COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Maliki, 2015 ONCA 204

DATE: 20150326

DOSSIER: C58119

Les juges Rouleau, van Rensburg
    et Pardu

ENTRE

Sa Majesté la Reine

Intimée

et

Hervé Maliki

Appelant

Hervé Maliki, en personne

Christine Mainville, avocate de service

Philippe Cowle, pour lintimée

Date de laudience : le 5
    février 2015

En appel de la peine imposée le 13
    décembre 2013 par le juge Gilles Renaud de la Cour de justice de lOntario.

Rouleau j.c.a. :

[1]

Lappelant demande lautorisation dinterjeter
    appel de la peine et, si lautorisation est accordée, demande le réaménagement
    de la peine à la lumière des conséquences relatives à limmigration. Au procès,
    lappelant a été reconnu coupable de quatre chefs dintroduction par
    effraction, quatre chefs de bris de probation et cinq chefs de bris dengagement.
    Il a été condamné à 18 mois de prison pour chaque chef dintroduction par
    effraction et quatre mois de prison pour chacun des autres chefs. Toutes les
    peines imposées étaient concurrentes.

[2]

Lappelant ne demande pas une réduction de la
    peine totale mais, plutôt, il prétend que le juge du procès a erré en imposant
    des peines concurrentes de 18 mois pour chaque chef dintroduction par
    effraction. Dans les circonstances, le juge aurait dû imposer une série de
    peines à purger consécutivement totalisant 18 mois, où aucune peine individuelle
    ne serait de plus de six mois moins un jour. Ceci ferait en sorte que
    lappelant, un résident permanent au Canada, ne perdrait pas son droit de faire
    appel dune mesure de renvoi (voir lart. 64 de la
Loi sur limmigration et
    la protection des réfugiés
, L.C. 2001, c. 27).

[3]

Lavocate de service qui a aidé lappelant dans
    ses plaidoiries a soutenu que nous étions en mesure dintervenir en appel
    puisque le juge du procès aurait commis plusieurs erreurs. En lespèce, il :

1.

na pas accordé de poids au fait que les
    infractions ont été commises alors que lappelant était sous linfluence de
    lalcool, un facteur atténuant;

2.

na pas accordé la considération qui était
    proprement due à la perspective de réhabilitation et à la dépendance de
    lappelant à lalcool afin de déterminer la peine à imposer;

3.

na pas tenu proprement compte des conséquences
    relatives à limmigration; et

4.

a erré dans son évaluation de la fourchette de
    peines qui sappliquait dans des circonstances semblables.

Ainsi lappelant maintient que la
    peine infligée ne mérite aucune déférence et que notre cour devrait lui substituer
    la peine structurée selon sa demande.

[4]

À mon avis, lappel doit être rejeté. Lappelant
    a été reconnu coupable de cambriolages de maison dhabitation, et ceci quand il
    faisait lobjet dun couvre-feu et de conditions le contraignant à être de
    bonne conduite. Tel que constaté par le juge du procès, les infractions étaient
    sérieuses pour les victimes. Les quatre chefs dintroduction par effraction ont
    violé le sentiment de sécurité des résidents de ces habitations :
R.
    v. Alves
, [2008] O.J. no. 2597 (S.C.), au para. 4, conf. pour dautres
    motifs par 2009 ONCA 666 ;
R. v. Snow
, 2007 ONCJ 426, au para. 6. De
    plus, dans au moins un cas, le vol de sous-vêtements de la victime a ajouté au
    désarroi découlant des crimes commis.

[5]

Malgré son jeune âge  25 ans au moment de
    limposition de la peine  lappelant nétait pas sans antécédents. Parmi les
    condamnations antérieures on compte des condamnations pour cambriolage et des
    crimes de vol et de bris de conditions. Dans un des cas, il a purgé trois mois
    de prison.

[6]

Les motifs du juge du procès démontrent quil a
    reconnu le potentiel de réhabilitation de lappelant et quil a aussi tenu
    compte du fait que lappelant souffrait dalcoolisme. Le juge du procès a
    commenté que lappelant semblait sérieux dans ses démarches pour surmonter cette
    dépendance et a fait référence au rapport dexpert déposé en preuve, un rapport
    qui, selon le juge, « laisse entrevoir la vraie possibilité que monsieur
    Maliki puisse surmonter ses difficultés au niveau de lalcool ».

[7]

En ce qui a trait aux conséquences relatives à
    limmigration, je suis persuadé que le juge du procès était conscient du fait
    que lappelant était résident permanent et que, sil imposait une peine de six
    mois ou plus de prison pour un des chefs daccusation, lappelant perdrait son
    droit de faire appel dune mesure de renvoi aux termes de lart. 64 de la
Loi
    sur limmigration et la protection des réfugiés
. Dans sa plaidoirie devant
    le juge du procès, la procureure de lappelant avait expliqué ces conséquences
    et avait cité les autorités pertinentes, dont
R. v. Hennessey
, 2007
    ONCA 581, 63 Imm. L.R. (3e) 8, ainsi que
R. c. Pham
, 2013 CSC 15, [2013]
    1 R.C.S. 739. De plus, la procureure de lappelant avait déposé en preuve un
    rapport dexpert en immigration dans lequel il confirmait quune série de
    peines consécutives, chacune de moins de six mois, éviterait ces cons
équences sérieuses.

[8]

Tel que le souligne lappelant, la jurisprudence
    démontre que la fourchette de peines appropriée pour linfraction
    dintroduction par effraction est très large. Dans certaines circonstances, un
    contrevenant peut même se voir condamné à un emprisonnement avec sursis.
[1]
Par contre, cest le juge du
    procès qui est le mieux placé pour fixer la peine appropriée. En lespèce, le
    juge du procès a analysé tous les facteurs pertinents, ce qui la mené à la
    conclusion que « [c]es crimes sont fort trop importants et [l]es
    antécédents récents [de lappelant] sont tels, quil est impossible déviter
    une peine frisant ou dépassant le seuil de deux ans, sans les facteurs
    atténuants dimportance majeure, et ceux présents en lespèce ne justifient
    quune réduction partielle. »
Il a donc imposé une
    « peine de 18 mois pour chaque cambriolage avec confusion, afin de
    respecter le principe de la totalité, » et une peine de quatre mois pour chaque
    bris de probation et dengagement,  « toujours avec confusion. »

[9]

À mon avis, la peine de 18 mois imposée pour
    chaque chef dintroduction par effraction ainsi que la décision dinfliger des
    peines concurrentes étaient raisonnables compte tenu de la jurisprudence, de la
    sévérité des infractions et des circonstances de lappelant. Contrairement à
Pham
et à
Hennessey
, dans la présente affaire, le juge du procès était au
    courant du droit relatif à limmigration et de limpact collatéral de la peine
    sur lappelant. En outre, rien ne laisse entendre que le juge du procès na pas
    tenu compte de ce droit et de cet impact. Sa décision dinfliger des peines
    concurrentes doit être traitée « avec la même retenue que celle dont les
    cours dappel doivent faire preuve envers les juges qui ont infligé des peines
    en ce qui concerne la durée de ces peines » :
R. c. McDonnell
,
    [1997] 1 R.C.S. 948, au para. 46. En labsence dune erreur de principe, ou dune
    peine qui nest manifestement pas indiquée, nous ne sommes pas en mesure
    dintervenir.

[10]

Pour ces motifs, jaccorderais lautorisation
    dinterjeter appel, mais je rejetterais lappel.

Rendu
    le : 26 mars 2015

(PR)
       « Paul Rouleau j.c.a. »

« Je souscris K. van Rensburg j.c.a. »

« Je
    souscris G. Pardu j.c.a. »

[1]
Une peine demprisonnement avec sursis nest plus disponible pour
    une introduction par effraction commise relativement à une maison dhabitation,
    qui est un acte criminel passible de lemprisonnement à perpétuité :
    depuis le 20 novembre 2012, lart. 742.1(c) du
Code criminel
, L.R.C.
    1985, c. C-46, prévoit quun tribunal ne peut pas ordonner à un contrevenant de
    purger sa peine dans la collectivité si le contrevenant a été déclaré coupable
    dune infraction poursuivie par mise en accusation et passible dune peine
    maximale demprisonnement de 14 ans ou demprisonnement à perpétuité.
    Cependant, lappelant a commis les délits qui donnent lieu à la peine portée en
    appel le 11 octobre 2012, ce qui signifie quune peine demprisonnement avec
    sursis reste possible dans son cas.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.G., 2015 ONCA 159

DATE: 20150313

DOCKET: C56091

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.G.

Appellant

Vincenzo Rondinelli, for the appellant

Stacey D. Young, for the respondent

Heard: October 23, 2014

On appeal from the conviction entered by Justice Joseph R.
    Henderson of the Superior Court of Justice, sitting with a jury, on February
    25, 2011, and the sentence imposed on September 10, 2012.

Hourigan J.A.:

INTRODUCTION

[1]

The appellant was convicted of one count of sexual assault and one count
    of extortion. The sexual assault conviction was stayed pursuant to the
    principles in
R
.
v.

Kienapple
, [1975] 1 S.C.R. 729. He
    was sentenced to 27 months imprisonment.

[2]

The appellant appeals his conviction on three grounds:

(i)

The Crowns
    cross-examination of the defence witnesses was improper and resulted in a
    miscarriage of justice;

(ii)

The trial judge erred in refusing
    to declare a mistrial as a consequence of an interruption in the testimony of a
    defence witness; and

(iii)The
    trial judge erred in not allowing the jury to ask a DNA expert witness a
    question.

