WARNING

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

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

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    that could identify the complainant or a witness shall not be published in any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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.N., 2013 ONCA 251

DATE: 20130423

DOCKET: C52395

Laskin, Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.N.

Appellant

J.N., acting in person

Howard L. Krongold, as duty counsel

Frank Au, for the respondent

Heard: June 13, 2012

On appeal from the conviction entered on March 9, 2010
    and the sentence imposed on June 11, 2010 by Justice John A. Desotti of the Superior
    Court of Justice, sitting without a jury.

By the
    Court:

A.

introduction

[1]

The appellant was convicted of sexual assault, sexual interference and
    invitation to sexual touching for the prolonged abuse of his stepdaughter. His
    trial lawyer requested a
Gladue
report before sentencing, but none was
    provided because Aboriginal Legal Services could not confirm the appellants Aboriginal
    identity. The appellant was sentenced to seven years in prison less two years
    credit for pre-trial custody, for a total of five years.

[2]

The appellant appeals his conviction and sentence. We see no reviewable
    error in the trial judges reasons on conviction.  He properly applied the
    principles in
R. v. W.D
. He accepted the complainants evidence, and
    gave reasons for doing so.  Indeed, the complainants evidence was confirmed in
    several respects by her mother.  The trial judge rejected the appellants evidence,
    which he found vague and evasive.  The conviction appeal is dismissed.

[3]

On the sentence appeal the appellant seeks to file fresh evidence in the
    form of a
Gladue
report which, he submits, justifies a reduction in
    his sentence. The Crown concedes that the fresh evidence should be admitted but
    maintains that the original sentence is appropriate notwithstanding
Gladue
.

[4]

As we will explain, we are not persuaded that the fresh evidence affects
    the fitness of the appellants sentence for three reasons.

[5]

First, while the Crown accepts that the appellant is Aboriginal for the
    purpose of s. 718(2)(e) of the
Criminal Code
, in our view, his claim
    to the benefit of
Gladue
is weak.

[6]

Second, and related, the
Gladue
report is both general and
    speculative on the degree to which the appellants Aboriginal background may
    have contributed to his criminality.

[7]

Third, and most importantly, this is one of those cases where the crimes
    were so serious, and the aggravating factors so compelling, that the
    appellants ancestry makes little or no difference to the appropriate length of
    the sentence.

B.

BACKGROUND

(a)

The offences

[8]

This is a historical sexual assault case. The appellant lived in a
    common law relationship with the complainants mother in Sarnia, Ontario. The
    complainant testified, and the trial judge accepted, that the appellant began
    sexually abusing her when she was six or seven years old. The abuse occurred
    three or four times a week and consisted of the appellant touching and penetrating
    the complainants vagina with his fingers. There was also one incident of
    sexual intercourse. The abuse persisted until the complainant was fourteen
    years old, when the appellant was charged with assaulting the complainants
    mother. The complainant did not report the abuse to the police at that time
    because she did not feel emotionally strong enough.

[9]

The appellant testified and claimed to have no recollection of the
    events the complainant described. He also denied having a drinking problem
    despite abundant evidence to the contrary.

[10]

The
    trial judge found that the appellant either had memory problems or was
    purposely evasive about the events the complainant described. He also found
    that the appellant was and is heavily addicted to alcohol, which clouded his
    memory of undisputed events. By contrast, the trial judge found the
    complainants evidence detailed, descriptive and emotionally charged. He
    convicted the appellant on all counts.

(b)

The request for a
Gladue
report

[11]

Immediately
    following the trial judges verdict, the appellants lawyer told the court:
    [B]ased on what [the appellant] told me  he does have some native issues and
    the alcoholism at the very least is something that I think a
Gladue
report would be merited here. The trial judge agreed and scheduled the
    sentencing hearing to allow adequate time for preparation of the report.

(c)

The sentencing hearing

(1)

The absent
Gladue
report

[12]

When
    the parties reappeared for sentencing, counsel for the appellant advised the
    court that Aboriginal Legal Services did not complete a
Gladue
report
    on the basis that they couldnt confirm [his] Aboriginal identity. The mater
    was not discussed further and counsel proceeded to make their submissions.

(2)

Counsels submissions

[13]

The
    appellants lawyer acknowledged that his client was in a position of trust toward
    the complainant, that he had shown no remorse for his actions, and that he had
    a long criminal record. On the other side of the ledger he noted that none of the
    appellants previous convictions were for sexual offences and that he had a
    drinking problem, though the appellant continued to deny it. Counsel suggested
    that the ballpark range for sentence was between three and four years to
    eight and ten years.

[14]

The
    Crown submitted that given the nature of the offences, the age of the complainant,
    the prolonged pattern of abuse, the breach of trust, and the impact of the
    abuse on the complainant, a sentence in the range of seven years was
    appropriate.

(3)

The pre-sentence report

[15]

The
    pre-sentence report stated that the appellant was born in San Diego, California
    in 1959. His parents divorced when he was a child. He moved to Ontario in 1972
    when his mother married a Canadian man. The appellant reported that his mother
    was part Aboriginal and that while his Aboriginal ancestry is an important
    part of his background, he is not affiliated with any local reservation and
    does not have Aboriginal status in Canada. A
Gladue
caseworker advised
    that she was unable to confirm the appellants Aboriginal ancestry for
    sentencing purposes.

[16]

The
    appellant reported that he had a good childhood with no history of physical,
    emotional or sexual abuse. His mother was often a victim of domestic violence
    but he denied ever witnessing it. He also denied that his mother had any
    history of alcohol or drug addiction.

[17]

The
    appellant graduated from high school in Sarnia and then completed a six-month
    course in auto mechanics. He denied ever having been suspended or expelled from
    school but stated that he fought with other children and was sent out of class
    occasionally.

[18]

The
    appellant denied having a drinking problem, despite having been fined on 24
    occasions between 2006 and 2009 for alcohol-related offences.

[19]

The
    author of the pre-sentence report gave the following assessment:

Prior to his detention, the subject was unemployed and in
    receipt of social services. Probation and police records document a pattern of
    alcohol and drug abuse, domestic violence and non-compliance dating back to
    1981.

The subjects response to community supervision has been poor,
    and he has continued to re-offend within the community. He has consistently
    failed to attend counselling to address substance abuse or anger management.
    Although he has indicated that he would attend counselling if required as a
    condition of probation upon sentencing, he has denied any sexual offending
    behaviour and does not feel that he requires counselling.

(4)

The reasons for sentence

[20]

The
    sentencing judge held that the principles of denunciation and deterrence were
    paramount. Ultimately he sentenced the appellant to seven years on each of the
    four counts, to be served concurrently. He explained:

Seven years is from my perspective the low end of this range.
    Seven to ten years is where I was at. The Crown sought seven years, I am
    prepared to accept that. I just want to indicate that this is a horror crime.
    The last person that anyone should be abusing in a position of trust is their
    child, step-child or not.

[21]

The
    sentencing judge referenced decisions of this court on the appropriate
    sentencing range for sexual offences involving breaches of trust, and
    continued:

This conduct is to be expected, by any court, to be denounced
    and by any court to be deterred. So beyond the pale that it violates a
    communitys sensibilities. And for that reason it has to mete justice, the
    penalty has to be meted out in the most serious manner. As I said, seven to ten
    was the range I had and the Crown chose at the low end of that range.

C.

THE APPEAL

(a)

The s. 684 appointment and the search for information

[22]

The
    appellant filed a notice of appeal of his conviction and sentence. Legal Aid
    was refused and the matter came before this court on the inmate list, with Ms. Jill
    Presser acting as duty counsel. In November 2010, the court appointed Ms.
    Presser counsel under s. 684 of the
Criminal Code
for the limited purpose
    of investigating whether the appellant is Aboriginal for
Gladue
purposes
    and if so preparing the necessary fresh evidence for the sentence appeal.

[23]

Ms.
    Presser had a hard time obtaining information about the appellants Aboriginal
    background beyond his self-reporting that his mother always told him he had
    ancestors from the Cherokee and Apache tribes. He also noted that his
    stepfather is a full Native American and his half-sisters are half-Native,
    but the appellant was unable to point Ms. Presser to family members who could
    provide more information. The appellant signed a waiver authorizing Aboriginal
    Legal Services to share any information it had obtained prior to sentencing,
    but none was forthcoming.

[24]

Not
    content to let the matter rest, Ms. Presser hired a private investigator who
    was able to locate two of the appellants relatives, a sister and an uncle. The
    sister said she believed that one or both of the appellants parents may have
    been at least partially Aboriginal but she could not provide more concrete
    information. Similarly, the uncle said he believed the appellant might have
    some Aboriginal ancestry but he did not know for sure.

[25]

In
    August 2011, Ms. Presser brought an application on the appellants behalf
    seeking an order for a
Gladue
report. She submitted that the appellant
    met the criteria for recognition as a non-status Indian as set out by the
    Supreme Court in
R. v. Powley
, 2003 SCC 43, [2003] 2 S.C.R. 207: (1)
    self-identification as Aboriginal, where the self-identification is not of recent
    origin; (2) evidence of an ancestral connection to an Aboriginal community; and
    (3) evidence of acceptance by the modern Aboriginal community. This last
    criterion was satisfied in part through the report of an elder at the Bath
    Institution who attested to the appellants participation in an Aboriginal
    healing plan.

