Her Majesty the Queen v. R.M. [Indexed as: R. v. M. (R.)]
Ontario Reports Court of Appeal for Ontario Hourigan, B.W. Miller and Nordheimer JJ.A. March 19, 2020 150 O.R. (3d) 369 | 2020 ONCA 231
Case Summary
Criminal law — Appeal — Grounds — Unreasonable verdict — Appellant convicted of sexual assault in 2018 for offences occurring in 1990 — Appellant's DNA found in complainant's underwear — Appellant suggesting possibilities inconsistent with his guilt for how his DNA got into underwear — Trial judge rejecting appellant's theories as speculative — Verdict not unreasonable as there was no evidence to support appellant's theories but some evidence to negate them.
Criminal law — Rule against multiple convictions — Appellant convicted of sexual assault with a weapon, robbery and uttering threats for an attack on a sex worker with another person — Trial judge staying conviction for gang sexual assault — Sexual assault with a weapon and gang sexual assault protected different interests and were not two ways of committing the same offence — Stay set aside and conviction entered.
Criminal law — Sentencing — Young person sentenced as adult — Appellant convicted of sexual assault, robbery and uttering threats in 2018 for offences occurring in 1990, when appellant was 17 — Appellant sentenced to total of eight years — Presumption of diminished moral blameworthiness of young person rebutted by evidence of dynamics of offences — Trial judge relying on subsequent criminal record not as aggravating factor but as an aid in determining rehabilitative prospect — Sentence not demonstrably unfit.
Criminal law — Trial — Evidence — Credibility — Appellant convicted of sexual assault in 2018 for offences occurring in 1990 — Trial judge determining that inconsistencies in complainant's evidence regarding events prior to attack were immaterial to his finding that complainant was credible regarding circumstances of attack — Trial judge not in error.
The complainant was a sex worker who was violently and repeatedly raped at knifepoint by two men who then debated whether they should let her "get away" before robbing her of cash. The incident occurred in 1990. A police investigation was unfruitful, but in 2002 a review of cold cases discovered deposits of two male DNA profiles in the complainant's underwear. In 2016, a blood sample match established that the major DNA profile in the underwear was that of the appellant, who was 17 at time of the incident. At trial, he posited three reasonable possibilities inconsistent with his guilt: he might have been one of the complainant's customers shortly before the attack, he might have had sex with the complainant at an earlier time, or his semen might have been on a surface which made contact with the complainant or her underwear. The trial judge rejected the theories as speculative. The appellant was convicted of gang sexual assault, sexual assault with a weapon, uttering threats, and robbery. He was sentenced to six years' incarceration for sexual assault with a weapon and one year each for robbery and uttering threats, all to be served consecutively for a total of eight years. The gang sexual assault conviction was conditionally stayed. The appellant appealed his convictions and sentence. The Crown cross-appealed the conditional stay.
Held, the appeal should be dismissed; the cross-appeal should be allowed.
The verdict of guilt was not unreasonable. It was open to the trial judge to reject the appellant's theories as speculative because there was no evidence to support the theories but there was evidence to negate them.
The trial judge did not err in his assessment of the complainant's credibility. The complainant provided details regarding the assault, including information about the perpetrators' actions and what they said during and after the attack. There were inconsistencies in her evidence related to details of events preceding the attack, but the trial judge did not err in finding that those inconsistencies were immaterial to his credibility assessment.
The sentence was not demonstrably unfit. Due to the passage of time, the Crown was unable to adduce the type of evidence that might typically be relied on to rebut the presumption of diminished moral blameworthiness of a young person. The trial judge did not rely solely on the nature of the offences to rebut the presumption. The judge considered the dynamics of the commission of the offences and found that the attackers engaged in deliberations suggesting an appreciation of the crimes they were committing, the crimes they considered committing, and the risks and consequences attendant on both. The judge was also aware that these were first offences. He did not treat the appellant's subsequent record as an aggravating factor, but rather used it as an aid in determining the appellant's rehabilitative prospects. The incident involved a particularly vicious attack on a vulnerable victim so while a global sentence of eight years for a 17-year-old first offender may have been harsh it was not unfit.
