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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20230214 DOCKET: C68224

Lauwers, Trotter and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Helder Sousa Appellant

Counsel: Mark C. Halfyard and Teodora Pasca, for the appellant Scott Clarke, for the respondent

Heard: February 2, 2023

On appeal from the sentence imposed on January 13, 2020 by Justice James A. Ramsay of the Superior Court of Justice.

Lauwers J.A.:

Overview

[1] On May 29, 2015, the appellant sexually assaulted the complainant. The complainant had gone out drinking with friends, become separated from them, and had passed out on the couch at a house party. The appellant, who did not know the complainant, took her in his car to a wooded area from the party. The complainant remembers waking up in the wooded area. She left the car to void her bladder, and when she returned, the appellant forced her to perform oral sex, then penetrated her twice vaginally and once anally. After he was done with her, the appellant then drove the complainant back to town and left her on an unfamiliar street. She found her way to a woman’s doorstep. Ultimately the police were called. The appellant was charged almost two years later, on April 21, 2017, following a police investigation. The appellant’s DNA was collected from a cigarette butt retrieved by a detective in Brantford on surveillance, which was compared with the DNA found on a rectal swab taken from the complainant after the assaults. He pleaded not guilty and was convicted on Nov. 5, 2019, after a two-week jury trial.

[2] The sentencing judge imposed the maximum sentence on the appellant – 10 years’ imprisonment (when prosecuted by indictment): Criminal Code, R.S.C. 1985, c. C-46, s. 271(a). I would allow the sentence appeal by reducing the sentence to eight years, for the following reasons.

The Issues

[3] The appellant makes three arguments, which I address in turn:

1. The trial judge erred by failing to consider the potential immigration consequences for the appellant.
2. The trial judge erred by treating the appellant’s denial of the offence and lack of remorse as aggravating.
3. The appellant’s sentence is demonstrably unfit, particularly for a first offender.

[4] Before attending to the issues, I describe the sentencing judge’s decision.

The Sentencing Judge’s Decision

[5] The sentencing judge noted the appellant’s circumstances: as of the date of sentencing, he was 37 years old, working in construction, and had no criminal record. He is a national of Portugal but since age five has been a permanent resident of Canada. He has three children, two with his current partner (an apparently stable relationship) and one adult daughter from a high school romance. The sentencing judge considered the presentence report “unremarkable”, largely consisting of letters of reference stating that the offence was out of character for the appellant.

[6] The sentencing judge noted:

This case strikes me as in a league with the most serious. And what I mean, is that while it has not got the aggravating factors that would make it an aggravated form of the offence that has a higher maximum penalty, it is among the most serious sexual assaults simpliciter.

It appears to be an opportunistic crime. The offender took advantage of the victim’s vulnerable state and committed all three of the most intrusive and degrading sexual acts. The attack was not brief.

[7] The trial judge added that when the assaults were over, the appellant took her back to town and then, “he just dumped her and left her to find her way in a state of extreme emotional upset that was patent on the 911 tape.”

[8] The sentencing judge relied on R. v. Myers, 2000 O.J. No. 1787, aff’d 2002 O.J. No. 965 (C.A.), where the offender received a nine-year sentence for a random and brutal sexual assault of a stranger. The sentencing judge noted that the sexual assault had a “devastating and long lasting” impact on the victim, including “tak[ing] away her own home town from her.”

[9] The sentencing judge considered the offence so serious and the appellant’s blameworthiness so great that he imposed the maximum penalty, a ten-year prison sentence. After credit for presentence custody, the total sentence was reduced to nine years, eight and a half months.

Analysis

Issue One: Did the trial judge err by failing to consider potential immigration consequences for the appellant?

[10] The sentencing judge stated that while the appellant might face immigration consequences, he could not “adjust the sentence to take these into account because any adjustment would result in a sentence that is not consistent with the principles of sentencing, mainly, proportionality and denunciation”. He also noted that he could not be sure the appellant would be deported, given the length of his stay in Canada and his lack of connection with any other country.

[11] This court was advised that a deportation order exists for the appellant. However, there is no certainty that it will be executed. I agree with the sentencing judge’s comments putting actual deportation in doubt.