[26]

The
    application was allowed and the court ordered that a
Gladue
report be
    produced.

(b)

The fresh evidence

(1)

Authorship of the
Gladue
report

[27]

Despite
    her best efforts, Ms. Presser could not find someone to prepare the
Gladue
report and so she and her associate, Ms. Lucy Saunders, did it themselves. Ms.
    Saunders explained in her affidavit accompanying the report:

Unfortunately, it is not within the mandate of Aboriginal Legal
    Services to prepare
Gladue
reports for inmates in the Kingston area.
    Ms. Presser and I conducted extensive investigations to find a
Gladue
writer to assist with the preparation of the report. We contacted a number of
    organizations including the John Howard Society, Katarokwi Native Friendship
    Centre, the Ontario Federation of Indian Friendship Centres, the United Chiefs
    in Counsel of Manitoan, the Thunder Bay Native Friendship Centre, NAmerind
    Friendship Centre and Kingston Probation. We ultimately concluded that there
    was no organization or individual able to produce a
Gladue
report for
    an inmate in the Kingston area. [The appellant] was unwilling to waive his
Gladue
rights or his statutory rights under s. 718.2(e) of the
Criminal Code
.
    Consequently, Ms. Presser and I drafted and produced a
Gladue
report.
    Neither Ms. Presser nor I have experience as
Gladue
writers, and we
    are not of Aboriginal ancestry. However, for guidance we consulted extensive
    resources including precedent
Gladue
Reports drafted by ALS, journal
    articles, and a
Gladue
primer published by the Legal Services Society
    of British Columbia. We [researched] the resources available to [the appellant]
    in the community as an Aboriginal person with substance abuse issues. In
    addition, I conducted interviews with [the appellant] at Bath Institution, as
    well as the Aboriginal Liaison Officers and Elder at the penitentiary.

(2)

Content and conclusions of the
Gladue
report

[28]

The
    background information in the
Gladue
report mirrored the information
    in the pre-sentence report that was before the sentencing judge. It noted that the
    appellant had a good childhood with no history of physical, emotional or
    sexual abuse and that his mother had no history of addiction. The appellant reported
    that he did not feel poor because he always had a roof over his head and enough
    food on the table. He appreciated his mother and felt she did real good.
    Although he was teased in school because he was Aboriginal and American, he
    made a couple of good friends, both of whom were members of the Chippewa tribe.

[29]

The
    report went on to note that the appellant has been unable to maintain regular
    employment, primarily because of substance abuse issues. He has lost touch with
    all three of his long-term girlfriends and had not seen his only child, an
    adult daughter, since his incarceration in 2009.

[30]

Regarding
    the appellants Aboriginal ancestry, the report stated that he was raised not
    knowing much about his heritage and that he felt deeply disappointed by this
    disconnection. He regained a connection while at the Bath Institution, where
    he has been extremely active in the Aboriginal community.

[31]

The
    report discussed the role the appellants Aboriginal background may have had in
    bringing him before the court:

[S]ubstance abuse and the effects of community fragmentation,
    resulting in his and his familys estrangement from the Aboriginal community,
    have impacted on [the appellants] criminality.

While [the appellants] estrangement from the Aboriginal community
    means that he has not been effected [
sic
] as greatly by the cultural
    differences between Aboriginal and non-Aboriginal peoples, he does appear to
    have experienced racism to a certain degree, reporting that lack of acceptance
    of his Aboriginal ancestry caused some conflict at school. Moreover, such
    dislocation from the Aboriginal community is in itself an expression of
    colonialism and has been held by our Superior Court in
R. v. Prevost
to be a relevant factor for consideration.

[32]

The
    report recommended that the appellants sentence should be reduced from seven
    years to two years less a day, plus three years probation. Not coincidentally,
    this would spare him from being deported back to the United States:
    non-citizens who are sentenced to prison terms over two years are automatically
    marked for deportation to their countries of origin upon release.

[33]

The
    report also recommended that the appellant should be required to abstain from
    alcohol and continue to receive counselling for substance abuse, and
    participate in such Aboriginal community activities, rituals and education as
    recommended and approved by a probation officer.

(c)

Counsels submissions on appeal

[34]

At
    the appeal hearing in Kingston, duty counsel submitted that the sentencing
    judge erred by failing to obtain information about the appellants Aboriginal
    status before making his decision. Although the Crown did not concede this
    point, counsel agreed that this court should admit the fresh evidence. The real
    controversy was over what weight to give to the
Gladue
report in
    assessing the fitness of the appellants sentence.

[35]

Duty
    counsel submitted that the conclusions in the
Gladue
report support a
    reduction in the appellants sentence because, as he eloquently put it, the
    rehabilitative and restorative objectives of
Gladue
are not exhausted
    in this case. He pointed out that alcoholism is clearly a major contributor to the
    appellants criminality, and that the balance of his criminal record is for
    minor offences.

[36]

Duty
    counsel fairly conceded that a seven year sentence was certainly in the
    appropriate range for the prolonged abuse of the appellants stepdaughter and
    that the sentence recommended in the
Gladue
report was insufficient.
    Nevertheless, duty counsel submitted that this court should reduce the sentence
    in recognition that the appellants current regrettable state is attributable
    at least to some extent  to his Aboriginal background.

[37]

The
    Crown submitted that given the seriousness of the offences, a seven year
    sentence is still appropriate notwithstanding
Gladue
. Counsel noted
    that the appellants background did not fit the classic
Gladue
pattern. Rather, his was a story of disconnection and reconnection to his Aboriginal
    heritage. Counsel submitted that the appellants disconnection from the Aboriginal
    community before his incarceration effectively neutralized the impact of
    systemic discrimination on him. At the same time, his reconnection since
    joining the Aboriginal community at the Bath Institution has given him a sense
    of belonging that he did not have before.

[38]

The
    Crown suggested that if this court is inclined to adjust the appellants
    sentence, any reduction should not exceed one year. He also noted that the
    appellant faces deportation regardless of the outcome of the sentence appeal,
    because the immigration consequences of his conviction have already been
    triggered. Moreover, counsel submitted that although deportation can be
    relevant to sentencing considerations, it cannot be used to take a sentence out
    of the appropriate range.

D.

ANALYSIS

[39]

As
    stated at the outset, we are not persuaded that the fresh evidence affects the
    fitness of the appellants sentence. We, therefore, dismiss the sentence appeal.

[40]

As
    a threshold matter we observe that although it may be unusual for counsel
    acting under a s. 684 appointment to prepare a
Gladue
report, this was
    an unusual case. In our view Ms. Presser and Ms. Saunders acted entirely
    appropriately in preparing the
Gladue
report and we commend them for
    their work.

(a)

Did the sentencing judge err by failing to inquire into the appellants Aboriginal
    background?

[41]

In
    Ontario, the law requires that a
Gladue
analysis be performed in
all
cases involving an Aboriginal offender:
R. v. Kakekagamick
(2006), 81
    O.R. (3d) 664 (C.A.), at para. 38 (emphasis in original). See also
R. v.
    Jensen
(2005), 74 O.R. (3d) 561 (C.A.), at para. 27.

[42]

In
R. v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207, the Supreme Court
    clarified the scope of a sentencing judges duty following
Gladue
, at
    para. 55:

[I]t was never the Court's intention, in setting out the
    appropriate methodology for this assessment, to transform the role of the
    sentencing judge into that of a board of inquiry. It must be remembered that in
    the reasons in
Gladue
, this affirmative obligation to make inquiries
    beyond the information contained in the pre-sentence report was limited to appropriate
    circumstances, and where such inquiries were practicable (para. 84). The
    application of s. 718.2(e) requires a practical inquiry, not an impractical
    one.
As with any other factual finding made by a court of first instance, the
    sentencing judge's assessment of whether further inquiries are either
    appropriate or practicable is accorded deference at the appellate level.
[Emphasis
    added.]

See also
R. v. Pelletier
, 2012 ONCA 566, 295
    O.A.C. 200, at para. 140.

[43]

In
    this case, the sentencing judge had been told that Aboriginal Legal Services
    could not confirm the appellants ancestry, and the appellant himself was
    unable to provide any further information. In these circumstances we are
    reluctant to second-guess the sentencing judges decision not to pursue the
    matter further. As noted above, the Crown has consented to the admission of the
Gladue
report as fresh evidence. The real controversy is over the
    weight to be given to the
Gladue
report.

(b)

Does the fresh evidence affect the fitness of the appellants sentence?

[44]

In
    our view the
Gladue
report should be given little weight and does not
    affect the fitness of the appellants sentence for three reasons.

[45]

First,
    although the Crown has conceded that the appellant is Aboriginal for
Gladue
purposes, it is not at all clear to us that this is correct. As we have
    explained, the appellant was born in San Diego and moved to Canada as a young
    teenager. Taking the evidence of his Aboriginal roots at its highest, it
    appears the appellant had some Cherokee and Apache ancestors. Both of these
    tribes are indigenous to the American south and are, so far as we can tell,
    distinct both from modern-day indigenous Canadian Aboriginal tribes and from
    other Native American tribes that straddle the U.S.-Canadian border.