The judge erred in unilaterally staying the conviction for gang sexual assault. Sexual assault with a weapon and gang sexual assault were not two ways of committing the same offence. Though both involved heightened coercion, the two offences protected different interests. The use of a weapon significantly increased the risk of physical harm. Committing sexual assault in a group compounded the violation of the victim's sexual integrity and could significantly increase the risk of sexually transmitted disease and pregnancy. The entering of a conviction for gang sexual assault affected only the appellant's criminal record and not the sentence.
R. v. Lacasse, 2015 SCC 64; R. v. Osbourne, 1994 ONCA 7209, folld
R. v. Kienapple, 1974 SCC 14, consd
Other cases referred to
Gill v. Ontario (Registrar of Motor Vehicles), 1985 ONCA 2202; R. v. Assing, 2008 ONSC 58607; R. v. Adan, 2019 ONCA 709; R. v. Andrade, 2010 NBCA 62; R. v. Ellacott, 2017 ONCA 681; R. v. Kavanagh, 2009 ONCA 759; R. v. Kinnear, 2005 ONCA 21092; R. v. Onyedinefu, 2018 ONCA 795; R. v. Pete, 2019 BCCA 244; R. v. Rocheleau, 2013 ONCA 679; R. v. Villaroman, 2016 SCC 33; R. v. W. (M.), 2017 ONCA 22; R. v. Wilson, 2020 ONCA 3; R. v. Wyatt, 2017 ONCJ 390
Statutes referred to
Highway Traffic Act, R.S.O. 1980, c. 198 Youth Criminal Justice Act, S.C. 2002, c. 1, s. 72(1)
APPEAL by the offender from the conviction entered by O'Marra J., 2018 ONSC 5358 and the sentence, 2019 ONSC 3007; CROSS-APPEAL by the Crown of conditional stay of conviction.
Andrew Burgess, for R.M. Ken Lockhart, for Her Majesty the Queen.
The judgment of the court was delivered by
HOURIGAN J.A.: —
I. Overview
[1] R.M. was found guilty of gang sexual assault, sexual assault with a weapon, uttering threats and robbery. He was 17 years old at the time of the offences but was not charged until approximately 24 years later. R.M. appeals both his convictions and sentence. The Crown cross-appeals the conditional stay of the gang sexual assault conviction. As will be discussed, I would dismiss the conviction and sentence appeals, but allow the Crown's cross-appeal.
[2] R.M. advances two grounds of appeal against his conviction. First, he submits that the verdict is unreasonable because other reasonable inferences could have been drawn from the circumstantial evidence. I would not give effect to this ground of appeal, as the alternative inferences proposed by R.M. are entirely speculative.
[3] The second argument made on the conviction appeal is that the trial judge erred in his assessment of the complainant's credibility. I do not accept that submission. The trial judge properly considered inconsistencies in the complainant's evidence and determined that those inconsistencies were immaterial to his finding that the complainant was credible.
[4] The trial judge sentenced R.M. to six years' incarceration for the sexual assault with a weapon conviction, and one year each for the convictions for robbery and uttering threats, all to be served consecutively, for a total of eight years. On the sentence appeal, R.M. submits that a youth sentence is appropriate, or alternatively, an adult sentence of three years' incarceration should be imposed.
[5] In support of his position that a youth sentence is appropriate, R.M. submits that the Crown failed to rebut the presumption of diminished moral culpability for a young offender (the "Presumption"). Given that the trial took place approximately 27 years after the offences, there was not extensive evidence regarding R.M.'s maturity, moral sophistication and capacity for independent judgment at the time of the offences. However, there was sufficient evidence on the record to permit the trial judge to conclude that the Crown had met its onus of rebutting the Presumption. Accordingly, I would dismiss this ground of appeal.
[6] The second ground of appeal on sentence is that the trial judge violated the Coke principle, which will be explained below, at para. 31, by relying on R.M.'s subsequent criminal record as an aggravating factor in sentencing him for what were his first offences. Assuming, without deciding, that the Coke principle applies in this case, I am not satisfied that the trial judge used the subsequent record as an aggravating factor on sentence. Instead, he made a brief reference to the record for the permissible purpose of evaluating R.M.'s rehabilitative prospects.
