Her Majesty the Queen v. Boone

[Indexed as: R. v. Boone]

Ontario Reports Court of Appeal for Ontario Doherty, B.W. Miller and Fairburn JJ.A. February 28, 2020 149 O.R. (3d) 513 | 2020 ONCA 154

Case Summary

Criminal law — Appeal — Sentence appeal — Accused's convictions for attempted murder quashed on appeal, leaving convictions for aggravated sexual assault and administering a noxious substance — Quashing of convictions requiring downward adjustment in total sentence — Despite no intention to kill, accused's conduct still demonstrating a high level of moral blameworthiness — Sentence reduced from 111 months to 81 months.

Criminal law — Sentencing — Aggravated sexual assault — Totality principle — Accused's convictions for attempted murder quashed on appeal, leaving convictions for aggravated sexual assault and administering a noxious substance — Quashing of convictions requiring downward adjustment in total sentence — Despite no intention to kill, accused's conduct still demonstrating a high level of moral blame-worthiness — Sentence reduced from 111 months to 81 months.

Criminal law — Sexual assault — Sentence — Accused's convictions for attempted murder quashed on appeal, leaving convictions for aggravated sexual assault and administering a noxious substance — Quashing of convictions requiring downward adjustment in total sentence — Despite no intention to kill, accused's conduct still demonstrating a high level of moral blameworthiness — Sentence reduced from 111 months to 81 months.

After an appeal, the accused stood convicted on three counts of aggravated sexual assault, two counts of administering a noxious substance and one count of attempting to administer a noxious substance. Convictions on three charges of attempted murder were quashed and the Crown decided not to proceed with a new trial on those charges. The trial judge had entered conditional stays on the two counts of administering a noxious substance and stayed the charge of attempting to administer a noxious substance. After taking into account credit for presentence custody and the mitigating effect of the totality principle, the trial judge imposed sentences totalling nine years and three months. The accused and the Crown agreed that the quashing of the attempted murder convictions required a downward adjustment in the total sentence. The accused sought a reduction to three years and nine months, being less than the 48 months he had already served. He argued that the culpable mental states for the offences on which he still stood convicted were significantly less blameworthy than the culpability attaching to the crime of attempted murder. The Crown argued for a reduction to six years, nine months.

Held, the appropriate disposition was a total of six years, nine months.

The accused was correct to say that the mens rea for attempted murder carried a higher level of moral blameworthiness than the fault components for aggravated sexual assault and administering a noxious substance. However, the moral blameworthiness of his conduct was not determined exclusively by reference to the fault component of the offences for which he still stood convicted. That moral blameworthiness depended not only on the mens rea required to convict, but also on the trial judge's findings made in relation to the accused's conduct and mental state. [page514] The trial judge found that the accused set out, with considerable planning, effort and deception, to infect young men with HIV. In one case, he succeeded. His conduct was variously described by the trial judge as predatory and dangerous, deliberate and malicious, and calculated and ruthless. The judge's findings spoke not to an intention to kill, but rather to an intention to cause bodily harm coupled with an appreciation that the risk of death could result. That mens rea demonstrated a high level of moral blameworthiness. The six convictions involved four victims. The sentences imposed in respect of different victims were to be consecutive to each other, while the sentences imposed in respect of counts involving the same victim were to be concurrent. A sentence for each count individually resulted in a total sentence of 11 years, six months. Giving credit for presentence custody for each count individually resulted in a total credit of 57 months, leaving a total sentence of six years, nine months. The accused also remained subject to a long-term supervision order imposed by the trial judge.

Cases referred to

• R. v. Ahmed (2017), 136 O.R. (3d) 403, [2017] O.J. No. 384, 2017 ONCA 76
• R. v. Boone, [2019] O.J. No. 4138, 2019 ONCA 652, 56 C.R. (7th) 432 (C.A.)
• R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213, 83 O.A.C. 81, 100 C.C.C. (3d) 270, 28 W.C.B. (2d) 48
• R. v. Kienapple, [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76 (S.C.C.)
• R. v. Provo, [1989] 2 S.C.R. 3, [1989] S.C.J. No. 77 (S.C.C.)