[46]

As
    the Supreme Court explained in the
Gladue
decision itself, Aboriginal
    heritage is relevant to sentencing to account for the unique systemic and
    background factors which may have played a part in bringing the particular
    aboriginal offender before the courts (at para. 66). While one can generalize
    about the impact of colonialism on all Aboriginal peoples,
Gladue
is
    expressly intended to redress the consequences of colonialism in Canada  and
    particularly the devastating legacy of residential schools. Thus, we are
    sceptical that
Gladue
is applicable to an American-born offender who
    traces his Aboriginal ancestry to tribes indigenous to the United States.

[47]

Second,
    however, even assuming for the sake of argument that
Gladue
applies,
    the evidence that the appellants Aboriginal ancestry may have played a part in
    his criminality is weak. In coming to this conclusion, we are mindful of this
    courts direction in
R. v. Collins
, 2011 ONCA 182, 104 O.R. (3d) 241,
    at paras. 32-33, that an Aboriginal offender does not bear the burden of
    establishing a direct causal link between the systemic and background factors
    and the commission of the offence.
Gladue
simply requires that the
    sentencing judge take those systemic and background factors into account in
    shaping an appropriate sentence.

[48]

In
    this case, the evidence suggests that the appellants Aboriginal background
    played a minor role in bringing him before the court. By his own account, the
    appellant had a good childhood. He was cared for by a loving mother and did
    not suffer abuse. He had a solid academic attendance record and graduated high
    school, even going on to learn a trade. There is no evidence of a family
    history of addiction or sexual abuse. To the extent that the appellant reports
    having been bullied at school, it was because he was Aboriginal
and
    American
 (emphasis added). In short, there is nothing other than the
    appellants own evidence to suggest that his sense of dislocation from his Aboriginal
    heritage contributed to his criminal behaviour.

[49]

We
    acknowledge that in
R. v. Prevost
, 2008 CanLII 46920 (ONSC), at para.
    47, Ducharme J. observed that assimilation itself is relevant to the
Gladue
analysis as part of the broader historical reality experienced by Canadas Aboriginal
    peoples. In that case, there was evidence that the Metis offenders parents had
    actively discouraged him from identifying as Aboriginal because of his fathers
    own experience with discrimination. There is no comparable evidence in this
    case.

[50]

The
    most compelling evidence in the
Gladue
report about the appellants Aboriginal
    identity relates to his embrace of Aboriginal culture and traditions while in
    prison. Both the elder and the Aboriginal liaison officers at the Bath
    Institution report that the appellant has become a very active member of the Aboriginal
    community there. Through regular group ceremonies and one-on-one counselling, the
    appellant has gradually started to work through his history of addiction and
    physical abuse and is starting to feel like a more complete person, though he
    acknowledges that he needs to undertake further healing activities. In our
    view, this evidence suggests that a lengthy penitentiary term is facilitating the
    appellants rehabilitation, not frustrating it.

[51]

Finally,
    and most significantly, this is simply one of those cases where the crimes were
    so heinous, and the aggravating factors were so compelling, that the
    appellants Aboriginal status should not affect the length of the sentence
    imposed.

[52]

In
Gladue
the Supreme Court instructed, at paras. 79-80:

Generally, the more violent and serious the offence the more
    likely as a practical reality that the terms of imprisonment for aboriginals
    and non-aboriginals will be close to each other or the same, even taking into
    account their different concepts of sentencing.

As with all sentencing decisions, the sentencing of aboriginal
    offenders must proceed on an individual (or a case-by-case) basis: For this
    offence, committed by this offender, harming this victim, in this community,
    what is the appropriate sanction under the
Criminal Code
?

[53]

This
    court underscored the point in
Kakekagamick
, at paras. 34 and 36:

[I]t is not a mitigating factor on sentencing simply to be an
    Aboriginal offender. Nor is being an Aboriginal offender  a get out of jail
    free card.

[W]hile s. 718.2(e) requires a different methodology for
    assessing a fit sentence for an Aboriginal offender; it does not necessarily
    mandate a different result. The subsection does not alter the fundamental duty
    of the sentencing judge to impose a sentence that is fit for the offence and
    the offender. [Citation omitted.]

[54]

The
    appellant sexually abused his stepdaughter starting when she was six or seven
    years old. The abuse continued, week after week, year after year, until another
    act of violence  the appellants assault on the victims mother  finally
    brought it to an end.

[55]

In
R. v. D.D.
(2002), 58 O.R. (3d) 788, at para. 44, this court described
    a fit sentence for this sort of crime: [A]s a general rule, when adult
    offenders, in a position of trust, sexually abuse innocent young children on a
    regular and persistent basis over substantial periods of time, they can expect
    to receive mid to upper single digit penitentiary terms.

[56]

Applying
    this principle, there is no doubt that a seven-year sentence was appropriate in
    this case.

E.

CONCLUSION

[57]

Both
    the conviction and sentence appeal are dismissed.

Released: Apr 23, 2013                                          John
    Laskin J.A.

JL                                                                     R.A.
    Blair J.A.

Alexandra
    Hoy J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.T., 2013 ONCA 257

DATE: 20130425

DOCKET: C54055

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. T.

Appellant

K. T., appellant, in person

Breese Davies, duty counsel for the appellant

Marcella Henschel, for the respondent

Heard:  November 19, 2012

On appeal from the convictions entered by Justice Nancy
    J. Spies of the Superior Court of Justice, sitting without a jury, on June 6,
    2011.

Watt J.A.:

[1]

Several rules govern the order of proof in a criminal trial. One of
    them, a rule of general application, requires the Crown to produce and enter,
    in its own case, all the clearly relevant evidence it has, or that it intends
    to rely upon to prove its case. This rule is essential because an accused is
    entitled to know, at the end of the Crowns case, to what she or he must
    respond.

[2]

Nevertheless, on occasion the law permits the Crown to call evidence in
    reply following the defences case. Specifically, the Crown is permitted to
    call evidence in reply where the accused has raised some new issue or defence
    with which the Crown had no opportunity to deal, and that the Crown could not
    reasonably have anticipated.

[3]

In this case, trial counsel for the appellant (who was not Ms. Davies) agreed
    that the Crown could call reply evidence to rebut a defence claim of recent
    fabrication in the complainants version of events. But when the reply evidence
    was given, it strayed beyond what recent fabrication principles permit. Significantly,
    the trial judge relied upon this evidence to confirm the complainants version of
    events about two incidents of sexual assault.

[4]

Duty counsel challenges the admissibility of this reply evidence, and takes
    issue with the manner in which the trial judge used it to reach her findings of
    guilt on the counts of sexual assault.

[5]

The reasons that follow explain why I think substantial parts of the
    reply evidence were inadmissible and improperly used by the trial judge to
    conclude that the allegations of sexual assault had been proven beyond a
    reasonable doubt.

the background facts

[6]

The issue of admissibility of the Crowns reply evidence raised by duty
    counsel requires a brief review of the evidence adduced at trial where both the
    complainant and appellant, among others, testified.

The Principals

[7]

The principals occupied different rooms in the home of R.S., a Crown
    witness at trial.

[8]

The complainant had two rooms in R.S.s home.  In one room, she and her
    two young children slept on a queen-size mattress on the floor. The other room
    contained their clothing and other belongings. The complainant did not work outside
    the home. She did not go to school. Her children were not of school age.

[9]

The appellant and his wife occupied the master bedroom in R.S.s house.
    The appellant worked a 4:00 p.m. to midnight shift at least five days a week.
    He usually left for work around 2:30 p.m. His wife attended school.

[10]

R.S.
    occupied another bedroom in her house. She was friends with both the
    complainant and the appellants wife.

[11]

It
    was common ground at trial that the appellant, the complainant, and her two
    children were alone in the house most weekday mornings and early afternoons.

The Allegations of February 1, 2010

[12]

The
    complainant testified that the appellant entered her bedroom, uninvited, early
    in the morning of February 1, 2010, while she was asleep on the mattress with
    her two children. The appellant told her repeatedly that he wanted her and
    began to rub various parts of her body. The complainant resisted these advances,
    but did not scream or cry out for fear that she would wake her children.
    Eventually, she abandoned her resistance. The appellant had vaginal intercourse
    with her, then left the bedroom. The complainant fell back asleep.

[13]

The
    appellants account was different. He said that he went to the complainants bedroom
    because she had invited him earlier to do so.  After some mutual foreplay, the
    appellant and complainant had sexual intercourse. The complainant consented.
    The appellant left the bedroom and returned to the bedroom he shared with his
    wife.

[14]

The
    complainant spent most of the remainder of the day with the appellants wife.
    She said nothing to anybody about any contact with the appellant in her bedroom
    earlier in the day.

The Allegations of February 2, 2010

[15]

The
    complainant recalled that around 8:00 a.m. on February 2, 2010, while sleeping
    with her children on the mattress on the floor of her room, she was awakened by
    a noise at the bedroom door. The appellant entered. He told her repeatedly that
    he wanted to have intercourse with her again. The complainant expressed her
    resistance out loud, awakening her children. The appellant kissed the
    complainant on the neck, then left the room. Afterwards, the complainant
    noticed a hickey on her neck.

[16]

The
    appellant acknowledged that he entered the complainants room during the
    morning of February 2, 2010. He said that the complainant consented to their
    sexual activities that morning, just as she had done the previous day.

