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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
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. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19
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: 20231010 DOCKET: COA-22-CR-0104
Favreau, Copeland and Monahan JJ.A.
BETWEEN
His Majesty the King Appellant
and
W.V. Respondent
Counsel: Erica Whitford, for the appellant Myles Anevich, for the respondent
Heard: September 14, 2023
On appeal from the sentence imposed on August 15, 2022, by Justice Robert B. Reid of the Superior Court of Justice.
Monahan J.A.:
A. Overview
[1] The respondent was convicted by a jury of sexually assaulting the complainant, C.B., a developmentally disabled woman in her 20’s with the mental age of a 7 to 8-year-old child. The respondent was one of five co-accused who were all convicted of sexually assaulting C.B. The offences were not committed jointly but were tried together because they involve the same complainant, and a central common issue was the complainant’s capacity to consent to the sexual activity in question.
[2] At trial, the respondent admitted to having had sexual intercourse and oral sex with C.B. approximately 15 to 20 times between early 2017 and December 2017. The respondent claimed that he did not appreciate C.B.’s disability, arguing that he had an honest but mistaken belief that C.B. could and did consent to sexual activity. The jury disagreed and convicted the respondent of one count of sexual assault. He received a three-year penitentiary sentence.
[3] The Crown appeals the three-year sentence on two principal grounds. The Crown argues that the sentence fails to give meaningful effect to the guiding principles applicable to sentences for sexual offences involving children, as articulated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. It was not disputed either below or in this court that those principles apply in the circumstances of this case because of the complainant’s developmental disabilities. The Crown also argues that the sentence is demonstrably unfit since it failed to reflect the gravity of the offence and the respondent’s high moral blameworthiness.
[4] While sentencing determinations are owed considerable deference on appeal, appellate intervention is justified where the sentence imposed is demonstrably unfit or there is an error in principle that had a material impact on the sentence imposed.
[5] I would allow the appeal on both grounds advanced by the Crown. The sentencing judge acknowledged that the Friesen principles applied, given that the complainant had the mental age of a 7–8-year-old child, but failed to give proper effect to those principles. Instead of recognizing the inherent wrongfulness of the respondent’s behaviour, the sentencing judge imposed a sentence at the low-end of the range on the basis that the respondent did not sexually objectify C.B. and, instead, treated her “generously.” This amounted to an error in principle, contrary to Friesen’s clear direction that sexual violence against children is always inherently wrongful, and this error had a material impact on the sentence imposed. The three-year sentence was also demonstrably unfit since it failed to recognize the gravity of the offence and the respondent’s moral blameworthiness.
[6] Having concluded that the three-year sentence must be set aside, I find a fit sentence in this case to be six years. Although the respondent has recently been released on day parole, I find that in the circumstances it is in the interests of justice that he be reincarcerated. I would, therefore, decline to stay the execution of the additional period of incarceration that remains to be served.
B. Background
[7] The respondent was convicted of sexually assaulting C.B. after a five-and-a-half-month jury trial involving five co-accused. The bulk of the allegations involved C.B.’s father J.B., who was convicted of eight offences relating to C.B. when she was a child and an adult. The other four co-accused, including the respondent, were convicted of sexually assaulting C.B. when she was a biological adult. All of the offenders, except for J.B., were sentenced on August 15, 2022.
[8] C.B.’s capacity to consent was the central issue at trial for the respondent and three of his co-accused. The Crown argued that C.B. lacked the capacity to consent because of her developmental disability as well as her intoxication due to frequent consumption of both alcohol and drugs. The respondent admitted to having a sexual relationship with C.B. but argued that he had an honest but mistaken belief in C.B.’s capacity to consent.
[9] C.B. did not testify at trial. However, numerous witnesses testified about their observations of C.B. and about her developmental disability. These witnesses included Dr. Dawn Good, a registered psychologist with a specialty in neuropsychology, who testified as an expert at trial, as well as several witnesses from Port Cares, a non-profit community organization where C.B. attended regularly during the relevant period in order to obtain her disability funds.
[10] Each of these witnesses said that C.B.’s developmental disability was obvious, as was the fact that she was unable to care for herself. For example, C.B. spoke and behaved like a child, wore inappropriate clothing, had poor hygiene and nutrition, and frequently appeared to be under the influence of alcohol or drugs. Several of the co-accused, including the respondent, attended at Port Cares with C.B. to take her disability funds from her. The respondent was observed on more than one occasion demanding money from C.B. for things like beer and food.
