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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: September 4, 2019

Docket: C64996

Judges: Lauwers, van Rensburg and Trotter JJ.A.

Between

Her Majesty the Queen Appellant

and

E.C. Respondent

Counsel:

• Mabel Lai, for the appellant
• Ariel Herscovitch, for the respondent

Heard: April 25, 2019

On appeal from the sentence imposed by Justice J. Christopher Corkery of the Superior Court of Justice on January 22, 2018.

Decision

van Rensburg J.A.:

[1] Crown's Appeal on Sentence

[1] The Crown seeks to appeal the respondent's sentence for sexual interference on the basis that it was demonstrably unfit.

[2] Facts and Charges

[2] The respondent was charged with one count each of sexual assault and sexual interference. The charges arose out of events occurring during the evening of June 24 into the morning hours of June 25, 2015, after the complainant, who was 15 years old, and the respondent, who was almost 22, and their friends were drinking and doing drugs together in a trailer park. There was evidence of three sexual encounters between the complainant and the respondent: (1) over the clothing fellatio while the group was driving in a truck; (2) sexual intercourse in a field near the trailers; and (3) sexual intercourse in an enclosed shelter attached to a trailer, called the "fuck hut". The DNA of both the respondent and another male were identified in oral and vaginal swabs, although the complainant had no memory of sexual contact with the second individual.

[3] Conviction and Sentencing

[3] After a trial by jury, the respondent was found guilty on both counts – of sexual interference, contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46, and sexual assault, contrary to s. 271. The sexual assault charge was conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. On the day sentence was imposed, the respondent also pleaded guilty to one count of a breach of undertaking. He was sentenced to six months' custody, less three months' pre-sentence credit, for a total sentence of 90 days to be served intermittently for sexual interference and 30 days concurrent for the breach of undertaking.

[4] Agreed Facts for Sentencing

[4] The parties agreed, and the trial judge determined, that the least culpable version of events that was consistent with the jury verdict was that the respondent had believed the complainant was over 16 but did not take reasonable steps to confirm her age, and that they had engaged in a single incident of de facto consensual intercourse in the "fuck hut". The respondent was sentenced based on this version of the evidence.

[5] Mitigating Factors

[5] Mitigating factors were: the respondent's lack of criminal record; the support of his parents and the mother of his young child; his meaningful work history; and his sincere efforts toward rehabilitation, demonstrated by the measures he had taken since the events leading to the charges to address a problem of alcohol dependence.

[6] Aggravating Factors

[6] There were a number of aggravating factors: first, there were two incidents of sexual contact, one of which involved unprotected sexual intercourse. The respondent had supplied alcohol to the complainant, and she was severely intoxicated at the time of both incidents. The effects of the offence on the complainant were profound, as confirmed by her victim impact statement, and notwithstanding the trial judge's acceptance that it was impossible to determine the degree to which the impact on her was attributable to the respondent's conduct or the other encounter involving the second male. At the time of the events, the respondent was in breach of an undertaking prohibiting him from purchasing, possessing or consuming alcohol. And, finally, in a Gardiner hearing (R. v. Gardiner, [1982] 2 S.C.R. 368), the Crown had established that the respondent was a willing participant in the first encounter of fellatio in the truck, and that the respondent was reckless as to the complainant's age.

[7] Sentencing Submissions

[7] The Crown sought a custodial sentence of two years less a day, followed by two years' probation. The defence sought a sentence of 90 days to be served intermittently, or alternatively, six months, with credit for pre-sentence custody and house arrest, leaving an effective sentence of 90 days.