[3]

The appellant also seeks leave to appeal his sentence. He submits that
    the trial judge erred in principle by relying on the complainants victim impact
    statement as an aggravating factor and in making factual findings that lacked an
    evidentiary basis.

[4]

For the reasons that follow, I would dismiss both the conviction appeal
    and the sentence appeal.

BACKGROUND FACTS

[5]

The complainant worked part-time as a server at a club. The appellant
    was the manager of the club.

[6]

On October 8, 2009, the appellant telephoned the complainant at her home
    about alcohol that was missing from the club. The appellant and the complainant
    offered competing versions of the details of that call and the events that
    followed.

[7]

According to the complainant, during the phone call the appellant
    angrily confronted her about a missing vodka cooler. She admitted to taking one
    cooler and said that she would reimburse the club. She claimed the appellant
    said that he had videotaped evidence of her stealing the cooler and if she did
    not come to his home within 20 minutes he would call the police.

[8]

The complainant drove to the appellants home. She testified that when
    she arrived she begged him not to inform the police. He told her that she had
    two options: either she would be arrested or he would own her. The complainant
    believed the reference to being owned meant working extra shifts or doing
    cleaning work at the club, so she told the appellant that he owned her.

[9]

At that point, according to the complainant, the appellant grabbed the
    back of her shirt and attempted to pull it off. She asked what he was doing and
    he responded: Well, I own you. When she said that was not what she thought he
    meant, he replied: Well  I guess you want to go to jail. She begged him not
    put her in that position but he proceeded to take her to his bedroom and remove
    her pants. At some point he also removed her bra.

[10]

The
    complainants evidence was that once inside the bedroom the appellant sexually
    assaulted her. He forced her to engage in fellatio and intercourse. After a few
    minutes of intercourse he told her to get dressed. She was not sure if he
    ejaculated and she did not see if a condom was used. The appellant had a phone
    in his hand or close by him throughout the sexual assault. He repeatedly
    threatened to call the police.

[11]

After
    leaving the appellants residence, the complainant went to her mothers
    boyfriends home and reported the sexual assault to her mother. A 911 call was
    made and the complainant was taken to the hospital, where a sexual assault kit
    was completed. Swabs were taken from the complainants chin, neck, and breasts,
    and her underwear was seized.

[12]

The
    appellant offered a very different version of events. He testified that he was
    at the club with his sister when he called the complainant to inquire about four
    missing vodka coolers. She initially denied taking the coolers but admitted to
    the theft when he threatened to call the police. He told her that she was fired
    and that he would mail her last cheque.

[13]

The
    appellant did not expect to hear from the complainant again and was surprised
    when she showed up at his home at around 7 p.m. that evening. According to the
    appellant, the complainant begged him not to fire her or call the police. He
    told her that it was too late, she was already fired and he and his sister had
    not decided if they were going to call the police. The appellant claimed the complainant
    then put her arm around his waist and tried to kiss him while rubbing his penis
    through his track pants. The appellant pushed her back and told her to leave.

[14]

The
    appellant testified that the complainant then backed him into a chair and kissed
    him again. She pulled out his penis and put it in her mouth. The appellant
    pushed the complainant off and told her to get out or he would call the police.
    Before leaving the appellants residence, the complainant told him that he
    would regret this.

[15]

The
    appellant was arrested the next day and his clothing was seized.

[16]

At
    trial, the complainants mother testified on behalf of the Crown. She said that
    on the evening of October 8, 2009, her daughter received a phone call and
    became very upset. She overheard the complainant begging and pleading as she
    spoke on the phone. After the call the complainant rushed out of the house.
    When the complainant arrived at her mothers boyfriends home later that
    evening she was crying and shaking. Her hair, which had been in a ponytail when
    she left, was loose and dishevelled.

[17]

The
    appellants sister testified on behalf of the defence that she was with her
    brother when he called the complainant at approximately 6 p.m. on October 8,
    2009. Her brother told the complainant that she was fired for stealing coolers
    and that they were going to call the police. The appellants sister testified
    that when she saw her brother later that evening he told her that the
    complainant had been at his house begging for her job back and had made sexual
    advances and tried to perform fellatio on him.

POSITIONS OF THE PARTIES

[18]

The
    appellant submits that the overall conduct and tenor of the Crowns
    cross-examination of the defence witnesses was so improper and prejudicial that
    it rendered the trial unfair and resulted in a miscarriage of justice. Further,
    the trial judge erred in not declaring a mistrial after a court police officer
    interrupted the Crowns cross-examination of the appellants mother to inform
    the court that he saw the appellants sister, who was present in the body of
    the court, nod to her mother multiple times as she testified. The trial judge
    also erred in failing to allow the jury to ask a question of a DNA expert after
    she had testified.

[19]

The
    appellant seeks leave to appeal his sentence on the basis that the trial judge
    erred in principle in relying on the complainants victim impact statement as
    an aggravating factor and in finding there was significant psychological and
    emotional pressure on the complainant without an evidentiary basis to support this
    finding.

[20]

The
    Crown submits that while some questions posed by the trial Crown during
    cross-examination may have been unnecessary or improper, they did not deprive
    the appellant of a fair trial or result in a miscarriage of justice. As a
    result, there is no basis for appellate intervention. The Crown argues that
    there was no error in how the trial judge dealt with the mistrial application
    or the question from the jury.

[21]

The
    Crown further submits that the sentence is fit and that the trial judge did not
    make any error in principle.

ANALYSIS

(i)
Cross-Examination by the Crown

[22]

The
    appellant submits that he was denied a fair trial because the Crowns cross-examination
    of the defence witnesses crossed the permissible bounds of advocacy and
    resulted in a miscarriage of justice. In considering whether cross-examination
    resulted in a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, the appellate court must draw
    the line between conduct that is merely improper and conduct that compromises
    trial fairness. Only the latter will justify ordering a new trial. As stated by
    Labrosse J.A. in
R. v. Henderson
(1999), 44 O.R. (3d) 628 (C.A.), at pp.
    639-640:

The line between Crown counsel conduct that is
    merely inappropriate and conduct that is so prejudicial that it deprives the
    accused of a fair trial is not easily drawn: see
R. v. Daly
(1992), 57 O.A.C. 70 and
R. v. Yakeleya
(1985), 20 C.C.C. (3d) 193, 14 C.R.R. 381 (Ont. C.A.). This line is
    particularly difficult to draw in cases that essentially turn on the
    credibility of Crown and defence witnesses. In such cases, there often appears
    to be a temptation to cross the line in an effort to attack the credibility of
    a witness. The prejudice that results is not easily measured. Respect for the
    administration of justice is not enhanced where the courts appear to condone improper
    conduct.

[23]

Justice
    Doherty described the role of an appellate court in addressing an allegation of
    Crown misconduct in the manner of cross-examination in
R. v. R. (A.J.)
(1994), 20 O.R. (3d) 405 (C.A.), at p. 412:

Crown counsel is entitled, indeed in some
    cases expected, to conduct a vigorous cross-examination of an accused.
    Effective cross-examination of an accused serves the truth-finding function as
    much as does effective cross-examination of a complainant.

There are, however, well-established limits on
    cross- examination. Some apply to all witnesses, others only to the accused.
    Isolated transgressions of those limits may be of little consequence on appeal.
    Repeated improprieties during the cross-examination of an accused are, however,
    a very different matter. As the improprieties mount, the cross-examination may
    cross over the line from the aggressive to the abusive. When that line is
    crossed, the danger of a miscarriage of justice is very real. If improper cross-examination
    of an accused prejudices that accused in his defence or is so improper as to
    bring the administration of justice into disrepute, an appellate court must
    intervene:
R. v
.
Fanjoy
, [1985] 2 S.C.R. 233, 21 C.C.C. (3d) 312;
R. v. Ruptash
(1982), 68 C.C.C. (2d) 182 at p. 189 (Alta. C.A.).

[24]

The
    failure of defence counsel to object at trial to the impugned cross-examination
    is a relevant consideration, but the lack of an objection does not immunize the
    cross-examination from appellate scrutiny:
R. (A.J.)
, at p. 416;
R.
    v. Varga
(1994), 18 O.R. (3d) 784 (C.A.), at p. 797; and
R. v.
    Middleton
, 2012 ONCA 523,
289 C.C.C. (3d) 55,
at
    para. 58.

[25]

As
    noted, improper cross-examination does not necessarily lead to appellate
    intervention. In determining whether the cross-examination at issue resulted in
    a miscarriage of justice, the appellate court must look at the overall effect
    of the improper questions in the context of the full cross-examination and the
    entire trial:
R. v. Daly
(1992), 57 O.A.C. 70 (C.A.), at para. 27.

[26]

With
    these legal principles in mind, I turn to a consideration of the impugned
    cross-examination in the present case. The appellant raises four objections to
    the Crowns cross-examination:

(i) The Crown invited the
    appellants sister to comment on the veracity of the appellants evidence;

(ii) The cross-examination
    of the appellant impinged on his right to silence because the Crown questioned
    him as to why he did not tell the police when he was arrested that he was the
    one who was sexually assaulted;

(iii) The cross-examination
    of the appellant was calculated to demean and humiliate him. The Crown engaged
    in argument and offered his personal opinion regarding the veracity of the
    appellants evidence. Examples of this conduct include: calling the appellant a
    liar and a scammer; asking the appellant what tawdry movie does that scene
    come from? when the appellant testified that it was the complainant who
    sexually assaulted him; and opining that no one would believe such an outrageous
    story as youve told; and

(iv) The crossexamination
    of the appellants mother and sister was laced with sarcasm. The Crown also offered
    his opinion on the veracity of their evidence. Examples of this conduct
    include: asking the appellants sister why he had to drag her evidence out of
    her; commenting that he had never heard of a woman insisting that she perform
    oral sex and commenting to the appellants mother that the Crowns questions would
    only be confusing to someone who was intent on not telling the truth.