[12] The appellant argues that his “impending deportation from Canada renders the impact of his sentence more significant than it would be for a Canadian citizen in a similar position”, and that the sentencing judge erred by failing to take these immigration consequences into account: R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, at paras. 13-14, and R. v. Suter, 2018 SCC 34, [2018] 2 SCR 496, at paras. 45-48. I disagree. The sentencing judge was aware of the consequences but exercised his discretion to determine that the sentence should not be adjusted. In Pham, at para. 14, the Supreme Court highlights the role of discretion:

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] This court has adjusted sentences taking into account unforeseen immigration consequences: see e.g., R. v. Frater, 2016 ONCA 386; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 33; R. v. Al-Masajidi, 2018 ONCA 305, at paras. 12-15; R. v. Edwards, 2015 ONCA 537, at paras. 6, 8. In these cases, it was unknown at the time of sentencing that the appellants would lose a right to appeal related to their immigration status and the sentences were adjusted, in part, to retain such a right. This court has also adjusted sentences where the sentencing judge has either considered immigration consequences but did not take it into account as a mitigating factor, as in R. v. Butters, 2017 ONCA 973, at para. 7, or failed to consider it altogether, as in R. v. Chang, 2019 ONCA 924, at para. 12. In these cases, sentences that were close to the six months’ imprisonment threshold were adjusted to account for significant immigration consequences.

[14] The criminal acts in this case were so egregious that no reasonable adjustment in the sentence could obviate any immigration consequences. As noted in Pham, cited above, the sentence must ultimately still be proportionate to the gravity of the offence and the responsibility of the offender. Given the characteristics of this case, and the unknown likelihood of actual deportation, there is no reason to adjust the sentence on the basis of immigration consequences. This is how I interpret the judge’s statement, and I agree with him. I would dismiss this ground of appeal.

Issue Two: Did the trial judge err by treating the appellant’s denial of the offence and lack of remorse as aggravating?

[15] The appellant’s argument is rooted in these comments by the sentencing judge, who said:

[T]here is a real need to bring it home to the offender that he is in need of serious introspection. So far he has not started on that path. His denial of the offence in the face of scientific evidence may seem puzzling to some, but I think at the moment he feels that the loss of face before his family would be too much to bear.

[16] The sentencing judge knew that he could not treat the appellant’s decision to defend against the prosecution as an aggravating factor. This is plain from the colloquy during sentencing submissions:

The Crown: Given the lack of acknowledgment of what has happened, and the suggestion that he was set up, there is, I would suggest, no insight into this type of behaviour and therefore, that increases the risk of reoffending. …

THE COURT: I don’t think you can call that an aggravating factor, but I take your point.

[17] The sentencing judge could have, and should have, restated this reservation is his reasons. However, in light of his acknowledgement in argument, I interpret this statement as one bearing on the appellant’s rehabilitation prospects, which is relevant to sentencing. I would therefore dismiss this ground of appeal.

Issue Three: Is the appellant’s sentence demonstrably unfit?

[18] At trial, the Crown sought a sentence of eight to ten years, relying on Myers, while the defence submitted that three to four years would be a fit sentence relying on authorities that have imposed sentences in that range.

[19] On appeal, counsel for the appellant argue that the ten-year sentence imposed by the sentencing judge is the maximum possible under s. 271 of the Criminal Code, and double the top of the range of three to five years for sexual assault, set recently by this court in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230. They argue that the sentence therefore warrants close scrutiny. Counsel for the appellant dispute the cogency of Myers as a useful precedent, instead invoking several other precedents including A.J.K. They submit that a sentence of six years, which is itself beyond the range, would be fit, and urge us to substitute that sentence. They add that, while it is possible for a judge to impose the maximum sentence, this is not a case in which it was appropriate to do so.

The Governing Principles

[20] This appeal engages the sentencing principles of parity and proportionality and the perennial issue of the role of sentencing ranges. As a general proposition, like cases should be treated alike in terms of sentencing. This is known as the principle of parity. It is stated most simply in s. 718.2(b) of the Criminal Code, which provides that: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” See also R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-58 and 67, and R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424, at paras. 31-33.

[21] Variation in sentences exists in part because cases are never exactly the same. But there is a limit and an appellate court may interfere with a sentence in accordance with s. 687(1) of the Criminal Code, which provides:

687 (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

[22] The Supreme Court has glossed the statutory test in Lacasse, at para. 11, and has framed the test: “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit ” (emphasis added). This framing encourages appellate deference to sentencing judges and gives them “wide latitude” because they have “the advantage of having heard and seen the witnesses.” Sentencing judges are therefore “in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code”: at para. 11.

