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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2019-11-14

Docket: C60249

Panel: Simmons, Watt and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

A.S. Appellant

Counsel

Alexander Ostroff, for the appellant

Tracy Kozlowski, for the respondent

Hearing

Heard: October 22, 2019

On appeal from: the sentence imposed on June 17, 2014 by Justice Anne M. Molloy of the Superior Court of Justice.

Reasons for Decision

[1] Introduction

The appellant seeks leave to appeal a 20-year sentence of imprisonment imposed in 2014 for historical sexual offences. He also applies to introduce fresh evidence related to time spent in solitary confinement post-sentence and filed a notice of constitutional question in relation to that request. At the conclusion of the appeal, we dismissed the appeal and fresh evidence application for reasons to follow. These are our reasons.

Background

(i) The offences and the appellant's guilty pleas

[2] In September 2013, the appellant pleaded guilty to five charges relating to two incidents, one of which occurred in 1981 and the other in 1993.

[3] The first incident was the rape of a 14-year-old girl at gunpoint in 1981. The appellant initially claimed to be a police officer when he accosted the young girl. The second incident was the sexual assault, unlawful confinement and robbery of a 53-year-old woman at gunpoint in her home in 1993.

[4] Although the police were unable to identify the perpetrator of these offences when they were committed, DNA testing of evidence preserved from the incidents later connected the appellant to the crimes. When the police located the appellant in 2003, he was in prison in Pennsylvania, serving a sentence for various offences, including illegal entry into the United States and possession of a firearm as a convicted felon. Extradition proceedings ensued and the appellant was eventually returned to Canada in 2011.

[5] The appellant was charged with 12 offences arising from the 1981 and 1993 incidents. Following a preliminary inquiry, he was committed for trial in July 2012. At the request of the Crown, the defence then obtained a forensic psychiatric assessment. Upon receipt of the report, the appellant agreed to plead guilty to five offences and to join in a recommendation for a long-term offender designation.

[6] On September 23, 2013 the appellant pleaded guilty to rape in relation to the 1981 incident and to sexual assault with a weapon, unlawful confinement, robbery and uttering a death threat in relation to the 1993 incident.

(ii) The appellant's criminal record

[7] By the time of his guilty pleas in 2013, the appellant had amassed a significant criminal record. Although the 1981 rape was acknowledged to be a first offence, some of the convictions were for offences that pre-dated the 1993 offence. These included a 1994 conviction for a rape that occurred at knifepoint in 1982 in Canada and convictions in the 1980s in the United States for robbery with a firearm, larceny and manslaughter.

(iii) The forensic psychiatric assessment

[8] The assessor concluded the appellant's "history and presentation" was consistent with the following diagnoses: Paraphilic Disorder (coercive interest) – non-exclusive; Cocaine Abuse Disorder (and possibly other substances); and Personality Disorder with Antisocial and Narcissistic features.

[9] As for risk assessment, the assessor concluded:

Overall, [the appellant] is a high risk to re-offend generally, with a lower probability of re-offending sexually with age, with appropriate supervision (albeit he is not a good supervision candidate), and with high potency sex drive reducing medication.

(iv) The sentencing proceedings

[10] The sentencing proceedings became protracted at least in part because the Crown failed to obtain the Attorney General's consent to the long-term offender designation application. The Crown eventually abandoned that application.

[11] When the appellant pleaded guilty he was almost 58 years old and remained subject to American prison sentences which the Crown anticipated would extend until September 2019.

[12] The Crown submitted that sentences of 8 years' and 12 years' imprisonment would be fit for the 1981 and 1993 offences, respectively. Subject to a 5-year reduction for totality, this yielded a 15-year global sentence. The Crown also acknowledged that a reduction of up to 25% of the 15-year global sentence could be appropriate to account for the appellant's assistance to the police in an unrelated homicide investigation.

(v) Pre-sentence solitary confinement

[13] Apparently as the result of media reports about his assistance to the police, the appellant was assaulted in September 2013 while in pre-sentence custody. The appellant was then placed, and remained, in solitary confinement until his sentencing on June 17, 2014.

(vi) The sentencing judge's reasons

[14] During the proceedings, the sentencing judge advised the parties that she was considering a sentence higher than that requested by the Crown. Ultimately, she found that leaving aside totality and the appellant's cooperation, an 11-year sentence would be appropriate sentence for the 1981 offence and a 13-year sentence for the 1993 offences. Taking account of the totality principle and the appellant's assistance to the police, the sentencing judge reduced the sentence for each offence by two years and imposed a sentence of 9 years for the 1981 offence and 11 years for the 1993 offences, for a total sentence of 20 years' imprisonment.[1]

[15] In reaching these conclusions, the sentencing judge identified two mitigating factors: first, the appellant's advancing age, which "might" make him less likely to commit sexual offences or crimes of violence in the future; and second, the appellant's cooperation with the authorities, which put him in danger in prison and resulted in him being kept in solitary confinement. Concerning this latter factor, the sentencing judge said:

The fact that [the appellant] has cooperated with the police has put him in some danger in prison. On one occasion … he was brutally attacked, kicked and beaten. Since then he has been kept in solitary confinement, which is a significantly more onerous circumstance of his incarceration. This is a factor which I recognize to be mitigating and which I have taken into account in determining a fit sentence.

[16] As for the appellant's guilty pleas, having regard to the inevitably of his conviction and her conclusion that his current expression of remorse was opportunistic, the trial judge declined to recognize them as mitigating.

[17] The trial judge identified the circumstances of the offences as the most aggravating factor and noted that both victims suffered significantly as a result of the attacks, both in the short and long term. She went on to review the appellant's criminal record, albeit noting that much of it post-dated these offences. She also referred to the predominance of general deterrence and denunciation as sentencing factors, to the parity principle, and case law relating to that principle.