The Report to Police

[17]

Shortly
    after the events of February 2, 2010 had concluded, the complainant called the
    father of her children and two female friends to tell them what had happened to
    her. She decided to call the police from a transit station.  She provided a
    formal statement to investigators.

[18]

The
    appellant was arrested on charges of sexual assault. After his release from
    custody, he was re-arrested on further charges of breaching his recognizance (by
    communicating indirectly with the complainant) and obstructing justice (by
    offering the complainant $3,000 not to testify). All counts were joined in a
    single indictment after the appellant had been committed for trial.

The Trial Proceedings

[19]

The
    appellant was tried by a judge of the Superior Court of Justice sitting without
    a jury.

[20]

The
    case for the Crown consisted of the testimony of the complainant and of her
    friend, R.S., the person in whose house the offences are alleged to have
    occurred. R.S. gave evidence about a telephone call she received from the
    complainant on February 2, 2010 alleging that the appellant had sexually
    assaulted her. R.S. also testified about a second telephone call she had
    received several months later from the appellant. What the appellant said to
    R.S. during this later call formed the basis of the counts of breach of
    recognizance and obstructing justice.

[21]

The
    defence case consisted of the testimony of the appellant, his wife, and  her
    friend, J.M. The appellant admitted to having sexual activity with the
    complainant on both days, including sexual intercourse with her on February 1,
    2010, but claimed the complainant had consented to, indeed had invited, what
    had occurred. According to the appellant, the complainants discovery of the
    hickey on her neck on February 2, 2010, a condition she would have trouble
    explaining to her childrens father, precipitated her spurious claim of non-consensual
    activity.

The Reply Evidence

[22]

In
    reply, and with the express agreement of trial counsel for the appellant, Crown
    counsel adduced the evidence of A.M. to rebut the defence claim of recent
    fabrication of the complainants testimony.

[23]

A.M.,
    who was a friend of the complainant, testified about two telephone calls she
    had received from the complainant during the morning of the same day.  Although
    the witness could not recall the precise date of the calls, the parties
    proceeded on the basis that they occurred during the morning of February 2,
    2010, likely between 9:00 and 10:00 a.m.

[24]

During
    the first call, the complainant said that K., a man who lived with his wife in
    another room in the same house as her and her children, came into her bedroom
    and forced sexual intercourse on her while her children slept beside her on the
    mattress.  K.s wife was home at the time. The complainant did not know what to
    do or whether she should call the police to report the incident.  A.M. told her
    to call the police.

[25]

The
    complainant called A.M. a second time, later that same morning. As they spoke,
    the complainant told A.M. that the same man was coming into her room again.
    A.M. heard noises consistent with what the complainant described, as well as a
    man saying things that could be characterized as reflecting a desire to have
    sexual contact with the complainant. The man left after the complainant began
    shouting at him to get out of her room.

[26]

A.M.
    also testified that several months earlier, the complainant had told her that a
    man who lived in the same house had been watching her. The man had been coming
    on to her and repeatedly told her that he wanted to sleep with her.

[27]

A.M.
    neither called the police nor had any intention of doing so after the
    complainant, her good friend, had reported her allegations to the police
    resulting in the charges against the appellant. The police contacted and
    interviewed A.M. the day before she testified at the appellants trial, about
    16 months after the events about which she testified.

the ground of appeal

[28]

Duty
    counsel advances a single ground of appeal relating to the admissibility of the
    reply evidence. The ground has two aspects. The first is that A.M.s testimony
    was inadmissible in reply. The second is that the trial judge erred in relying
    on this inadmissible evidence in reaching her conclusion that the counts
    charging sexual assault had been proven beyond a reasonable doubt.

THE POSITIONS OF THE PARTIES

[29]

Duty
    counsel says that the event that triggered the fabricated allegations of sexual
    assault in this case occurred on the morning of February 2, 2010, when the
    complainant discovered the hickey on her neck after the appellant had kissed
    her. To be admissible in rebuttal of the appellants allegation of recent
    fabrication,
duty counsel
contends,
    any statement of the complainant must have been made prior to, not
    contemporaneous with or following after, the precipitating event. Most of the
    statements A.M. attributed to the complainant were either contemporaneous with
    or subsequent to the motivating factor of the hickey, thus could not be
    admitted to rebut the allegation of recent fabrication.

[30]

Duty counsel adds that
    even if A.M.s evidence about the complainants earlier statement was
    admissible to rebut the allegation of recent fabrication, the balance of her
    evidence about the events of February 1 and 2, 2010 was not admissible to rebut
    this allegation or admissible in reply. A.M.s evidence about the complaint on
    February 2, 2010 was not evidence of a
prior
consistent statement, but rather of a
    contemporaneous complaint. And what A.M. overheard on February 1, 2010, should
    have been tendered as part of the Crowns case-in-chief and not in reply.

[31]

The respondent says that
    A.M.s evidence was properly admissible in reply to rebut the allegation of
    recent fabrication made by the defence. Trial counsel for the appellant
    conceded that the evidence was admissible on this basis and must be taken to
    have done so fully apprised of what the witness would say. Much of the evidence
    now said to be inadmissible was elicited by counsel for the appellant at trial
    in cross-examination of A.M.

[32]

The respondent also
    points out that the trial judges reasons betray any suggestion that she used
    this evidence in a legally impermissible way.  Further, the respondent says,
    the nature of the trial forum, being that the appellant was tried by a judge
    alone, eliminates the concerns that arise from allowing the Crown to split its
    case. All the evidence adduced in reply was admissible. That some of it should
    have been adduced as part of the case-in-chief caused the appellant no
    prejudice. The appellant had the opportunity to challenge the evidence and did
    so. No prejudice resulted.

the governing principles

[33]

The
    principles that inform the decision in this appeal involve the admissibility of
    prior consistent statements to rebut an allegation of recent fabrication and
    the admissibility of reply evidence.

Recent Fabrication

[34]

Evidence
    of the prior consistent statements of a witness who testifies in trial
    proceedings is generally held to be inadmissible. The rule rests on sound
    policy considerations. Evidence of a witness prior consistent statements lacks
    probative value, is self-serving, superfluous in light of the witness
    testimony, and constitutes hearsay when adduced for the truth of their
    contents:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    36. Despite these concerns, however, evidence of spontaneous, exculpatory
    statements made by an accused upon or shortly after arrest may be admitted to
    show the accuseds reaction when first confronted with the allegation, provided
    the accused testifies and thereby exposes himself or herself to
    cross-examination:
R. v. Edgar
, 2010 ONCA 529, 260 C.C.C. (2d) 1, at
    para. 24.

[35]

The
    general rule that prohibits introduction of prior consistent statements of a
    witness is not absolute. The rule yields when a party alleges that a witness
    has recently fabricated his or her account of an event about which she or he
    testifies.

[36]

A
    recent fabrication is one made up
after
the event about which the
    witness testifies:
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at
    para. 33. The fabrication need not be recent, in the sense of proximity to
    the witness testimony, but it must post-date the event that is the
    subject-matter of the witness testimony:
R. v. Stirling
, 2008 SCC 10,
    [2008] 1 S.C.R. 272, at para. 5.

[37]

An
    allegation of recent fabrication need not be made expressly. It is enough that,
    in light of the circumstances of the case and the conduct of the trial, the
    apparent position of the opposing party is that there has been a prior
    contrivance:
Stirling
, at para. 5; and
Ellard
, at para. 32.
    That said, it is not sufficient that contradictions appear or are exposed in
    the testimony of the witness in order for the recent fabrication exception to
    be engaged:
Ellard
, at para. 33.

[38]

An
    allegation of recent fabrication allows the party who called the witness to
    introduce evidence that the witness made a statement or statements consistent
    with his or her testimony, prior to the existence of a motive or of
    circumstances that led to the fabrication:
Ellard
, at para. 33;
R.
    v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 145, reversed on
    other grounds, [1990] 2 S.C.R. 1421; and
R. v. Campbell
(1977), 17 O.R.
    (2d) 673 (C.A.), at p. 687. In some instances, evidence of these prior
    statements may be admitted in reply.

[39]

As
    a general rule, limiting instructions are required where prior consistent
    statements have been admitted to rebut an allegation of recent fabrication.
    These instructions explain that consistency and accuracy are not the same
    thing, and that the prior statements can only be used to rebut the allegation
    of recent fabrication, not to support the fact at issue or the general
    reliability of the impeached witness:
Ellard
, at paras. 31 and 42. However,
    the requirement of limiting instructions about evidentiary use of prior consistent
    statements also yields on occasion, as for example, where

i.

the defence itself relies on the prior statements;

ii.

the prior statement is not offered to prove the underlying facts and;

iii.

the concerns over self-corroboration and bolstering the reliability of
    the witness are not present.

Ellard
, at para. 43.

Reply Evidence

[40]

The
    second admissibility rule that has a say in the disposition of this appeal
    governs the reception of reply evidence.

[41]

The
    general rule with respect to the order of proof is that the Crown must
    introduce all the evidence in its possession upon which it relies to prove the
    guilt of an accused in its case-in-chief, before the accused is required to
    decide whether to adduce evidence in response, and to actually introduce that
    evidence:
Campbell
, at p. 693;
R. v. Krause
, [1986] 2
    S.C.R. 466, at pp. 473-474. Inherent in this requirement are principles of
    trial fairness and the notion of a case to meet.

