Court of Appeal for Ontario

Date: 2025-04-04
Docket: C70938
Coram: Grant Huscroft, P.J. Monahan, S. Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
Lawrence Allen Thompson (Appellant)

Appearances:
Richard Litkowski, for the appellant
Eunwoo Lee, for the respondent

Heard: March 27, 2025

On appeal from the sentence imposed on December 20, 2021 by Justice Alissa K. Mitchell of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of sexual interference, kidnapping, and abduction and sentenced to a global of 10 years’ imprisonment. He seeks leave to appeal sentence.

[2] The victim, a four-year-old child at the time of the offences, was playing outside near her home when the appellant stopped his car, picked her up, put her into the passenger seat of his car and drove away. While he was driving, the appellant forced the child onto his lap and pulled down her pants. The abduction was witnessed by two people, who followed the appellant. The appellant then drove back and dropped the child off across the street from her home approximately two minutes after abducting her.

[3] The sentencing judge imposed a global sentence of 10 years (8 years concurrent for abduction and kidnapping, and 2 years consecutive for sexual interference). She gave credit for pre-sentence custody calculated at a 1.5 to 1 ratio, amounting to 5 years, 5 months, and 23 days.

[4] The appellant argues that the sentencing judge erred in assessing the aggravating and mitigating factors; that the sentence was demonstrably unfit; and that the sentencing judge erred in assessing enhanced pre-trial credit. We do not accept these submissions. The trial judge made no error in principle. Although the sentence appears to be at the high end, it is not demonstrably unfit on that account.

[5] The appeal is dismissed for the reasons that follow.

The Sentencing Judge Properly Considered the Aggravating and Mitigating Factors

[6] The appellant argues that the sentencing judge’s assessment of the aggravating and mitigating factors was flawed because she erred in thinking that hearsay evidence was inadmissible at the sentencing hearing or was deserving of less weight. Specifically, the appellant argues that the sentencing judge gave no weight to sexual abuse the appellant suffered when he was a child, evidence of which was provided in a letter of support filed by the appellant’s real estate lawyer, Walter Cooper. The appellant argues, further, that several of the aggravating factors considered by the sentencing judge were either relatively minor or not properly aggravating, and that the sentencing judge misapprehended the evidence about the appellant’s remorse and considered the absence of mitigating factors as relevant to determination of the sentence.

[7] We do not agree.

[8] The sentencing judge was not required to accept the evidence of Mr. Cooper and in any event did not reject it simply because it was hearsay. The sentencing judge attributed little weight to the evidence of sexual abuse, among other things because the appellant had the opportunity to disclose the abuse to the pre-sentence report writer but chose not to do so, and because no one else mentioned any sexual abuse. Moreover, the sentencing judge found that Mr. Cooper’s evidence was problematic in other respects: his letter in support of the appellant expressed opinions about the appellant and his character that had no support in the record.

[9] We see no error in the sentencing judge’s identification of the aggravating factors. The sentencing judge did not wrongly count elements of the offences of kidnapping and sexual interference as aggravating factors.

[10] The sentencing judge did not misapprehend the evidence concerning the appellant’s remorse. It was open to the sentencing judge to find that although the appellant purported to express remorse, it did not extend to kidnapping the child to commit sexual offences. The sentencing judge found that the appellant was unable to accept the court’s findings, did not recognize that his actions were criminal, and took no real responsibility for them. Her finding that the appellant saw himself as a “victim” was not inapt given the pre-sentence report.

[11] Nor did the sentencing judge err in regard to the mitigating factors. The appellant acknowledges that the sentencing judge did not specifically refer to the lack of a guilty plea or remorse as aggravating factors but says that she discussed them as though they were. This submission parses the sentencing judge’s reasons unreasonably. The sentencing judge’s finding that the appellant was unwilling to take responsibility for the harm he had caused was relevant to her finding concerning the appellant’s prospects for rehabilitation.

The Sentence Was Not Demonstrably Unfit

[12] The appellant argues that the 10-12 year range cited by the sentencing judge was arbitrary and inconsistent with the caselaw and offended the principles of proportionality and totality. The appellant cites several cases but emphasizes R. v. Belbin, 2015 ONSC 1714, aff’d [2017] O.J. No. 3939 (C.A.). That case involved the kidnapping and sexual assault of a young child, whom the appellant took from her bed after breaking into the family home. The offender was found across the street a few minutes later, crouched over the naked child. He was sentenced to seven years’ imprisonment.

[13] We were not asked to establish a sentencing range and do not do so. As the sentencing judge recognized, most of the cases cited by the appellant in which lower sentences were imposed, including Belbin, pre-date the Supreme Court’s decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. In that case the Supreme Court noted that Parliament has prioritized denunciation and deterrence and instructed that sentences for sexual offences against children must increase.

[14] The sentencing judge found that the child and her family had been severely harmed by the offences. She found, further, that although the appellant was a 65-year-old first offender, he was unable to accept the court’s findings and unwilling to take responsibility for the harm he caused. This led her to express “grave concerns” about his prospects for rehabilitation.

[15] The sentencing judge considered the relevant factors and the totality principle in imposing a global sentence of 10 years rather than the 7-year term proposed by the appellant. The sentence imposed is indeed a high one, but it appropriately emphasized the sentencing goals of denunciation and deterrence having regard to the egregious nature of the offences and the harm the appellant inflicted. In all of the circumstances, it cannot be said to be demonstrably unfit.

The Sentencing Judge Did Not Err in Assessing Pre-Trial Credit

[16] The appellant argues that his experience in pre-trial detention was horrific and that this evidence was largely disregarded by the sentencing judge. Although the sentencing judge purported to give Duncan credit as a mitigating factor, ultimately her decision failed to do so.

[17] We do not agree. The sentencing judge found that the appellant was required to sleep on the floor for 289 days and spent 57 days in full or partial lockdown. She found that the appellant was assaulted on one occasion. These findings were open to the sentencing judge and reveal no error. The sentencing judge considered these conditions as mitigating factors in reducing the sentence she imposed to the lower end of the range she identified. That was a discretionary decision that is entitled to deference in this court.

Conclusion

[18] Accordingly, leave to appeal sentence is granted, but the appeal is dismissed.

“Grant Huscroft J.A.”
“P.J. Monahan J.A.”
“S. Gomery J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.