Statutes referred to

• Criminal Code, R.S.C. 1985, c. C-46 ss. 686(8), 719(3.3)

SENTENCING of the accused following conviction appeal and the sentence imposed by Warkentin J., sitting with a jury, [2016] O.J. No. 1215, 2016 ONSC 1626 (S.C.J.) being allowed in part.

Counsel: Jonathan Shime and Ben ElzingaCheng, for appellant. Christine Tier, for respondent.

The judgment of the court was delivered by

[1] DOHERTY J.A.: — On August 12, 2019, this court released reasons allowing the appellant's conviction appeal in part, and directing that the sentence appeal should be adjourned to a later date for further submissions: R. v. Boone, [2019] O.J. No. 4138, 2019 ONCA 652.

[2] Since the release of this court's reasons, counsel have been attempting to obtain additional information from the correctional authorities. The Crown has also decided that it will not proceed on the attempt murder charges. Counsel have also managed to significantly narrow the issues before the court in this proceeding.

[3] There are two issues:

• What order should be made in respect of the three charges on which the jury returned guilty verdicts and the trial judge entered stays based on the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76? [page515]
• Given that the convictions on the three attempt murders have been quashed and the Crown is not proceeding with a new trial on those charges, what are the appropriate sentences on the remaining convictions?

A. The "Kienapple" Issue

[4] This issue raises matters that are relevant to the appropriate disposition of the conviction appeal. I agree with the joint submission of counsel that this court's disposition of the conviction appeal should be varied to reflect a proper application of the "Kienapple" principle given the Crown's decision that it will not retry the attempt murder charges. The conditional stays entered at trial on the two counts of administering a noxious substance to D.S. (count 2) and M.C. (count 5) should be set aside and convictions entered on those charges: Criminal Code, R.S.C. 1985, c. C-46, s. 686(8); R. v. Provo, [1989] 1 S.C.R. 3, [1989] S.C.J. No. 77, at p. 22 S.C.R. This court's order setting aside the stay on the charge of attempting to administer a noxious substance to M.B. (count 7) and ordering a new trial, should be varied to an order setting aside the stay and entering a conviction on that charge.

[5] I am told that no order has been issued to reflect the disposition of the court on the conviction appeal. Consequently, para. 144 of the reasons should be varied to read as follows:

I would allow the appeal from the convictions on the three attempt murder charges (counts 3, 6 and 8) and quash those convictions. The Crown has decided to not proceed with a new trial on those charges. I would set aside the stay of proceedings entered on counts 2, 5 and 7 and enter convictions on those charges.

[6] In summary, the appellant now stands convicted of

• aggravated sexual assault of D.S. (count 1);
• administering a noxious substance to D.S. (count 2);
• aggravated sexual assault of M.C. (count 4);
• administering a noxious substance to M.C. (count 5);
• attempt to administer a noxious substance to M.B. (count 7); and
• aggravated sexual assault of B.C. (count 9).

B. The Appropriate Sentence

[7] The customary deferential approach taken on appeals from sentence must be adjusted, to some extent, to fit the unusual circumstances of this case. Four years have passed since the trial [page516] judge imposed sentence. The three attempt murder convictions, which were the focus of the sentencing at trial, have been quashed and the Crown has elected not to proceed with a new trial. The appellant has also tendered material addressing post-sentence events and developments, which counsel for the appellant submits should mitigate the sentence. In significant ways, this is a different case from the one that was before the trial judge on sentencing.

[8] While these circumstances warrant a less deferential approach to the sentences imposed by the trial judge, they do not mandate a de novo assessment of the proper sentences. The trial judge provided careful, detailed reasons for sentence: R. v. Boone, [2016] O.J. No. 1215, 2016 ONSC 1626 (S.C.J.). Having conducted the lengthy trial, she was familiar with the case in a way that this court can never be.

[9] I accept the trial judge's findings of fact on sentence, except to the extent that those findings are dependent upon the convictions on the attempt murder charges. I also adopt the trial judge's description of the seriousness of the offences and her findings as they relate to the impact of the crimes on the victims. Finally, I accept the trial judge's findings made in the context of the long-term offender application. The trial judge held that the appellant was a long-term offender and imposed a five-year supervision order. The appellant has abandoned his challenge to that order.

[10] In her reasons for sentence, the trial judge gave the appellant pretrial custody credit on a 1.5:1 ratio, resulting in a total credit of 57 months. The parties agree that 57 months is the appropriate credit.

