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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

DATE: 20210813 DOCKET: C65310

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Donald Milani Appellant

Counsel: Jill Makepeace, for the appellant Avene Derwa, for the respondent

Heard: February 18, 2021 by videoconference

On appeal from the sentence imposed by Justice Helen M. Pierce of the Superior Court of Justice on April 21, 2017.

Feldman J.A.:

A. INTRODUCTION

[1] The appellant seeks leave to appeal the 20-year custodial sentence that he received after his conviction by a jury on 18 counts of home invasion sexual assaults and related offences, including robbery. The offences took place between 1985 and 1987 in the rural areas of Thunder Bay. The appellant broke into the homes of his female victims at night, usually when they were alone, and forced them to participate in sexual acts. Of the five sexual assaults (two against the same victim on different occasions), one was carried out with a knife and two were carried out at gunpoint. Each time, the appellant planned his attacks, took steps to hide his identity, and gave himself an opportunity to get away, either by confining his victims or by cutting their phone lines. Although the appellant was arrested and charged in 1987, he was not committed to trial at the preliminary hearing. The Crown was only able to proceed with the case in 2016, approximately 30 years after the crimes had occurred. By the time of trial, two of the victims had passed away. The appellant was sentenced when he was 69 years old.

[2] The appellant submits that the sentencing judge made two errors: (1) the sentencing judge erred in her approach to the totality analysis and, as a result, imposed a sentence exceeding his overall culpability; and (2) the sentencing judge failed to properly consider the passage of time and the appellant’s advanced age as mitigating factors. The appellant argues that when these mitigating factors are taken into account, a global sentence of 14 years’ imprisonment is appropriate in the circumstances.

[3] For the reasons that follow, I disagree. The sentencing judge gave thorough and thoughtful reasons that responded to the evidence and the submissions of counsel. The sentence she imposed was a fit one for the crimes committed and the circumstances of the offender. I would grant leave to appeal the sentence, but I would dismiss the appeal.

B. FACTS

[4] The appellant was charged with offences that arose out of four incidents. As this was a jury trial, the sentencing judge found the facts of each incident in her reasons for sentence. The following is the sentencing judge’s description of the incident from 1985, when the appellant entered the home of E.N., used a knife to bind her hands and feet with rope, and then coerced her into performing oral sex on him and having vaginal intercourse:

The [E.N.] Offences

Mr. Milani was convicted on the following charges in relation to [E.N.]:

Count Number 1: break and entering a dwelling house and commit sexual assault;

Count Number 2: sexual assault; and

Count Number 4: unlawful confinement.

At the time of the assault, [E.N.] was about 58 years old. She died before trial; consequently, her testimony at the preliminary hearing was read into the record as her evidence at trial.

The facts are that, in the darkness of the early morning hours of April 20, 1985, Mr. Milani broke into [E.N.]’s home through a window. She had locked the doors before retiring for the night. Her home was in a rural area outside Thunder Bay. A shoe impression resembling a shoe seized later at the Milani home was documented outside the window. At the time of the offences, Mr. Milani appeared to know some of [E.N.]’s personal circumstances; particularly that she lived alone at the time.

She was sleeping and awoke to a flashlight shining in her face. Mr. Milani tied her hands and feet, threatening to hurt her if she did not cooperate. She was frightened. He warned her not to look at him. She could hear him cut the rope with a knife although she did not see a knife. He ran water in the adjacent bathroom and then returned to her bedroom. He untied her and he demanded that she give him oral sex twice. She complied, and then he engaged in vaginal intercourse with her twice.

When Mr. Milani left, [E.N.] called her son. He found his mother in a distraught condition. The police also attended, and she was taken for medical attention. Bedding seized was tested for DNA in later years, and the results did not exclude Mr. Milani.

[5] The second and third incidents, dated 1986 and 1987 respectively, involved the same victim, J.B. On both occasions, the appellant broke into her home late at night and demanded oral and vaginal sex from her. The sentencing judge described the details of the incidents as follows:

The First [J.B.] Offences

[J.B.] was assaulted by Mr. Milani on two different occasions. He was convicted of the following offences relating to the first incident:

Count Number 5: break and entering a dwelling house and commit sexual assault;

Count Number 6: sexual assault;

Count Number 7: intend to commit indictable offence while masked; and

Count Number 8: unlawful confinement.

At the time of these offences, [J.B.] and her husband lived in an isolated rural area outside Thunder Bay with no near neighbours. Mr. Milani seemed to know that her husband was at work at the time he assaulted [J.B.]. She was then 26 years old.

[J.B.] locked the doors before she went to bed and was sleeping in the early hours of September 9, 1986. At about 1 a.m., she was awakened by the sound of water running in the bathroom. Then, a man wearing a balaclava and carrying a flashlight entered her bedroom. He forced her to perform oral sex on him and then he required her to continue oral sex on him while he performed oral sex on her.

