the critical curve speed and
    did not need to slow down much to get back onto the road. The evidence was also
    that the appellant braked hard after returning to the road. Braking hard after
    returning, and losing control of the vehicle, were poor decisions by an
    inexperienced driver  not a wanton disregard for human life. Taking the expert
    evidence at its highest, the collision occurred after the appellant was driving
    20 or 30 km/h over the speed limit and failed to make a turn properly. This is
    not, he submits, criminal negligence.

[64]

A
    verdict is unreasonable or cannot be supported by the evidence if it is one
    that a properly instructed trier of fact, acting judicially, could not
    reasonably have rendered:
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180,
    at para. 26. Appellate courts have somewhat broader scope to review the
    verdicts of trial judges, as opposed to juries, for unreasonableness, because
    trial judges give reasons for their conclusions:
W.H.
, at para. 26. The
    appellate court must consider whether there is evidence in the record to
    support the verdict, and whether the verdict conflicts with the bulk of
    judicial experience:
W.H.
, at para. 28;
R. v. F.C.
, 2015 ONCA
    191, [2015] O.J. No. 1437, at para. 38.

[65]

Furthermore,
    the test for criminal negligence requires the Crown to show that an accuseds
    conduct or omission constituted a marked and substantial departure from the
    conduct of a reasonably prudent person in the circumstances:
R. v. M.R.
,
    2011 ONCA 190, 275 C.C.C. (3d) 45, at para. 28. The marked and substantial
    departure standard applies to both the physical and mental elements of the
    offence:
M.R.
, at para. 29.

[66]

I
    would not give effect to this ground of appeal. In my view, the verdicts were
    not unreasonable.

[67]

The
    difficulty with the appellants position is that it focusses only on his
    conduct at Curve 3. However, in assessing whether criminal negligence is made
    out, the trier of fact should consider all of the circumstances surrounding the
    activity, including the manner in which the appellant drove, his age, and the
    instigation and encouragement of the activity he received from others:
R. v.
    J.L.
(2006), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 21.

[68]

The
    trial judges finding of criminal negligence was based on the appellants
    entire course of conduct while driving on Baseline Road. He began to speed and
    drove recklessly as soon as he got onto Baseline Road. He knew the road well:
    he had travelled on it many times throughout his life, albeit as a passenger on
    visits to his family cottage. The road was signed and he had personally driven
    it several times over the course of this visit.

[69]

The
    trial judge considered the appellants youthfulness and the fact that he was egged
    on by his front-seat passenger who was recording the event on video. However, the
    appellant had also been asked to slow down at least once and he knew that at
    least one of his passengers was uncomfortable with his speeding. Even the
    appellant concedes that his conduct was stupid.

[70]

This
    is not a case of an inexperienced driver who made a bad turn while going
    slightly over the speed limit. His speed was grossly excessive, 140 km/h at the
    time Ms. Sheppard observed the speedometer, on a narrow two-lane highway. Even
    after the near-miss at Curve 1, the appellant continued his wanton conduct
    without regard for the lives of those passengers in his vehicle or indeed
    others using the road. He was not chastened by the near-miss; instead, he
    increased his speed.

[71]

I
    see no basis to interfere with the trial judges conclusion that the
    appellants conduct constituted a marked and substantial departure from the
    conduct of a reasonably prudent person in the circumstances. The criminal
    negligence verdict is not unreasonable and is in accordance with the facts as
    the trial judge found them.

[72]

I
    would dismiss this ground of appeal.

I.        the sentence
    appeal

[73]

The
    appellant was sentenced to four years imprisonment, concurrent, on each of the
    three criminal negligence convictions.

[74]

He
    submits that the trial judge over-emphasized general deterrence in imposing these
    sentences.

[75]

The
    appellants wanton course of conduct likely occurred in less than two minutes,
    over a stretch of highway 1.7 km in length. Neither the distance nor the time
    involved were long, but the consequences were utterly devastating.

[76]

The
    families of the two young women who were killed as the result of the
    appellants conduct have lost their loved ones forever. Society has been
    deprived of all they might have been. Ms. Sheppard will always suffer from the
    serious injuries she sustained. Nothing the court can do will change or
    alleviate this suffering.

[77]

However,
    the court must fix the proper sentence for this offender, who committed these
    offences in these circumstances.

