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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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: 20220512 DOCKET: C67951

Doherty, Tulloch and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

M.F. Appellant

Counsel: Harshi Mann, for the appellant Samuel G. Walker, for the respondent

Heard: May 4, 2022

On appeal from the convictions entered on June 28, 2019, and the sentence imposed on February 14, 2020, by Justice Todd Ducharme of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of three counts of sexual assault. He was sentenced to seven and a half years of imprisonment.

[2] The appellant appeals from his conviction. He argues that the trial judge erred in failing to give proper effect to evidence that he was physically incapable of committing the offences. The appellant also seeks leave to appeal his sentence. He submits that the trial judge erred in imposing consecutive escalating sentences for the three assaults and in failing to give proper consideration to his age – 70 years old at the time of sentencing – as a mitigating factor.

[3] For the following reasons, the appeal from conviction is dismissed, leave to appeal sentence is granted, and the appeal from sentence is dismissed.

A. Factual Background

[4] The appellant and his wife owned a cleaning company.

[5] The complainant worked for the cleaning company in September and October 2016. At that time, she was 19 years old, had recently immigrated to Canada from Brazil and did not speak English.

[6] The complainant alleged that the appellant sexually assaulted her on three separate occasions in September 2016. The first assault occurred in a dance studio where the complainant was doing cleaning work. The second and third assaults occurred in the appellant’s van when he was driving the complainant home after work. Each assault included vaginal penetration.

[7] At trial, the complainant described the assaults.

[8] The appellant did not testify but his wife testified as a defence witness. She gave evidence that the appellant had various health issues that limited his strength and cognitive abilities, and also that the appellant had not had an erection since 2009. Given that the appellant’s wife could not give expert evidence on the appellant’s medical conditions, the trial judge adjourned the trial to allow the appellant to call his family doctor as a witness. The doctor testified that the appellant had various medical conditions, including type 2 diabetes which he said can cause erectile dysfunction. The doctor also testified that he saw the appellant for a shoulder injury in September 2016 that worsened by the time he next saw the appellant in January 2017.

[9] The trial judge convicted the appellant on all three counts of sexual assault. In his reasons, the trial judge accepted the complainant’s evidence and found her credible. He also found that the appellant’s wife was not a credible witness, in part because she fabricated evidence that was meant to suggest that the appellant would never have been alone with the complainant. In addition, the trial judge found that the doctor’s evidence did not support a finding that the appellant was physically incapable of sexually assaulting the complainant.

[10] The trial judge sentenced the appellant to seven and a half years.

B. Appeal from Conviction

[11] The appellant argues that the trial judge failed to properly consider the evidence that he was physically incapable of committing the sexual assaults due to both his shoulder injury and erectile dysfunction. The appellant argues that this was a misapprehension of the evidence amounting to a miscarriage of justice and that the trial judge gave insufficient reasons for rejecting his evidence on these issues. In our view, the trial judge committed no such errors.

[12] With respect to the shoulder injury, the evidence was that the doctor saw the appellant on September 19, 2016, for a shoulder injury after he fell at work. The doctor testified that, at that time, the appellant had a soft tissue injury consisting of a contusion and some swelling. However, the doctor did not notice any restriction in the appellant’s movements and the appellant did not request pain medication. The doctor next saw the appellant on January 9, 2017, for his shoulder. At that time, the appellant was diagnosed with a partial tear of his rotator cuff. The doctor testified that pain from the injury could have affected the appellant’s range of motion, depending on the appellant’s own pain threshold. However, again, the appellant did not ask for pain medication and the doctor did not recommend that the appellant stop working due to the injury.

[13] After reviewing this evidence, the trial judge concluded that the doctor’s evidence “did not support the suggestion that [the appellant] would have had problems bending over, or getting on his knees, or that he suffered from any limitations to his full range of motion in September of 2016”.

[14] The trial judge did not misapprehend the evidence on this issue. Based on the doctor’s testimony regarding the appellant’s condition on September 19, 2016, which was close in time to the assaults, it was open to the trial judge to find that the doctor’s evidence did not raise any reasonable doubt regarding the appellant’s physical ability to commit the offences.

[15] With respect to the issue of erectile dysfunction, the appellant argues that the trial judge failed to address his wife’s evidence on this issue. The wife’s evidence was that she and the appellant had not had sex since September 2009 and that the appellant had not had an erection since 2009. While the trial judge did not address this evidence directly, it is evident from his credibility finding that he did not believe much of the wife’s evidence because of her fabrication of evidence on the issue of whether the appellant would have had an opportunity to be alone with the complainant. Given this credibility finding, the trial judge was not required to address and explain why he rejected each aspect of the wife’s evidence, including her evidence about her sexual relations with the appellant.

