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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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: 2018-04-10

Docket: C63434

Panel: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Duilio Franchino Appellant

Counsel

Richard Litkowski and Jessica Zita, for the appellant

Molly Flanagan, for the respondent

Hearing

Heard and released orally: March 27, 2018

On appeal from the conviction entered on September 23, 2016, by Justice John McMahon of the Superior Court of Justice, sitting with a jury and the sentence imposed on February 7, 2017.

Reasons for Decision

Overview

[1] The appellant was charged with administering a noxious substance, administering a stupefying substance for the purpose of sexual assault and sexual assault, in connection with events that took place on April 17, 2014. He was also charged with two other counts of administering a noxious substance regarding incidents alleged to have occurred on February 17, 2014 and March 29, 2014 with the same complainant. The appellant was convicted of one count of administering a noxious substance on April 17, 2014 and sentenced to nine months in custody plus two years' probation. He was acquitted of all the other charges.

[2] The appellant appeals both conviction and sentence.

Conviction Appeal

[3] The appellant submits that the conviction is inconsistent with the two acquittals in relation to the same incident on April 17, 2014. The appellant argues that the evidence with respect to the three charges was so interlinked that an acquittal on the two regarding the reason for administering the noxious substance, sexual assault, necessarily makes it inconsistent to convict on the third count of administering a noxious substance.

[4] We do not accept this submission. The jury was given a decision tree that guided them as to available verdicts, one of which was to convict on the administration of a noxious substance count and acquit on the other two. The jury could have had a reasonable doubt about the sexual assault and the sexual assault motive for administering the noxious substance, but no reasonable doubt that the appellant put GHB into the wine that he brought to the complainant's apartment and served it to her while he drank beer.

[5] The appellant also argues that, as this was a circumstantial evidence case on the issue of who spiked the wine, then based on the decision of the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, the jury could not be satisfied that the only reasonable conclusion was that the perpetrator was the appellant.

[6] We also do not accept this submission. The jury was entitled to reject as unreasonable or speculative that there was any other explanation on the evidence for how the drug got into the wine other than it was put there by the appellant. It caused the complainant to become ill which was observed by her roommate. That occurred before the wine was left in the fridge.

[7] We see no basis to interfere with the jury's verdict.

Sentence Appeal

[8] The trial judge rejected the appellant's submission that this was an appropriate case for a conditional sentence. The maximum sentence for a conviction under s. 245(b) of the Criminal Code is two years. The Crown asked for a sentence of 12-15 months, while the appellant asked for either a conditional sentence, a suspended sentence, or a 90-day sentence to be served intermittently.

[9] The trial judge rejected a suspended sentence as entirely inappropriate. He also considered, in accordance with the Supreme Court of Canada's decision in R. v. Proulx, 2000 SCC 5, the general deterrent effect of a conditional sentence, but rejected a conditional sentence for the following reasons:

In this [case] however, based upon the degree of planning, the breach of trust of his friend, the significant risk of the health of the victim and the nature of the drug used, I am not satisfied that a conditional sentence could adequately address the issues of general deterrence and denunciation.

[10] The appellant submits that the trial judge erred in principle by rejecting a conditional sentence without explaining why that sentence could not achieve the general deterrent purpose of sentencing in this case.

[11] While we agree that a conditional sentence was available to the trial judge, we do not agree that he erred in principle by rejecting it. He acknowledged all of the mitigating factors that could ground the imposition of a conditional sentence, as well as the aggravating factors. While he recognized that a conditional sentence was available for the reasons he articulated, he found that a conditional sentence would not adequately address the issues of general deterrence and denunciation in this case. He was entitled to make that finding. There is no basis to interfere.

[12] The final submission the appellant makes is that the nine month sentence in this case was too long and too harsh a sentence in the circumstances. The trial judge was focused on the need for general deterrence, where a person is convicted of administering a noxious substance. He described the serious factors that required him to impose a significant sentence. Notably, the sentence he imposed was well below what the Crown was asking for, in order to reflect the mitigating factors. We see no basis to interfere with the trial judge's discretionary decision to impose the sentence he did, to which this court owes deference.

Disposition

[13] In the result, the appeal against conviction is dismissed, leave to appeal sentence is granted, but the appeal is dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

Sachs J.