Next, he took her into the bathroom and required her to perform more oral sex on him. He ran water in the tub and required her to wash her genitals. They returned to the bedroom where he had sexual intercourse with her. During the assault, Mr. Milani, who was a customer … where [J.B.] worked, called her by a nickname that was used [at her work location].

After sexual intercourse, he tied her feet which he explained was to give him time to get away. Mr. Milani was in the house for about an hour. The telephone in the house was dead, as he pulled out the wires in the basement.

After Mr. Milani left, [J.B.] located her car keys and drove to a [location] where she called her husband and the police. She also received medical attention that night.

The Second [J.B.] Offences

Mr. Milani was convicted of the following offences related to [J.B.], committed on July 11, 1987:

Count Number 9: break and entering a dwelling house and commit sexual assault;

Count Number 10: sexual assault; and

Count Number 11: intend to commit indictable offence while masked.

The second assault occurred in the same isolated rural residence as the first. [J.B.] locked the doors and windows and prepared to retire for the night. She heard her dog barking in the bedroom and her apprehension was borne out when she found a masked man waiting in the dark. She asked, “Why did you come back?” He replied, “Because you’re nice.”

Mr. Milani ripped open her shirt and fondled her breasts. He demanded oral sex. He attempted to blindfold her with the belt from her bathrobe but it kept falling off. He had intercourse with her and attempted anal sex to which she objected. Before he left he remarked, “I won’t tie your feet this time.”

After he left, she discovered that he had again pulled out her phone lines and that $67 was missing from her purse. She drove to a nearby neighbour’s home and called the police. She received medical attention that night.

Bedding seized at this scene was later tested for DNA with the result that Mr. Milani could not be excluded as the donor.

Identification Officer Don MacDougall also recovered distinctive tire prints from where Mr. Milani hid his vehicle in the bush. By careful investigation, the police were able to determine that Mr. Milani was an owner of this rare brand of tire.

Footprints recovered at the scene were similar to those found at the [S.R.]/[A.C.] and [E.N.] scenes.

[6] The final incident took place on December 3, 1987. The victims, S.R. and A.C., were attacked at a cabin located on the same property as their workplace. After using a gun to direct the women into separate bedrooms, the appellant went back and forth between them, forcing them to engage in various sexual acts with him. The appellant stole cash and multiple items from the victims before he left the premises. Below is the sentencing judge’s description of how the incident unfolded:

The [S.R.]/[A.C.] Offences

The [S.R.] and [A.C.] offences were committed on December 3, 1987 at the same place. Mr. Milani was convicted of the following offences in relation to [S.R.]:

Count Number 12: steal rings using threats of violence;

Count Number 13: unlawful confinement;

Count Number 14: threaten to use a weapon while committing a sexual assault;

Count Number 15: intent to commit an indictable offence while masked; and

Count Number 16: break and enter a dwelling house and commit sexual assault.

He was convicted of the following offences in relation to [A.C.]:

Count Number 17: steal money using threats of violence;

Count Number 18: unlawful confinement; and

Count Number 19: threaten to use a weapon while committing a sexual assault.

[S.R.] testified at trial; however, [A.C.] died before trial. Consequently, her testimony at the preliminary hearing was read into the record as her evidence.

On December 3, 1987, the two women were working at a roadside restaurant and tavern … in a rural area outside Thunder Bay. Mr. Milani came into [the] restaurant for coffee a couple of times, and had been there twice the day before the incident, including at about 8 p.m. the night of the incident. He asked [S.R.] whether she was staying out for the evening.

[S.R.] was then about 38 and married. She was working that evening with her friend, [A.C.]. They closed the business around midnight and went to a cabin on the property, intending to stay overnight. When they entered the dimly lit cabin, a man wearing a balaclava jumped out from behind the fridge and pointed a gun at them. He told them to “hit the fucking ground.” [S.R.] felt traumatized. She told him that her husband would return around midnight, but Mr. Milani did not leave.

Mr. Milani split the women up, directing each to a separate bedroom. He blindfolded [S.R.] and told her to undress and lie down on the bed. Then he tied her hands and feet. Before and after she undressed, he fondled her breasts and genitals, first with his hands and then with his gun. He held a penlight-style flashlight.

He demanded oral sex and placed his penis in her mouth. He rubbed the gun near her mouth and up and down her thighs. He told her that if she did not suck his penis and give him an erection, he would make her suck the gun. He tried unsuccessfully to have vaginal, then anal intercourse with her. When he was not successful, he went to [A.C.]’s room.

[S.R.] attempted to escape but Mr. Milani caught her in the kitchen and redirected her back to the bedroom. He pushed her down on the bed and pressed so hard on her throat that [S.R.] was scared. Bruising around her throat was apparent on medical examination later that night. She said that she had no lasting physical injuries, but there were continuing emotional injuries.

Mr. Milani went back and forth a few times between the women’s rooms that night. [S.R.] could hear her friend whimpering in the next room. Mr. Milani told her to “Shut the fuck up.”