[8] Trial Judge's Reasoning

[8] In his reasons for sentence, the trial judge outlined the various mitigating and aggravating factors (which are consistent with the factors I have noted, except as indicated below). He referred to and followed R. v. Hussein, 2017 ONSC 4202, as authority that the one-year minimum sentence for sexual interference was unconstitutional.[1] After referring to a number of cases where offenders had received sentences of 90 days for sexual interference (but without considering that a number of such cases involved very different circumstances from the present case, or were silent about the relevant circumstances), the trial judge imposed a sentence of six months' imprisonment. After credit, the respondent was sentenced to 90 days, to be served intermittently, on weekends. The trial judge also imposed an order of two years' probation, with a term that the respondent receive counselling for substance abuse issues, a DNA order, a SOIRA registration order for 20 years, and a weapons prohibition for ten years, under s. 109 of the Criminal Code.

[9] Crown's Argument on Appeal

[9] The parties agree that the trial judge erred in treating as a mitigating factor the fact that the complainant was three months short of her 16th birthday when she was assaulted by the respondent. The Crown, however, does not advance this error as a stand-alone basis for this court's intervention. Rather, the Crown says that the sentence was demonstrably unfit because it unreasonably departs from the fundamental principle of proportionality, and from the acceptable range of sentence for similar offences committed in similar circumstances by similar offenders.

[10] Finding of Unfitness

[10] I agree that the sentence imposed on the respondent was demonstrably unfit.

[11] Sentencing Principles for Sexual Interference

[11] The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence – one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[12] Inadequacy of the Sentence

[12] In my view, the six-month sentence imposed by the trial judge was too lenient. The sentence did not adequately reflect the objectives of deterrence and denunciation, which are key in sentencing offences of this kind: Criminal Code, s. 718.01; R. v. Al-Shimmary, 2017 ONCA 122, at para. 6. The sentence also was not proportionate to the offender's level of moral culpability and the serious circumstances of the offence. Before turning to the appropriate sentence, I will address the arguments made by the respondent to support the fitness of the sentence imposed by the trial judge.

[13] Rejection of De Facto Consent Argument

[13] First, the respondent's counsel asserts that the offence in this case was at the less serious end of the spectrum because, according to the facts found by the trial judge, the complainant initiated the sexual contact with the respondent. I would reject this argument in the strongest terms. De facto consent of an underage complainant is not a defence and cannot be a mitigating factor in a case of sexual interference: Criminal Code, s. 150.1(1); R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 1; R. v. Scofield, 2019 BCCA 3, at paras. 8 and 38. In any event, the circumstances of this case were highly aggravating: when the sexual contact took place, the complainant was extremely intoxicated by alcohol and drugs, a fact that was known to the respondent, and a condition to which he had contributed by supplying her with alcohol. Whether she was the de facto initiator of the sexual contact or not does not render the respondent's conduct in relation to this vulnerable complainant any less morally culpable.

[14] Age Proximity Not Mitigating

[14] Nor does the parties' relative proximity in age detract from the complainant's vulnerability, or from the respondent's blameworthiness in taking advantage of that vulnerability. While a greater discrepancy in age can be an aggravating factor, the opposite is not true. It is not a mitigating factor that the respondent was only six years and two months older than the complainant. The gravamen of the offence of sexual interference was described by Feldman J.A. in R. v. A.B., 2015 ONCA 803, 333 C.C.C. (3d) 382, at para. 45, as follows:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

See also R. v. J.D., 2015 ONSC 5857, at paras. 22-24.

[15] Aboriginal Heritage Argument Rejected

[15] Finally, the respondent's counsel argued that the sentence imposed by the trial judge could be justified by consideration of the respondent's aboriginal heritage. I disagree.

[16] Insufficient Aboriginal Heritage Evidence

[16] There was information at the sentencing hearing that the respondent, who was adopted at birth, is part Cree through his biological great-grandmother. There was no Gladue report, or even a pre-sentence report that might have informed any real consideration of the respondent's aboriginal heritage as a factor in his sentencing. More is required than a bare assertion of aboriginal status: R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 38-47; R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at paras. 114-117; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60. The trial judge properly gave little weight to the respondent's aboriginal status in sentencing in this case, and so would I.