[27]

I
    reject the argument that questioning the appellants sister regarding whether
    she believed her brothers version of events was improper. It is generally impermissible
    to ask one witness to comment on the veracity of another witnesss evidence:
R.
    v. H. (R.)
, 2013 ONCA 126, at para. 3. However, in this instance, the
    purpose of the question was not to impugn the credibility of the appellant or
    to require the witness to explain her brothers testimony. There was no question
    that the witness believed her brother; she was not being invited to attack his
    credibility. Rather, when this question is considered in the context of the
    full cross-examination, it is clear that the Crowns position was that the
    appellants sister acted in a manner that was inconsistent with her testimony
    because she did not call the police when her brother reported that he had been
    sexually assaulted. The question was relevant to her own credibility rather
    than that of the appellant, and was not improper.

[28]

I
    also reject the argument that the Crowns questioning of the appellant
    regarding his statements to the police at the time of his arrest breached his
    right to silence
. This portion of the
    cross-examination proceeded as follows:

Q. And upon your arrest by Detective Jason Myers, you chose to
    talk to him about her stealing, rather than her sexually assaulting you. Right?

A. Because if we would have fired her when we caught her
    stealing, none of this would have happened.

Q. In other words, you are being led away in handcuffs, youve
    just been told  youre under arrest for sexual assault and extortion

A. Of.

Q.  by [the complainant], and surely  surely it would occur
    to you to say  what the devils going on? Im the guy who got sexually
    assaulted. Youve got the wrong man here, unless the police specialize in
    arresting victims instead of accuseds. Is that what the story is?

A. No, the story is, is they arrested me and then Mr. Myers
    told me that if I wanted a lawyer, I could get a lawyer. But as soon as he said
    the word extortion, I didnt know what he was actually talking about, about
    extortion. I didnt know if all of a sudden we started talking about money, if
    Im extorting her out of money, or what the  what the word for the extortion
    was going for.

[29]

In his closing argument the Crown referred to the
    appellants post-arrest statements to the police as part of the argument that
    the appellants version of the assault was not believable. The Crowns point
    was that if the appellant had been the victim of a sexual assault, he would
    have told this to the police rather than mentioning the theft that provoked the
    complainants dismissal. The Crown did not urge the jury to find the appellant
    guilty due to a failure to assert his innocence or a refusal to answer police
    questions:
R. v. Johnson
, 2010 ONCA 646,
262 C.C.C. (3d) 404, at
    paras. 69-71;
R. v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519, at
    paras. 41-42
. This questioning also did not
    suggest that the jury should find the appellant guilty because he did not tell
    police about his own alleged assault until later.

[30]

The Crown was entitled to cross-examine on the
    statements the appellant made to police, including omissions from the
    appellants story.
It is true that the Crown must tread carefully when
    doing so in order to avoid suggesting the accused has a positive obligation to
    answer police questions:
R. v. Paris
(2001), 150 C.C.C. (3d) 162 (Ont.
    C.A.), at paras. 41-42. However, when the questions at issue are considered in
    context, in my view the Crown did not cross this line.
The Crowns suggestion that the appellants statements to police were
    not consistent with his position at trial was not an attempt to extinguish
    his right to silence.

[31]

Defence counsel did not object to this portion of the
    cross-examination at trial. In defence counsels closing address to the jury he
    also referred to the appellants post-arrest statements and made various
    suggestions as to their significance. In fact, defence counsel urged the jury
    to find that these statements
did
constitute an implicit assertion of
    innocence. Defence counsel encouraged the jury to infer that when the appellant
    said [i]ts not like she said to police after his arrest, what he meant was:
    [W]hen she told you that I sexually assaulted her, thats not what happened.

[32]

Notwithstanding
    the foregoing, I am of the view that other portions of the cross-examination of
    the defence witnesses crossed the line of acceptable questioning and were
    improper. Indeed, Crown counsel on the appeal concedes this point.

[33]

In
    particular, it was inappropriate for the trial Crown to opine with respect to
    the appellants testimony that no one would believe such an outrageous story
    as youve told.

[34]

Similarly,
    the trial Crown should not have offered his opinion on the implausibility of the
    appellants sisters testimony regarding a woman forcing oral sex on a man.

[35]

The
    trial Crowns statement to the appellants mother that his questions were only
    confusing to someone who was intent on not telling the truth was also inappropriate.
    I note that defence counsel immediately objected to this question and the trial
    judge ruled it improper.

[36]

I
    also agree with the submission of the appellant that at times the Crowns questioning
    was sarcastic and disrespectful, and that he used inflammatory language in both
    his cross-examination and his closing argument.

[37]

In
    considering whether this improper questioning resulted in a miscarriage of
    justice or impaired trial fairness, some additional context is important.

[38]

First,
    I note that the defence did not object at trial to the cross-examination of the
    appellant now at issue or suggest that it was unfair or abusive. While a failure
    to object is not fatal, it does speak to the perception of the fairness of the
    questions at trial and in the context of the broader testimony:
Middleton
,
    at para. 58.

[39]

Second,
    there was aggressive cross-examination of both the appellant and the complainant.
    The complainant was cross-examined for two and a half days. During the course
    of that examination, she was repeatedly admonished by defence counsel for
    making speeches. Defence counsel also suggested to her that she was not
    telling the truth about what happened between her and the appellant. In his
    closing submission, defence counsel said that the complainant was playing the
    victim and that her testimony was full of lies.

[40]

Third,
    the primary issue at trial was credibility. The versions of events provided by
    the appellant and the complainant were diametrically opposed. In these
    circumstances it would have been obvious to the jury that both parties could
    not have been telling the truth:
Daly
,
at paras. 28-29,
R. v.
Yakeleya
(1985)
, 20 C.C.C. (3d) 193 (Ont. C.A.), at p.196. It could
    not have come as a surprise to the appellant or the jury that the Crowns
    position was that the appellant had fabricated his version of events:
R. v.
    Khan
(1998), 126 C.C.C. (3d) 523 (B.C. C.A.), at para. 19. The Crowns
    suggestions that the appellant was not being truthful should be assessed in
    light of this consideration.

[41]

Fourth,
    on my reading of the transcript, the appellants mother was a difficult
    witness. She was evasive and argumentative, and appeared to be reluctant to
    answer straightforward questions for fear that she would prejudice her sons
    defence.

[42]

Finally,
    a number of other factors suggest the appellant did not suffer prejudice as a
    result of the Crowns questioning: the Crown did not otherwise attack the
    appellants character; the trial judge instructed the jury that the lawyers
    questions did not constitute evidence and the defence did not apply for a
    mistrial based on this questioning.

[43]

In
    my view, when these factors are taken into account, it is clear that the
    cross-examination at issue did not result in a miscarriage of justice. This was
    a vigorously contested trial. The Crowns cross-examination crossed the line at
    points. However, it was not intended to demean or humiliate the appellant. When
    viewed in the context of the overall case  including the failure of defence
    counsel to object to much of the cross-examination now complained about, the vigorous
    cross-examination on both sides, the evasiveness of the appellants mother and
    the clear conflict between the two competing versions of events  I am not
    satisfied that these isolated instances were prejudicial. The Crowns
    cross-examination did not render the trial unfair or result in a miscarriage of
    justice.

(ii)
Mistrial Application

[44]

During
    the course of the Crowns cross-examination of the appellants mother, the
    following interaction occurred:

The Court: Just a second.

Police Court Officer: May I address the court Your Honour.

The Court: Yes.

Police Court Officer: I am watching this witness here [the
    appellants sister] give nods to that witness on the stand [the appellants mother]

A [Identity of speaker unclear]: I didnt do anything.

Police Court Officer:  its also witnessed by the gentleman in
    the back of the court.

The Court: All right.

Police Court Officer: I have been watching for  during her
    entire testimony I have seen it five times, he has seen it twice.

The Court: All right. Im going to stand down for a few
    minutes. I am going to excuse you ladies and gentlemen.

[45]

The
    trial judge then received submissions on this issue in the absence of the jury.
    He decided to provide the jury with a mid-trial instruction, which included the
    following statement:

I do not know whether there was intended communication with
    this witness or not, I am not making any finding on that. You know that some
    people are more animated than others and she may have just been nodding or
    shaking her head following the evidence. I do not know.  I am not drawing any
    conclusions but I have excluded her from the courtroom to ensure that there are
    no further concerns.

[46]

At
    the conclusion of the defence evidence and prior to closing arguments, the
    defence brought an application for a mistrial. Defence counsel argued this was
    the appropriate remedy as a result of the court police officers interruption.
    In dismissing the application, the trial judge observed that a mistrial is a
    drastic remedy and should only be ordered in circumstances where there is no
    other suitable course of action. He noted that it would have been preferable if
    the court police officer had asked if he could address the court in the absence
    of the jury. However, the trial judge found that his mid-trial instruction was
    immediate and clear and that it dispelled any prejudicial impact.