[7] Regarding the fitness of the sentence, this was a vicious sexual assault of a vulnerable victim. The trial judge did not err in fixing the sentence, and the sentence was not demonstrably unfit. There is, therefore, no basis for appellate interference.
[8] Concerning the Crown cross-appeal, the trial judge erred in conditionally staying the gang sexual assault conviction because there is an insufficient legal nexus between that conviction and the conviction for sexual assault with a weapon. Therefore, the conditional stay order must be set aside.
II. Facts
[9] In the summer of 1990, the complainant was 21 years old and was a sex worker in Toronto. On the night of August 16, a client drove her back from his apartment to the intersection of Church and Carlton Streets. The complainant got out of the car and was looking through her purse for a cigarette when someone grabbed her and dragged her into a parking lot. Two men violently and repeatedly raped her at knifepoint. They debated whether they should "let her get away". They threatened her not to tell anyone, ridiculed her, robbed her of $500 and then fled.
[10] Fearful that the assailants might still be in the area, the complainant gathered her belongings and flagged down a taxi, which took her to the hospital. The subsequent police investigation was unfruitful.
[11] In 2002, a police review of cold cases discovered deposits of two male DNA profiles in the complainant's underwear. In 2016, a blood sample was matched to one of these DNA profiles. There was no dispute that the major DNA profile in the complainant's underwear belonged to R.M.
[12] At trial, the complainant was able to recount the details of the sexual assault but was inconsistent in describing some of the events that occurred before, and during, the assault. R.M. did not testify or call any evidence.
III. Analysis
(a) Conviction appeal
(i) Unreasonable verdict
[13] This was a circumstantial case. The only evidence tying R.M. to these crimes was the presence of his DNA in the complainant's underwear. Accordingly, the trial judge could only have found R.M. guilty if he was satisfied that guilt was the only reasonable conclusion on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 18-19, and 55.
[14] In support of the unreasonable verdict argument, R.M. submits that there were various reasonable possibilities inconsistent with his guilt. Specifically, he argues that there are three ways in which his DNA could have been deposited in the complainant's underwear:
(1) He may have been one of the complainant's customers shortly before the attack, and his semen may have been deposited in the complainant's underwear, directly or indirectly.
(2) He may have had sex with the complainant at an earlier point, and condom failure may have deposited his semen within the complainant. The semen may have then drained onto her underwear over time, and the complainant either did not change her underwear, or the semen withstood washing, in the interim.
(3) The semen may have been located on a surface which made contact with the complainant or her underwear, and such contact may have transferred the semen to the underwear if either the semen or the underwear was wet.
[15] R.M. relies on the fact that the complainant performed sex acts on a commercial basis and could not recall, many years later, whom she had intercourse with, to support the possibility that he may have been one of those men.
[16] In a mostly circumstantial case, the trier of fact must consider all plausible theories inconsistent with guilt. However, those theories must not be speculative and must be rooted in logic and experience as applied to the evidence or lack of evidence. A trier of fact is "not required to 'negate every possible conjecture' which might be consistent with the innocence of the accused": R. v. Onyedinefu, 2018 ONCA 795, at para. 12.
[17] All of these theories were considered by the trial judge and rejected as speculative. That finding was open to him as there was no evidence to support the theories. There was, for example, no evidence that R.M. had ever been a customer of the complainant. There was also evidence to negate the theories. The complainant testified that she did not recognize R.M., which casts doubt on whether he was a customer on the evening of the attacks or at any other point. Further, at the time of the attacks, the only person the complainant was having unprotected sex with was her boyfriend. Finally, the complainant was consistent and reliable in her evidence as to her meticulous practices as a sex worker. She always made customers use double condoms, and she avoided contact with semen.
[18] For these reasons, I would dismiss this ground of appeal.