[18] Before turning to the appropriate sentence, the trial judge observed that in this case, protection of the public was necessarily a principle of prime importance. "Quite simply, [the appellant] is a danger to the public, and in particular to vulnerable members of our society", she said. Although recognizing that she could not do indirectly what she could have done directly had this matter proceeded as a long-term or dangerous offender application, the trial judge concluded, "[t]his is one of those rare cases where a substantial sentence is required in order to separate [the appellant] from society".

[19] In crafting an appropriate sentence, the trial judge concluded this was a proper case for consecutive sentences. As the appellant's presentence custody was being credited to his American sentences, she declined to give credit for presentence custody. In making that decision, she also noted there was no evidence before her that the appellant was at any disadvantage in serving his time here as compared to in an American penitentiary.

[20] Concerning defence counsel's request for additional credit based on the appellant's pre-sentence solitary confinement and the likelihood of post-sentence solitary confinement, the trial judge noted again that the appellant's pre-sentence custody was being credited to his American sentences and that she had taken account of the need for more restrictive custody in giving credit for cooperation with the authorities. Further, she observed it would not be appropriate for her to assume that penitentiary authorities would continue to keep the appellant in isolation for years on end. Should that occur, he would have remedies within the prison system.

Analysis

[21] The appellant raises multiple issues on appeal and in addition seeks a Charter remedy for time spent in both pre- and post-sentence solitary confinement.

[22] On appeal, the appellant submits that the sentencing judge made several errors, including the following:

• overemphasized the need to separate the appellant from society;
• mischaracterized the potential impact of the appellant's advancing age on the likelihood of his reoffending as speculative at best;
• failed to consider various factors identified in the forensic assessment report as lessening the risk of sexual recidivism;
• failed to take account of the institutional savings arising from the appellant's guilty pleas and in giving his guilty pleas no mitigating effect;
• failed to give proper effect to parity; and
• took an erroneous approach to totality and credit for cooperation with the authorities, including failing to give proper effect to the likelihood that the appellant's detention conditions would include protective custody and solitary confinement.

[23] As we have said, the appellant also seeks to introduce fresh evidence on appeal. The proposed fresh evidence consists of detention records obtained from Correctional Services Canada. The appellant asserts that these records demonstrate that when he arrived back in Canada after completing his American sentence, he remained in administrative segregation (effectively, solitary confinement) from December 10, 2014 until June 15, 2015. This period totals 187 days (just over six months) and is in addition to the nine months the appellant spent in solitary confinement between sentencing submissions in September 2013 and the imposition of sentence in June 2014.

[24] The appellant submits that the proposed fresh evidence demonstrating continued and prolonged solitary confinement meets the criteria for introduction on an appeal against sentence, assists in demonstrating that the sentence imposed was unfit and disproportionate, and should give rise to a sentence reduction under s. 24(1) of the Charter. The appellant relies on Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641, in which this court declared that administrative segregation longer than 15 days violates s. 12 of the Charter and cannot be saved under s. 1.

[25] We see no basis on which to interfere with the decision of the sentencing judge. The sentencing judge correctly identified the import of the forensic assessment report when she referred to the psychiatrist's overall risk assessment as set out in para. 9 above. That risk assessment, the circumstances of the offences, and the appellant's criminal record for violent offences all supported the sentencing judge's reliance on the sentencing objective relating to the need to separate an offender from society.

[26] On our reading of her reasons, the sentencing judge fully considered the parity principle. She also took account of the circumstances under which the appellant had been detained in determining a fit sentence and reduced the sentence she would otherwise have imposed to account for totality and the appellant's cooperation with the authorities.

[27] However, even assuming the trial judge committed any of the errors the appellant suggests, we conclude that such error had no impact on the fitness of the sentence imposed and that the global sentence she imposed was entirely fit. Accordingly, there is no basis for appellate interference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[28] The 1981 and 1993 crimes for which the appellant was sentenced were callous and violent attacks on vulnerable victims that have had profound and lasting effects upon them. Both incidents involved the use of a firearm. The appellant impersonated a police officer in the 1981 incident to take advantage of a 14-year-old victim. The 1993 incident took place in the victim's home. The appellant's criminal record includes other violent offences involving firearms or other weapons. In our view, the sentencing judge's description of the appellant as a career criminal was amply supported by the record, as was her assessment of his level of risk. Given these circumstances, even taking account of totality and the appellant's cooperation with authorities with its resulting impact on the conditions of the appellant's presentence detention, as we have said, in our view, the global sentence imposed was entirely fit.

[29] Turning to the fresh evidence application, even assuming there has been a post-sentence breach of the appellant's Charter rights warranting a remedy under s. 24(1), in our view, it would not be appropriate to grant a retroactive sentence reduction. To do so would be to depart from the principle in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 4, that circumstances unrelated to the offence or the offender fall outside the scope of the statutory sentencing regime.

Conclusion

[30] Based on the foregoing reasons, we dismissed the appellant's appeal and fresh evidence application.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.

Footnote

[1] The appellant was sentenced as follows:

• Count 8 (Sexual assault with a weapon, s. 272(1)(a)) – 11 years
• Count 7 (Uttering death threats, s. 264.1(1)(a)) – 2 years concurrent to Count 8
• Count 6 (Robbery with a weapon, s. 344) – 8 years concurrent to Count 8
• Count 9 (Unlawful confinement, s. 279(2)) – 2 years concurrent to Count 8
• Count 11 (Unlawful sexual intercourse, s. 144) – 9 years consecutive