[47]

After
    finding that a mistrial was not appropriate in the circumstances, the trial
    judge stated:

Moreover, to compel everyone to go through this extremely
    emotional trial again, would be an injustice to all of the parties, the
    witnesses, their families and the jurors.

[48]

The
    appellant submits that the trial judge erred in principle in dismissing the
    mistrial application. The appellant argues that the trial judge failed to
    consider the impact of not declaring a mistrial on the appellant and that the
    trial judges finding of potential injustice was speculative.

[49]

The
    appellant also submits that the decision not to declare a mistrial was clearly
    wrong because the conduct of the court police officer irreparably damaged trial
    fairness. This is particularly so, the appellant argues, given that the
    interruption occurred after the Crown had embarked on a concerted campaign to
    portray the appellants sister and mother as liars motivated to help the
    appellants case. Further, the appellant argues that excluding the appellants
    sister from the courtroom aggravated the prejudicial impact of the incident because
    it suggested to the jury that she could not be trusted.

[50]

As the trial judge correctly noted, a mistrial is a remedy of
    last resort and should be ordered only where necessary to prevent a miscarriage
    of justice. Before granting this extraordinary remedy, the court should
    consider and reject as inadequate other less extreme remedies, such as a
    mid-trial instruction:
R. v. Chiasson
, 2009 ONCA 789, at para.
14;
R. v. Toutissani
, 2007 ONCA 773, at para. 9;
R. v.
    Burke
,
2002 SCC 55, [2002] 2 S.C.R. 857, at para. 77
.

[51]

Because
    the determination of whether a mistrial should be granted is a matter within
    the discretion of the trial judge, an appellate court will only interfere with
    that decision if it is clearly wrong or based on an erroneous principle:
Chiasson
,
    at para. 14.

[52]

As
    stated by the Quebec Court of Appeal in
R. v. Lessard
, (1992) 74
    C.C.C. (3d) 552 (Que. C.A.), at p. 563, a trial judge is best positioned to
    assess whether a mistrial is warranted in the circumstances and appellate
    courts owe trial courts significant deference on that determination:

The trial judge is the person, much more so than the Court of
    Appeal judges several years later, in the best position to assess its true,
    concrete and practical impact on the jury, in light of the general atmosphere
    in which the trial took place, the specific circumstances of the case, of what
    he may have observed during all the stages of the trial and the reaction of the
    members of the jury at the time of his comments on the incident. He is also in
    the best position to find a solution which would neutralize the poison
    distilled in the minds of the jury. His decision must therefore be given the
    greatest respect and it is only where the evidence shows that he was clearly
    mistaken and that he did not properly exercise his discretion that, in my view,
    a Court of Appeal can and must intervene.

[53]

I
    am not satisfied that the trial judge erred in refusing to grant a mistrial. He
    properly determined that, given his mid-trial instruction, this was not a
    situation where the remedy of a mistrial was necessary. I agree with the trial
    judges ruling on the mistrial application that his instruction was clear,
    concise, and prompt. The trial judge specifically cautioned that individuals
    may nod their heads for a variety of reasons, and that the jury should not draw
    any conclusions from the court police officers statements.

[54]

In
    my view, the instruction was fair and adequately addressed any potential
    prejudice. The trial judge was in the best position to determine whether in the
    circumstances of this case, including the Crowns improper cross-examination,
    the drastic remedy of a mistrial was appropriate. The appellant has not
    identified any error in principle in the trial judges exercise of his
    discretion. The incident at issue was brief and relatively innocuous. It was
    reasonable for the trial judge to conclude this did not necessitate a new
    trial.

[55]

I
    also fail to see anything inappropriate in the trial judges comments regarding
    the injustice of another trial. A trial judge is entitled to consider the
    broader impact of a declaration of a mistrial. Indeed, it appears to me that
    his comments are a paraphrase of Laskin J.A.s comments in
R. v. Leduc
(2003)
, 66 O.R. (3d) 1 (C.A.), at para.
    154, where he said:

New trials should be avoided where possible. The
    accused, the other participants in the trial, the criminal justice system and
    the community at large must all suffer the consequences  financial, emotional
    and otherwise  of going through the proceedings again.

[56]

For
    the foregoing reasons, I would not give effect to this ground of appeal.

(iii)
Jury
    Question

[57]

At
    trial, Melanie Richard, a forensic scientist from the Centre for Forensic
    Sciences, was called by the Crown as an expert witness on bodily fluid
    identification and DNA interpretation.

[58]

Ms.
    Richard testified that forensic testing of the complainants swabs and
    underwear revealed male DNA in such a low level that a suitable profile for
    comparison with the appellants DNA could not be determined. There was no semen
    on the complainants underwear but amylase, which is often present in saliva,
    was detected from an unknown source. Further testing revealed male DNA from
    three different contributors near the waistband of the complainants underwear,
    but the source and profiles again could not be determined.

[59]

Following
    Ms. Richards testimony, the trial judge asked her some follow-up questions to
    clarify what she meant when she referred to low-level male DNA. Ms. Richard
    explained that this meant she was unable to determine a DNA profile and a
    precise bodily fluid source.

[60]

The
    day after Ms. Richards testimony, the jury sent a note to the trial judge
    requesting clarification from Ms. Richard regarding her evidence about the
    three different DNA contributors identified near the waistband of the
    complainants underwear. They wanted to know whether washing underwear on a
    delicate cycle in a washing machine would completely remove all traces of DNA.

[61]

The
    trial judge consulted with counsel about the note. He then instructed the jury
    that they did not have the right to ask questions of a witness. He told them
    that it was the role of counsel to determine what evidence would be led and
    that it was his role to ensure that the evidence was admissible. The trial
    judge also reminded the jury that the trial was not over and there may be more
    evidence on this issue that had not yet been presented to them. Defence counsel
    did not object to the trial judges instruction.

[62]

The
    appellant submits that, although rare, jury questioning has been judicially
    endorsed in Canada. Further, just as the trial judge asked Ms. Richard
    follow-up questions, the jury should have been afforded the same opportunity.

[63]

I
    accept the appellants submission that permitting a jury to ask questions of a
    witness is not prohibited. However, the decision to allow this type of questioning
    is within the discretion of the trial judge and safeguards must be in place to
    ensure that only admissible evidence is elicited and that the parties are not
    prejudiced:
R. v. Andarade
(1985), 18 C.C.C. (3d) 41 (Ont. C.A.), at pp.
    59-60.

[64]

The
    dangers of permitting a jury to ask questions of a witness are obvious. In
    addition to potentially eliciting inadmissible evidence, such questioning may
    run contrary to trial counsels strategy and an objection by counsel to a
    question may trigger conflict with the jury or create the impression that
    important evidence is being hidden. Moreover, there is a risk that a jury
    empowered to ask questions will move from being judges of the facts to being advocates:
S. Casey Hill, David M. Tanovich & Louis P.
    Strezos,
McWilliams' Canadian Criminal Evidence
, loose-leaf, 5th ed. (Toronto:
    Canada Law Book, 2014), at p. 21-177
.

[65]

While
    I agree with the appellant that the trial judges instruction to the jury that
    they were not permitted to ask questions was incorrect, I would not give effect
    to this ground of appeal.

[66]

The
    decision to permit a jury to ask a witness a question is discretionary. This
    practice is not unknown in Canadian law, but it is permitted very rarely. Even
    questions by judges are usually limited to the clarification of evidence, as
    was done by the trial judge in this case.

[67]

In
    my view, this was an appropriate case for the trial judge to refuse to put the
    jurys question to the witness. The proposed question went well beyond
    clarification and opened up a new issue regarding the removal of DNA in the
    laundering process. This issue was not raised in Ms. Richards evidence.

[68]

Moreover,
    the proposed line of inquiry was irrelevant to the matters at issue in the
    case. The underwear was not laundered before it was seized by the police. Further,
    the fact that other DNA profiles were present did not have any impact on what
    happened between the appellant and the complainant. Permitting the jury to ask
    these questions would have led the trial into an area that was immaterial and
    unhelpful.

(iv)
Sentence
    Appeal

[69]

The
    appellants first submission on his sentence appeal is that the trial judge
    erred in principle in relying on the complainants victim impact statement as
    an aggravating factor. I note that this trial took place prior to amendments to
    s. 718.2 of the
Criminal Code
,
    which
mandates courts to consider evidence that the offence had a
    significant impact on the victim, considering their age and other personal
    circumstances, including their health and financial situation.

[70]

Section
    722 of the
Criminal Code
requires that courts have regard to a victim impact
    statement in fashioning an appropriate sentence. In
R. v. Taylor
,
[2004] O.J. No. 3429 (C.A.), at paras.
    41 and 42, Blair J.A. considered the issue of whether a victim impact statement
    could be relied on by a sentencing judge as an aggravating factor:

Similarly, counsel for Mr. Taylor submitted
    that the trial judge erred in utilizing the victim impact statements presented
    to him as an aggravating factor justifying a heavier sentence. In my view,
    this case does not provide a proper record for a full analysis and assessment
    of the uses of victim impact statements and the ways in which a trial judge may
    take them into account for the purpose of sentencing. Suffice it to say that in
    my opinion, the trial judge in this case did not utilize the victim impact statements
    specifically to increase the sentence beyond what would otherwise be a fit
    sentence, albeit that he referred to the permanent residual consequences for
    the family and the friends of the victim, referred to in the victim impact
    statements filed in his list of aggravating factors.