[11] C.B. was apprehended under the Mental Health Act, R.S.O. 1990, c. M.7, on December 16, 2017, after being observed on the street wearing inappropriate clothing, given the cold temperature outside. Her pants were frozen, she had icicles in her hair, and her lips were bluish. Police officers who attended testified that it was apparent that C.B. had a developmental disability from her limited ability to communicate with officers and her attachment to a teddy bear.
[12] After being apprehended on the basis that she was unable to care for herself, she was found to have crystal methamphetamine in her system and was over five months pregnant. However, C.B. did not understand that she was pregnant and did not comprehend that what she felt in her stomach was a baby. (It was later confirmed that one of the respondent’s co-accused, C.G.B., was the biological father of the child.) An attending psychiatrist concluded that C.B. was not capable of comprehending or consenting to medical decisions regarding her own health or decisions relating to her pregnancy and child, and C.B.’s sister was appointed as a substitute decision-maker for C.B. in June 2018.
[13] The respondent admitted to having a sexual relationship with C.B. that began in early 2017 and continued until her apprehension in December 2017. At the time of the first sexual encounter, C.B. was 27 and the respondent was 48. By his own admission, the respondent had sexual intercourse with C.B. between 15 to 20 times. He also recorded two videos of C.B. performing oral sex on him. On one of those occasions, C.B. paused in the middle of performing oral sex on the respondent to talk about a stuffed animal she was holding at the time.
[14] Throughout his testimony, the respondent claimed the sexual contact he had with C.B. was consensual and that he honestly believed she had the capacity to consent. He testified that he did not believe that C.B. had a disability, she just seemed uneducated.
[15] The jury verdict indicates that the jury found that C.B. did not have the capacity to consent to sexual activity and, further, that they rejected the respondent’s defence of honest but mistaken belief in C.B.’s capacity to consent.
C. Proceedings at Sentencing
[16] At sentencing, the Crown sought a sentence of 8 to 10 years on the basis of the statutorily aggravating factors in ss. 718.01 and 718.04 of the Criminal Code, R.S.C. 1985, c. C-46, as well as the Friesen principles. The respondent sought a sentence of time served (189 days) plus 3 years probation, or, in the alternative, a sentence between 27 to 30 months custody, less credit for pre-sentence custody.
[17] C.B.’s sister and substitute decision-maker submitted a Victim Impact Statement (“VIS”) highlighting the impact the offences had on C.B. The VIS described C.B. as a perfect target for abuse in her adulthood because she was already defeated by the abuse she had experienced as a child and did not know “what no means”. The VIS noted that C.B.’s trauma is somewhat masked by her disability because she is not able to articulate what happened to her. According to her sister’s VIS, C.B. expresses her trauma through her body language, loud cries and regression. Before her apprehension, C.B. had moments of randomly screaming and crying, holding herself in a ball or sitting on the floor tightly gripping herself while rocking her body out of the blue.
[18] A community impact statement from the DisAbled Women’s Network of Canada (“DAWN Canada”), which was admitted as an exhibit, noted that when women with disabilities are victims of sexual abuse it is often repeated, frequent and extended, and can involve multiple perpetrators. DAWN Canada’s statement also attested to the fact that women with intellectual disabilities have disproportionately higher rates of sexual abuse and are particularly vulnerable due to their increased reliance on caregivers, communication/language barriers, being perceived as less credible victims, and being socialized to have unquestioning compliance and perceived vulnerability.
[19] Defence counsel filed four character letters in support of the respondent. The letters demonstrated the respondent’s ties to the community, including his helpful nature towards his neighbours. Various certificates were filed in relation to programs the respondent completed in custody after his bail was revoked pending sentencing.
[20] The respondent’s criminal record was also filed at sentencing. His record lists convictions for 35 offences, including 8 convictions for assault, between 1985 and 2012. As noted in the presentence report, the respondent’s last conviction was in 2015 for mischief to property. Most of his previous sentences were in the range of 30 to 60 days imprisonment. His highest previous sentence of incarceration was seven months imprisonment.
[21] The respondent described his feelings for C.B. in the presentence report. He maintained that his sexual relationship with C.B. was a consensual one and claimed that he still loved her. The respondent indicated that upon his release from custody, he would like to follow up with C.B. to make sure she is okay. The author of the presentence report concluded that the respondent had not taken responsibility for, and shown little insight into, his offence and as a result may present a greater risk to reoffend.
D. Reasons for sentence
[22] In his reasons for sentence, the sentencing judge found that the statutorily aggravating factors in s. 718.04 applied because of C.B.’s vulnerabilities, as did the Friesen principles given C.B.’s mental age. The sentencing judge accepted the VIS as well as the community impact statement from DAWN Canada as indicating the likely damage caused by the sexual assaults C.B. experienced.