[78]

The
    appellant was 21 years of age at the time of the offences. He had had his G2
    drivers licence for about one year. No alcohol or drugs were involved in the
    offences. He had a minor highway traffic record, which the trial judge
    described as of no consequence. He had no criminal record.

[79]

In
    her reasons, the trial judge noted:

The case law shows that the predominant objectives in
    sentencing an individual for crimes of this nature are deterrence and
    denunciation.

[]

I have serious concerns about imposing a penitentiary sentence
    on a first offender such as Mr. Laine who is relatively young and obviously
    immature. Nevertheless, these are the very people who could be deterred by the
    prospect of a substantial sentence for recklessly disregarding the safety of
    others while driving.

[80]

The
    appellant is a first offender who has never been incarcerated prior to these
    offences. In
R. v.
Priest
, (1996), 30 O.R. (3d) 538 (C.A.), at
    p. 545, Rosenberg J.A. said:

[I]t is a well-established principle of sentencing laid down by
    this court that a first sentence of imprisonment should be as short as possible
    and tailored to the individual circumstances of the accused rather than solely
    for the purpose of general deterrence.

[81]

While
    the appellant was not, strictly speaking, a youth at the time of the offence,
    he was nevertheless still youthful, in that he was only 21 years old. As
    Rosenberg J.A. noted at p. 545 of
Priest
:

[T]he term youthful offender refers not simply to
    chronological age and must include some consideration of the offenders
    maturity.

[82]

The
    trial judge specifically noted the appellants immaturity.

[83]

Furthermore,
    at p. 546, Rosenberg J.A. commented that:

[T]his emphasis on individual deterrence rather than general
    deterrence [is] particularly applicable in the case of a youthful first
    offender.

[84]

In
    her reasons noted above, the trial judge emphasized the principles of
    deterrence and denunciation. While she had concerns about imposing a
    penitentiary term on a first offender, she concluded that people in the
    appellants position are the very people who could be deterred by a
    substantial sentence.

[85]

As
    this court recently noted in
R. v. Brown
,
2015 ONCA 361, [2015] O.J. No. 2655, at para. 7:

The primary objectives in sentencing the youthful first time
    offender remained individual deterrence and rehabilitation. In balancing the
    factors, the sentencing judge still had to impose the shortest term of
    imprisonment that was proportionate to the crime and the responsibility of the
    offender, given his young age.

[86]

As
    the trial judge noted, the appellant was, according to his stepmother, an
    honest, good kid with little ambition who is immature and disorganized. At the
    time of his sentencing, he was enrolled at Seneca College full-time taking a digital
    media course.

[87]

The
    appellants crimes are serious and a custodial sentence is required. However, the
    sentence imposed by the trial judge appears to have been mainly intended to
    deter others who might be inclined to drive as the appellant had driven. It
    appears that general deterrence was overemphasized, and this was an error that
    permits this court to intervene:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500,
    at para. 90.

[88]

In
    my view, given the appellants youth, the circumstances of the offence, the fact
    that no alcohol or drugs were involved, the appellants efforts to rehabilitate
    himself, and the support offered by his family, the appropriate sentence would
    be two years less a day. I would vary the sentence accordingly.

J.       DISPOSITION

[89]

In
    the result, I would dismiss the conviction appeal. I would grant leave to
    appeal sentence and allow the sentence appeal in accordance with these reasons.

Released: July 9, 2015 JL

J.
    MacFarland J.A.

I
    agree John Laskin J.A.

I
    agree Paul Rouleau J.A.

[1]
The speed limit has since been reduced to 60 km/h.

[2]
Officer Pearsall described the crowding phenomenon in his evidence: in a narrow
    curved roadway, it may appear to a driver that an oncoming car is encroaching
    onto the drivers lane.


WARNING

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

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

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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

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

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

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

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

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

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

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

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

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. M.K., 2015 ONCA 563

DATE:  20150729

DOCKET:
C58543

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.K.

Appellant

Richard Litkowski, for the appellant

Jason Gorda, for the respondent

Heard:  July 20, 2015

On appeal from the convictions entered by Justice Gilmore
    of the Superior Court of Justice on November 5, 2013 and the sentence imposed
    on April 1, 2014.