Mr. Milani rummaged in [S.R.]’s purse before he left, taking cash, rings, a watch and lottery tickets.

At the time of this incident, [A.C.] was about 58 years old. When she was directed into the dark bedroom, Mr. Milani tied her hands and feet and blindfolded her. He also rummaged through her purse and stole about $65 and $70 and one of her credit cards.

Mr. Milani demanded oral sex from [A.C.] but she refused. Then he insisted that she hold his penis, and she complied. He fondled her breasts and undid the snap on her jeans. Then he went out into the living area and ultimately, left the cabin.

When she was satisfied that Mr. Milani had departed, [S.R.] freed herself and went to [A.C.]’s room where she untied her friend. Mr. Milani was in the cabin for at least an hour. [A.C.] flagged down a truck and got a ride home, then she called the police. [S.R.] also called the police who attended and took her to the hospital for medical care.

The police secured the area and investigated. Tire tracks from the Milani vehicle were discovered in the snow at a boat launch road. These had been brushed or scuffed through in an attempt to obliterate them. Footprints leading to and from the cabin were also brushed out.

By virtue of careful policing by Identification Officer Ed Linkewich, the police were able to recover footwear and tire impressions that had not been obscured. Investigation demonstrated that Mr. Milani had tires of a similar make on his vehicle. The police also discovered that the day after this incident, Mr. Milani attended at a garage in a rush to have the tires on his truck changed to a different brand, even though his tires were relatively new.

A beer bottle from which Mr. Milani was observed drinking in the cabin was also seized and preserved. Ultimately, it yielded saliva from which Mr. Milani’s DNA could not be excluded.

[7] The appellant committed these offences in 1985, 1986, and 1987 when he was between 37 and 39 years old. He was originally arrested in 1987, but was discharged after the preliminary hearing. He was re-arrested on the current charges in 2010 when advanced DNA testing techniques made it possible to identify him as the perpetrator.

C. REASONS OF THE SENTENCING JUDGE

(1) The appellant’s history

[8] The sentencing judge described the appellant’s history. He was raised in a stable home by his mother and stepfather. He left high school at age 16, later married and moved to Thunder Bay, where the above offences occurred. He and his wife had two children, whom they raised in a comfortable lifestyle. The appellant was a hard worker and good provider. They had an active social and family life, and were financially secure.

[9] The appellant was arrested in December 1987. He was unemployed for five months after he was released on bail. His children, who were teenagers at the time, felt the stigma of his arrest. In order to pay his legal fees, the appellant sold the family home in Thunder Bay and moved to their camp at Ignace. The children did not stay with their parents.

[10] In the 1990s, the appellant and his wife enjoyed their time with friends and neighbours in Ignace. The appellant bought a small plane that he docked at their waterfront home.

[11] The appellant and his wife separated in 2004, but she remained supportive of him over the years and did not believe he had committed the offences.

[12] In 2005, the appellant began co-habiting with his current partner. They kept a large garden, and the appellant stayed busy with handyman projects until the age of 57, when he sustained a shoulder injury. The appellant went on WSIB benefits until he was 65 years old.

[13] In 2008, at age 60, the appellant fell and suffered a head injury that continues to cause him some long-term memory loss. He also has a pacemaker. At sentencing, the defence did not file a medical report about the current state of the appellant’s health.

[14] The appellant was re-arrested in 2010 and was on bail pending trial for six years. He and his partner had to sell their house in 2016 and move to their isolated winterized camp.

[15] On November 30, 2016, the appellant was convicted by a jury. The sentencing hearing took place in April 2017. According to the sentencing judge, the appellant was well-regarded by a close neighbour as well as by his current and former partners. He had a dated, minor criminal record from 1964 and 1970 for theft and possession of a prohibited weapon. The sentencing judge also noted that although the appellant told the author of the pre-sentence report that he was innocent and intended to appeal, at the sentencing hearing, he stated that while he had no memory of events from the 1980s, he was sorry for the victims. He also regretted that his children had suffered following his arrest, and mentioned that he had to deal with financial losses as a result of the charges.

(2) The Victim Impact Statements

[16] The sentencing judge reviewed the Victim Impact Statements filed by the two surviving victims. J.B., who was attacked twice, suffered ongoing, crippling fear. She sold her house and moved, and when the case was re-opened, had to be treated for post-traumatic stress disorder. S.R. expressed that the appellant had stolen 30 years from her. She was never able to let anyone get close to her because she was afraid of being hurt, and she drank a lot. She also attributed the fact that she lost her business, her home, and her self-esteem to the attacks.

(3) Analysis

[17] The sentencing judge set out the parties’ positions before turning to her analysis of the appropriate sentence. The Crown submitted that the sentencing judge should determine the appropriate sentence for each of the four incidents, then reduce the global total to reflect the totality principle. Applying that approach, the Crown proposed a global total of 23-30 years, to be reduced to 20 years to life. The defence agreed that consecutive sentences were appropriate for the separate incidents, but because specific deterrence was not a factor, argued that three years for each attack should be the maximum. The defence also asserted that although the passage of time does not have a significant impact, the sentence imposed should not exceed the appellant’s life expectancy, which he submitted was just another ten years. Therefore, based on the totality principle, the defence submitted that the appellant’s global sentence should be between five and eight years.