(ii) Credibility assessment
[19] R.M.'s second argument on his conviction appeal is that the trial judge erred in his assessment of the complainant's credibility. There were inconsistencies in the complainant's evidence related to the details of events that preceded the attack, in particular the nature of the sex acts she engaged in with her clients before the attack. R.M. argues that these inconsistencies are crucial, and they support the argument that he may have been a client of the complainant at some relevant point.
[20] This argument is not persuasive. There is no question that the complainant was violently sexually assaulted. She provided details regarding the assault, including information about the perpetrators' actions and what they said during and after the attack. The credibility and reliability of that evidence are not challenged. The trial judge did not err in finding that the inconsistencies regarding whom the complainant had sex with, and precisely what happened during those encounters, were immaterial to his credibility assessment. R.M. relies on them solely to support his speculative alternative theories of liability, which do not raise a reasonable doubt about his guilt. The trial judge found the complainant reliable and consistent on key points of relevance to these alternative theories: she had unprotected consensual sex only with her boyfriend; her invariable practice as a sex worker was to always use condoms; and the only unprotected sex she had on the night of the attack was with her two attackers.
(b) Sentence appeal
(i) Appellate review of sentence
[21] Before considering the submissions made by R.M. on sentence, it is helpful to reflect on the authority of intermediate courts of appeal on sentence appeals.
[22] In R. v. Adan, 2019 ONCA 709, at paras. 103-106, Watt J.A. provided a useful summary of the principles of appellate review of sentences after R. v. Lacasse, 2015 SCC 64:
First, sentencing judges are in the best position to determine a just and appropriate sentence that pays heed to the sentencing objectives and principles set out in the Criminal Code. It is especially so where the sentence is imposed after a contested trial. Accordingly, appellate courts accord substantial deference to sentencing decisions when exercising their powers of review under s. 687(1) of the Criminal Code: R. v. Lacasse, 2015 SCC 64, at paras. 11, 48.
Second, an appellate court is entitled to intervene under s. 687(1) of the Criminal Code where the sentencing judge erred in principle, failed to consider a relevant factor, or erred in considering an aggravating or mitigating factor, but only if it appears from the sentencing judge's decision, read as a whole, the error . . . had an impact on the sentence ultimately imposed: Lacasse, at paras. 43-44.
Third, the mere fact that a judge deviates from the proper sentencing range does not, on its own, justify appellate intervention. The choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot, on its own, constitute a reviewable error. Apart from errors of law or principle that impact the sentence, appellate intervention is only warranted where the sentence imposed is demonstrably unfit, that is to say, clearly unreasonable: Lacasse, at paras. 11, 51-52.
The final point concerns aggravating and mitigating factors. While it is an error to consider an element of the offence an aggravating factor, such an error must have had an impact on the sentence imposed to permit appellate intervention: Lacasse, at paras. 42-44. Likewise, a sentencing judge's decision to weigh aggravating and mitigating factors in a particular way does not, in itself, permit appellate intervention unless the weighing is unreasonable: Lacasse, at para. 49, 78.
[23] As is apparent from the foregoing, the authority of appellate courts to interfere with sentences imposed by trial judges has been significantly constrained by the Supreme Court as a result of Lacasse and subsequent jurisprudence. With those principles in mind, I turn to the grounds of appeal advanced by R.M. on his sentence appeal.
(ii) Presumption of moral blameworthiness
[24] Section. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 provides:
72(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that
(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
[25] The leading case in Ontario on the Presumption is R. v. W. (M.), 2017 ONCA 22, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 109. There, this court stated, at para. 98:
In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her.
[26] Due to the passage of time, in the present case, the Crown was unable to adduce the type of evidence that might typically be relied on to rebut the Presumption. There was, for example, no psychological evidence regarding R.M.'s maturity at the time of the offences. In the absence of that evidence, R.M. argues that the trial judge erred by merely relying on the nature of the offences as evidence of R.M.'s character at the time. He submits that if sentencing judges need look no further than the constituent elements of the offence charged for evidence that the Presumption has been rebutted, then in any case where there is planning and deliberation, the Crown's onus will be satisfied, defeating the purpose of the Presumption.