I would observe only that victim impact
    statements, like criminal records, do not justify double punishment  once for
    the crime against society, and again to counterbalance the harm done to the
    victims (a sort of criminal revenge in lieu of civil damages). Parliament
    has provided in s. 722 of the
Criminal Code
,
    however, that the court shall consider such statements for the purpose of
    determining the sentence to be imposed on an offender. The court must
    therefore take them into account; otherwise there is no point in having them.
    Whether victim impact statements may be used by the sentencing judge, in
    themselves, to increase or decrease the fitness of the sentence, is an issue I
    leave for determination on another day. What they do at least, in my
    opinion, is help the judge to understand the circumstances and consequences of
    the crime more fully, and to apply the purposes and principles of sentencing in
    a more textured context. Here, the trial judge did no more than that. He
    did not err in his use of the victim impact statements he had before him.

[71]

In
    the present case, the trial judge determined that the appropriate range of
    sentence was between 18 months and four years imprisonment, depending on the
    circumstances of the offence and of the offender. The appellant has not offered
    any case law that challenges this range of sentence.

[72]

As
    the trial judge noted, this was a very serious sexual assault involving
    intercourse and fellatio. The appellant was in a position of authority as the
    complainants employer. In these circumstances, I am not satisfied that the
    trial judge relied upon the victim impact sentence to impose a sentence that
    was unfit. Like in
Taylor
, while the victim impact statement was
    included in the trial judges list of aggravating factors, there is no
    suggestion that this factor was used to increase the appellants sentence to an
    inappropriate level.

[73]

Moreover,
    in my view, it is not an error in principle for a sentencing judge to determine
    that the impact of the crime on a victim, as described in a victim impact statement,
    is an aggravating factor. If it were otherwise, victim impact statements would
    have limited utility and the mandate to consider them as part of

the sentencing process found in s. 722 of the
Criminal
    Code
would be rendered meaningless.

[74]

The
    appellants second argument on the sentence appeal is that the trial judges
    finding that there was significant psychological and emotional pressure on the
    complainant at the time of the assault lacked an evidentiary basis.

[75]

I
    would not give effect to this ground of appeal. These findings were amply
    supported by the evidence, including:

·

The appellants threats to terminate the complainants
    employment;

·

The appellants threats to call the police if the complainant did
    not have sex with him;

·

The fact that the appellant was in a position of authority as the
    complainant's employer; and

·

The complainants evidence that the appellant knew lots of
    people while she was a nobody.

[76]

In
    light of these considerations, I am not satisfied that the trial judge made any
    error in principle or that the sentence imposed was unfit.

DISPOSITION

[77]

For
    the foregoing reasons, I would dismiss the conviction appeal. While I would
    grant leave to appeal sentence, I would also dismiss the sentence appeal.

Released: March 13, 2015 RJS

C.W.
    Hourigan J.A.

I
    agree Robert Sharpe J.A.

I
    agree G. Pardu 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. A.W.B., 2015 ONCA 185

DATE: 20150320

DOCKET: C56446

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.W.B.

Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Sean Doyle, for the respondent

Heard: August 26, 2014

On appeal from the conviction entered by Justice Myrna L.
    Lack of the Superior Court of Justice, sitting with a jury, on October 17,
    2012.

Tulloch J.A.:

[1]

The appellant was charged with four counts of sexual offences involving
    the same teenage female complainant, who was a close family friend.  The
    incidents on which the charges were based occurred between March 1, 2008 and
    September 23, 2008.  During this period of time the complainant was 13 and 14
    years old.  The particulars of the charges are as follows:

·

Count 1: Sexual Assault, from March 1 to September 23, 2008;

·

Count 2: Sexual Interference
(Sexual
    touching
), from March 1, 2008 to April 30, 2008;

·

Count 3: Sexual Interference
(Sexual
    touching
), from May 1, 2008 to September 23, 2008; and

·

Count 4:
Invitation
to Sexual
    Touching, from May 1, 2008 to September 23, 2008.

[2]

Following a trial by judge and jury, the appellant was convicted on
    counts 1 and 3, and acquitted on counts 2 and 4.  Count 1 was conditionally
    stayed pursuant to
Kienapple v. The Queen
, [1975] 1 S.C.R. 729.  The
    appellant was sentenced on count 3 to imprisonment for one year followed by
    three years of probation.

[3]

The appellant contests his conviction.

[4]

The appellant raises two main grounds of appeal.  First, he submits that
    the verdicts are inconsistent and therefore unreasonable.  Second, he submits
    that the trial judge erred in her charge to the jury in a number of ways,
    including:

(a)     by directing the jury that they must consider the     evidence
    on each count separately;

(b)     by failing to give a
Vetrovec
[1]
warning with respect  to the complainants evidence;

(c)     by telling the jury that they could consider both       the
    differences and the similarities between the          complainants videotaped
    statement and her        testimony;

(d)     by failing to instruct the jury that the timing of the   disclosure
    of the sexual assaults, combined with           other factors, could give rise
    to a negative      inference about the complainants credibility;

(e)     by instructing the jury that certain evidence was     capable
    of corroborating the complainants          evidence;

(f)      by failing to provide a limiting instruction with         respect
    to evidence of the appellants alleged      treatment of his children; and

(g)     by telling the jury they could consider certain          hearsay
    statements to explain the complainants        state of mind and actions.

[5]

At the outset of oral argument, counsel for the appellant abandoned
    grounds (c) and (g), above.  As such, I will not be dealing with these grounds
    in my analysis.  For the reasons that follow, I would dismiss the appeal.

Background

[6]

The appellant, A.W.B., lives with his wife and their three children.
    The complainant, G.A.S., and her mother, R.A., were close friends of the
    appellant and his family, and would often visit them socially.  The appellant
    was a father figure to G.A.S.  Beginning in 2006, R.A. babysat the appellants
    children while the appellant and his wife were at work.  Whenever the
    complainants mother would babysit, the complainant would often accompany her.
    From March to June 2008, R.A. and G.A.S. visited A.W.B.s home approximately 3
    times per week.

[7]

The appellant usually returned home from work while G.A.S. and her
    mother were babysitting.  Sometimes, he invited them to stay for dinner.  He
    would barbecue or order take-out.  G.A.S. often spent time with the appellant
    in the garage while he barbecued.  Afterwards, she sometimes drove with him in
    his car to pick up his wife from work.

The Alleged Assaults

[8]

G.A.S. testified that in March and April 2008, when she was still 13
    years old, she used the appellants hot tub with the appellants children.  The
    appellant was sometimes in the hot tub. She stated that he rubbed his foot up
    her leg.  At first she thought it was unintentional, because the hot tub was
    crowded, but when it happened more than once, she believed he did it
    deliberately.

[9]

G.A.S. testified that when she was 13 years old, the appellant began
    talking to her about birthday patty whacks  one smack on the buttocks for
    each year of age.  On one occasion, the appellant struck her buttocks.  This
    continued after she turned 14. She turned 14 in the middle of May 2008.

[10]

G.A.S.
    also testified that before and after she turned 14, when she was playing pool
    at the appellants home, the appellant pushed his crotch up against her
    buttocks.  As well, on occasion, after she turned 14 when she accompanied the
    appellant to pick up his wife from work, the appellant would put his hand on
    her left knee and squeeze it.  Sometimes, according to G.A.S., the appellant
    took her hand and placed it on the crotch of his jeans, holding it there. G.A.S.
    also said that the appellant often drove to pick up his wife when he was drunk.

[11]

G.A.S.
    testified that at the end of May 2008, on more than one occasion, when she and
    the appellant were barbecuing dinner in the garage, he hugged her, kissed her,
    and rubbed her buttocks.  She stated that sometimes the appellant turned the
    garage lights off, pushed her up against the wall and kissed her.  She
    testified that sometimes he put his hands up her shirt to feel her breasts
    above her bra.

[12]

According
    to the complainant, on September 23, 2008, she and her mother were at the
    appellants house.  The appellant was drinking beer and working in the
    backyard.  At the end of the day, G.A.S. helped the appellant move a portable
    pool or slide to the basement.  When they returned to the backyard, the
    appellant pushed her up against the outside wall of the house and put his
    tongue in her mouth, pushed up her bra and fondled her breasts.

Disclosure of the Alleged Assaults & G.A.S.s
    Statement to Police

[13]

R.A.
    testified that on September 26, 2008, she and the complainant were at the
    appellants home when she observed the complainant leaving the appellants
    oldest daughters room, crying and asking to go home.  While they were driving
    home, G.A.S. was upset, and she disclosed to her the assault which occurred on
    September 23.  R.A. wanted to contact the police, but G.A.S. refused.

[14]

The
    assaults were first disclosed to police by R.A. in November 2009 and G.A.S.
    subsequently provided a videotaped statement to police on December 7, 2009.

[15]

In
    her videotaped statement, the complainant stated she had told her best friend,
    J., about the assaults during the time period when the assaults were
    occurring.  When the police asked for J.s last name, G.A.S. requested that the
    police not contact her because she was dealing with her own problems and was
    unlikely to remember.  She later testified that she and J. had drifted apart.
    The detective did not think it was necessary to contact G.A.S.s best friend,
    and did not do so.

[16]

The complainant also told police the appellant locked
    his children in their rooms, threw his youngest daughter on her bed, and threw
    a dresser drawer at his son.