[11] The trial judge also appreciated that the totality principle requires a mitigation of the sentences that would otherwise be appropriate on individual counts. While the trial judge appears to have approached the calculation of the reduction based on totality differently than this court did in cases like R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270, at p. 279 C.C.C. (C.A.) and R. v. Ahmed (2017), 136 O.R. (3d) 403, [2017] O.J. No. 384, 2017 ONCA 76, 346 C.C.C. (3d) 504, it is common ground that the sentences imposed on individual counts must be tempered to take into account totality. Consequently, the sentences imposed on some of the individual counts, viewed in isolation, would appear wholly inadequate.

[12] After taking into account credit for presentence custody and the mitigating effect of the totality principle, the trial judge determined that sentences totalling nine years, three months (111 months) should be imposed. She then entered sentences on the individual counts totalling that amount. Sentence was imposed [page517] on March 9, 2016. The appellant has served almost 48 months of his sentence.

[13] The appellant and Crown agree that the quashing of the three convictions on the attempt murder charges requires a downward adjustment in the totality of the sentences imposed. They disagree on the quantum of that deduction. The appellant submits that the total sentence imposed should be reduced from nine years, three months (111 months) to three years, nine months (45 months). On that calculation, the appellant has effectively served his prison term but would still be subject to the long-term offender order. The Crown argues for a reduction from nine years, three months to six years, nine months (81 months).

[14] Counsel for the appellant's submission in support of a substantial sentence reduction is straightforward. He submits that the trial judge, quite correctly, focused primarily on the moral blameworthiness attached to the three attempt murder convictions. Each of those verdicts indicated that the jury was satisfied, beyond a reasonable doubt, that the appellant had meant to kill his victims.

[15] Counsel further contends that the trial judge's finding that the appellant meant to kill his victims influenced her sentencing on all counts. Counsel acknowledges that the offences of aggravated sexual assault and the administering of a noxious substance carry their own serious culpable mental states. He argues, however, that those culpable mental states are significantly less blameworthy than the culpability that attaches to the crime of attempt murder. Attempt murder requires an actual intention to kill. Counsel submits that the significantly reduced level of moral culpability in respect of the remaining convictions justifies the substantial reduction in the total sentence imposed.

[16] There can be no doubt that the sentences imposed must be reassessed in light of the quashing of the convictions on the attempt murder charge. I also agree with counsel's submission that an intention to kill, the mens rea required for attempt murder, carries with it a higher level of moral blameworthiness than the fault components attached to the crimes of aggravated sexual assault and administering a noxious substance.

[17] I do not, however, accept counsel's submission that the moral blameworthiness of the appellant's conduct is determined exclusively by reference to the fault component of the offences for which he still stands convicted. The fault element of an offence describes the mens rea required for a finding of guilt. The moral blameworthiness of an individual offender's conduct depends not only on the existence of the mens rea required to convict, but also on the trial judge's findings made in relation to the appellant's [page518] conduct and mental state. Those findings can mitigate or aggravate the moral blameworthiness of the offender's conduct.

[18] In this case, the trial judge found that the appellant set out, with considerable planning, effort and deception, to infect young men with HIV. He wanted to "mark" his victims for life. Tragically, in the case of D.S., he achieved that goal. As the trial judge correctly observed, the appellant's conduct was predatory and dangerous in the extreme.

[19] Although it can no longer be said that the appellant meant to kill his victims, he did clearly intend to infect them, appreciating the very real risk that he would succeed and that his victims could ultimately die from medical problems associated with HIV. The appellant maximized that risk by not taking the appropriate medication or using condoms. He sought out victims upon whom he could inflict that risk for his own gratification. I agree with the trial judge's characterization of the appellant's conduct as "deliberate and malicious".

[20] The high degree of moral blameworthiness properly attached to the appellant's conduct is best exemplified by the trial judge's findings in respect of D.S., the complainant on counts 1 and 2. D.S. was a 17-year-year-old, sexually inexperienced boy when he met the appellant on the Internet. The appellant, who was HIV-positive and not taking antiviral medication, assured D.S. that he was "clean". Ultimately, the appellant and D.S. had unprotected anal sexual intercourse several times over a ten-day period. In various chatrooms, the appellant bragged about lying to D.S. about his HIV status and spoke of his desire to "convert" D.S. to an HIV-positive status.