[23] The threshold of “demonstrably unfit” is meant to be “very high”, as the court noted in Lacasse, at para. 52, and synonymous with “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure”: R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.), at p. 720, per Laskin J.A.

[24] The Supreme Court addressed the role of sentencing ranges in Lacasse, at para. 11: “The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.” The court went on, at para. 58, to downplay the role of appellate enforcement of sentencing ranges:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

[25] Nonetheless, Fairburn A.C.J.O. observed in A.J.K., at para. 77, that sentencing ranges work as “a quantitative sentencing tool designed to assist busy trial judges with where to start”.

[26] As to the formation of sentencing ranges, there is no doubt, as Fairburn A.C.J.O. noted in A.J.K., at para. 71, that “it is not unusual for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change”, citing R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22. Indeed sentences in sexual assault cases have been increasing. In R. v. A.J.K., for example, this court set aside a lower sentencing range for intimate partner sexual violence known as the “Smith range” of 21 months to four years, and reset the range for all sexual assaults at three to five years.

[27] Fairburn A.C.J.O. stated, at para. 77:

Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range…

[28] Fairburn A.C.J.O. added, at para. 77, that the reset range did not prevent departures from the range: “Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.”

[29] Sentencing ranges can also function as a tool to identify outliers that might warrant more careful appellate attention. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R 163, the court noted, at para. 36, that “an appellate court is justified in intervening only if the sentence imposed by the trial judge ‘is in substantial and marked departure from the sentences customarily imposed for similar offenders commit­ting similar crimes’ (M. (C.A.), at para. 92).” This statement was not displaced by Lacasse.

[30] Finally, when the sentencing judge cites precedents in support of a sentence, the cogency of that support depends on whether the precedent is apt − that is − sufficiently like the case the sentencing judge has at hand.

The Cases

[31] I consider first the authorities the appellant cites in chronological order. In R. v. Rand, 2012 ONCA 731, the appellant, a 27-year-old man, and the complainant, a 17-year-old girl, did not know each other; they met at a park during a live concert. The complainant was heavily intoxicated and in and out of consciousness. When the complainant was separated from her friends, the appellant committed acts of unprotected anal and vaginal penetration. The appellant’s co-accused also penetrated the complainant vaginally. The appellant received a sentence of four years’ imprisonment for sexual assault. This court upheld the sentence. The court found that the sentence was within the appropriate range and highlighted the appellant’s extensive criminal record, which included several convictions for violent crimes.

[32] In R. v. S.A., 2014 ONCA 266, the appellant “took two acquaintances on successive dates to secluded places and sexually assaulted them”. This court upheld a sentence of five years. The court noted that the sentence was lenient given the serious nature of this offences and reflected the appellant’s “relative youth and lack of record”.

[33] In R. v. P.M., 2022 ONCA 408, the appellant was sentenced to three years’ imprisonment on an intimate partner sexual assault conviction. I note that the decision in P.M. has been overtaken by A.J.K. The appellant in P.M. argued that the sentencing judge erred in applying the three- to five-year range for non-intimate partner sexual assault instead of the 21-month-to-four-year range for intimate partner forced intercourse sexual assault. This court upheld the sentence and noted that, even considering the appellant’s first offender status and the collateral immigration consequences, for this serious and violent sexual assault the three-year sentence was entirely fit. The sentence reflected the appellant’s moral blameworthiness, and he did not benefit from the mitigating effect of remorse. The appellant had also absconded prior to sentencing, rendering prospects of his rehabilitation remote.

[34] In A.J.K., the offender sexually and physically assaulted an acquaintance after driving her to a secluded industrial area. This court upheld the five-year sentence.

[35] The respondent maintains that Myers is the right comparator. The respondent also points to R. v. Anderson, 2012 ONCA 373, 292 O.A.C. 365, as a relevant case. In Anderson, this court upheld a very lengthy sentence imposed on a first offender, and concluded, at para. 19:

We see no error in the sentencing judge’s sentencing analysis. As R. v. L.M. holds, at para. 21: “[t]here is still place in criminal law for maximum sentences in appropriate circumstances.” In this case, the appellant was convicted of two offences, which each carry a maximum sentence of life imprisonment (aggravated sexual assault and attempt murder). The circumstances of his crimes, described above, were especially egregious and aggravating.

[36] In Anderson, the 26-year-old appellant was convicted of breaking and entering, aggravated sexual assault, attempted murder, unlawful confinement, and threatening death respecting a 76-year-old woman victim. He was sentenced to life imprisonment on the first three counts and five years’ imprisonment on the last two counts, to be served concurrently. The trial judge took denunciation and general deterrence as the paramount sentencing goals.