[17] Appropriate Sentence

[17] I agree with the Crown that in all the circumstances of this case, the respondent ought to have received a substantial reformatory sentence. Taking into consideration the various aggravating and mitigating circumstances that were present here, a sentence of 18 months' imprisonment was warranted.

[18] Request to Stay Execution of Sentence

[18] The respondent, who has served the custodial part of the sentence imposed by the trial judge, asked that this court stay the execution of any further custodial sentence that might be imposed on appeal. The respondent asserted that society would be better served by his continued rehabilitation, including allowing him to complete his probation order and associated counselling, reducing the likelihood that he would commit further offences associated with the consumption of alcohol, rather than re-incarcerating him.

[19] Post-Sentence Report

[19] No fresh evidence was tendered on the appeal, and no information was provided in order that the respondent's request could be properly considered. As such, the court consulted with counsel, ordered and obtained a post-sentence report, and received further submissions. The post-sentence report has been considered only for the purpose of determining whether to stay the balance of the respondent's custodial sentence, and not to evaluate the fitness of the sentence that was originally imposed.

[20] Principles for Staying Execution

[20] While typically this court has been reluctant to re-incarcerate an offender who has served the sentence originally imposed and has been released into the community, ultimately the issue is whether the principles of denunciation and deterrence require re-incarceration or whether the community is best protected if the offender continues along the rehabilitative path that he has followed since his release from custody. The overarching issue is whether re-incarceration is in the interests of justice: R. v. Davatgar-Jafarpour, 2019 ONCA 353, at para. 50 (and cases cited therein).

[21] Decision to Stay Execution

[21] Having reviewed the post-sentence report and the submissions of counsel, in the context of the exhibits filed at the sentencing hearing and the sentencing judge's reasons, in my view it is appropriate to stay the execution of the balance of the respondent's sentence.

[22] Post-Release Conduct

[22] The respondent completed his sentence in January 2018, and has been in the community for more than 20 months without incident. He has not reoffended. He remains bound by a probation order, until January 2020. As the post-sentence report indicates, there is no indication that substance use, including alcohol (that played a role in the commission of the offence), is an ongoing concern. After receiving social assistance for a number of months, the respondent has been working again since at least June 2019. He has the ongoing support of his family. There is no question that all of this is positive, and consistent with the observations and expectations of the sentencing judge.

[23] Ongoing Probation Obligations

[23] This is not to say that the post-sentence report is exemplary. The respondent has been resistant to the psychological counselling and anger management program directed by his probation officer. Moreover, he has yet to fully accept responsibility for the serious harm he caused to the complainant. One of the purposes of sentencing is to promote a sense of responsibility in offenders, and an acknowledgment of the harm they have done: Criminal Code, s. 718(f). While requiring the respondent to serve the balance of his sentence in prison is one way to bring home to him the seriousness of the offence he committed, it is not the only way. The respondent remains bound by a probation order. The law requires that he follow the direction of his probation officer, including that he participate in counselling and address his anger issues. Failure to follow the direction of his probation officer may lead to further legal consequences.

[24] Balancing Deterrence and Rehabilitation

[24] In the circumstances, while the respondent served an inadequate sentence for this serious offence, on balance, I am satisfied that the principles of deterrence and denunciation, which are the primary sentencing objectives for this offence, can be addressed without further incarceration.

[25] Disposition

[25] I would therefore allow the Crown's appeal, substitute a sentence of 18 months, less pre-sentence credit, and stay the execution of the remaining custodial portion of the sentence. All other aspects of the sentence imposed by the trial judge will remain in place.

Release: September 4, 2019

"K. van Rensburg J.A."

"I agree. P. Lauwers J.A."

"I agree. G.T. Trotter J.A."

Footnote

[1] The issue of the constitutionality of the one-year mandatory sentence is currently before this court, and under reserve in an appeal of R. v. B.J.T., 2016 ONSC 6616.