By the Court:

[1]

The appellant was charged with sexually assaulting his stepsister.  The
    Crown alleged that the assaults occurred in Markham, Ontario and Picton,
    Ontario.  The trial judge convicted on the charges relating to the events in
    Picton and acquitted on the charges relating to the events in Markham on the
    basis that the Crown had not proved that those events occurred after the
    appellant was 18.  The trial judge imposed a sentence of 2 years, less a day,
    followed by 2 years probation.  The appellant appeals conviction and sentence.

I

THE CONVICTION APPEAL

[2]

There are four grounds of appeal.

1:  The alleged misuse of the appellants statement to the
    police in the assessment of his credibility

[3]

The Crown cross-examined the appellant on portions of a statement he had
    given to the police concerning the allegations.  The trial judge concluded that
    several of the appellants answers to questions about specific allegations made
    against him were equivocal and inconsistent with a reliable and credible
    denial.  For example, the investigating officer asked the appellant whether the
    complainant ever touched his penis.  The appellant responded, not that I know
    of.

[4]

Counsel for the appellant argues that the trial judge took these answers
    out of the context of the rest of the statement.  The appellant expressly
    denied any sexual misconduct several times during that statement.  Counsel also
    points out that the appellant testified that his answers were merely an attempt
    to search his memory back over 20 years to see if he could remember anything
    that might have been misconstrued by the complainant.

[5]

The trial judges characterization of some of the appellants answers
    during the police questioning was open to her on the entirety of the evidence.
    Nor, in our view, is the negative impact of those answers on the appellants
    credibility necessarily minimized by the more general denials in the statement
    of any criminal activity.

[6]

The trial judge considered the appellants answers to some of the
    specific allegations put to him in cross-examination as one of several factors
    that, in her view, undermined the appellants credibility.  She did not focus
    exclusively on a single answer or contradiction in the statement and did not
    misapprehend the content of the statement.  The cases relied on by the
    appellant are distinguishable on their facts:  e.g. see
R. v. W. (J.S.)
,
    [2013] O.J. No. 4409 at 47-49;
R. v. T. (D.)
, [2014] O.J. No. 255 at
    paras. 68-69.

[7]

In summary, we see no error in the trial judges conclusion that some of
    the answers given by the appellant in his statement of the police negatively
    impacted on the credibility of his evidence at trial.  Ultimately, that factor,
    combined with the other factors identified by the trial judge, compelled her to
    conclude that the appellants evidence did not leave her with a reasonable
    doubt on the charges arising out of the events in Picton.

2:  Did the trial judge err in her identification of the
    factors relevant to the appellants credibility?

[8]

The trial judge specifically identified four factors that led her to
    conclude that the appellants testimony was not credible.  The first, some of
    the answers given by the appellant in his statement, is the subject of the
    first ground of appeal set out above.  The other three factors  lies the
    appellant told the police about his father and his whereabouts, inconsistent
    statements by the appellant as to the quality of his memory, and the
    appellants answers in cross-examination minimizing his opportunity to have
    assaulted the complainant, were all, on the trial judges view of the evidence,
    properly used by her in assessing the credibility of the appellants testimony.

[9]

Other trial judges may have taken a different view of one or more of
    these factors.  Any one of the factors standing alone may not have reasonably
    justified the rejection of the appellants testimony.  However, taken as a
    whole and placed in the context of the entirety of the evidence, we cannot say
    that the factors identified by the trial judge did not justify her conclusion
    that the appellants evidence did not leave her with a reasonable doubt on the
    Picton-related charges.

3:  The trial judges approach to the evidence of the
    complainant

[10]

The
    appellant submits that the trial judge focussed almost exclusively on the
    complainants credibility or sincerity and failed to engage in a critical examination
    of the reliability of her evidence:  see
R. v. Sanichar
(2012), 280
    C.C.C. (3d) 500 at para. 30 (Ont. C.A.), revd, [2013] 1 S.C.R. 54.  Counsel
    points to the absence of any specific reference by the trial judge to the 20
    years between the events in issue and the complainants making of the
    allegations, a key factor in assessing reliability, as indicative of the trial
    judges failure to address reliability.

[11]

The
    trial judge reviewed the complainants evidence at length (para. 113 and
    following) and in doing so addressed many of the arguments put forward by the defence
    at trial.  For example, the trial judge considered the defence arguments that
    the nature and timing of the disclosures should negatively impact on the
    appellants credibility.  She gave reasons for rejecting that submission and
    concluding that the nature of the disclosure was consistent with both the
    reliability and credibility of the allegations (see paras. 113-117).