Appellants Statement to Police

[17]

The appellant made a statement to police in which he
    acknowledged having a close relationship with the complainant, that she
    sometimes was in the garage with him when he barbecued and as well, at times
    she would accompany him when he picked his wife up from work.  He admitted to
    pinching G.A.S.s knee in the car.  He also confirmed that on September 23,
    2008, G.A.S. helped him bring something inside.  He stated that on that night,
    he hugged G.A.S. and kissed her on the cheek to thank her for helping.  In response
    to the officers suggestion that accidental touching might have occurred, the
    appellant agreed that he may have accidentally grazed G.A.S.s breasts.

G.A.S.s testimony at the Preliminary Inquiry

[18]

G.A.S.
    testified at the preliminary inquiry that the appellant pushed her up against
    the wall in the garage once. In her statement to police, she said it had
    happened multiple times.  In her testimony at trial, she acknowledged that her
    evidence at the preliminary inquiry on this point was not true.  As well, she
    acknowledged that it was important to tell the truth. In re-examination, G.A.S.
    explained that she found the lawyer at the preliminary inquiry confusing, and
    she gave the testimony in question at the end of the preliminary inquiry, when
    she wanted to leave.

A.

ANALYSIS

[19]

As
    stated above, the appellant raises essentially two arguments: that the verdicts
    are inconsistent and therefore unreasonable, and that the charge to the jury
    was deficient in a number of ways.  For the reasons outlined below, I would reject
    each ground of appeal.

(1)

Are the verdicts inconsistent, and therefore unreasonable?

[20]

The
    appellant submits that in order for him to have been acquitted on count 4,
    invitation to sexual touching, the jury must have rejected the complainants
    testimony that the appellant took the complainants hand and put it over his
    crotch while he was driving.  He argues that the jurys verdict can only be
    interpreted as a rejection of the complainants credibility.  It was therefore
    unreasonable to convict on count 3, as the underlying events took place in the
    same time frame, and involved the same complainant.

[21]

I
    do not agree.  The jury could have accepted the complainants evidence on all
    the counts yet still have acquitted on counts 2 and 4 on the basis of a
    reasonable doubt raised by the appellants evidence.  As pointed out by the
    respondent, the assessment of the evidence as between the testimony of an
    accused and that of prosecution witnesses is never a credibility contest.  For
    this reason, an acquittal in a case in which the accused gave evidence cannot
    be equated with a rejection of the complainants credibility.  Therefore, it
    cannot be said that the acquittal on count four can only be interpreted as a
    rejection of the complainants credibility such that the jury was not entitled
    in law to convict the appellant on any of the counts.

[22]

The
    jury may accept or reject some, none, or all of a witnesss evidence.  The
    appellants argument is premised on the assumption that if the jury rejects
    some of the complainants evidence, it must reject it all.  This clearly is not
    the law.  As stated by the Supreme Court of Canada in
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence.
The jury is entitled to accept or reject some,
    all or none of any witnesss testimony.
Indeed, individual members of the
    jury need not take the same view of the evidence so long as the ultimate
    verdict is unanimous.  Similarly, the jury is not bound by the theories
    advanced by either the Crown or the defence.  The question is whether the verdicts
    are supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge.  [Emphasis added.]

[23]

The
    jury was entitled to accept some of the complainants evidence and reject other
    aspects.  The fact that the jury may have rejected some of the complainants
    evidence does not make it unreasonable for the jury to have accepted other
    parts of her evidence.

[24]

The
    appellant has not met the onus of establishing unreasonable verdicts as set out
    by this court in
R. v. McShannock
(1980), 55 C.C.C. (2d) 53, at p. 56,
    and approved of by the Supreme Court of Canada in
Pittiman
, at para.
    7:

Where on any realistic view of the evidence, the verdicts
    cannot be reconciled on any rational or logical basis the illogicality of the
    verdict tends to indicate that the jury must have been confused as to the
    evidence or must have reached some sort of unjustifiable compromise.

There is nothing inconsistent about the jury having
    reasonable doubt on count 4 about whether the appellant took the complainants
    hand and put it over his crotch, while being convinced beyond a reasonable
    doubt that he touched the complainant for a sexual purpose in one of the ways
    alleged in count 3.

[25]

According
    to the Supreme Court in
Pittiman
, at para 8, different verdicts may
    be reconcilable on the basis that the offences are temporally distinct, or are
    qualitatively different, or dependent on the credibility of different
    complainants or witnesses.

[26]

Although
    the alleged acts occurred in the same year between the appellant and the
    complainant, they were not inextricably interwoven:
McShannock
, at
    p. 55.  The acts occurred over a period of several months, and varied in
    content.  As explained below, the different verdicts can be reconciled on the
    evidence.

[27]

The
    hot tub, patty whacks and pool table incidents formed the subject of count 2.
     The patty whacks, pool table incidents, the squeezing of the complainants
    knee in the car, the garage assaults, and the September 23, 2008 assault all
    fell under count 3.  The subject matter of count 4 was the allegation that the
    appellant placed the complainants hand over the crotch of his pants while they
    were driving.  Count 1, alleging sexual assault over the entire period,
    functioned as a kind of catch-all, and included all the alleged assaults.

[28]

The
    conviction on count 3 and the acquittal on count 2 can be reconciled on the
    evidence for reasons unrelated to the complainants credibility.  The jury
    might have accepted the complainants evidence about the patty whacks and
    pool table incidents, but might nonetheless have had a reasonable doubt about
    the sexual purpose of these incidents, as the trial judge did in her reasons
    for sentence.  The jury might similarly have had a reasonable doubt about
    whether the hot tub incidents were intentional or accidental, especially
    considering the presence of others in the hot tub.  It could have had no such
    doubts about the sexual purpose of the garage assaults or the September 23
    assault.  Either of these assaults could have formed the basis for a conviction
    on count 3, but were not covered by the dates particularized in count 2.

[29]

The
    acquittal on count 4 and the conviction on count 3 can also be reconciled. The
    garage assaults and the September 23 assault were the material allegations
    under count 3, taking into account what I have said above about the patty
    whacks and pool table incidents.  Again, count four turned on the allegation
    that the appellant took the complainants hand and placed it on his crotch
    while they were driving.

[30]

These
    charges related to separate incidents with distinct evidence. While the
    incidents occurred between the same two people, they occurred at different
    times over a period of months, under different circumstances, and they involved
    different kinds of conduct.  The garage assaults and the September 23 assault
    occurred around the appellants home when the complainant was assisting the
    appellant with chores and preparing dinner.  The car incident was alleged to
    have occurred while the appellant was driving drunk to pick up his wife from
    work.  The jury was entitled to accept the complainants evidence on some of
    the incidents and not others, and indeed, there is evidence it could have
    relied on in doing so, in particular relating to the September 23 assault.

[31]

The
    complainants mother testified that the complainant wanted to leave the
    appellants home after the final assault on September 23 and was in a bad mood
    that evening.  She testified the complainant did not want to return to the
    appellants house on September 26, which was unusual.  This evidence tended to
    support the complainants account that she had been assaulted on September 23.  The
    complainants evidence on the circumstances surrounding the car rides was
    subject to significant challenge, in particular her evidence that the appellant
    frequently drove after he had had too much to drink, and that she went with him
    despite this.  Her mothers evidence contradicted hers in this respect.  This
    contradiction regarding the circumstances surrounding count 4 could have made a
    difference on that count, but would not have required the jury to reject the
    complainants evidence about the September 23 assault.

[32]

It
    was open to the jury to accept the complainants evidence with respect to the
    September 23 assault or the garage assaults and to convict the appellant on
    count three on that basis, even if it had a reasonable doubt about whether he invited
    her to touch him in his car in the manner alleged under count four.  Taking a
    realistic view of the evidence, the verdicts can be reconciled on a rational
    basis.

(2)

Was the charge to the jury deficient?

[33]

The
    appellant alleges a number of errors committed by the trial judge in her charge
    to the jury.  Below, I will address each of the alleged errors individually,
    but at the outset, it must be borne in mind that a jury charge must be viewed
    contextually to determine whether or not it achieves the function for which it
    is intended.  This standard was set out by this court in
R. v. Simon
,
    2010 ONCA 754, 104 O.R. (3d) 340, at paras. 44-45, leave to appeal to S.C.C.
    refused, [2010] S.C.C.A. No. 459:

We impose no requirement of perfection in jury instructions:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 1-2. We
    test the adequacy of jury instructions in a functional way, holding them up
    against the purpose they are required to fulfill:
Jacquard
, at para.
    32.

Appellate review is not the legal equivalent of a laboratory
    experiment. Although a comparison to a post-mortem examination may be
    uncomfortably close, we do not dissect the final instructions, examine them
    every which way, find a misplaced word or ill-suited phrase and pronounce it the
    cause of death. We examine the charge as a whole, together with the evidence
    given at trial, all of it, and the positions of the parties:
Jacquard
,
    at para. 33;
R. v. Vézeau
, [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71,
    at pp. 285-86 S.C.R. An important, but not dispositive factor in determining
    whether appellate intervention is warranted is the failure of counsel to object
    to what is later advanced as prejudicial error:
Jacquard
, at paras.
    36-38;
R. v. Arcangioli
, [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, p.
    143 S.C.R.;
R. v. Thériault
, [1981] 1 S.C.R. 336, [1981] S.C.J. No.
    32, at pp. 343-44 S.C.R.

