Publication Ban Warning
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20220519 DOCKET: C69838
Simmons, Harvison Young and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
P.M. Appellant
Counsel: P.M., in person by video conference John Scott Cowan, appearing as duty counsel Avene Derwa, for the respondent
Heard: May 4, 2022
On appeal from the sentence imposed on July 15, 2020 by Justice Nancy J. Spies of the Superior Court of Justice, with reasons reported at 2020 ONSC 3325.
Reasons for Decision
[1] Following a judge alone trial, the appellant was convicted of sexual assault, assault, and uttering a threat to cause bodily harm. Although the appellant testified at trial, he did not appear on the date originally scheduled for sentencing. The trial judge ultimately concluded the appellant had absconded and proceeded with sentencing in absentia.
[2] The trial judge sentenced the appellant to:
- three years' imprisonment less nine days' credit for pre-sentence custody on the sexual assault charge;
- six months' imprisonment consecutive on the assault charge; and
- four months' imprisonment concurrent on the uttering a threat charge.
[3] The appellant seeks leave to appeal sentence.
[4] The offences occurred in the complainant’s home on two different dates in November 2017. The sexual assault involved forced oral sex, digital penetration, and vaginal intercourse.
[5] The appellant had no criminal record. He was 37 years old at the time of sentencing and had immigrated to Canada from the Congo at age 21 as a refugee. Canada Border Services Agency indicated to the author of the pre-sentence report that the appellant was under Foreign National Status and had been placed in the removal stream pending deportation. The appellant advised the pre-sentence report author that he had supportive family in France.
[6] The trial judge gave lengthy and carefully considered reasons for sentence. She noted that, in 2008, the complainant and the appellant began what became an on-again off-again relationship and had a child together. She accepted the complainant’s evidence that the two had never lived together but that the appellant stayed with the complainant and her children for extended periods and acted as a father figure to their child and the complainant’s son from a prior relationship. While the appellant and the complainant were not living together when the offences occurred in 2017, the trial judge found that they had an intimate relationship.
[7] Because the appellant absconded prior to sentencing, the trial judge appointed amicus curiae to provide submissions concerning the discrete issue of how to interpret or reconcile two lines of authority of this court setting out sentencing ranges for sexual assault involving forced intercourse.
[8] In the trial judge’s view, one line of authority, anchored by R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, establishes a sentencing range of 21 months to four years' imprisonment where the sexual assault involves forced intercourse with an intimate partner or former intimate partner. The other line of authority, anchored in R. v. Bradley, 2008 ONCA 179, involving forced intercourse of a non-intimate partner (i.e., stranger/friend) sets out an appropriate range of sentence of three to five years' imprisonment.
[9] The trial judge concluded that the Smith and Bradley lines of authority are not reconcilable and that it will be up to this court to consider and possibly revisit the two parallel ranges. For the purpose of determining a fit sentence, she decided to consider the three-to-five-year Bradley range, taking account of the fact that the statutory aggravating factors prescribed in ss. 718(2)(a)(ii) and (iii) of the Criminal Code (abuse of a common law partner and breach of trust), which she concluded apply in this case, were not part of this court's consideration in Bradley or other cases that followed it.
[10] As noted above, ultimately, the trial judge imposed a three-year sentence for the sexual assault, a six-month consecutive sentence for the assault, and a four-month concurrent sentence for uttering a threat.
[11] On the appellant's behalf, duty counsel submits that the trial judge erred in imposing a three-year sentence for the sexual assault. In particular, he contends that she erred in her analysis in two respects.
[12] First, she failed to adopt the 21-month-to-four-year sentencing range established by the Smith line of authority for intimate partner/former intimate partner forced intercourse sexual assault. Second, she misidentified the bottom end of the non-intimate partner forced intercourse sexual assault sentencing range as three years’ imprisonment, when in fact it is 18 months’ imprisonment: R. v. Ghadghoni, 2020 ONCA 24, at para. 48, citing, as an example, R. v. Smith, 2015 ONSC 4304, at paras. 32-33.
[13] Having adopted the three-to-five-year range, duty counsel contends that the trial judge decided a sentence at the low end of the range was appropriate, taking into account the appellant’s personal circumstances, his lack of a prior criminal record, and some indication of remorse. While acknowledging that deviating from a sentencing range is not itself an error in principle, duty counsel submits that failing to properly identify and give effect to an established sentencing range can constitute such an error. Had the trial judge identified the correct sentencing range, duty counsel submits her reasons indicate she would have imposed a sentence at the lower end of that range and that a two-year sentence for the sexual assault would be appropriate in the circumstances.