[23] Nevertheless, the sentencing judge found that the respondent should receive a sentence at the low-end of the range for such offences since his moral culpability was reduced by a number of factors. These factors included: (i) the respondent “did not obviously take advantage of [C.B. by] using her as a sexual object”; (ii) the respondent treated C.B. “generously” by giving her new or clean clothes, feeding her, providing adequate shelter and giving her lessons on appropriate behaviour such as the consequences of stealing a child’s bicycle; and (iii) it would appear that the respondent’s intent was not to take advantage of C.B.’s vulnerabilities.
[24] Given the respondent’s reduced moral culpability, the sentencing judge imposed a sentence of three years incarceration, which was the lowest sentence imposed on the co-accused in this proceeding. [1]
E. Governing Principles
1. Standard of review
[25] Sentencing determinations are owed considerable deference on appeal. Appellate intervention is justified only where (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44 , 51; Friesen , at paras. 26-28 .
[26] It should also be noted that an appellate court may not intervene in a sentencing decision simply because it would have weighed the relevant factors differently. The choice of the sentencing range, or of a category within a range, falls within the trial judge’s discretion and cannot, in itself, constitute a reversible error.
[27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, the appellate court must perform its own sentencing analysis to determine a fit sentence: Friesen , at para. 27 . However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent they are not affected by the error in principle.
2. The Friesen Principles
[28] Friesen sent a clear message that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase to match Parliament’s view of their gravity. The Supreme Court emphasized that sexual offences against children are inherently wrongful and always put children at risk of serious harm. Substantial sentences are required, and it is not open to sentencing judges to elevate other sentencing objectives to an equal or higher priority than those of denunciation and deterrence: Friesen , at paras. 101, 116, 145, 151 .
[29] The sentencing principles outlined in Friesen extend equally to sexual offences against adults who, by virtue of a physical or cognitive disability, are vulnerable to sexual exploitation akin to that of a child. Friesen pointed out that children and youth with disabilities are especially vulnerable because “they may be perceived as easier to victimize, may not be able to fully understand or communicate what has happened to them, and face barriers to reporting”: Friesen , at para. 72 . The same reasoning applies with equal force to adults with disabilities, as the British Columbia Court of Appeal recently concluded in R. v. C.C.H., 2020 BCCA 162, at paras. 27-29 .
[30] Friesen also held that it is an error to characterize sexual offences against children that involve a participating victim as free of physical or psychological violence. To the contrary, violence is inherent in such offences since they necessarily involve an adult’s serious violation of a child’s sexual integrity, human dignity and privacy. Thus, the fact that “additional forms of violence such as weapons, intimidation, and additional physical assault may not be present does not provide a basis to ignore the inherent violence of sexual offences against children”: Friesen at para. 152 .
[31] Put another way, the absence of certain aggravating factors, such as additional violence, is not itself a mitigating factor, nor does it reduce the moral blameworthiness of the offender.
F. Discussion
1. The sentencing judge failed to properly consider the inherent harmfulness and wrongfulness of the respondent’s conduct
[32] As the earlier discussion of Friesen makes plain, sexual offences involving children or adults with severe cognitive disabilities that make them incapable of consenting are always exploitative and inherently wrongful. Moreover, violence is inherent in such offences, which invade and negate a vulnerable victim’s personal autonomy and integrity, even if additional forms of violence such as intimidation or physical assault are not present.
[33] The sentencing judge’s reasons failed to give proper effect to these principles. Far from recognizing the fact that the respondent exploited C.B.’s vulnerabilities, the sentencing judge characterized the respondent’s intent as “not to take advantage of C.B.’s vulnerabilities”. This description of the respondent’s intent contradicts the jury’s finding that the respondent, despite being aware of C.B.’s inability to consent to sexual activity, proceeded to engage in an ongoing sexual relationship with her that continued for nearly a year.
[34] Similarly, the sentencing judge’s finding that the respondent “did not obviously take advantage of [C.B. by] using her as a sexual object” ignores the fact that the respondent was in essence using C.B. to satisfy his own sexual needs, given the jury’s finding that he was aware that she was incapable of consenting to the sexual activity in which they were engaged.
[35] The sentencing judge relied on these mistaken characterizations of the respondent’s intent in order to reduce his moral culpability and blameworthiness. In so doing, he committed an error in principle.
[36] Moreover, this error had an impact on the sentence, since it led the sentencing judge to impose a sentence at the low end of the applicable sentencing range. As a result, the sentence must be set aside.
2. The sentence was demonstrably unfit
[37] In Friesen , the Supreme Court indicated that mid-single digit penitentiary terms for sexual offences against children are normal and upper-single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances: Friesen at para. 141 .