[18] The sentencing judge next conducted a thorough review of the case law presented by both sides, including defence cases on the range of sentences for offences with some similarities to the appellant’s case, and Crown cases that addressed certain features of the appellant’s circumstances, including the implications of delay and sentencing for home invasions.

[19] The sentencing judge identified aggravating and mitigating factors. She treated the following as aggravating factors:

• the fact that the appellant’s offences involved home invasions;
• the appellant’s escalating planning and deliberation;
• the multiple victims, one of whom the appellant terrorized twice;
• the horrific nature of the appellant’s conduct, which included forced oral and vaginal sex, the use of a gun as part of a sex act, attempted anal intercourse, and in the last incident, the splitting up of the two women to ensure better control of his victims and instill terror;
• the appellant’s use of a disguise and weapons. In order to avoid detection and identification, the appellant also hid his vehicle, brushed away any tire tracks and footprints, and changed his tires; and
• the long-term effects of the appellant’s attacks on the victims.

[20] As for the mitigating factors, the sentencing judge agreed to consider the appellant’s medical condition, but noted that without any current medical evidence, it would not be accorded much weight. The defence also pointed to the positive pre-sentence report that described the appellant as employed and as a productive member of society with supportive friends and family. Finally, the sentencing judge recognized that the appellant had a minor and dated record with no offences in the 30 years since the offences occurred.

[21] The sentencing judge then identified the applicable principles of sentencing, including the fundamental principles of proportionality and totality.

[22] The sentencing judge ultimately agreed with defence counsel that consecutive sentences for each incident were appropriate, and that concurrent sentences could be imposed for the counts within each incident. However, the sentencing judge rejected the defence submission that credit should be given for the appellant’s restrictive bail terms over the six years he was on bail. The sentencing judge did not find the bail terms to be onerous since the appellant was not on house arrest, he was able to work, and he did not seek a variation of the order.

[23] On the issue of the impact of the appellant’s age, the sentencing judge rejected the defence submission that the appellant’s sentence should not overtake his life expectancy; she found that there was no medical evidence regarding his life expectancy. However, she was prepared to take into account that at age 69, the appellant was a senior citizen.

[24] The sentencing judge firmly rejected the defence submission that the appellant did not intend to cause injury and did not intend violence. She stated that this submission was belied by the facts, specifically the evidence of the planned home invasions when the appellant knew the victims were home alone, the controlling and humiliating nature of the sexual assaults, the use of weapons, the cutting of the phone lines to isolate the victims, and the profound long-term emotional consequences on the victims.

[25] She also rejected the defence submission that because the violence element was already part of the sexual assault, the appellant should only be sentenced for theft, rather than robbery. The sentencing judge recounted that the appellant was convicted of robbery by the jury, and that he used the gun in the sexual assault of S.R. and A.C. to commit robbery. She found that “[t]he egregiousness of this conduct should not be minimized by a sentence equated with theft.”

[26] Finally, the sentencing judge considered and rejected the defence submission of a global sentence of five to eight years, which would amount to a sentence of one and a quarter to two years for each incident. She noted that the appellant had avoided detection for 30 years, enjoying his freedom, and that such a low sentence would send the wrong message. Relying on R. v. Hall, 2011 ONSC 61, she stated that “delay in sentencing should not encourage offenders to ‘lay low’ as [the appellant] did, hoping to avoid detection.” While the appellant may not have needed specific deterrence, the sentencing judge held that his conduct deserved general denunciation and deterrence: “[O]thers who are minded to commit similar offences must be deterred. And [the appellant] must be held accountable for what he has done.”

[27] Turning to the specific sentence to be imposed, the sentencing judge first determined what she would have imposed for each incident as a stand-alone:

• For the E.N. incident which took place in the victim’s own home, and included fellatio and vaginal intercourse twice, use of a weapon, and the tying of her hands and feet, five years.
• For the first J.B. incident, where the victim was also assaulted in her own home, and the appellant was masked, demanded oral sex three times as well as vaginal intercourse, and tied her feet, five years.
• For the second J.B. incident, where the appellant was masked, terrorized the victim again in her own home, fondled her breasts, sought oral sex, had vaginal intercourse, and attempted anal intercourse, six years.
• For the S.R. and A.C. incident, where the appellant used a gun to commit the sexual assaults and robberies, he split up the victims, tied their hands and feet, fondled S.R. with the gun and his hands, forced S.R. to perform oral sex and attempted vaginal and anal sex with her, put his hands around S.R.’s throat when she tried to escape, fondled A.C. and required her to hold his penis, and stole the victims’ cash and valuables, eight years.