[12]

The
    trial judge also considered many of the inconsistencies in the complainants
    evidence advanced by the defence as undermining the reliability of her
    evidence.  The trial judge said:

Ms. S.s [the complainant] evidence was not perfect.  I agree,
    she was even defensive at times, but looking at the inconsistencies as a whole,
    they do not shake my belief in the reliability of her evidence about these
    incidents.

[13]

The
    trial judges examination of the inconsistencies in the complainants evidence
    was clearly directed at an assessment of the reliability of that evidence. A
    review of the entirety of the reasons as they relate to an assessment of the
    complainants evidence compels the conclusion that the trial judge was alive to
    both credibility and reliability-related concerns when addressing that
    evidence.

[14]

The
    appellant also focusses on the trial judges observation at the end of her
    analysis of the complainants evidence:

She [the complainant] believed that these things happened to
    her and this court does as well.

[15]

This
    observation must be placed in the context of the preceding 40 paragraphs that contain
    a detailed analysis of the complainants evidence directed at both credibility
    and reliability.  Considered in that context, the trial judges belief that the
    complainant was assaulted as she said she was flowed from a thorough
    examination of the credibility and reliability of the complainants evidence.

4:  The failure to consider the parts of the complainants
    mothers evidence that favoured the appellant

[16]

The
    trial judge concluded that the complainants mother had a strong animus toward
    the appellant for reasons unrelated to these specific allegations.  Because of
    that animus, the trial judge was not prepared to accept any part of the
    mothers evidence that inculpated the appellant unless it was consistent with
    the complainants evidence.

[17]

The
    appellant has no quarrel with the trial judges treatment of the mothers
    potentially inculpatory evidence.  He submits, however, that parts of the
    mothers evidence supported his position at trial and that the mothers animus
    towards him was no reason to reject that part of her evidence.  Indeed, he submits
    that the mothers animus would tend to make that part of her evidence more
    credible.

[18]

The
    logic of the appellants argument cannot be denied, however, it does not get
    the appellant anywhere on the facts of this case.  Opportunity was the only material
    issue on which the mothers evidence offered some potential support for the
    appellants position.  He maintained in his evidence that he had little, if
    any, opportunity to commit the assaults in the hot tub at the home in Picton.
    The trial judge accepted that the evidence supported a somewhat diminished
    opportunity to commit those assaults.  In reaching that conclusion, the trial
    judge implicitly accepted the mothers evidence relevant to the question of
    opportunity, at least to the extent that it was consistent with the appellants
    evidence.  The trial judge went on, however, to find that although the
    opportunity to sexually assault the complainant in the hot tub may have been
    diminished, there remained sufficient opportunity for sexual activity in the
    hot tub.  Nothing said by the mother in her evidence was capable of
    eliminating that opportunity.

[19]

The
    conviction appeal is dismissed.

II

the sentence appeal

[20]

In
    oral submissions, counsel for the appellant alleged a single error by the trial
    judge in her reasons for sentence.  He submits that the trial judge properly
    placed the appellants offence at the lower end of the sentencing range in
    respect of sexual assaults on children.  He further submits, however, that the
    trial judge then, in imposing a sentence of 2 years less one day went well
    beyond the lower range of sentencing into the mid-range of sentencing for this
    type of offence.

[21]

In
    the course of her thorough reasons for sentence, the trial judge said:

While one could never say that the actions of Mr. K. are
    excusable, they are, when considering a range of sentence, such that they
    should be considered to be in the lower end of the sentencing range with
    respect to the nature and type of act of abuse perpetrated by the victim.

[22]

On
    our reading, the trial judge was addressing the nature of the conduct that
    constituted the sexual assaults in this case.  She placed that conduct at the
    lower end of the range of conduct that could constitute the offence.  She was
    not addressing the circumstances relevant to sentencing as a whole.

[23]

Accepting
    the trial judges characterization of the conduct as at the lower end of the
    sentencing range, but also having regard to the blatant breach of trust
    involved in these offences and the many occasions on which the appellant
    assaulted the complainant, we cannot say that the sentence imposed by the trial
    judge was unfit.  We would grant leave to appeal sentence, but dismiss the
    sentence appeal.

[24]

The
    appeals from conviction and sentence are dismissed.

Released:  DD  JUL 29 2015

Doherty J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.