R. v. R.O., 2015 ONCA 814

• Judge: Gillese, Tulloch and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 25, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 814;(2015), 341 O.A.C. 255 (CA)

R. v. R.O. (2015), 341 O.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.036

Her Majesty the Queen (respondent) v. R.O. (appellant)

(C57676; 2015 ONCA 814)

Indexed As: R. v. R.O.

Ontario Court of Appeal

Gillese, Tulloch and Lauwers, JJ.A.

November 25, 2015.

Summary:

A jury found the accused guilty of sexual assault and sexual interference. The trial judge sentenced the accused to seven years' imprisonment. The accused appealed against conviction and sentence. The accused argued that "1) The trial was rendered unfair due to the admission of evidence of discreditable conduct. The limiting caution given in relation to this evidence was insufficient to cure the prejudice caused. 2) The trial judge erred by allowing the Crown to invite the jury, in the absence of expert evidence, to infer that the complainant's allegations of abuse were corroborated by her behaviour. 3) The exhortation given by the judge to the jury was improper. 4) The sentence of seven years is excessive due to the trial judge's failure to appropriately take into consideration the five years he spent on strict bail conditions".

The Ontario Court of Appeal dismissed both appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Evidence and proof - [See Criminal Law - Topic 5529 ].

Criminal Law - Topic 4364.1

Procedure - Jury charge - Directions to expedite deliberations - A jury, after 5.5 hours of deliberations, asked the trial judge "What happens when we are 11 to 1?" - The trial judge explained that "a verdict means that all 12 of you must agree" and that a verdict must be unanimous - The trial judge told the jury to continue to try to reach a unanimous verdict and, if that was not possible, to pass her a note - The accused, in appealing his convictions, argued that the trial judge erred in giving this exhortation by failing to tell the jury that they had a right to disagree - The Ontario Court of Appeal, in dismissing the accused's appeal, held that the jury's question was not indicative that they were deadlocked - The jury was specifically instructed to pass her a note if they could not agree - The trial judge did not place undue pressure on the jury or introduce irrelevant factors to their deliberations - The exhortation assisted the deliberation process, but did not influence it - See paragraphs 45 to 53.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - A jury found the accused guilty of sexual assault and sexual interference for sexually abusing his 7-13 year old stepdaughter between 2003 and 2008 - The alleged abuse escalated from touching to sexual intercourse and oral sex - The accused appealed on the ground that the trial judge improperly admitted bad character evidence and failed to give instructions to the jury sufficient to cure any prejudice - The Ontario Court of Appeal dismissed the appeal - Not only was there no objection to this evidence at trial, the accused introduced and amplified much of it as part of his strategy to emphasize the bad character of the step-daughter and to diminish the credibility of her, her mother and her brother - Evidence that the accused used drugs, supplied alcohol and drugs to his children and the step-daughter, and that there were no rules, was relevant to the nature of the relationship between the accused and the step-daughter and their respective credibility - Evidence as to the family breakdown, the accused's 19 year old girlfriend, and the state of living conditions in his home were part of the context of who was living where and why - The living arrangements and why the step-daughter continued to live with the accused were issues at trial - There was also evidence that the accused sold drugs and hearsay that he admitted raping his sister when they were young - The jury was properly instructed that relevant bad character evidence could be used as context or background to the events that unfolded, to resolve discrepancies between witnesses as to what did or did not occur, and to help assess witness credibility - The jury was clearly instructed that they could not use the evidence to reason that the accused was the type of person who would have sexually abused his step-daughter and that the evidence could not be used to provoke hostility or bias against the accused, or to find that he was deserving of punishment - Any risk of prejudice was negated by the jury instructions - See paragraphs 8 to 35.