[28] The total of 24 years was ultimately reduced to a 20-year global sentence:

The total of these sentences on a stand-alone basis is 24 years. Reducing the global sentence in accordance with the totality principle and considering [the appellant’s] age and the fact that he has not been in trouble with the law since the offences were committed, I find that the appropriate global sentence is 20 years in prison.

[29] The sentencing judge then broke down the 20-year sentence among all the offences that were not stayed in accordance with the Kienapple principle as follows:

• With respect to the E.N. offences: count one, i.e. the break and enter of a dwelling house and commission of sexual assault, four years; count two, i.e. sexual assault, stayed; and count four, i.e. unlawful confinement, two years concurrent with count one.
• With respect to the first J.B. offences: count five, i.e. the break and enter of a dwelling house and commission of sexual assault, four years consecutive to count one; count six, i.e. sexual assault, stayed; count seven, i.e. the commission of an indictable offence while masked, two years concurrent to count five; and count eight, i.e. unlawful confinement, two years concurrent to count five.
• With respect to the second J.B. offences: count nine, i.e. the break and enter of a dwelling house and commission of sexual assault, five years consecutive to counts one and five; count ten, i.e. sexual assault, stayed; count eleven, i.e. the commission of an indictable offence while masked, two years concurrent to count nine.
• With respect to the S.R. and A.C. offences: count twelve, i.e. robbery, five years concurrent to count fourteen; count thirteen, i.e. unlawful confinement, two years concurrent to count fourteen; count fourteen, i.e. the commission of sexual assault with a weapon, seven years consecutive to counts one, five, and nine; count fifteen, i.e. the commission of an indictable offence while masked, two years concurrent to count fourteen; count sixteen, i.e. the break and enter of a dwelling house and commission of sexual assault, five years concurrent to count fourteen; count seventeen, i.e. robbery, five years concurrent to count fourteen; count eighteen, i.e. unlawful confinement, two years concurrent to count fourteen; and count nineteen, i.e. the commission of sexual assault with a weapon, seven years concurrent to count fourteen.

[30] The sentencing judge concluded with the addition of some ancillary orders.

D. Issues

[31] Counsel for the appellant acknowledged that the 20-year sentence imposed by the sentencing judge was not demonstrably unfit and was within the range for these types of offences. However, the appellant submits that the sentencing judge made two errors which require this court’s intervention: (1) the improper application of the totality principle; and (2) the failure to give adequate emphasis to the passage of time and the age of the appellant.

E. Analysis

(1) Standard of Review

[32] The Supreme Court of Canada recently reiterated that appellate courts are to defer to the sentencing decisions of trial courts with limited exceptions. In R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, the court stated, at paras. 25-26:

Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge’s for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70).

As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

[33] The appellant’s position is that the sentencing judge’s two errors in principle impacted his sentence because if the sentencing judge had properly applied the totality principle and given sufficient weight to the passage of time and the appellant’s age, she would have imposed a lower sentence in the range of 14-16 years.

(2) The totality principle

[34] The totality principle is codified in ss. 718.1 and 718.2(c) of the Criminal Code. These sections provide that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The appellant submits that the sentencing judge erred in how she applied the totality principle, ultimately failing to achieve a sentence that was proportionate to the gravity of the offence and the conduct of the offender, and crafting one that was unduly long and harsh instead.

[35] In Friesen, at para. 157, the Supreme Court described the two methods that are used by courts across Canada to apply the totality principle when imposing consecutive sentences:

The principle of totality requires any court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability (see Criminal Code, s. 718.2(c); M. (C.A.), at para. 42). While this principle is applied throughout Canada, there have been divergences in the methodology used by various appellate courts. Some jurisdictions require the sentencing judge to decide what would be a fit sentence for each offence before considering totality (see, e.g., Hutchings, at para. 84; R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; R. v. Punko, 2010 BCCA 365, 258 C.C.C. (3d) 144, at para. 93; R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, at paras. 29-30; R. v. J.V., 2014 QCCA 1828, at para. 28; R. v. Chicoine, 2019 SKCA 104, 381 C.C.C. (3d) 43, at paras. 66-68). In other jurisdictions, sentencing judges start by determining an overall fit sentence and then impose individual sentences adding up to the total (R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403). [Emphasis in original.]

[36] Friesen recognized that neither method constitutes an error in principle. If done properly, both can be appropriate ways to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offence and the conduct of the offender.

[37] The Ontario practice of first determining the total appropriate sentence and then breaking it down among the counts originated in the case of R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.). That case involved numerous charges related to the production of home videos depicting sexual activity with young boys. The two offenders (Jewell and Gramlick) pleaded guilty. In sentencing them, the sentencing judge first identified the most serious charge, imposed a sentence for that, “then proceeded to deal with all the other charges seriatim and meted out consecutive sentences in three more of them”: at p. 14. On appeal, Finlayson J.A. determined, at p. 14, that “[t]he resulting ten-year sentence offend[ed] the principle of totality.”