(a)

Direction to consider the evidence on each count separately:

[34]

The
    appellant submits that the trial judge erred when she instructed the jury that
    it must consider each charge separately and must not use evidence relating only
    to one charge in making its decision on any other charge.  While the appellant
    acknowledges the instruction to consider each charge separately was accurate,
    he argues that as the defence relied upon the complainants lack of credibility
    generally as the basis for rejecting her evidence in its entirety, the trial
    judge should have made clear to the jury that its reasonable doubt on counts on
    which it acquitted (and the evidentiary or credibility problems giving rise to
    that reasonable doubt) was relevant to whether it could be satisfied beyond a
    reasonable doubt on the remaining charges.

[35]

I
    do not agree.  I agree with the respondent that trial judges initial
    instruction that the jury was not to use evidence relating to one count in
    considering their decision on any other count served to remind the jury that
    each count in the indictment was a separate charge.  The appellant relies on
R.
    v. P.E.C.
, 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1, to support this
    ground of appeal.  However, that case simply holds that a trier of fact is
    entitled to apply credibility findings to different counts.  The instruction
    objected to on appeal does not prevent that.

[36]

The
    trial judges use of the word only makes it clear that the instruction was
    appropriate: You must not use evidence that relates
only
to one
    charge in making your decision on any other charge (emphasis added).  She did
    not prevent the jury from applying findings of the complainants general credibility
    to all counts.

[37]

Later
    in the charge the trial judge dealt squarely with the issue of the
    complainants credibility and instructed the jury that this evidence must be
    considered in respect of each count:

The overriding issue in this case is the credibility of the
    complainant [G.A.S.].
Credibility relates to a witnesss truthfulness and
    reliability.  Crown counsel must prove the essential elements of each alleged
    offence beyond a reasonable doubt.  In connection with each offence alleged in
    this case, the Crowns case is dependent on the evidence of [G.A.S.].
Consequently, with respect to each offence under
    consideration, you must be satisfied beyond a reasonable doubt that [G.A.S.]s
    evidence is credible on the essential elements of that offence as I have
    defined them, or that offence is not proven.
You do not need to
    find that [G.A.S.] is credible in everything that she said, apart from the
    essential elements of the offence under consideration.

You must consider and weigh all the evidence cumulatively
    and not in isolation or individually.

[Emphasis added.]

[38]

When
    viewed in the context of the charge as a whole, it is clear that the trial
    judge adequately instructed the jury on the complainants credibility.  As
    stated above, the trial judge instructed the jury that [t]he overriding issue
    in this case is the credibility of the complainant and that the jury must
    consider and weigh all the evidence cumulatively and not in isolation or
    individually.  The jury would not have believed that it was precluded from
    applying general credibility findings to different counts.

(b)

Direction respecting the credibility of the complainant and the lack of
    a special caution or
Vetrovec
warning:

[39]

The
    appellant submits that the trial judge erred in failing to instruct the jury to
    view the complainants evidence with caution.  The appellant argues that such a
    warning was necessary due to the complainants acknowledged history of lying,
    the fact that she did not tell the truth on one point at the preliminary
    inquiry, and the inconsistencies in her testimony.

[40]

I
    do not agree.  A trial judges decision to give a
Vetrovec
caution is
    a matter of discretion, rather than a duty:
R. v. Brooks
, 2000 SCC 11,
    [2000] 1 S.C.R. 237, at para. 2.  This exercise of discretion should generally
    be given wide latitude by appellate courts:
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 614.  While a
Vetrovec
warning may be mandatory if
    the concern over the credibility of the witness and the importance of the
    evidence are great, there was no such requirement in this case.  Furthermore,
    while there may be inconsistencies in a witnesss evidence and concerns with
    the witnesss credibility, provided the trial judge acted judicially in
    exercising his or her discretion, an appellate court should accord a high
    degree of deference to the exercise of discretion.

[41]

Vetrovec
warnings are not restricted to cases of traditional unsavoury witnesses.  As
    observed by the Manitoba Court of Appeal in its recent decision,
R. v.
    Fatunmbi
, 2014 MBCA 53, 310 C.C.C. (3d) 93, at paras. 36 and 39, leave to
    appeal to S.C.C. refused, [2014] S.C.C.A. No. 366:

[I]nconsistencies in a witnesss evidence may attract a
    cautionary warning even if the witness does not fit the traditional definition
    of an unsavoury witness, but a warning is not required in every case where
    there are inconsistencies. If that were the case, almost every witness would
    attract a warning, as defence counsel can usually find some inconsistencies in
    a witnesss evidence, especially if the witness has given one or more police
    statements and then testified in an earlier preliminary inquiry or other
    proceeding.

[A] trial judge must weigh
the importance of the testimony
or the evidence to the determination of guilt and
the significance of the
    credibility problems
to determine whether to give a warning. [Emphasis
    added.]

[42]

In
    the present case, the complainants evidence was important to the Crowns
    case.  However, the fact that her evidence was essential does not make a
Vetrovec
warning mandatory:
R. v. Carroll
, 2014 ONCA 2, 304 C.C.C. (3d) 252, at
    para. 74, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193.  The
    degree and nature of concern with regards to her credibility must be
    considered.  The appellant points to certain problems with the complainants
    credibility, such as her history of lying to her mother, inconsistencies in her
    testimony, and the fact that she admittedly made an untrue statement at the
    preliminary inquiry.  However, the mere fact that a witnesss credibility was
    in issue is not sufficient to interfere with the trial judges discretion not
    to give a
Vetrovec
warning.

[43]

Trial
    judges must consider not only the degree to which credibility is a concern;
    they must consider as well the nature of the particular credibility problems,
    and whether lay members of the jury are adequately equipped to assess the
    witnesss credibility.  According to
Carroll
, at para 78, [t]he
    rationale that underpins a
Vetrovec
caution originates in the concern
    that, for certain types of witnesses, lay members of the jury simply lack the
    critical experience to adequately gauge the credibility of these types of
    witnesses and the reliability of their evidence.  The concerns raised by the
    appellant regarding the complainants credibility relate to lies that she had
    told or misstatements she made in the past.  There is no reason to think that a
    contemporary Canadian jury would not be capable of taking this into account
    given the trial judges instructions on her credibility and the position of the
    defence in that respect.

[44]

The
    trial judge did not consider it necessary to give a
Vetrovec
warning.
    This was fully within her discretion to decide.  What is more, defence counsel
    did not ask the trial judge to provide a
Vetrovec
warning or to
    strengthen the language in her charge regarding the complainants credibility.  In
    my view, the trial judge was aware that the complainants credibility was in
    issue, and adequately conveyed this in her charge to the jury.  As such, this
    ground of appeal must fail.

(c)

Direction on the complainants delay in reporting:

[45]

The
    appellant submits that trial judge erred when she instructed the jury that the
    complainants delay in reporting the sexual assaults could not on its own give
    rise to an inference against the complainants credibility.  The appellant
    contends that when the delay is combined with other factors, such as the
    complainants efforts to dissuade the police from contacting her best friend,
    the potential inference that the complainant lied about disclosing sexual abuse
    to her best friend, and the fact that she continued to frequent the appellants
    home and vehicle, the jury was entitled to draw a negative inference about the
    complainants credibility.  The appellant asserts that the trial judge should
    have instructed the jury accordingly.  Again, I would reject this ground.

[46]

The
    trial judges instruction on the timing of disclosure of sexual abuse was
    appropriate and reflected the guidance provided by the Supreme Court of Canada
    in
R. v. D.D.,
2000 SCC 43, [2000] 2 S.C.R. 275,
at paras. 63-65.  The trial judge was careful to state in the charge to
    the jury that [a] delay in telling someone about sexual abuse,
standing by
    itself
, will never give rise to an adverse inference against the
    credibility of a complainant (emphasis added).  The appellant has cited no
    authority compelling a trial judge to instruct a jury on inferences that may be
    drawn when delay in disclosure is considered in conjunction with other
    factors.  Furthermore, the appellant did not object to the jury charge.  The
    jury was aware of the defences concerns about the complainants credibility in
    this respect.  In the circumstances, I see no error regarding this aspect of
    the judges charge.

(d)

The review of the Crowns position on corroboration:

[47]

The
    appellant submits that the trial judge erred by instructing the jury that the
    evidence of the complainants mother and the appellants statement to police
    corroborated the complainants testimony.  The appellant relies on this courts
    decision in
R. v. G.(G.)
(1995), 97 C.C.C. (3d) 362
,
at p. 375, for the proposition that [e]vidence that is equally consistent with
    either of two diametrically opposed possibilities does not  lend support to
    either one of them.  The appellant submits that the evidence of the mother and
    the appellant was neutral, and not corroborative of the complainants evidence.

[48]

The
    Crown submits that the evidence of the appellant and the mother could be
    probative of issues in dispute.  Particularly, this evidence could be probative
    of opportunity to commit the offence, the complainants credibility, and could
    also provide an explanation for why the complainant continued to frequent the
    appellants residence and for the timing of the complaint.  The Crown relies on
R. v. M.(F.S.)
(1995), 111 C.C.C. (3d) 90 (Ont. C.A.), at p. 97, which
    distinguishes
G.(G.)
on the basis that where opportunity is in
    dispute, evidence that is probative of opportunity can be confirmatory of the
    complainants allegations.

[49]

I
    would reject this ground.  At the outset, I would note that corroborating
    evidence was not required for the jury to convict the appellant in this case:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 274.

[50]

Reading
    this part of the charge as a whole, it is apparent that it did not function
    only to catalogue evidence the Crown submitted was corroborative.  It also
    served as a summary of the evidence relied on by the Crown and a summary of the
    Crowns position on the evidence more generally.  It included, for example,
    some evidence from R.A. and the appellant that contradicted the complainants
    account, and an explanation of the Crowns position on that evidence.  Not all
    of the evidence summarized by the trial judge was put forward as potentially
    corroborative of the complainants evidence.