[42]

The
    rule governing the order of proof in the context of a criminal trial prevents
    unfair surprise, prejudice, and confusion that could result if the Crown were
    allowed to split its case.  Were it not for this rule, the Crown could put in
    part of its evidence in its case-in-chief, enough to survive a motion for a
    directed verdict, allow the defence to play through with its case, then add
    further evidence to bolster the case presented in-chief:
Krause
, at
    pp. 473-474;
R. v. Biddle
, [1995] 1 S.C.R. 761, at para. 13.

[43]

But
    the rule about the order of proof erects no absolute bar to the introduction of
    further evidence by the Crown after the defence has closed. The Crown may be
    permitted to call evidence in reply after completion of the defence case where

i.

the defence has raised some new matter or defence with which the Crown
    had no opportunity to deal and that the Crown could not reasonably have
    anticipated; or

ii.

some matter that emerged during the Crowns case has taken on added
    significance as a result of evidence adduced in the defence case.

Krause
, at pp. 473-474;
R. v. Quance
(2000), 146 C.C.C. (3d) 153 (Ont. C.A.), at para. 21; and
R. v. P. (G.)
(1996), 31 O.R. (3d) 504 (C.A.), at pp. 513-514.

[44]

Two
    further observations warrant mention in connection with the introduction of
    reply evidence. The first has to do with the position on admissibility taken by
    defence counsel at trial. The second concerns the relevance of the mode of
    trial on the issue of prejudice where reply evidence has been wrongly admitted.

[45]

The
    position of trial counsel on an issue of admissibility of evidence, including
    the admissibility of reply evidence, is important for an appellate court responsible
    for determining whether the evidence was rightly or wrongly admitted and, if
    wrongly admitted, whether the error affected the result:
R. v. Lomage
(1991), 2 O.R. (3d) 621 (C.A.), at pp. 629-630; and
R. v. A. (J.F.)
(1993), 82 C.C.C. (3d) 295 (Ont. C.A.), at p. 300.

[46]

Second,
    the impact of improperly admitted reply evidence may be less in a non-jury
    trial than in a jury trial. In a jury trial, the late introduction of a piece
    of evidence may create or magnify its importance well beyond what an objective
    assessment of it would warrant in relation to the balance of the evidence in
    the case:
R. v. Markman
, 2002  CanLII (Ont. C.A.), at para. 3;
Biddle
,
    at para. 14; and
Campbell
, at p. 693.

[47]

A
    final point about prejudice.  A distinction should be drawn between

i.

inadmissible evidence introduced in reply; and

ii.

evidence that is inadmissible only because it is introduced in reply.

Evidence that falls within the first category has no
    place in the trial and cannot be used, in whole or in part, as a basis upon
    which the trier of fact can ground any finding of fact. On the other hand,
    evidence in the second category could provide a foundation for findings of
    material facts, its prejudice arising from the time of its arrival in the
    proceedings.

the principles applied

[48]

The
    application of the governing legal principles satisfies me that much of the
    evidence admitted in reply, as evidence of prior consistent statements to rebut
    an allegation of recent fabrication, was not admissible as reply evidence.
    Further, I am satisfied that the reasons of the trial judge demonstrate
    improper use of the evidence adduced in reply to such an extent that the
    convictions of sexual assault cannot stand.

[49]

For
    discussion purposes it is helpful to recall that A.M. testified about three
    separate conversations with the complainant concerning the appellant:

i.

a complaint, several months before the events of February 1-2, 2010, in
    which the complainant protested that the appellant was coming on to her and
    making comments that he wanted her;

ii.

a complaint of unwanted and non-consensual sexual intercourse on
    February 1, 2010; and

iii.

a complaint relating to the offence alleged on February 2, 2010 which
    included the sound of a male voice making remarks of a sexual nature to the
    complainant.

This evidence was offered as proof of prior consistent
    statements to rebut an allegation of recent fabrication said to be founded on
    the complainants discovery of a hickey on her neck after the encounter of
    February 2, 2010. Another witness, R.S., gave evidence about the complaint relating
    to February 1, 2010 during the Crowns case-in-chief.

[50]

I
    will consider first the admissibility of the evidence as prior consistent
    statements to rebut an allegation of recent fabrication, then the admissibility
    of this evidence in reply, and as a matter of general principle. Next, I will
    turn to the propriety of the manner in which the trial judge used the evidence
    to make her findings of fact and the consequences of that use on the integrity
    of her conclusions.

Rebuttal of the Allegation of Recent
    Fabrication

[51]

The
    first complaint reported by A.M. occurred several months before the events of
    February 1-2, 2010. Its subject matter involved expressions of sexual desire by
    the appellant directed to the complainant. This complaint could properly be
    characterized as a prior consistent statement and could be offered in rebuttal
    of the claim of recent fabrication.

[52]

The
    second complaint followed what the complainant alleged was a sexual assault
    involving non-consensual sexual intercourse on February 1, 2010. The statement
    preceded the events of February 2, 2010 the result of which, the hickey, was
    alleged to be the motive for fabrication. This statement could be construed as
    a prior consistent statement in that it alleged sexual interference before the
    event said to give rise to the motive to fabricate the allegations of sexual
    assault.

[53]

The
    third complaint, a blow-by-blow account of the sexual assault of February 2,
    2010, as recounted by the complainant and overheard by A.M., was
    contemporaneous with the event that gave rise to the motive to fabricate. This
    statement was not a prior statement, but rather a contemporaneous report on the
res gestae
. It was not admissible to rebut the allegation of recent
    fabrication because it was not a
prior
consistent statement.

[54]

In
    the result, the first two complaints qualified as prior consistent statements
    available to rebut the allegation of recent fabrication. The third complaint
    did not qualify, thus should not have been admitted as a prior consistent
    statement to rebut the allegation of recent fabrication.

The Admissibility of the Reply
    Evidence

[55]

From
    the record available to us, it is clear that, in cross-examination, it was put
    to the complainant that her evidence of sexual assault was a fabrication, the
    underlying motive for which was the hickey left on her neck when the
    appellant entered her room on February 2, 2010.  It cannot be said that this
    was some new issue that emerged only in the evidence adduced by the defence, nor
    that it took on added significance as a result of the defence evidence.

[56]

It
    is worth recalling that, as part of its case-in-chief, the Crown introduced the
    evidence of R.S. about a telephone call from the complainant seeking advice
    about what to do about the alleged sexual assault of February 1, 2010.

[57]

In
    the circumstances of this case, where the allegation of recent fabrication
    emerged during cross-examination of the complainant, the responsive prior
    consistent statements about which A.M. testified should have been adduced
    during the Crowns case-in-chief, not in reply:
Biddle
, at para. 18.

The Admissibility of the Third
    Statement

[58]

The
    third statement consisted of an amalgam of A.M.s report of the complainants
    account and A.M.s ear-witness report of the events. As a contemporaneous
    complaint of the sexual assault, this statement was not admissible to establish
    the truth of its contents. To the extent that it was offered to establish what
    happened on February 2, 2010, the evidence should have been tendered during the
    Crowns case-in-chief and its admissibility established.  The Crowns failure
    to do so left re-opening of the case as its only option to have this evidence
    admitted after the close of the defence case:
M. (F.S.)
, at para. 30.
    A judges discretion to permit re-opening the case after the close of the
    defence case is very restricted:
R. v. P. (M. B.)
, [1994] 1 S.C.R.
    555, at p. 570.

The Trial Judges Use of the Evidence

[59]

The
    trial judge was satisfied that the third statement occurred on February 2, 2010
    and that it began shortly before, but continued during, the alleged sexual
    assault on that date. The trial judge considered A.M. to be a very reliable and
    credible witness who had not colluded with her close friend, the complainant,
    about the content of her evidence.

[60]

The
    trial judge rejected the hickey as a motive or reason for the complainant to
    make up a story about what happened and did not consider A.M.s evidence to be
    of any assistance in rebutting the claim of recent fabrication.  The trial
    judge considered that A.M.s evidence of what she heard afforded strong
    corroboration of the complainants evidence and her allegations of forced
    intercourse and non-consensual touching.

[61]

The
    reasons of the trial judge describe how she used the evidence of A.M. to help
    her conclude that the Crown had proven both counts of sexual assault beyond a
    reasonable doubt. The trial judge said:

[135]  The second part of the call or second call that [A.M.]
    described is completely consistent with the evidence of [the complainant] that
    on the Tuesday morning, February 2, 2010, [the appellant] was following her
    around the house and continuing to press her to have sex with him, that she did
    not want this and that she called [A.M.] at some point while this was
    happening. The male voice [A.M.] heard while on the phone with [the
    complainant] must have been [the appellant].

[136]  I have considered the fact that [A.M.] did not hear what
    led up to the exchange between [the complainant] and [the appellant] that she
    did hear. However, even with that in mind, what [A.M.] heard is not at all
    consistent with what [the appellant] says happened after the hickey. He did say
    that after [the complainant]  returned from the bathroom that he tried to calm
    her and she told him not to touch her, but there was no suggestion from his
    evidence that he had left her bedroom or that she had made a phone call. He
    testified that when she told him to leave the bedroom he did.  [The appellant]
    testified that later, while he was in the living room, [the complainant] came
    downstairs, he thought maybe to look for her phone and he called her name and
    she yelled Cant you see that I am mad with you  please dont talk to me.
    [The appellant] testified that he then went upstairs, watched some soccer and
    fell asleep. He had no further contact with [the complainant].