[27] I do not accept this submission. A fair reading of the trial judge's reasons for sentence refutes the suggestion that he relied solely on the nature of the offences to rebut the Presumption. At para. 19 of his reasons for sentence, the trial judge stated:
The joint planning in bringing a knife, targeting a vulnerable victim, carrying out the attack in a secluded place away from witnesses, taking the time to rob the victim instead of immediately fleeing, and debating but declining to commit a more serious offence by not letting their victim "get away" all support a level of maturity, independent judgment, and foresight similar to that of an adult. Moreover, [R.M.] was chronologically very close to the adult age of 18 years at the time of the offence.
[28] This passage makes plain that the trial judge considered the dynamics of the commission of the offences to determine what those circumstances tell us about the offender. The attackers had a knife at the ready. They targeted a vulnerable sex worker at night close to a secluded spot suitable for the assault. They co-operated throughout their attack, so that one could keep a knife to her throat while the other assaulted her. They thought to check the insole of her shoe for concealed cash. They joked about the money she had made that evening, and one attacker laughed at the other's inability to penetrate. They weighed the costs and benefits of letting her "get away", as she might go to the police, and after considering what would be "more trouble", one of them said that they should leave her, as this was "just raping". Such deliberations suggest an appreciation of the crimes they were committing, the crimes they considered committing, and the risks and consequences attendant on both.
[29] The seriousness of the offence and the presence of planning and deliberation do not in themselves lead to the conclusion that an offender should be sentenced as an adult. However, the seriousness of the offence must be considered in the analysis. The level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, and the offender's role in carrying out the offence, are relevant to the analysis: W. (M.), at para. 112; R. v. Ellacott, 2017 ONCA 681, at paras. 15-21.
[30] The trial judge carefully reviewed the circumstances of the offences and reached a conclusion that was open to him. He found that both attackers were equal participants, with neither serving as the leader or follower. There was no error in that analysis. There is no basis for appellate interference with this finding, and this ground of appeal must fail.
(iii) The Coke principle
[31] The Coke principle, and its underlying rationale, was recently described by Paciocco J.A. in R. v. Wilson, 2020 ONCA 3, at paras. 60-61, as follows:
"Lord Coke's principle" "is a common law rule applicable to sentencing proceedings unless ousted by a clear statutory provision or by necessary implication": R. v. Hexamer, 2019 BCCA 285, at para. 171, leave to appeal requested, [2019] S.C.C.A. No. 343, citing Skolnick, at p. 58. It holds that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence.
"Lord Coke's principle" makes sense. A repeat offender who has already been sentenced for offending may require increased punishment to achieve specific deterrence since they have not learned from their earlier sentence. Their degree of responsibility is heightened by the contempt their subsequent conduct may show for the sentencing process: R. v. Cheetham, 1980 ONCA 2978, at p. 114. These considerations do not operate where the offender committed the offence being sentenced before being punished for subsequent offences.
[32] R.M. argues that the trial judge erred by taking into account, as aggravating factors, convictions that were registered after the commission of the offences at issue in this appeal. Before dealing with that submission, conflicting case law on the breadth of application of the Coke principle should be considered. An issue that has divided appellate courts in Canada is whether the Coke principle applies to subsequent convictions in sentencing generally, or whether its application is restricted to situations where a penal statute imposes a harsher sentence for a second or subsequent offence.
[33] It appears that the principle was so restricted when first formulated by Lord Coke over 200 years ago. The Court of Appeal of New Brunswick, in R. v. Andrade, 2010 NBCA 62, has adopted this restrictive view. However, the Court of Appeal for British Columbia recently considered and rejected the approach from Andrade in R. v. Pete, 2019 BCCA 244. There, the court held that while the Coke principle originated as a common law principle of statutory interpretation, it has since become the proper general approach to first offenders who have been subsequently convicted of other offences by the time they are sentenced.
