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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

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

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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

CITATION: R. v. Anderson, 2012 ONCA 373

DATE: 20120605

DOCKET: C53603

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Anderson

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 17, 2012

On appeal from the sentence imposed on April 9, 2010 by Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury.

By the Court:

I. Background

[1] After a judge alone trial, the appellant was convicted of breaking and entering, aggravated sexual assault, attempt murder, unlawful confinement and threatening death.[^1] He was sentenced to life imprisonment on the first three counts and five years’ imprisonment on the last two counts, to be served concurrently.

[2] The appellant appeals against sentence.

[3] In his factum, the appellant argued that the sentencing judge erred in imposing a life sentence after the Crown withdrew its dangerous offender application. The appellant maintained that the sentencing judge’s assessment of his future dangerousness and of the associated need for protection of the public formed the primary basis for the imposition of a life sentence and that, absent a dangerous offender application, it was not open to the sentencing judge to sentence the appellant to life imprisonment on this basis.

[4] However, during oral argument, the appellant’s counsel clarified that he does not challenge the potential availability of life imprisonment as an appropriate sentence for the crimes at issue in this case, even where, as here, no dangerous or long-term offender designation was sought by the Crown. Rather, he contends that, given the circumstances of these offences and this offender, a sentence of life imprisonment is unjustified and unfit.

II. Discussion

[5] In our view, the sentencing judge made no error in principle in his sentencing analysis and the sentence imposed is fit. We say this for the following reasons.

[6] We begin with the circumstances of these offences. Simply put, they were horrific.

[7] The complainant, a 76 year-old woman, was asleep alone in her apartment when the appellant, then 26 years of age, broke into her residence in the middle of the night. The complainant awoke to find the appellant standing in her apartment. He was armed with a knife and threatened the complainant that if she screamed and did not comply with his demand for sex, he would kill her. When the complainant tried to telephone for help, the appellant cut the phone cord, struck the complainant’s hand with the knife, forced the complainant onto her bed, groped her, digitally penetrated her vagina, forced her to engage in vaginal intercourse, and then attempted to vaginally penetrate her from behind. While all this was occurring, the appellant stabbed the complainant three times in the abdomen, slashed her face (cutting all the way to the jaw bone), and brutally beat her. One of the inflicted wounds was potentially fatal. In addition, the complainant lost approximately one-eighth of her total blood supply and sustained multiple cuts to her face and hands during the appellant’s attack, which later required surgical repair.

[8] The appellant persisted in his attack notwithstanding the complainant’s repeated pleas that he stop and the fact that she was bleeding profusely. The attack lasted in excess of one hour. The appellant left only when the complainant managed to escape to her apartment balcony, where she called out for help. This prompted the appellant to flee from the apartment, leaving his clothes behind. When the complainant re-entered her apartment and called 911, the appellant returned, gathered up his clothing and eventually fled the apartment again.

[9] The sentencing judge reviewed the circumstances of the offences in detail, including the understandably traumatic effects on the victim and members of her family. He concluded that, “The sexual nature of the attack was quite degrading and constituted an extreme violation of [the complainant’s] privacy, security and dignity. The attack involved gratuitous and excessive violence well beyond anything necessary to [obtain the complainant’s] compliance.” We agree with this description of the nature and gravity of the offences.

[10] The sentencing judge was cognizant of the Crown’s withdrawal of its dangerous offender application, necessitated by the appellant’s refusal to participate in a psychiatric assessment. The sentencing judge expressly stated, “I certainly will not impose a life sentence because this dangerous offender application was abandoned.”

[11] The sentencing judge heard almost a full day of submissions by counsel on the issue whether a life sentence or a lengthy determinate sentence was appropriate. His comprehensive reasons reveal a careful and thorough consideration of all the aggravating and mitigating factors relevant to the fashioning of a proper sentence in this case and reflect no error in principle.

[12] We note, in particular, that the sentencing judge had regard to the appellant’s circumstances and antecedents and factored them into his sentencing calculus. He noted the appellant’s age; that the appellant was a first (although not a youthful) offender; that his past conduct suggested that he has the capacity to act responsibly; that he enjoys a supportive family and had not been “in trouble” while incarcerated; and that there was no evidence that he had ever engaged in such a violent crime in the past.

[13] However, the sentencing judge also held that the appellant’s family members are “woefully deficient historians” who were unable to reliably portray the appellant’s true character; the appellant’s attack was a random crime of opportunity; the victim of the attack was a “vulnerable old lady”; and the appellant’s crime demonstrated “a callous lack of empathy”. These were all relevant and proper sentencing considerations.

[14] After identifying the applicable aggravating and mitigating circumstances, the sentencing judge undertook a lengthy review of the governing sentencing principles, set out in the Criminal Code. He also addressed, in some detail, the approach to be taken in sentencing first offenders (including for very serious, violent offences) and the principles relevant to the imposition of a life sentence.

[15] In connection with the latter principles, the sentencing judge explicitly addressed the defence submission that a life sentence should not be imposed in the absence of supporting psychiatric evidence of both continuing dangerousness and the limited likelihood for successful treatment. He also took account of the defence contentions that the imposition of a life sentence would be to “overreach” and that protection of the public should not trump all other sentencing objectives.

[16] In this case, as we have mentioned, the appellant declined to participate in a forensic psychiatric assessment, thereby depriving the sentencing judge of “insight into his personality or how it is that he could have committed this terrible crime”, and precipitating the Crown’s withdrawal of its dangerous offender application.

[17] The appellant was entitled to make this choice. However, it does not follow that, by virtue of that fact, the sentencing judge was precluded from giving any weight to the appellant’s future dangerousness. On the contrary, the sentencing judge was entitled – indeed obliged – to consider the full circumstances of these offences and this offender in determining whether the gravity of the appellant’s offences and his moral blameworthiness justified the maximum sentence of life imprisonment. This included the available indicators of the appellant’s future dangerousness and the random and gratuitous nature of his attack on the complainant.

[18] After reviewing the relevant authorities, including R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433; R. v. Klair (2004), 71 O.R. (3d) 336 (C.A.); R. v. Horvath (1982), 2 C.C.C. (3d) 196 (Ont. C.A.); and R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, and considering the governing sentencing principles and submissions of counsel, the sentencing judge concluded:

In a case such as this, I must fashion a sentence that has as its paramount goals denunciation [s. 718(a)], general deterrence [s. 718(b)] and the need to separate the offender from society [s. 718(c)].

After anxious consideration, and taking into account the circumstances of both the offence and the offender, I have concluded that ... the facts of this case are so bizarre and shocking that I can infer from the circumstances of the offence itself that [the appellant] poses an ongoing danger to the public.

Thus, I am of the firm view that the appropriate sentence for [the appellant] is imprisonment for life. This result is required by the need to separate [the appellant] from society for the protection of the latter [s. 718(c)] as well as the principle of proportionality set out in s. 718.1 of the Code both with respect to the gravity of the offence and the degree of responsibility of the offender.

[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. The sentencing judge thoughtfully considered all the relevant sentencing principles, including the appellant’s dangerousness and the need to protect the public. For the reasons expressed by him, a life sentence in this case is a fit sentence.

III. Disposition

[20] Leave to appeal sentence is granted and the appeal against sentence is dismissed.

Released:

“JUN -5 2012” “Karen M. Weiler J.A.”

“EAC” “Janet Simmons J.A.”

“E.A. Cronk J.A.”

[^1]: Charges of sexual assault with a weapon and possession of a weapon were stayed in accordance with the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.