Criminal Law - Topic 4391.1

Procedure - Jury charge - Deadlocked jury exhortation - [See Criminal Law - Topic 4364.1 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5529

Evidence and witnesses - Testimony respecting the victim - Behaviour of victim - A jury found the accused guilty of sexual assault and sexual interference for sexually abusing his 7-13 year old stepdaughter between 2003 and 2008 - The alleged abuse escalated from touching to sexual intercourse and oral sex - The accused appealed on the ground that the trial judge erred by permitting the Crown to invite the jury, in the absence of expert evidence, to infer that the step-daughter's allegations of abuse were corroborated by her worsening behaviour over the alleged period of abuse - The Ontario Court of Appeal dismissed the appeal - The accused's strategy was to attempt to diminish the step-daughter's credibility - Highlighting her bad behaviour was part of that strategy - The Crown was entitled to respond by arguing that her worsening behaviour was a result of the abuse - The Crown did not impermissibly argue for a scientific link or inference between the step-daughter's behaviour and the existence of abuse - That allegation would have "led to enormous prejudice against the [accused]" - No expert evidence was adduced, as such evidence known as "Child Sexual Abuse Accommodation Syndrome" was inadmissible - Expert evidence on the step-daughter's behaviour and its potential causes would "lend the evidence unwarranted significance" - It was open to the jury to assess the cause or causes for the step-daughter's behaviour and weigh it accordingly - The court disagreed with the accused that the trial judge misled the jury into believing that this evidence was definitive on the issue of whether the step-daughter had been sexually abused - The trial judge merely summarized the Crown's position, which included the submission that her bad conduct might have been consistent with the impact of abuse - See paragraphs 38 to 44.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - A jury found the accused guilty of sexual assault and sexual interference for sexually abusing his 7-13 year old stepdaughter between 2003 and 2008 - The alleged abuse escalated from touching to sexual intercourse and oral sex - The accused spent five years on strict bail conditions, including initially under house arrest and a curfew, weekly reporting, abstention from drugs and alcohol, etc. - The accused appealed his seven year sentence on the ground that it was demonstrably unfit, particularly considering the onerous conditions of his lengthy pre-trial bail and the fact that it demonstrated that he was on the path to rehabilitation - The trial judge did not assign a particular credit for bail, but did state that she did consider it globally in fixing sentence - The Ontario Court of Appeal held that the trial judge "fulfilled the approach to credit for pre-trial bail conditions" - The court stated that "the trial judge appropriately considered and weighed all the relevant factors. In the case of an adult offender in a position of trust who sexually abused a child on a regular basis, the sentence of seven years imprisonment cannot be said to be demonstrably unfit" - See paragraphs 54 to 60.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Bero (C.) (2000), 137 O.A.C. 336 (C.A.), refd to. [para. 13].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 15].

R. v. D.S.F. (1999), 118 O.A.C. 272; 43 O.R.(3d) 609 (C.A.), refd to. [para. 16].

R. v. C.B. (2008), 237 O.A.C. 387; 2008 ONCA 486, refd to. [para. 16].

R. v. J.A.T. (2012), 290 O.A.C. 130; 288 C.C.C.(3d) 1; 2012 ONCA 177, refd to. [para. 26].

R. v. Beausoleil (C.) (2011), 283 O.A.C. 44; 2011 ONCA 471, refd to. [para. 34].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 41].

R. v. Olscamp (1994), 95 C.C.C.(3d) 466 (Ont. Gen. Div.), refd to. [para. 41].

R. v. R.A.N. (2001), 277 A.R. 288; 242 W.A.C. 288; 152 C.C.C.(3d) 464; 2001 ABCA 61, refd to. [para. 42].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81, refd to. [para. 51].

R. v. Sims, [1992] 2 S.C.R. 858; 139 N.R. 305; 10 B.C.A.C. 94; 21 W.A.C. 94, refd to. [para. 53].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 56].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 56].

R. v. Downes (C.) (2006), 208 O.A.C. 324; 79 O.R.(3d) 321 (C.A.), refd to. [para. 58].

R. v. D.D. (2002), 157 O.A.C. 323; 58 O.R.(3d) 788 (C.A.), refd to. [para. 60].

R. v. P.M. (2012), 289 O.A.C. 352; 282 C.C.C.(3d) 450; 2012 ONCA 162, refd to. [para. 60].

R. v. D.M. (2012), 294 O.A.C. 71; 111 O.R.(3d) 721; 2012 ONCA 520, refd to. [para. 60].

Counsel:

Erika Chozik, for the appellant;

Lucy Cecchetto, for the respondent.

These appeals were heard on May 7, 2015, before Gillese, Tulloch and Lauwers, JJ.A., of the Ontario Court of Appeal.

On November 25, 2015, Tulloch, J.A., released the following judgment for the Court.