[38] Finlayson J.A. then set out, at pp. 14-15, the approach to be used to give effect to the totality principle:

In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

[39] The appellant submits that by not following the procedure set out in Jewell, the sentencing judge erred in principle by first determining the fit sentence for each incident, and then reducing the total to reflect the totality principle.

[40] I would reject this submission. In my view, the sentencing judge applied Jewell, but adapted it to the circumstances of the appellant’s offences, which were committed in four separate attacks. She made no error in principle in her approach.

[41] Since there were four distinct and separate incidents, the sentencing judge, supported by the submissions of counsel, decided that the correct approach was to first determine the gravamen of the overall conduct for each individual incident, each of which involved a number of different charges. While the four incidents had many similarities, the appellant’s conduct escalated to using a gun in the final attack.

[42] The sentencing judge ultimately did not make the error criticized by this court in Jewell. After determining the correct individual sentence for each incident, she did not simply add up the four, but reduced the total in accordance with the totality principle to achieve a total sentence that was proportional to the gravity of the offences and the conduct of the offender: see R. v. Hannora, 2020 ONCA 335, at paras. 9-11. The sentencing judge also determined that the overall sentence of 20 years was not too long or overly harsh.

[43] Pursuant to Jewell, the sentencing judge then broke down the overall sentence among the counts, and in so doing, determined which sentences should be consecutive and which should be concurrent. There is no basis to interfere with the sentencing judge’s approach.

(3) The passage of time and the appellant’s age

[44] The appellant submits that the sentencing judge erred by failing to give sufficient weight to the passage of time as a mitigating factor. He argues that his case is unique because while he was initially prosecuted and released following the preliminary inquiry, he remained subject to prosecution many years later, and therefore, he did not “lay low” or evade detection.

[45] I would reject this submission for three main reasons. First, as the sentencing judge noted, defence counsel (not appeal counsel) conceded in the opening of his submissions on sentence that “the passage of time should not play a very significant issue in the determination of sentence.” Defence counsel focused only on the appellant’s age as an important factor.

[46] Second, counsel relies on R. v. Critton, a decision of Hill J., at para. 76, for the principles that apply when considering the effect of delay between the commission of the offence(s) and sentencing:

(1) the effect of delay on sentencing is a case-specific inquiry;

(2) deliberate acts to evade detection by the authorities, whether flight or contribution to delayed complaint tend to weigh against assigning mitigating impact to the fact of delay;

(3) reform and rehabilitation during the intervening period tend to eliminate the prospect of recidivism and to nullify the need for specific deterrence to be reflected in the court’s disposition;

(4) certain very serious crimes require sentences with measures of general deterrence and denunciation regardless of the offender’s lengthy crime-free existence subsequent to the crime(s); and

(5) objectively speaking, taking into account delay, the court’s disposition should not be seen as a reward or benefit eliminating or depreciating the concept of proportionate punishment.

[47] Contrary to the appellant’s argument, these factors are likely what motivated defence counsel at trial to take the position he did, as well as what led the sentencing judge to determine that general denunciation and deterrence demanded that the appellant receive no distinct benefit from the delay in his prosecution. As the sentencing judge noted, the appellant was able to enjoy the benefit of living a full life in the 30 years following his offences, while the victims continued to suffer the long-term effects of his attacks. The fact that the appellant spent these intervening years crime-free was a mitigating factor that allowed the sentencing judge to conclude that there was no need to address specific denunciation and deterrence. However, it did not render the appellant’s 20-year global sentence disproportionate to the gravity of his offences and his responsibility as an offender.

[48] Third, at the time of the offences, the appellant took steps to disguise himself and to destroy evidence that could identify him as the perpetrator. The sentencing judge made no error in describing his conduct as steps he took to “lay low.” The appellant’s deliberate actions ensured that he could not be identified with certainty or prosecuted by the Crown until the evolution of DNA technology.

[49] In conjunction with his passage of time submission, the appellant argues on appeal, as he did at sentencing, that his age should have been treated as a significant mitigating factor in the totality analysis, and that the 20-year sentence imposed was harsh and had the effect of removing all hope.

[50] The appellant was 69 years old at the time of his sentencing. The appellant submitted to the sentencing judge that the life span of a white Canadian male was around 79.5 years, but he did not adduce evidence to support that position. As the sentencing judge stated, he also did not have any medical evidence regarding his own particular circumstances to substantiate the submission that his life expectancy was only ten more years.

[51] The sentencing judge specifically addressed the appellant’s concerns about his age in her reasons. She appreciated the appellant’s status as a “senior citizen,” but was not prepared to find that the sentence she considered fit would exceed his life expectancy.

[52] The appellant relies on the case of R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, to contend that the sentencing judge erred in her approach to his advanced age. In Johnson, the court reduced a global sentence of 23 years to 20 years recognizing that the accused would be 77 years old after his incarceration of 23 years. The court held that such a sentence would come close to crushing all hope. The appellant asserts that his 20-year sentence would do the same.