[34] This court has not definitively ruled on the issue. I note that in Gill v. Ontario (Registrar of Motor Vehicles), 1985 ONCA 2202, which involved increasing civil consequences under the Highway Traffic Act, R.S.O. 1980, c. 198, for subsequent criminal offences, this court held that the Coke principle does not relate solely to criminal sanctions but can include sanctions of any kind imposed by statute. The court wrote, at p. 205 D.L.R., that the Coke principle "is not a criminal rule at all, but a rule of statutory interpretation derived from Coke's Institutes, vol. 2, involving the application of increased penalties for second and subsequent offences". The court seems to have assumed that the rule is only concerned with statutorily imposed increasing sanctions, be they criminal or civil.
[35] The determination of this ground of appeal does not depend on a resolution of this conflict in the jurisprudence. The authorities are consistent that, irrespective of whether the Coke principle applies, a subsequent record may be used to assess an offender's rehabilitative prospects: see Wilson, at para. 67; Pete, at para. 40. This is a sound policy, as rehabilitative prospects should be assessed as they stand at the time of sentencing, not as they stood at the time the offence was committed.
[36] In the present case, the trial judge included a reference to the subsequent record under the heading "Aggravating Factors", at para. 24:
[R.M.] has accumulated an extensive criminal record, all of it since the offences were committed in August 1990. They are not prior convictions that would otherwise support an increased sentence based on well-established principles. However, he is not Jean Valjean who stole half a loaf of bread long ago and has led an exemplary life since. In my view his record of convictions since 1990 are of some limited relevance on the issue of prospects for rehabilitation.
[37] The trial judge was aware that these were first offences. He did not treat the subsequent record as an aggravating factor. Instead, the trial judge used it as an aid in determining the current rehabilitative prospects of R.M. This was not a violation of the Coke principle, and therefore this ground of appeal must be rejected.
(iv) Fitness of sentence
[38] The fact that the reviewing court would have put the sentence in a different range or category is not a basis for appellate interference. However, the reviewing court may intervene, even in the absence of error, where the sentence imposed is demonstrably unfit: Lacasse, at paras. 51-52.
[39] As the Supreme Court stated in Lacasse, the term "demonstrably unfit" has been used interchangeably with other terms such as: "clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and marked departure". All of these terms are a caution to appellate courts that there is a very high threshold that applies when determining whether they should intervene based on the fitness of a sentence: Lacasse, para. 52.
[40] At trial, the Crown's position was that a sentence of ten years' incarceration was appropriate, while the defence argued that the fit sentence was three years' incarceration, if sentenced as an adult. The trial judge carefully considered the appropriate sentence. He referenced the relevant principles, considered the issue of time-lapse in sentencing sexual assaults, and relied on R. v. Kavanagh, 2009 ONCA 759, where this court imposed a sentence of ten years' incarceration for a similar sexual assault.
[41] On appeal, the Crown has filed several cases which it says establish that the appropriate range in the present case is between five and ten years. Of particular relevance is R. v. Assing, 2008 ONSC 58607. In that case, the defendant assaulted the victim while she walked past a wooded area and threatened her with a knife. He then dragged her to a townhouse where he bound her and forced intercourse on her twice. The defendant had no prior record, had strong family support and showed signs of rehabilitative potential. He received a global sentence of nine years' incarceration for convictions for sexual assault with a weapon, robbery and forcible confinement.
[42] In R. v. Wyatt, 2017 ONCJ 390, another case relied on by the Crown, the defendant was convicted of sexual assault causing bodily harm and sentenced to eight years' incarceration. In that case, he ambushed the victim and forced fellatio, digital penetration and intercourse. The defendant had a prior criminal record and was on release at the time of the offence. However, he also pleaded guilty, and there was evidence of rehabilitative efforts in advance of sentencing.
[43] Finally, in Kavanagh, this court, in imposing a ten-year sentence, described the circumstances of the offence and the offender as follows, at para. 7:
This was a brutal sexual assault on a vulnerable woman working at night in a convenience store. The appellant came into the store, waited until there were no other customers, then locked the door and threatened the complainant that he would kill her with the knife he claimed to have in his back pocket. He forced her into the back room and forced her to perform oral sex, then penetrated her vaginally without using a condom. The offence was premeditated and brutal on a totally vulnerable victim who suffered significant long-term consequences in her personal life, including estrangement from her family and ongoing fear. The appellant had a criminal record that included a domestic assault.