[14] We do not accept these submissions.
[15] Having concluded that the Smith and Bradley lines of authority are irreconcilable, the trial judge commenced her analysis of the relevant sentencing factors in this case. She explained why she concluded the statutory aggravating factors apply, reviewed certain additional aggravating factors, and considered whether there were any mitigating factors.
[16] The trial judge then turned to the question of an appropriate sentence. She noted that the Crown requested a global sentence of three and one-half years with three years being allocated to the sexual assault, six months consecutive to the assault and six months concurrent for uttering a threat. As the assault and threat occurred on a different date than the sexual assault, the trial judge found that a consecutive sentence relating to that set of offences was appropriate.
[17] Concerning the sexual assault, the trial judge found that, in light of the conflict in this court’s sentencing ranges, the Crown's request for a three-year sentence was very reasonable. Because the bottom end of the range for non-intimate partner forced intercourse sexual assaults is three years’ imprisonment and does not take account of the statutory aggravating factors applicable here, arguably the sentence could have been higher. Moreover, the global sentence was fit. It was in accordance with the principle of restraint for first-time offenders enunciated in R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.). Further, it addressed the gravity of the offence, the need for general and specific deterrence, and the appellant's moral culpability.
[18] As we read her reasons, the trial judge acceded to the Crown's sentencing submissions not because of where the sentence fell within a particular range, but rather because the proposed sentence was fit. In our view, the sentence was proportionate having regard to all the circumstances and addressed all relevant sentencing principles.
[19] However, even assuming the trial judge made an error in identifying the proper range of sentence, such an error would only justify appellate intervention if the sentence imposed is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 51. Here, rather than being demonstrably unfit, in our view, the three-year sentence imposed was entirely fit.
[20] The sexual assault occurred on the morning of November 30, 2017, after the appellant had tried, without success, to persuade the complainant to let him into her apartment on the evening before. This was about two weeks after the assault and threatening offences had occurred. The appellant followed the complainant into her apartment uninvited and dragged her to her upstairs bedroom by her wrists. He refused to let the complainant leave the bedroom, pushed her onto her bed, and performed oral sex, digitally penetrated her, and had vaginal intercourse with her against her will. He was not wearing a condom and ejaculated inside of her. Although there is no indication that the complainant’s children witnessed these events, they were present in the home. While the complainant did not suffer serious physical injuries as a result of the offence, the trial judge accepted that she had suffered significant emotional harm.
[21] Even taking account of the appellant’s first offender status and the collateral immigration consequences arising from his conviction and sentence, we consider that the two-year sentence suggested by duty counsel would not be a fit sentence in all the circumstances.
[22] We agree with the trial judge’s conclusion that the fact that the appellant absconded indicates the prospects of his rehabilitation are remote. This was a serious sexual assault perpetrated in the complainant’s home in blatant disregard of the complainant’s protests. It was accomplished through violence and followed a prior assault and threat to inflict bodily harm. The three-year sentence that was imposed properly reflects the gravity of the offence and the appellant’s moral blameworthiness. He committed a serious breach of trust and was not entitled to the mitigating effect of remorse that could have been reflected in a guilty plea. Denunciation and deterrence must assume prominence in these circumstances. However the applicable sentence range might be described, in our view, a two-year sentence for this offence and this offender would simply not be proportionate in all the circumstances.
[23] Concerning the submission that the Smith and Bradley lines of authority are irreconcilable, we wish to confirm that we advised counsel and duty counsel prior to embarking on the appeal hearing that we understand that the same issue was raised in R. v. A.J.K. (C68553), heard on January 24, 2022, currently under reserve.
[24] As is evident from our reasons set out above, we find it unnecessary for the purposes of this appeal to attempt to resolve any conflict in the ranges established by this court. We observe that the three-year sentence imposed in this case falls within all the ranges referred to by counsel in their submissions. We have concluded that it was a fit sentence. On the facts of this case, it is unnecessary that we comment further on any conflict that may exist in this court’s jurisprudence concerning the applicable range in forced intercourse sexual assault cases.
[25] Leave to appeal sentence is granted but the appeal is dismissed.
“Janet Simmons J.A.” “A. Harvison Young J.A.” “S. Coroza J.A.”
