Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-01-21 Docket: C65125 & C65126

Judges: Watt, Pardu and Nordheimer JJ.A.

Between: Her Majesty the Queen Respondent

And: G.F. and R.B. Appellants

Counsel: Richard Posner and Alexander Ostroff, for the appellants Philippe G. Cowle, for the respondent

Heard: In writing

On appeal from the sentences imposed by Justice Edward J. Koke of the Superior Court of Justice on September 6, 2017, with reasons reported at 2017 ONSC 5203.

Reasons for Decision

[1] On June 9, 2016, the appellants were convicted of sexual assault of the complainant, C.R. On September 6, 2017, G.F. was sentenced to three and one‑half years’ incarceration and R.B. was sentenced to three years’ incarceration. On June 14, 2019, this court allowed their appeal against conviction and ordered a new trial. [1] As a result, this court did not address the appellants’ sentence appeal. The Crown then successfully sought leave to appeal that decision to the Supreme Court of Canada. On May 14, 2021, that appeal was allowed, and the appellants’ convictions were restored. [2] Consequently, this court is now called upon to hear and decide the sentence appeals. For reasons that need not be detailed, the parties’ written submissions, that were filed a few months ago, were only recently received by the panel.

[2] The facts underlying the convictions are set out in detail in this court’s earlier reasons and in the reasons of the Supreme Court of Canada. They do not need to be repeated in detail. The appellants were convicted of engaging in the sexual assault of a 16-year-old complainant at a campground. The complainant was there with her parents and her younger brother. Her parents and the appellants were friends. The complainant had been provided with alcohol by G.F. and was intoxicated at the time of the sexual assault.

[3] In terms of personal background, G.F. was born in the United Kingdom and immigrated to Canada when he was six years old. He never sought Canadian citizenship. He was 42 years old at the time of the offence. He had no criminal record. R.B., upon her graduation from high school, entered the workforce and always maintained gainful employment. She was 38 years old at the time of the offence. She also had no criminal record.

[4] In his reasons for sentence, the trial judge noted that both counsel agreed that deterrence and denunciation are primary objectives in sentencing for offences such as those committed by the appellants. In terms of aggravating circumstances, the trial judge noted:

• the complainant was only 16 years old, and both of the appellants were more than twice her age;
• the complainant was under the influence of alcohol and most of the alcohol she drank was given to her by G.F. without the consent or approval of her parents;
• the sexual activity was a violation of trust. The complainant’s parents trusted that their 16-year-old daughter would be treated with respect and consideration when they agreed to let her sleep in the trailer with the two appellants;
• the sexual activity took place without any protection. This naturally gave rise to concerns about STIs and pregnancy; and
• the extent of the sexual activity was not “low-end conduct”. The appellants manipulated the complainant into several physical positions, over the course of some time, and the complainant was “completely objectified and degraded as a sexual object”.

[5] In terms of mitigating factors, the trial judge noted that neither of the appellants had a criminal record; they did not have any history of inappropriate conduct with young persons; and they were both hardworking individuals. The trial judge was concerned, however, by the fact that neither of the appellants had accepted any responsibility for their conduct.

[6] The Crown had sought a four year custodial sentence for G.F., and a three year custodial sentence for R.B. The appellants both sought two year suspended sentences, with three years’ probation. As earlier noted, the trial judge imposed a sentence of three and one-half years on G.F. and three years on R.B.

[7] The appellants raise a number of complaints with respect to the trial judge’s approach to the sentences. These include:

• the trial judge used his own personal objection to the type of conduct involved, that is, group sexual activity along with sexual activity involving persons of very different ages, to increase the sentence;
• the trial judge’s use of the appellants’ failure to take responsibility penalized them for maintaining their innocence;
• the trial judge erred in finding that there was a breach of trust involved in this case;
• the trial judge did not adequately distinguish between the appellants’ relative culpability;
• the trial judge erred by failing to consider collateral immigration consequences for G.F.;
• the trial judge erred by failing to consider collateral consequences for R.B. involving her history of mental health issues; and
• the sentences were outside the range for similarly situated offenders.

[8] We do not accept any of these complaints. In particular, while we accept that some of the language used by the trial judge in describing the sexual activity was inappropriate and unnecessary, we do not view it as having impacted the ultimate sentences imposed. We believe that it was open to the trial judge to find that there was an element of a breach of trust in this case given the particular circumstances. In that regard, we note that trust relationships can arise in varied circumstances and they fall along a spectrum: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 125. The immigration consequences were not ones that could have driven the appropriate sentence down to the point where they would have had any impact. Immigration consequences cannot be used to justify the imposition of inappropriate and artificial sentences: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 15.

[9] In advancing their argument about similarly situated offenders, the appellants have relied on case law that does not reflect facts that are similar to the ones here. The Crown points to a collection of different cases more closely resembling the facts of this case, which justify a sentence in the range of three to four years. It is this reality that often makes reference to other cases of limited use in determining an appropriate sentence. What is important is that the sentences imposed in this case are clearly far from being “demonstrably unfit”.

[10] An appellate court may only interfere with a sentence if the sentencing judge erred in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The appellants have failed to show that any of these errors occurred in this case.

[11] In our view, the trial judge imposed sentences that were proportionate to the activities underlying the offences committed. His differentiation between the two appellants in terms of sentencing was reasonable and is entitled to deference.

[12] While we would grant leave to appeal the sentences, the appeals are dismissed.

“David Watt J.A.”

“G. Pardu J.A.”

“I.V.B. Nordheimer J.A.”