[44] A global sentence of eight years' incarceration for a 17-year-old first-time offender may appear to be harsh. However, the trial judge appears to have been influenced by the very serious nature of the offences. The complainant was repeatedly raped, by two men, without condoms, while a knife was held to her throat. They threatened her with death, robbed her and ridiculed her. After raping her, they debated whether they should "let her get away" as she would "go to the cops" if they did. This was a particularly vicious attack where a vulnerable victim was terrorized and humiliated.
[45] Another sentencing judge may well have imposed a lesser sentence. However, that is not the test. The test is whether the sentence is demonstrably unfit. Based on the circumstances of the offences and the offender, and mindful of the jurisprudence that I have just reviewed, I am not satisfied that the sentence is demonstrably unfit. I would, therefore, dismiss the sentence appeal.
(v) Crown cross-appeal
[46] The Crown submits that the trial judge erred in unilaterally staying the conviction for gang sexual assault based on the principles in R. v. Kienapple, 1974 SCC 14. In making this submission, the Crown does not seek an increase in the sentence; the only remedy it seeks is a more accurate criminal record.
[47] The Kienapple principle provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence. There must be both a factual and legal nexus between the offences. The requisite factual nexus is established if the charges arise out of the same transaction; the legal nexus is established if the offences constitute a single criminal wrong or delict: R. v. Rocheleau, 2013 ONCA 679, at para. 24.
[48] As Doherty J.A. noted in R. v. Kinnear, 2005 ONCA 21092, at para. 34, the identification of a factual nexus is usually a straightforward exercise when compared to the more nuanced identification of a legal nexus:
A comparison of the constituent elements of the offences in issue is an essential part of the legal nexus inquiry. However, the mere fact that offences share common elements does not establish a sufficient legal nexus between those offences to warrant the application of the Kienapple rule. The legal nexus inquiry is directed not at finding common elements between offences, but at determining whether there are different elements in the offences which sufficiently distinguish them so as to foreclose the application of the Kienapple rule. As indicated in Prince at p. 49:
[T]he requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
[49] The crucial question is whether the offences represent different criminal wrongs or the same wrong committed in different ways. A sufficient legal nexus is not established where the offences target different societal interests, different victims, or prohibit different consequences: Kinnear, at para. 39.
[50] In the present cross-appeal, the Crown argues that there is an insufficient legal nexus because the offences have different elements and protect different interests. R.M. submits that gang sexual assault and sexual assault with a weapon are two ways of committing the same offence.
[51] This court's decision in R. v. Osbourne, 1994 ONCA 7209, leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 91, is instructive. There, the appellant pulled out a gun and fired at police officers, but missed them. He was convicted of aggravated assault and of using a firearm in the commission of the aggravated assault. Finlayson J.A. upheld both convictions and rejected a Kienapple argument. The aggravated assault conviction was based on the fact that the appellant's conduct endangered the life of the police officer. The court found that aggravated assault could be committed in a variety of ways, with or without weapons, and that if the offender chose to commit aggravated assault using a firearm, this attracted additional liability.
[52] In my view, sexual assault with a weapon and gang sexual assault are not two ways of committing the same offence. Though both involve heightened coercion, the two offences protect different interests. The use of a weapon significantly increases the risk of physical harm. Committing sexual assault in a group compounds the violation of the victim's sexual integrity and may significantly increase the risk of sexually transmitted disease and pregnancy. Following Osbourne, R.M.'s decision to commit sexual assault with a weapon, and his decision to commit the offence with another party, should each attract criminal liability. Therefore, I would allow the Crown's cross-appeal.
IV. Disposition
[53] I would dismiss the conviction appeal, grant leave to appeal the sentence and dismiss the sentence appeal. I would also allow the Crown's cross-appeal, set aside the conditional stay of the gang sexual assault conviction and enter a conviction.
Appeal dismissed; cross-appeal allowed.
End of Document