[38] In this case, a substantial penitentiary sentence was required given the presence of a number of significant aggravating factors. These include the fact that the respondent sexually assaulted C.B. repeatedly over a period of almost one year; the sexual assaults were invasive, involving sexual intercourse and oral sex; the respondent video recorded two of the sexual assaults, creating a record of the abuse; and the victim was extremely vulnerable and dependent on the respondent for basic necessities, a vulnerability that was exploited by him.
[39] The respondent argues that his moral blameworthiness is comparable to that of two of his co-accused who received sentences of three and a half years. Those co-accused had certain mitigating factors not present in the respondent’s case, including the fact that both were treated as first offenders, were in their 70’s and had health issues. Additionally, the evidence that the co-accused offenders had sexually assaulted C.B. on numerous occasions was largely circumstantial and the sentencing judge did not make a clear finding as to the frequency of their sexual assaults on C.B. In contrast, the respondent admitted to over 15 instances of invasive sexual contact with C.B., was 48 years old at the time of the offences and had an extensive criminal record.
[40] I therefore find that the sentence of three years was demonstrably unfit.
G. What Is a Fit Sentence?
[41] In my view, the sentence imposed must be set aside on both of the grounds advanced by the Crown. Given that, this court is required to perform its own sentencing analysis to determine a fit sentence for the respondent.
[42] The Crown renews its position that a sentence of eight years is appropriate, relying on a number of cases decided post- Friesen with similar aggravating factors: R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417 (global sentence of eight years upheld for a series of sexual assaults of two victims, who were the offender’s Indigenous teenaged nieces); R v. B.M., 2023 ONCA 224, (sentence increased on appeal to seven years for the sexual abuse of two 12-year-old children continuing over a period of 43 months).
[43] The defence argues that the cases relied upon by the Crown are distinguishable, either because they involved more than one victim or extended for a longer period of time than the case at hand. The defence maintains that a sentence in the range of three years is appropriate, relying on R. v. G.F., 2022 ONCA 44, where this court upheld sentences of 3 and 3.5 years for a prolonged sexual assault against a 16-year-old complainant.
[44] In my view none of the cases cited by counsel are precisely analogous to the circumstances in the present case. For example, G.F. was a defence appeal in which there was a single incident involving offenders with no prior criminal record, circumstances which clearly distinguish G.F. from the present case.
[45] Nor, for reasons of parity, would I accede to the Crown’s request for an eight-year sentence. I note that C.G.B., whose conduct was much more aggravating than the respondent’s, received a sentence of 9 years, while the other 2 co-accused received sentences of 3.5 years each. The Crown has not appealed any of those sentences.
[46] I find that a six-year prison term is a fit sentence in the circumstances of this case. This sentence gives priority to the principles of denunciation and deterrence as mandated by ss. 718.01 and 718.04 , as well as by Friesen, while also taking appropriate account of the parity principle.
H. Should the Respondent be reincarcerated?
[47] The court was advised that the respondent was released on day parole on July 27, 2023, having served 11 months of his custodial sentence. He seeks a stay of the execution of any sentence of incarceration imposed by this court.
[48] The key question is whether it is in the interests of justice for the respondent to be reincarcerated: R. v. Cheng (1991), 50 O.A.C. 374 (C.A.). I note that this court has generally been reluctant to reincarcerate an offender who has served the sentence originally imposed and has been released in the community: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 48 to 49 ; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50 . This is particularly the case where any period of incarceration would be relatively short, and a substantial period of time has passed since the offender was released.
[49] Nonetheless, where the original sentence was far below that which was required, re-incarceration has been often found to be necessary: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, (reincarceration ordered where sentence increased from 3 to 7 years); R. v. Leo-Mensah, 2010 ONCA 139, 101 O.R. (3d) 366, (reincarceration ordered where sentence increased from one day to two years).
[50] In this case, taking into account the fact that the respondent’s sentence has been doubled from 3 to 6 years, and that he was released on parole less than 2 months ago, I find that his reincarceration is in the interests of justice. I would therefore decline the respondent’s request for a stay of the balance of his sentence that is yet to be served.
I. Disposition
[51] I would grant leave to appeal the sentence, allow the sentence appeal and increase the respondent’s sentence from three years to six years. The respondent will of course receive appropriate credit for all time already served.
[52] The respondent shall surrender into custody before October 13, 2023, failing which a warrant shall issue for his arrest.
Released: October 10, 2023 “L.F” “P. J. Monahan J.A.” “I agree L. Favreau J.A.” “I agree J. Copeland J.A.”
[1] Of the three co-accused who were also sentenced on August 15, 2022, one received a sentence of nine years while the other two received sentences of 3.5 years each.