[16] In any event, the wife’s evidence that she did not have sex with the appellant since 2009 did not contradict the complainant’s evidence that the appellant sexually assaulted her. In fact, the complainant’s evidence was that, during the sexual assaults, the appellant told her that he was no longer having sex with his wife. In this respect, the wife’s evidence is in fact consistent with the complainant’s evidence.

[17] The appellant also argues that the trial judge did not properly consider the doctor’s evidence on the issue of erectile dysfunction. The doctor’s evidence was that type 2 diabetes can lead to erectile dysfunction. He further testified that neither the appellant nor his wife had ever raised this issue with him, while acknowledging that some men do not report that they suffer from erectile dysfunction because they find it embarrassing. The trial judge considered this evidence and concluded that it did not support a finding that the appellant was suffering from erectile dysfunction.

[18] Again, we see no error in the trial judge’s treatment of this evidence. Ultimately, the trial judge had no direct credible evidence that the appellant suffered from erectile dysfunction. In contrast, he had direct evidence from the complainant, who he found credible, that the appellant sexually assaulted her. We see no error in his conclusion that “none of [the doctor’s] evidence raises any doubts in my mind about the complainant’s accounts”. The trial judge was required to consider the totality of the evidence and was entitled to reach his determinations on that basis.

[19] Accordingly, we do not give effect to the appellant’s arguments that the trial judge misapprehended the evidence or gave insufficient reasons for rejecting the defence’s evidence. The trial judge did not fail to consider relevant evidence, he did not make a mistake regarding the substance of the evidence and he did not fail to give proper effect to the evidence: see R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. Similarly, the trial judge gave sufficient reasons for rejecting the defence’s evidence. It is clear from his reasons, read in context and as a whole, why he rejected the defence’s evidence and accepted the complainant’s evidence about the sexual assaults: see R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69.

C. Sentence Appeal

[20] The trial judge sentenced the appellant to a total sentence of seven and a half years. The sentence was based on three years for the first sexual assault, three and a half years for the second sexual assault and four years for the third sexual assault, which the trial judge then adjusted to seven and a half years by making the first sentence concurrent with the second sentence. He made this adjustment in consideration of the totality principle.

[21] The appellant raises two arguments in support of the sentence appeal. While leave to appeal sentence is granted, the sentence appeal is dismissed.

[22] First, the appellant argues that the trial judge erred in imposing progressively increasing sentences for each sexual assault. The appellant argues that, instead, the trial judge should have imposed sentences of three years for each sexual assault, and then imposed a total sentence of five to six years based on the totality principle. The Crown accepts that there was no basis for imposing progressively higher sentences for each sexual assault; however, the Crown argues that the total sentence of seven and a half years is a fit sentence in the circumstances of this case.

[23] In his sentencing reasons, the trial judge justified imposing separate sentences for each sexual assault because of their “separation in time”. He also justified the escalation in the sentence for each sexual assault based on their “separation in time”.

[24] In our view, having regard to s. 718.3(4)(b)(i) of the Criminal Code, R.S.C. 1985, c. C-46, it was appropriate for the trial judge to treat each sexual assault as a separate event given their separation in time. However, we agree with the parties that the trial judge erred by then imposing escalating sentences for each sexual assault again on the basis they were separated in time without any further justification; for example, a finding that the assaults escalated in gravity.

[25] That said, we agree with the Crown that this court should review the total sentence of seven and a half years rather than the individual sentences the trial judge ascribed to each sexual assault. As held in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39, 44, appellate courts are not to intervene lightly with a trial judge’s broad discretion to impose a sentence, and an error in principle only justifies intervention if it affects the fitness of the overall sentence. In this case, the appellant committed three serious sexual assaults. The appellant was in a position of trust vis-à-vis the complainant. The complainant was especially vulnerable given her young age, immigration status, inability to speak English and economic circumstances. The total sentence of seven and a half years is a fit sentence in the circumstances of this case.

[26] The second argument the appellant makes in relation to the sentence is that the trial judge failed to properly consider the appellant’s age as a mitigating factor. We do not agree. It is evident from the reasons that the trial judge was aware of the appellant’s age and various medical issues. He was satisfied that the appellant’s health issues could be managed by the Correctional Service of Canada.

[27] The appellant relies on the decision of R. v. Premji, 2021 ONCA 721, where this court reduced a sentence from thirteen and a half years to nine years in circumstances where the appellant was 77 years old at the time of sentencing and in very poor health. In our view, Premji is distinguishable, as there is no concern here that the sentence “so greatly exceeds [the appellant’s] expected remaining lifespan that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value”: Premji, at para. 3, citing R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 74.