Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220512 Docket: C68854 Judges: Lauwers, Roberts and Trotter JJ.A.

Between: Her Majesty the Queen Respondent

And: R.C. Appellant

Counsel: Mark. C. Halfyard and Chloe Boubalos, for the appellant Jacob Millns, for the respondent

Heard: May 9, 2022

On appeal from the sentence imposed on November 27, 2020 by Justice Alexander Sosna of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence of 9 months in custody, plus 12 months’ probation for indecent assault. He argues that the trial judge erred in failing to impose a conditional sentence. He seeks to introduce fresh evidence that outlines the appellant’s health issues and the consequences to him and his fear of contracting COVID-19 in prison.

[2] At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.

[3] The appellant submits that the trial judge made the following reversible errors:

1. He failed to take judicial notice of the impact of COVID-19 and to consider it as a mitigating collateral consequence.
2. He failed to give sufficient weight to the sentencing objectives of rehabilitation and specific deterrence.
3. The sentence imposed was harsh and excessive, and a conditional sentence would have been appropriate.

[4] We are not persuaded that the trial judge made any reversible error that impacted the sentence imposed or would warrant appellate interference with his sentencing decision that is, absent error, owed considerable deference: R. v. Lacasse, 2015 SCC 64, at para. 11. In our view, the sentence was entirely fit in the circumstances of this case that the trial judge carefully considered.

[5] The appellant is 73 years old. He pled guilty on an agreed statement of fact to the offence of indecent assault upon E.B., which occurred approximately 50 years ago when E.B. was 12 or 13 years old and the appellant was about 21 years old. According to the agreed statement of fact, the appellant was a family friend, and the assault occurred when E.B. was left overnight in the appellant’s care in the company of E.B.’s older brother, I.B. The appellant gave E.B. an alcoholic drink. He and I.B. entered E.B.’s bedroom, both naked. The appellant put E.B.’s hand on his brother’s penis; the appellant placed E.B.’s hand on his own penis and put his penis in E.B.’s mouth. When E.B. complained about the taste, the appellant told I.B. to “suck his penis to take the taste away”, after which the appellant reinserted his penis in E.B.’s mouth. The incident ended when E.B. began to cry.

[6] Because the offence of indecent assault had been repealed between the commission of the offence and sentencing, the trial judge was required to consider which current offence was comparable. He adopted the defence submissions and found that the current offence of sexual interference was made out and that a conditional sentence was available. The trial judge applied the guiding principles for sentencing in cases of sexual offences against children, set out by the Supreme Court in R. v. Friesen, 2020 SCC 9. He considered but declined to impose a conditional sentence, or as alternatively argued, a suspended sentence or a 90‑day intermittent sentence. He determined, correctly, that in the circumstances of this case only a custodial sentence would satisfy the predominant sentencing principles of denunciation and deterrence.

[7] The trial judge reviewed the numerous mitigating factors, including the appellant’s advanced age, his otherwise pro-social life, his health considerations, his guilty plea, his remorse, his attendance for counselling, and his low risk of reoffending. He considered the aggravating factors of E.B.’s young age, the abuse of a position of trust, the degree of physical interference of sexual touching and oral sex, and the harmful, life-long impact of the offence upon E.B.

[8] The trial judge also took into account the evidence about the appellant’s health issues and his susceptibility to contracting COVID-19 while in prison. He determined, again, correctly, that without evidence about how correctional institutions are addressing COVID-19, it would be speculative to draw conclusions about the impact of the virus on the appellant were he to serve a custodial sentence. The fresh evidence tendered by the appellant does not provide the evidence that the trial judge indicated was lacking but essentially repeats the evidence about the appellant’s health issues and COVID-19 concerns that the trial judge had already considered.

[9] We see no error in the trial judge’s weighing of the relevant factors, including the effects of the pandemic, and in his application of the correct legal sentencing principles. We agree that the principles of denunciation and deterrence were paramount. The many mitigating factors in this case were outweighed by the numerous aggravating factors properly identified by the trial judge. We also note that the appellant had the benefit on sentencing that his entire criminal record produced on appeal as an agreed statement of fact was not before the trial judge.

[10] The sentence imposed was lenient and reflected the lower end of appropriate sentences for sexual offences against children. The collateral consequences of COVID-19 cannot be used to reduce a sentence so that it is disproportionate to the gravity of the offence or the moral blameworthiness of the offender, and is no longer fit: R. v. Morgan, 2020 ONCA 279, at paras. 9-11; R. v. Shilling, 2021 ONCA 916, at para. 22. That would be the case here if we acceded to the appellant’s submissions.

[11] The appellant’s ongoing concerns arising out of his health issues and COVID-19 susceptibilities during incarceration are best dealt with by the correctional/parole authorities: R. v. Premji, 2021 ONCA 721, at para. 10; R. v. Kanthasamy, 2021 ONCA 32, at para. 11.

Disposition

[12] For these reasons, we dismissed the appeal.

“P. Lauwers J.A.”

“L.B. Roberts J.A.”

“Gary Trotter J.A.”