[137]  [Crown counsel] submitted that the evidence of [A.M.]
    puts the evidence of [the complainant] over the hurdle of a reasonable doubt.
    I agree.  Although I have been careful to disregard [A.M.s] evidence about the
    prior consistent statements made by the [the complainant], as they clearly
    cannot be used to corroborate [the complainants] evidence, to the extent
    [A.M.] heard an exchange between [the appellant] and [the complainant], her
    evidence is admissible and extremely important.  [A.M.] is like an eyewitness
    in the sense she heard firsthand a voice that must have been [the appellants]
    and what she heard is consistent with what [the complainant] testified to.

[138]  The crux of the difference between the position of [the
    appellant] and [the complainant] as to what happened between them is the
    question of whether or not the intercourse and sexual touching was consensual.
    The evidence of [A.M.] strongly supports the position of [the complainant] that
    it was not consensual as alleged by [the appellant]. As such, I agree that this
    evidence of [A.M.] not only corroborates the evidence of [the complainant] as
    to what was happening on the morning of February 2, 2010, but it also enhances
    the credibility of [the complainants] evidence generally.

[62]

For
    reasons that I will develop, I am satisfied that the trial judge made errors in
    her reception and use of the evidence adduced in reply.

[63]

First,
    the trial judge erred in receiving in reply evidence of the first two
    statements to rebut an allegation of recent fabrication. This evidence should
    have been adduced, as was similar evidence from R.S., in the Crowns
    case-in-chief.

[64]

Second,
    the trial judge erred in receiving the third statement as a
prior
consistent
    statement to rebut the allegation of recent fabrication. A.M.s account was not
    a prior statement.

[65]

Third,
    the trial judge erred in receiving the third statement in reply.  Among other
    things, this statement included evidence that tended to establish essential
    elements of the offence alleged to have been committed on February 2, 2010. It
    should have been introduced as part of the Crowns case-in-chief, or otherwise
    been the subject of an application to reopen the Crowns case after the defence
    had closed its case.

[66]

Ultimately,
    some evidence entered the proceedings too late. The prior consistent statements
    to rebut the claim of recent fabrication that emerged in the Crowns evidence
    in reply should have been led as part of the Crowns case-in-chief.  Other
    evidence  A.M.s report about the conduct on February 2, 2010, including her
    repetition of what the complainant said and she (A.M.) overheard  was not
    admissible in reply, and should have been tendered for admission and its
    admissibility determined as part of the Crowns case-in-chief, or made the
    subject of an application to re-open the Crowns case.

The Remedy

[67]

Where
    improper reply evidence has been admitted in a trial by judge alone, it is not
    automatically given that a new trial will be required. Sometimes, the concerns
    that arise in jury trials from allowing the Crown to improperly split its case
    take on much less significance in trials by judge alone:
Markman
, at
    para. 3. It is all the more so where the accused is offered or takes up the
    opportunity to adduce evidence in surrebuttal.

[68]

In
    this case, however, the errors made in connection with the order of proof were
    aggravated by the use the trial judge made of the evidence in her findings of
    guilt. The trial judge used A.M.s evidence, apparently as proof of the truth
    of what was said, to corroborate the testimony of the complainant and to
    enhance her credibility generally. As tendered, the evidence could not be used
    for either purpose. In somewhat similar circumstances, evidence adduced
    improperly in reply and used as a basis to disbelieve the accused was held to
    be beyond the reach of what is now s. 686(1)(b)(iii) of the
Criminal Code
:
R. v. Michael
,
[1954] O.R. 926 (
C.A.), at
    p. 933.

[69]

Trial
    counsel for the appellant consented to the admission of A.M.s evidence in
    reply on the basis that it comprised prior consistent statements offered to
    rebut the allegation of recent fabrication. Whether counsel misapprehended the
    scope of A.M.s evidence, or simply expected that it would be used as
    advertised, I am not prepared to say that his agreement should bar the claim of
    prejudice now being advanced. At all events, it was the trial judges
    obligation to ensure that the evidence adduced was properly admissible and that
    its use was confined to what the law permits.

CONCLUSION

[70]

For
    these reasons, I would allow the appeal, set aside the convictions of sexual
    assault, and order a new trial on those counts. The errors made do not affect the
    convictions of breach of recognizance and obstructing justice. The appeals from
    conviction on those counts should be dismissed.

Released:  April 25, 2013  RGJ

David
    Watt J.A.

I
    agree R.G. Juriansz J.A.

I
    agree Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaziuk, 2013 ONCA 217

DATE: 20130404

DOCKET: C55782

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Roman Kaziuk

Appellant

Lindsay E. Trevelyan, for the appellant

Michael Perlin, for the respondent

Heard:  April 2, 2013

On appeal from the conviction entered by Justice Lesley
    M. Baldwin of the Ontario Court of Justice, dated June 23, 2011, and the
    sentence imposed on January 24, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that the conviction appeal must be dismissed.
    Although the procedure followed by the parties was in some ways unclear, the
    parties were in agreement that the victim, an 88 year old lady, would only
    testify once.  When on a later date, the trial judge ruled the victims
    out-of-court statement admissible, defence counsel sought permission to
    further cross-examine the victim on why her prior statement is different from
    her current statement [testimony].

[2]

Assuming the trial judge should have allowed the further
    cross-examination, we see no prejudice in her failure to do so.  The only topic
    on which the defence sought further cross-examination had been explored, to the
    appellants considerable advantage, with the victim in the earlier
    cross-examination.  Especially in light of the victims advanced age and her
    assorted medical problems, there is no likelihood that the cross-examination
    would have advanced the defence position.

[3]

With respect to the sentence, we are satisfied that the appeal must
    succeed.  There was no basis upon which the trial judge could find that the
    appellant had attempted to obstruct justice by convincing his mother to change
    her evidence.  The trial judge erred in taking that offence into account on sentence.

[4]

We also think the total sentence imposed was excessive having regard to
    sentences imposed in similar cases, and the fact that the appellant had some 39
    months left to serve on a prior offence.  This was a case, however, that
    clearly called for an exemplary sentence.  We agree with the trial judges
    observations about the offender.

[5]

We would reduce the sentence to 8 years to be served consecutively to
    the sentence being served at the time of sentence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2013 ONCA 262

DATE: 20130426

DOCKET: C52433

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick King

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Roger Shallow, for the respondent

Heard: April 23, 2013

On appeal from the conviction entered on June 10, 2010 by
    Justice John B. McMahon of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals from conviction by McMahon J. for various firearms
    offences as well as convictions for assault police, failure to comply with a
    recognizance and possession of cocaine for the purpose of trafficking. The
    grounds of appeal concern the reasons of the trial judge for his credibility
    findings on the
Charter
application and the trial proper. The
    appellant submits that the trial judge misapprehended the effect of
    inconsistencies in the officers evidence, especially where the officers
    evidence was contradicted by extrinsic evidence. Secondly, the appellant
    submits that the trial judge did not properly deal with the issue of
    collaboration by the two officers. We would not give effect to those
    submissions and accordingly, the appeal is dismissed.

[2]

The standard of review for the type of errors alleged by the appellant
    is a strict one. The burden is on the appellant to show that the trial judge
    failed to direct himself to the relevant issues or that he erred in his
    appreciation of the evidence in a manner that could have affected the outcome.
    See
R. v. Lohrer
, 2004 SCC 80.

[3]

There were many inconsistencies in the testimony of the two principal
    witnesses, Constables Parker and Van Wart. As the appellant fairly
    acknowledges, the trial judge identified most of them and provided reasons as
    to why they did not affect his ultimate decision that the officers were
    truthful and reliable on the core allegations. The appellants submission, at
    least as related to the two main inconsistencies relied upon, was that the
    trial judges treatment of the inconsistencies was inadequate. We do not agree.

[4]

As to the assault on Constable Van Wart, the trial judge recognized that
    there was extrinsic evidence, in the synopsis prepared by Detective Bernardo,
    to support the appellants position that he did not assault the constable, but
    merely slipped out of his sweatshirt and fled. But, the trial judge did not
    ignore the inconsistency and he was entitled to accept the explanation for the
    inconsistency. Detective Bernardos explanation is not obviously absurd or
    patently unreasonable.

[5]

As to the communication during the foot pursuit, again it was open to
    the trial judge to find that Constable Parker did not appreciate that Van Wart
    was attempting to arrest the appellant for breach of recognizance, not drug
    offences. Parkers mistake was not unreasonable given that the appellant
    actually was on a recognizance for a drug offence and the attempted arrest was
    in an area known for drug trafficking activity. As the trial judge said, the
    objective facts were consistent with Parkers evidence that he did not hear the
    bail conditions.

[6]

As to the failure of the trial judge to mention Van Warts continued
    interest in the appellants drivers licence, in our view, this was not a
    material inconsistency that rendered the credibility findings suspect. A fair
    reading of the evidence shows a confusing situation in which the officers did
    not initially appreciate the significance of the appellants possession of a
    cell phone. That Van Wart continued to seek information about the appellants
    drivers licence status was not surprising given that state of affairs.