[51]

Second,
    many of the references to potentially corroborative evidence related to issues
    raised over the course of trial.  For example, defence counsel challenged why
    the complainant would continue visiting the appellants home when she was being
    assaulted and questioned her delay in disclosing the abuse.  The appellant and
    R.A.s evidence on the closeness of the families tended to explain the particular
    issue of her delay in disclosing, namely, the high value the complainant said
    she placed on these relationships and her desire not to hurt the appellants
    family as a whole.

[52]

Third,
    to the extent that the trial judge referred to evidence that could not
    corroborate the complainants account according to the definition of
    corroboration in
G.(G.)
, this evidence was innocuous.  The trial judge
    clearly instructed the jury that the complainants credibility on the essential
    elements of the offences charged was the main issue in the trial.  The jury was
    more than capable of appreciating that the consistency between witnesses on
    tangential and not particularly contentious points did not bolster the
    complainants credibility on the essential elements of the offences.

[53]

Finally,
    the trial judge did not state that this evidence in fact corroborated the
    complainants account.  Her review of the evidence was made under the heading
    Position of the Crown.  Upon completing her summary of the Crowns case, the
    trial judge stated, As I said, that is the position of the Crown.  The trial
    judge then proceeded to lay out the position of the defence, which included
    inconsistencies between the evidence of the complainant and that of her
    mother.  The jury could not have been left with the understanding that the
    mothers evidence was definitively corroborative of the complainants evidence;
    rather, it was correctly left with the understanding that this was the Crowns
    position, and it was for them to decide whether the mothers testimony and the
    appellants recorded interview corroborated the complainants account of events
    on material issues.

(e)

Failure to provide a limiting instruction on evidence of the appellants
    alleged mistreatment of his children:

[54]

The
    appellant submits that the trial judge erred by not providing a limiting
    instruction with respect to evidence, which was contested by the defence, that
    the appellant exhibited violent conduct towards his own children.  The
    appellant argues that there is a risk the jury could have wrongfully used this
    evidence to infer that because he abused his children, he was more likely to be
    guilty of the offences charged.  The respondent submits that the evidence would
    not cause moral prejudice or reasoning prejudice, and that realistically, the
    jury would only have used this evidence to assess the complainants
    credibility.  Alternatively, the respondent relies on the curative proviso and submits
    that this evidence would not have affected the verdict, noting that defence
    counsel never sought a limiting instruction at trial.

[55]

While
    I do agree with the appellant that it would have been preferable for the trial
    judge to provide a limiting instruction, in my view, when the charge and the
    evidence are considered in their entirety, the absence of a limiting
    instruction would not have affected the verdict.

[56]

It
    is settled law that it is impermissible for a trier of fact to reason that a
    person is more likely to have committed the offence charged because of his or
    her bad character:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at
    para. 139.  Evidence of bad character that shows only that [the accused] is
    the type of person likely to have committed an offence with which she or he is
    charged is inadmissible:
R. v. T.(J.A.)
, 2012 ONCA 177,

288
    C.C.C. (3d) 1, at para. 51.  When bad character evidence is admitted into a
    jury trial, a limiting instruction should be provided to the jury.  The
    instruction includes three elements, as summarized by Watt J.A. at para. 53 of
T.(J.A.)
:

i.

a description of the evidence to which the instruction applies;

ii.

a positive instruction advising the jury about the use they may make of
    the evidence (the permitted use); and

iii.

a negative instruction directing the jury about the use they must not
    make of the evidence (the prohibited use).

[57]

This
    rule is of general, but not unyielding application:
T.(J.A.)
, at
    para. 65.

[58]

A
    limiting instruction would certainly have been preferable in the present case.
    The complainants videotaped statement contained evidence that the appellant
    threw a drawer at one of his children, threw another child onto her bed, and
    locked his children in their bedrooms.  This evidence created the risk that the
    jury would impermissibly reason that the appellant was more likely to have
    committed the sexual offences charged because he was violent towards his own
    children.  Evidence that the appellant had exhibited violence toward his
    children had very little probative value and is, when viewed in isolation,
    prejudicial.  A limiting instruction should have been provided.

[59]

However,
    there are several reasons why the absence of a limiting instruction, standing
    alone, does not create a reversible error in this case.

[60]

First,
    the prejudicial evidence was not a prominent element in the evidence, viewed as
    a whole.  The trial judge summarized for the jury the relevant evidence on each
    count.  The evidence in question was not included in these instructions.

[61]

Second,
    to the extent that the evidence in question was mentioned in the charge to the
    jury, it was in the context of the Crowns and defences positions on the
    complainants credibility.  In explaining the Crowns position that the
    complainants evidence was corroborated by her mothers evidence, the trial
    judge stated that the complainants mother testified to hearing a noise and
    seeing [one of the appellants children] running from the area, in
    circumstances similar to what [the complainant] had told the officer in her
    videotaped interview in recounting that [the appellant] threw a dresser drawer
    at [his child].  In the review of the defence position, the trial judge
    pointed out how the complainants evidence on the appellants conduct differed
    in her various statements and was contradicted by her mothers testimony. In
    this context, the jury would have understood that the evidence could be used to
    assess the complainants credibility.  No other purpose was suggested.

[62]

Finally,
    it should be noted that the defence never requested a limiting instruction at
    trial and did not object to the charge on this basis.  While this is not
    determinative, it is an important factor:
Simon
, at para. 45.  I would
    reject this ground of appeal.

B.

disposition

[63]

For
    the reasons outlined above, I would dismiss the appeal.

Released: DW Mar 20, 2015

M. Tulloch J.A.

I agree. David Watt
    J.A.

I agree. M.L.
    Benotto J.A.

[1]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Budimirovic, 2015 ONCA 142

DATE: 20150304

DOCKET: C59336

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexsander Budimirovic

Appellant

Alexsander Budimirovic, acting in person

Jeremy Streeter, for the respondent Public Prosecution
    Service of Canada

Heard and released orally:  February 24, 2015

On appeal from the judgment of Justice Hugh OConnell of
    the Superior Court of Justice, dated September 15, 2014 to dismiss his
    application for
certiorari
.

ENDORSEMENT

[1]

The appellant appeals the decision of OConnell J. to dismiss his
    application for
certiorari
. The appellant sought to quash his
    committal for trial by Tetley J. in Newmarket, Ontario on May 30, 2013.

[2]

His position before OConnell J. and before this court, is that Tetley
    J. lost jurisdiction when he did not grant him a further adjournment in April
    of 2012. The application judge concluded that there was no merit in his
    application and dismissed it.  We agree with his decision.

[3]

In his careful reasons, the application judge reviewed in detail the
    lengthy history of this matter which began when the appellant was charged on
    November 26, 2009 with trafficking in heroin, two counts of possessing heroin
    for the purpose of trafficking, possessing marijuana and failing to comply with
    a recognizance.

[4]

The preliminary inquiry was originally scheduled to commence on May 20,
    2010 and was not completed until May 30, 2013 and now has been delayed a
    further 20 plus months while this appeal has worked its way through the system.

[5]

In our view, the preliminary inquiry judge was more than reasonable in
    accommodating the appellant. His refusal to grant yet a further request for
    adjournment by the appellant was a matter for his discretion and was reasonable
    in all the circumstances. There has been no denial of natural justice to the
    appellant and as the application judge noted:

Nothing in this record does other than make it plain that
    Justice Tetley indulged and ensured that Mr. Budimirovic as a
    self-represented party as time went on, was given exquisite attention to
    fairness inclusive of preservation of natural justice.

[6]

We agree with that comment.

[7]

The appeal is dismissed.  This matter is remitted to the Superior Court
    of Justice to fix the trial date at the earliest available date.

J. MacFarland J.A.

M.
    Tulloch J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Chen, 2015 ONCA 144

DATE: 20150304

DOCKET: C58428

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Jing Ming Chen and Kien Sheng Kwok

Respondents

Kevin Wilson, for the appellant

Richard M. Goldman, for the respondent Jing Ming Chen
    and

Christopher Adrian Avery, for the respondent Kien Sheng
    Kwok

Heard and released orally:  February 24, 2015

On appeal from the sentence imposed on February 12, 2014
    by Justice Stephen Glithero of the Superior Court of Justice.

ENDORSEMENT

[1]

The trial judge indicated that the appropriate sentence in relation to
    Mr. Kwok was 39 months and we agree. He then considered the fact of
    Mr. Kwoks co-operation and said a credit of five to six months would be
    appropriate to reflect that.  We see no error.

[2]

The difficulty here is that while the trial judge discussed parity he
    did not fix any determinate amount to be credited to this appellant. By process
    of elimination in imposing a sentence of two years less one day, he had to have
    allowed approximately nine months in this regard.

[3]

In our view, because of Mr. Kwoks previous criminal antecedents for a
    similar offence, we are of the view that his situation differs from that of his
    three co-accused. In the circumstances, on the basis of
R. v. Fice
,
    [2005] 1 SCR 742  a conditional sentence was not available.

[4]

We would allow the appeal, set aside the conditional sentence of two years
    less one day, impose a sentence of 39 months less six months for co-operation
    with the authorities and a further 12 months to reflect the time served on the
    conditional sentence.  This leaves a further period of 21 months of
    incarceration to be served.

J. MacFarland J.A.

M.
    Tulloch J.A.

G.
    Pardu J.A.