[37] Finally, the principle of restraint should be applied to first offenders. This court explained the principle in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35. This court has noted that the sentence imposed on a first offender should be as short as possible and be tailored to the individual circumstances of the accused: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545. Rehabilitation is an aspect of restraint: R. v. Blanas (2006), 207 O.A.C. 226 (C.A.), at para. 5. This principle applies with particular force to youthful offenders: R. v. Dubinsky, [2005] O.J. No. 862 (C.A.), at para. 1.

The Principles Applied

[38] I am mindful of the Supreme Court’s frequent admonitions to appellate courts to be duly deferential to the determinations of sentencing judges.

[39] The appellant is quite right that the sentence of ten years is twice the top of the applicable sentencing range of three to five years. It merits closer scrutiny. The law is very clear that a sentencing judge can go beyond the range. Is the sentence demonstrably unfit, having regard to the sentencing principles set out in s. 718 of the Criminal Code and in the caselaw?

[40] The sentencing judge rooted his sentence in “the principles of sentencing, mainly, proportionality and denunciation.” He pointed to the vulnerability of the complainant, her extreme degradation in the assaults, and the devastating impact of the assaults on her. He considered the many aggravating and few mitigating circumstances on which he got lengthy submissions.

[41] The sentencing judge mentioned Myers briefly, noting only that it was “[t]he one that seemed closest to me.” In Myers, the trial judge imposed close to the maximum term, a nine-year sentence that this court upheld.

[42] The common features between this case and Myers are the vulnerability of the victims, their extreme degradation in the violent assaults, and the devastating impact of the assaults on them, all features that the sentencing judge pointed out.

[43] The appellant points to distinguishing features between this case and Myers. The Myers assault was more physically violent in some respects (“overtones of bodily harm”) and dangerously exposed the victim to hypothermia. Myers was not a first offender and had several convictions for assaults on women.

[44] However, as the respondent notes, Myers conceded committal and pleaded guilty, sparing the complainant from testifying. In Myers, at para. 31, the sentencing judge noted that he would have imposed the maximum ten-year sentence had Myers not pleaded guilty. There were also other factors that mitigated Myers’ moral blameworthiness, particularly his alcohol addiction and difficult upbringing. Myers wrote a letter of apology to the victim and the sentencing judge found him to be repentant. Even accounting for these mitigating factors, the judge still imposed a nine-year sentence, just one year below the maximum.

[45] I reach the following conclusions: First, I agree with the sentencing judge that Myers is the closest comparator. The sentencing judge in Myers gave a nine-year sentence, not ten. But Myers involved a more savage attack and more physical risk. Importantly, Myers was not a first offender but a repeat sexual offender. The mitigating circumstances in Myers are not present here, but they did not seem to have accounted for much in that case.

[46] Second, the authorities offered by the appellant are not especially compelling. The facts were somewhat similar in A.J.K., in which a five-year sentence was imposed. The court there was asked to reduce the five-year sentence, which was at the top of the range, but declined, deferring to the trial judge. The older cases involving assaults by multiple accused are not comparable.

[47] Third, I respect and accept the sentencing judge’s conviction that the appellant’s vile acts could not be adequately addressed even at the top of the sentencing range and required a higher sentence. The appellant effectively concedes this point by proposing six years, which is outside the three- to five-year range.

[48] Fourth, the principle of restraint in sentencing a first offender requires some reflection in the sentence. The sentencing judge noted that the appellant has no criminal record, but it is not clear that this played any role in his thinking. He did take the prospect of rehabilitation into account as noted earlier. The appellant is a first offender but is not youthful. I agree with the respondent that violence can justify sentencing a first offender beyond the range. That said, I do not find Anderson to be a helpful authority beyond that simple point because the violence in that case was extreme.

[49] Gathering these threads together, I conclude that the sentence of ten years is demonstrably unfit and would substitute the sentence of eight years as adjusted by the sentencing judge’s credits.

Disposition

[50] For the foregoing reasons, I would allow the appeal and reduce the sentence from ten years to eight years, which, after credit for presentence custody, results in the total of sentence of seven years, eight and a half months. I would otherwise adopt the other details of the sentence under appeal.

Released: February 14, 2023 “P.L.”

“P. Lauwers J.A.”

“I agree. Gary Trotter J.A.”

“I agree. J. George J.A.”