[7]

The appellants second ground of appeal is a submission that the trial
    judges finding that the officers did not fabricate the reason for the arrest
    was unreasonable. This submission turned on the significance of the fact that
    the officers made their notes sometime after the events and after they had
    discussed the events. Counsel for the appellant points out in particular the unsatisfactory
    evidence given by Constable Parker in cross-examination.

[8]

The appellant submits that the trial judges reasons for dismissing the
    fabrication submission were unreasonable. He submits that the allegation of
    fabrication could not be dismissed simply on the basis that if the officers
    were colluding and fabricating they did a bad job of it given the many
    inconsistencies in their evidence. The appellant submits that the inconsistencies
    are explained not by the fact that the officers did not collude but that they
    could not overcome the extrinsic evidence, especially the transcript of the
    dispatch recording. But, the trial judge dealt with this submission. He found
    that the inconsistencies went beyond simply tailoring their evidence to mean
    the transmission send by the dispatch. Accordingly, the trial judge found it
    much more likely that the inconsistencies supported the theory that the
    officers had not fabricated their evidence to frame the appellant and attempt
    to justify unconstitutional conduct. This was pre-eminently an issue for the
    trial judge and it was not open to this court to second guess the trial judges
    finding.

[9]

The appellant abandoned his ground of appeal that the trial judge
    approached his assessment of the evidence in a piecemeal fashion and did not
    consider the cumulative effect of the various inconsistencies.

[10]

Accordingly,
    the appeal from conviction is dismissed.

M.
    Rosenberg J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Latimer, 2013
    ONCA 195

DATE: 20130402

DOCKET: C55912

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Latimer

Appellant

Mark Ertel, for the appellant

Michael Perlin, for the respondent

Heard: March 26, 2013

On appeal from the conviction entered on November 17,
    2011, by Justice Heather E. Perkins-McVey of the Ontario Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

After a trial by judge alone, the appellant, Jeffrey
    Latimer, was
convicted of assault with a weapon.  He appeals against
    conviction.

Background in brief

[2]

On May 28, 2010, two men approached Jacques Lavoie (Lavoie or the
    complainant) in a Goodlife Fitness parking lot in Ottawa.  One man was brandishing
    a metal baseball bat.  He swung the bat, striking the back of Lavoies head.

[3]

Lavoie was taken to hospital by ambulance.  He suffered relatively minor
    injuries.

[4]

There were two independent witnesses to the incident:  Leslie Miller and
    Aaron Kromm.  Both testified at trial.  Miller, a Goodlife employee, knew the
    appellant.  She saw him immediately after the incident, holding a bat, running
    towards a vehicle and leaving the scene.  Kromm observed the assault but did
    not know the appellant or Lavoie.

[5]

Lavoie testified that he knew the appellant, and that it was the
    appellant who had hit him.

[6]

A report prepared by one of the ambulance attendants included the
    following statement attributed to Lavoie: Assaulted by Person unknown to the
    patient (the Statement).

[7]

The ambulance report was filed at trial, on agreement, as an exhibit.  There
    was no issue at trial that the ambulance report was admissible as evidence that
    the Statement had been made.  No application was brought to admit the Statement
    for the truth of its contents.

[8]

When cross-examined at trial on the Statement, Lavoie denied having made
    it.  He said that he told the ambulance attendant that he knew who assaulted
    him but that he did not know the second man.

[9]

The defence called no evidence.

The Trial Decision

[10]

The
    central issue at trial was whether it was the appellant who had struck the
    complainant.

[11]

The
    trial judge found Miller to be an unbiased and independent witness who was unshaken
    in cross-examination.  Miller recognized the appellant because, at the time of
    the incident, he had been a Goodlife client for a lengthy period.  Miller had a
    clear and unobstructed view when she observed the appellant, as described
    above.  Miller saw only one bat and it was in the appellants hands.  The trial
    judge found that Millers description of what the appellant was wearing matched
    the description of what Lavoie stated the appellant was wearing.

[12]

The
    trial judge noted that Kromm also testified that he saw only one person with a
    bat and that the description of clothing worn by the person with the bat
    matched the description given by both Miller and Lavoie.

[13]

The trial judge re
ferred to the Statement, noting that Mr.
    Lavoie denied making this statement and did not adopt it.  She then reiterated
    Lavoies testimony that he told the ambulance attendants that he knew who
    assaulted him but did not know the other man.

[14]

Based
    on the totality of the evidence, the trial judge found that the appellant had
    the baseball bat and assaulted Lavoie with it.

The Issue

[15]

The
    appellant raises a single issue on appeal: did the trial judge fail to
    appreciate the evidentiary value of the Statement?

Analysis

[16]

In
    our view, the trial judge made no error in respect of the Statement.

[17]

The
    Statement was hearsay, and inconsistent with Lavoies in-court testimony that
    he was certain the man who had struck him was the appellant. Absent
    admissibility under the principled exception to the hearsay rule, a prior
    inconsistent statement made by a witness but not adopted by that witness as
    true, is admissible only in assessing the witness credibility and not for the
    truth of its contents: see
R. v. Johnson

(2002), 166 C.C.C.
    (3d) 44 (Ont. C.A.), at para. 60.

[18]

Lavoie
    did not adopt the Statement: he expressly denied its veracity or even having
    made it. As such, as acknowledged by the appellant before this court, the
    Statements only potential value was for impeachment.

[19]

The
    appellant relies on
R. v. Scott
, [2011] N.B.J. No. 507 (C.A.).  In
Scott
,
    the New Brunswick Court of Appeal held that the trial judge erred by refusing
    to weigh a prior inconsistent statement in assessing the complainants
    credibility.  That is not this case.

[20]

In
    the present case, it is clear that the trial judge was alive to the Statement
    and its potential for impeachment of Lavoies testimony.  During submissions,
    defence counsel urged the court to rely on the Statement and reject Lavoies
    evidence identifying the appellant as the assailant.  The court discussed this
    point with counsel.  Further, in her reasons, the trial judge acknowledged the existence
    of the Statement.  However, she then noted that Lavoie denied making the
    Statement and did not adopt it.

[21]

From
    the reasons as a whole, it is clear that the trial judge recognized that the
    Statement could affect her assessment of Lavoies credibility, if she found
    that he had indeed made the Statement.  It is equally clear that the trial
    judge found that he had not made the Statement and that she accepted Lavoies
    in-court evidence as true, in spite of the Statement attributed to him.

Disposition

[22]

Accordingly,
    the appeal is dismissed.

Janet Simmons J.A.

E.A. Cronk J.A.

E.E. Gillese J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a)       is guilty of an indictable offence and liable to
      imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on
      summary conviction

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. M.A.H., 2013 ONCA 235

DATE: 20130415

DOCKET: C53844

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.A.H.
(A Young Person Under the
Youth Criminal Justice Act
)

Appellant

Bradley Greenshields, for the appellant

Amy Alyea, for the respondent

Heard: October 12, 2012

On appeal from the conviction entered and sentence
    imposed by Justice Catherine A. Kehoe of the Ontario Court of Justice dated
    March 10, 2011.

Tulloch J.A.:

A.

introduction

[1]

After
    a three-day trial before a judge in the Youth Justice Court, the 16 year-old
    appellant was convicted of robbery and aggravated assault. The trial judge
    imposed a sentence of 5 months closed custody for the offence of assault; 5
    months open custody, consecutive, for the robbery charges, followed by 5 months
    of community supervision. The trial judge also gave the appellant a 12- month
    probationary term and imposed various ancillary orders.

[2]

On
    application by the Crown, pursuant to s. 42(9) of the
Youth Criminal
    Justice Act
, S.C. 2002, c. 1, (the YCJA), the trial judge designated the
    aggravated assault as a serious violent offence within the meaning of that
    statute.

[3]

The
    appellant appeals from his convictions and sentence. At the conclusion of the
    oral argument presented on behalf of the appellant, this court dismissed both
    the conviction and sentence appeals with reasons to follow. These are those
    reasons.

B.

FACTS

(a)

The
    online exchange and consensual fistfight

[4]

The
    violent events in question started with an antagonistic exchange of words and
    bullying over Facebook between the victim, E.T., and the appellant and his
    friends.

[5]

One
    of the appellants friends, A.B., was particularly incensed over this online altercation
    and challenged E.T. to a fistfight. E.T. accepted A.B.s challenge and on
    September 23, 2009, the two boys met to fight.

[6]

Although
    E.T. suffered minor injuries during the fight, it concluded rather
    uneventfully. The appellant, among others, attended the fight to support A.B.

[7]

After
    the crowd dispersed, the boys went their separate ways. E.T and his friend,
    J.C., began their walk home.

(b)

The
    robbery

[8]

Following
    the fight, the appellant and a friend, J.B., formed the intention to rob E.T of
    his cell phone.

[9]

The
    appellant and his friend, J.B. approached E.T. and demanded his cell phone.
    E.T. was not clear in his testimony as to which one of the two asked for his
    phone, as he was not looking directly at them and did not know them at the time
    of the incident. However, he believed that it was the appellant who
    subsequently pushed him and demanded that he empty his pockets. The appellant
    admitted to being present but nothing more. J.B. pled guilty in a separate
    proceeding to stealing the cell phone, and testified at trial that the
    appellant had not been involved.