[53] Johnson can be distinguished from this case. Unlike in Johnson, the sentencing judge had already imposed a greater reduction of four years based on the totality principle, taking into account the appellant’s age as one of the factors.

[54] In addition, while a sentencing judge should not increase or decrease a sentence based on parole considerations (R. v. Passera, 2019 ONCA 527, 146 O.R. (3d) 449, at paras. 26-27, leave to appeal refused, [2019] S.C.C.A. No. 327), a court may consider the opportunity for parole when assessing whether a sentence will crush all hope. I agree with the approach taken by the British Columbia Court of Appeal in R. v. Swope, 2015 BCCA 167, 370 B.C.A.C. 218, at para. 36:

The judge in this case did take Mr. Swope’s age into consideration in passing sentence. While the time he will spend in prison is likely to be a significant portion of his remaining lifespan, I am not persuaded that the sentence runs afoul of the above-quoted comments from C.A.M. I am unable to say that the sentence that the judge imposed was overly-long or oppressive. I note that, despite the fact that Mr. Swope has been on bail pending appeal, he will, when returned to prison, be eligible for day parole in less than five months’ time and for full parole in less than one year. There are special provisions in s. 121 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, that may be used to expedite parole in the event of certain deteriorations in a prisoner’s health.

[55] Here, Crown counsel advised in its factum that the appellant will be eligible for full parole on December 21, 2023. During his incarceration, the appellant will also have access to s. 121 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which can be used to expedite his parole if terminal illness or serious mental or physical health damage will result from continued confinement.

[56] The sentencing judge thus did not fail to take the appellant’s age into account. She considered the submissions of defence counsel, and found that the appellant’s older age was a relevant, but not determinative, factor in fashioning the appropriate sentence. She made no error in principle in her approach.

F. Conclusion

[57] The appellant concedes that the 20-year global sentence is a fit one and within the appropriate range for the offences committed. The appellant’s crimes were extremely serious and horrific, perpetrated against four women in their homes in the remote areas of Thunder Bay. The victims were sexually assaulted as well as tied up and cut off from telephone communication. They were isolated, terrified, and humiliated. The appellant did this four times over a two-year period. He targeted one of the women twice.

[58] The sentencing judge, who conducted the jury trial, heard all of the evidence from the witnesses. In her reasons for sentence, she considered every argument made, including the ones raised on this appeal. The sentencing judge reviewed all of the case law and all of the principles of sentencing in detail. Everyone agreed that a lengthy penitentiary term was required and that consecutive sentences should be imposed.

[59] It was within the discretion of the sentencing judge to impose the sentence that she determined appropriate. She found that a 20-year global sentence was proportionate to the gravity of the appellant’s offences and his responsibility as an offender. She made no error of law or principle, and her decision is to be accorded deference.

[60] I would grant leave to appeal the sentence, but dismiss the appeal.

“K. Feldman J.A.”

“I agree. P. Lauwers J.A.”

Nordheimer J.A.: (Dissenting)

[61] I have read the reasons of my colleague. I do not agree with her conclusion. Given my view on the second ground of appeal, I do not need to directly address whether the trial judge properly applied the totality principle. Rather, I say that the trial judge erred in failing to give proper effect to the passage of time and the appellant’s advanced age as mitigating factors and thus failed to impose a proportionate sentence. Consequently, I would grant leave to appeal the sentence, allow the appeal, and reduce the sentence to 14 years, as requested by counsel for the appellant.

[62] My colleague has set out the background facts underlying the offences. I do not need to repeat those facts. I agree that the circumstances surrounding the commission of the offences were especially egregious. Notwithstanding those circumstances, the trial judge was still required to impose a sentence that reflected the principle of proportionality. Indeed, the proper application of this principle ensures that the egregious nature of some offences will not overwhelm other considerations of an appropriate sentence.

A. ERRONEOUS CONSIDERATION OF AGGRAVATING AND MITIGATING FACTORS

[63] I recognize the deference that appellate courts are required to give to the sentencing decisions of trial judges. That deference does not, however, preclude appellate intervention in appropriate cases. As Wagner J. said in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43:

I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate.

[64] In my view, the trial judge engaged in an erroneous consideration of both the aggravating and mitigating factors in this case, in at least two respects.

(1) “Laying low”

[65] In her sentencing reasons, the trial judge said at p. 101: “As was articulated in R. v. Hall, 2011 ONSC 61, delay in sentencing should not encourage offenders to ‘lay low’ as Mr. Milani did, hoping to avoid detection”.

[66] In making this observation, it is not clear what the trial judge was suggesting the appellant ought to have done that would have ameliorated the impact of his conduct. The appellant was arrested and charged. He proceeded to a preliminary inquiry at which he was discharged. Thereafter, for more than three decades, he carried on with his life, just like any other citizen protected by the presumption of innocence is entitled to do. There is no evidence that he committed any other offences during this time. Indeed, the evidence is that the appellant was a productive, contributing member of his community.