[21] D.S. became infected with HIV. The trial judge found as a fact that the appellant was the source of that infection. I accept that finding.

[22] According to the expert evidence, D.S.'s life expectancy has been greatly reduced by virtue of his HIV infection. He will be on medication for the rest of his life and may well encounter significant medical problems as a result of both the disease and the medication.

[23] The trial judge described the appellant's actions towards D.S. as calculated and ruthless. She also said, at para. 88:

At all times during his interaction with this complainant, Mr. Boone acted with the intention of causing him harm that could end his life.

[24] The trial judge's finding that the appellant intended to cause D.S. bodily harm that could end his life stands even though the convictions on the attempt murder have been set aside. Attempt murder requires a specific intent to kill. The trial judge's [page519] finding speaks, not to an intention to kill, but rather to an intention to cause bodily harm, coupled with an appreciation of the risk that death could result. This mens rea, while short of the mens rea for attempt murder, demonstrates a high level of moral blameworthiness.

[25] Counsel for the appellant referred to cases involving convictions for aggravated sexual assault based on an accused's failure to disclose his or her HIV status to a sexual partner. None of those cases match the appellant's moral culpability. Unlike the offenders in those cases, the appellant set out to infect his sexual partners with HIV for his own perverse gratification. He vigorously pursued that goal and, as noted above, tragically succeeded in achieving that goal in respect of D.S.

[26] Counsel for the appellant relied, to some degree, on the post-sentence material placed before the court. I think it is fair to say that he put less emphasis on this argument than on his submission arising out of the quashing of the attempt murder convictions.

[27] I do not find the post-sentence material of much assistance in determining the fit sentence. The allegations of mistreatment by correctional authorities are largely unsubstantiated. I agree with Crown counsel that, in light of the appellant's propensity for misrepresentation and manipulation, it would be unwise to rely on his unsupported assertions. The allegations of violence toward the appellant by other prisoners, at least one of which is substantiated, while regrettable, do not warrant any reduction in the sentence.

[28] It is concerning that the post-sentence material provides nothing to suggest that the appellant has gained any appreciation for the profound harm his conduct caused. In making that observation, I do not suggest that the appellant should be punished for his obvious lack of remorse. However, his lack of insight, even at this point, four years post-sentencing, indicates that there remains, as there was at the time of sentencing, a substantial risk that the appellant will reoffend if afforded the opportunity.

[29] In my view, the total sentence of six years, nine months (81 months), proposed by the Crown, is the appropriate disposition. I come to that conclusion having regard to the totality of the appellant's conduct, as revealed in the evidence at trial, the seriousness of the six remaining convictions, and the number of complainants. A total reduction of 30 months fairly reflects both the quashing of the attempt murder convictions and the seriousness of the remaining convictions.

[30] In fixing the appropriate sentence on each count, I start by recognizing that there are four victims. Two, D.S. and M.C., are the complainants on two convictions each. The other two victims, M.B. [page520] and B.C., are the subject of one conviction each. The sentences imposed in respect of different victims should be consecutive to each other. The sentences imposed in respect of counts involving the same victim should be concurrent to each other.

[31] All of the convictions are for serious offences. However, for the purpose of fixing individual sentences, the offences against D.S. are the most serious, followed by the offences against M.C., the aggravated sexual assault of B.C., and the attempt to administer a noxious substance to M.B.

[32] The sentences I would impose are set out in the chart below. In keeping with the direction in s. 719(3.3) of the Criminal Code, I have first identified the sentence I would impose on each count prior to any credit for presentence custody. I have next attributed, based on the relative seriousness of the offences, parts of the presentence custody to each of the convictions on counts 1, 4, 7 and 9. The deduction of the credit for presentence custody results in the actual sentence imposed. The sentences, as varied by these reasons, run from March 9, 2016, the date on which the trial judge imposed sentence.

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[page521] [33] In addition to the period of incarceration as described above, the appellant remains subject to the long-term supervision order imposed by the trial judge. All other orders imposed by the trial judge also remain in effect.

Sentence varied in accordance with Crown's position.

End of Document