(c)

The
    assault on the driveway

[10]

Despite having
    obtained the cell phone without incident, but concerned that E.T. might report
    the robbery, the appellant, J.B. and A.B. proceeded to charge towards E.T.  E.T.
    turned and fled. The appellant pursued E.T. through the neighbourhood.

[11]

Eventually, the
    appellant caught up to E.T. and threw him to the ground on a driveway. Other
    members of the appellants group arrived at the scene, where E.T. was punched
    and kicked by the group members.

[12]

During the
    assault, E.T. was pushed up against a chest-high chain-link fence. As he hit
    the fence, E.T. felt his finger immediately become entangled in the fence. He
    testified that one or two people forcefully pulled him off the fence. He
    further testified that one of these people was the appellant. When E.T. was
    finally pulled off the fence, his finger was severed at the top knuckle.

[13]

After he was
    pulled from the fence, E.T. fell to the ground, yelled and pointed at his
    bloody finger. The crowd panicked and dispersed.

[14]

Unfortunately,
    attempts to re-attach E.T.s finger were unsuccessful.

C.

The conviction appeal

[15]

The appellant
    submits that the trial judge fell into error by reasoning in reverse from the
    injury to the degree of force used to conclude that the requisite
mens rea

had been established. Put another way, rather than considering the nature
    of the blows struck by the appellant, the trial judge focused on the ultimate
    injury to conclude that the force used by the appellant had been extreme or
    extraordinary such that a reasonable person would have appreciated the
    likelihood of bodily harm.

[16]

The trial judge
    found that, while on the driveway, the appellant had thrown E.T. to the ground
    and struck him repeatedly. After the assault on the ground, the appellant
    pushed E.T. into the fence and pulled him off it. During this action, part of
    E.T.s left ring finger was severed.

[17]

From the
    testimony accepted by the trial judge and the obvious damage to E.T.s body,
    apparent from the pictures admitted into evidence, it is clear that E.T. was
    subjected to a violent beating.

[18]

While the
    appellant referred to the severing of E.T.s ring finger as a freak accident,
    the law requires only objective foreseeability of the
risk of bodily harm
and not the risk of injury of the kind that actually occurred:
R. v. L.P.
(2003), 172 C.C.C. (3d) 195 (Ont. C.A.), at para. 15.

[19]

In my view, the
    trial judges conclusion that the risk of bodily harm was objectively
    foreseeable in the circumstances was correct. I do not agree with the
    appellants submission that the judges verdict disclosed the type of reverse
    reasoning error contemplated at p. 380 of the Manitoba Court of Appeals
    decision in
R. v. Matson
(1970), 1 C.C.C. (2d) 374.

[20]

The fact that
    E.T. actually suffered bodily harm only strengthens the trial judges
    conclusion. It was clear from the trial judges reasons that she took his
    injuries as merely reflective of the amount of force used by the appellant in
    concluding that the injury was absolutely foreseeable.

[21]

Accordingly, the
    conviction appeal is dismissed.

D.

the sentence appeal

[22]

The appellant
    appeals his sentence on two grounds. First, he submits that the trial judge
    erred by designating the aggravated assault as a serious violent offence
    (SVO) within the meaning of s. 42(9) of the
YCJA
. The appellant argues
    that the offence could not have been designated as such where the specific
    injury was neither intended nor foreseeable.

[23]

In addition, he
    argues that the overall sentence imposed by the trial judge was manifestly
    unfit having regard to the principle of proportionality under s. 38(2)(c) of
    the
YCJA
.

(a) Designation
    of a serious violent offence under the
YCJA

[24]

On application
    by the Attorney General, a youth justice court may designate an offence a SVO
    pursuant to s. 42(9) of the
YCJA
. Section 2(1) of the
YCJA
defines
    a SVO as an offence in the commission of which a young person causes or
    attempts to cause serious bodily harm.

[25]

In
R. v.
    K.C.
, 2011 ONCA 257, 105 O.R. (3d) 1, this court confirmed that the
    definition of SVO contained in s. 2(1) of the
YCJA

creates a
    preliminary threshold that must be met before a youth justice court can
    exercise its discretion to make a SVO designation. The appellant submits that
    the proper approach to the preliminary threshold requires the youth justice
    court to consider whether the young offender is sufficiently morally culpable
    for his actions. Put another way, since it was unforeseeable to the appellant
    that serious bodily harm would befall E.T. as a result of the appellants
    actions, it would be unfair to subject the appellant to a SVO designation.  I
    disagree.

[26]

Writing for the
    court in
K.C.
, Simmons J.A. declined to fully address the issue of
    foreseeability at the threshold stage of a SVO designation. At para. 71, she
    commented that:

[I]n arguing this appeal, the parties did not address the issue
    of foreseeability of bodily harm as a component of the SVO threshold and I do
    not find it necessary to do so. As I point out below, the trial judge
    concluded, in effect, that the respondent had subjective foresight of bodily
    harm with respect to the second set of charges. That level of foresight would
    clearly satisfy any level of foresight that may be found to be necessary at the
    threshold stage of the analysis. I would add that if foreseeability of bodily
    harm is found not to be a component of the SVO threshold, in my view, it is a
    factor that can be considered as part of the exercise of discretion as to
    whether to make an SVO designation or not.

[27]

At issue in
K.C.
was the proper test to be applied on a SVO designation hearing in relation to
    an offence committed by a young person found guilty as a party. This case, on
    the other hand, involves the appellants first-hand commission of a violent
    aggravated assault. The appellant conceded in this court that the complainant
    suffered serious bodily harm and that the appellant was the legal cause of
    that harm. In these circumstances, whether the element of foresight plays a
    role in a youth justice courts determination whether the SVO threshold is met
    is essentially irrelevant.

[28]

I am of the view
    that, in cases where a youth justice court concludes that a young offender has
    occasioned serious bodily harm to another person, the preliminary SVO threshold
    under s. 42(9) should be automatically met. Whether or not the serious bodily
    harm was reasonably foreseeable should, however, remain a factor at the second
    discretionary stage.

[29]

In
Youth
    Criminal Justice Law
, 2nd ed. (Toronto: Irwin Law, 2009), authors Nicholas
    Bala and Sanjeev Anand suggest that, in considering a SVO designation,
mens
    rea

might only be at issue where serious bodily harm is not
    actually caused by the young offenders actions. At p. 606, Bala and Anand
    state:

If the offence results in serious bodily harm, then the state
    of the youths mind may not be relevant, so that criminal negligence causing
    death would be within the definition. However, if serious bodily harm did not
    result, it must be proven that the youth had the intent to cause serious bodily
    harm, in which the psychological state of the youth would be relevant.

[30]

In
R. v. C.D.
;
R. v. C.D.K.
, 2005 SCC 78, [2005] 3 S.C.R. 668, the Supreme Court of
    Canada concluded that a harm-based definition of violent offence was
    preferable to one that is force-based because,
inter alia
, it reflects
    the traditional definition of violence which tends to focus on the effects of
    violence rather than the means employed to produce those effects.

[31]

At the threshold
    SVO stage, the same logic should apply: the focus should be on the effects of
    the violence rather than the means employed. Once a youth justice court has
    concluded that serious bodily harm has resulted from the young offenders
    conduct, it may still decline to exercise its discretion under s. 42(9) to make
    the SVO designation. In this way, the court retains its flexibility since foreseeability
    remains a factor to be taken into account by the youth justice court when
    exercising this discretion: see
R. v. E.F.
, 2007 ONCJ 113, 157 C.R.R.
    (2d) 189, at para. 46.

[32]

In her reasons
    for sentence, the trial judge referred to
E.F.

and reproduced
    those factors that should and should not be considered by the court when
    exercising its discretion pursuant to s. 42(9). In my view, she had good reason
    to conclude that the aggravated assault committed by the appellant was deserving
    of a SVO designation.  This designation was amply supported by the trial
    judges findings of fact regarding the circumstances of the offence and the
    appellants conduct.

[33]

In the result, I
    see no basis for appellate interference with the trial judges exercise of her
    discretion.  I would not give effect to this ground of appeal.

(b) Fitness of the sentence imposed by the trial judge

[34]

As noted earlier
    in these reasons, the appellant intervened in the online altercation in support
    of his friend A.B. After the consensual fistfight between A.B. and E.T., the
    appellant robbed and assaulted E.T. for a first time. Following the robbery,
    the appellant chased E.T. and, with his friends, continued to beat E.T. During
    this last round of violence, E.T. sustained the permanent loss of part of his left
    ring finger.

[35]

The trial judge
    characterized the appellants actions in this regard as gratuitously violent. I
    agree with her assessment.

[36]

In arriving at
    the sentence imposed on the appellant, the trial judge considered the
    applicable principles of youth sentencing. She concluded that a custodial
    sentence of five months closed custody, five months open custody and five
    months of community supervision followed by a period of probation was
    appropriate.

[37]

In my view, the
    sentence imposed by the trial judge was fit and does not offend the requirement
    of proportionality provided for in s. 38(2)(c) of the
YCJA
.

E.

Conclusion

[38]

As indicated at
    the end of oral argument, both the conviction appeal and the sentence appeals
    are dismissed.

Released:

APR 15 2013                                    M. Tulloch
    J.A.

EAC                                                I
    agree E.A. Cronk J.A.

I
    agree S.E. Pepall J.A.