[67] Nevertheless, the trial judge appears to have used the appellant’s conduct as a negative factor. She said that it “sends the wrong message” to do otherwise. She added that the appellant “has enjoyed his freedom for the better part of 30 years” as if that was something that the appellant was not entitled to do. With respect, the appellant was entitled to act exactly as he did. The trial judge’s treatment of this factor infringes upon, indeed I would say that it ignores, the presumption of innocence. The appellant was entitled to live his life until such time as the police and the Crown mustered the necessary evidence to once again arrest and charge him. The trial judge erred in using the appellant’s position, as a presumptively innocent person, as a negative factor on sentencing. In that respect, I reject the approach set out in R. v. Hall, 2011 ONSC 61, upon which the trial judge relied.

[68] The trial judge’s treatment of this issue also ignores another principle of sentencing; the “gap” principle. The gap principle is said to be “a foundational consideration in sentencing. Where the principle is relevant, it is [an] error for the sentencing court to fail to apply it”: R. v. Singh, 2012 ONSC 30, 286 C.C.C. (3d) 204, at para. 182. In that case, Hill J. helpfully set out the rationales behind the principle:

1. a gap in an offender's criminal record is relevant to future risk and to rehabilitative potential;
2. a person who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation;
3. if someone with a criminal record has not had any convictions for several years, they are to be treated if not as a first offender, then almost as a first offender; and,
4. ordinarily, the gap should reflect a sufficient passage of time to be relevant.

[69] There can be no reasonable debate that a 30-year conviction-free period is a relevant factor to consider. It suggests not only that the appellant had the potential to rehabilitate his conduct, but also that he has done so. “This long interval, free from serious convictions, is entitled to due weight”: R. v. Harrell (1973), 12 C.C.C. (2d) 480 (Ont. C.A.), at para. 7.

[70] The trial judge’s treatment of these considerations in her reasons for sentence reflects an error in principle, one that impacted the sentence she imposed.

(2) Life expectancy

[71] The appellant was 69 years old at the time of his sentencing. The defence argued that imposing a sentence of 20 years would exceed the appellant’s reasonable life expectancy. The trial judge rejected that argument on the basis that “[t]here is no medical evidence as to his life expectancy”.

[72] The trial judge also erred in her treatment of this factor. There was no need for medical evidence regarding the appellant’s life expectancy. A common-sense approach to the issue leads to the conclusion that a 20-year sentence would likely exceed the appellant’s reasonable life expectancy. Indeed, I would have thought that this was a matter upon which the parties would have agreed, or judicial notice would have been taken. In any event, if further confirmation was required, a simple trip to Statistics Canada’s website would have provided it.

[73] I will add a general observation. Trial judges should tread carefully before imposing requirements for expert evidence. Expert evidence is expensive and complicates proceedings. Further, the concerns regarding its misuse are well-established: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. Expert evidence should only be required where it is directed to an issue "which is likely to be outside the experience and knowledge of a judge or jury”: R. v. Mohan, [1994] 2 S.C.R. 9, at para. 26. That prerequisite for expert evidence was not met in this case.

[74] My conclusion that medical evidence was not necessary on this point also appears to align with the conclusions reached in R. v. M. (C.A.), [1996] 1 S.C.R. 500, where Lamer C.J.C. said, at para. 74:

However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span. [Emphasis added].

[75] My colleague seeks to deflect the impact of this factor by referring to the possibility of parole for the appellant. In my view, it is improper for this court to rely on the Parole Board of Canada to ameliorate the effects of excessive sentences. We cannot, and certainly ought not, delegate our responsibility to ensure that sentences comply with the principles of sentencing. Further, relying on the Parole Board to come to decisions that will offset the impact of the sentence imposed is entirely speculative. We have no idea what the Parole Board will, or will not, do in any given case. It follows from my views on this point that I do not agree that the approach adopted in Swope is the appropriate one. Rather, it falls to this court, and this court alone, to decide whether the sentence imposed is a proper one.

(3) Summary

[76] These errors led to the imposition of a sentence that did not properly reflect the individual circumstances of the offender. When those circumstances are properly considered, the sentence imposed is revealed to be harsh and excessive. It effectively deprives the appellant of any realistic hope of release or rehabilitation. Indeed, the trial judge makes no reference to the sentencing objective of rehabilitation at any point in her reasons for the sentence. The sentence imposed is “crushing” in that respect.

[77] I note on this point that one of the indicia of sentences that are harsh and excessive are ones where “the combined effect of the sentences threatens to encroach upon – or exceed – the offender's reasonable life expectancy”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 20. This is such a case.

B. CONCLUSION

[78] I would grant leave to appeal sentence, allow the appeal, and reduce the total sentence to one of 14 years, as submitted by the appellant.

Released: August 13, 2021 “K.F.” “I.V.B. Nordheimer J.A.”