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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
COURT OF APPEAL FOR ONTARIO
DATE: 20230911 DOCKET: C68615
Huscroft, Paciocco and Coroza JJ.A.
BETWEEN
His Majesty the King Respondent
and
Robert Lavergne Appellant
Counsel: Howard L. Krongold, for the appellant Andrew Hotke, for the respondent
Heard: July 14, 2023
On appeal from the sentence imposed on October 30, 2020, by Justice Catherine A. Kehoe of the Ontario Court of Justice.
Paciocco J.A.:
OVERVIEW
[1] Robert Lavergne, the appellant, appealed his indictable convictions of sexually assaulting D.R., contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46, and sexually exploiting L.G., contrary to s. 153, and sought leave to appeal his 17-month global sentence. The appeals were bifurcated, and on November 8, 2022, the conviction appeal was dismissed: R. v. Lavergne, 2022 ONCA 760.
[2] This is the judgment in the appellant’s sentence appeal. I would grant the appellant leave to appeal his sentence but would dismiss his sentence appeal for the following reasons.
MATERIAL FACTS
[3] Prior to his arrest on these offences, the appellant was a popular high school teacher, in his 50’s. Many students hung around his classroom between classes, or even attended classes they were not enrolled in. The appellant maintained informal relationships with his teenaged students. He exchanged phone numbers with some of them, drove some of them home, admitted to giving some of them gifts, and his interactions with his students often involved physical contact. He gave “shoulder squeezes” to more than one student, including L.G. He admitted to teaching students “pressure points” and hugging students. He admitted to slapping L.G.’s buttocks on one occasion in “reaction” to L.G. slapping his buttocks as she ran past him, but said he apologized.
[4] At times the atmosphere was sexualized, independently of the alleged sexual offences that formed the subject of the prosecution. The trial judge accepted evidence that the appellant made sexual remarks to students. He acknowledged that he supplied students with condoms and would talk to students “a bit” about sexual matters if they raised the subject, although he claimed he would discourage such conversations.
[5] On the evidence, D.R. may have been 18 years of age when she was assaulted on a single occasion. The trial judge found that, to D.R.’s surprise, the appellant slapped her bottom when she was bent over during class, and said, “you’re such a dirty girl”.
[6] L.G. was younger. The offences against her happened approximately a decade after the offence against D.R. and occurred over an approximately 18‑month period when she was 16 and 17 years of age. The trial judge found that the appellant slapped L.G.’s buttocks regularly and frequently, initiated unwanted hugs, massaged her shoulders, and touched her breast under her bra. On one occasion he flipped her upside down while she was wearing a skirt and pressed on her inner thigh, purportedly while demonstrating a pressure point. The trial judge accepted L.G.’s testimony that the appellant made frequent sexual comments to her, at times accompanying the touching. On one occasion he touched her after using his authority to clear the class to get her alone, and on another came into a back room where he kept a futon, while she was changing, and offered her wine.
[7] L.G. provided powerful evidence of the devastating mental toll these incidents had on her, which the trial judge accepted. The impact of the offences included an inability to sleep, feelings of isolation, fear of men, loss of ambition, loss of her employment goal, and pressure on her family relations. She links these events to her need for the therapy and antidepressant medication which she has been prescribed, and to her self-harm and suicide attempts.
[8] For her part, D.R. was left feeling dirty, angry, and exploited.
[9] The Crown sought a sentence of 12-15 months on the sexual exploitation count, and 3 months consecutive on the sexual assault count.
[10] The appellant asked the trial judge to find the one-year minimum sentence for sexual exploitation provided for in s. 153(1.1)(a) of the Criminal Code to be unconstitutional and to impose a global sentence of three to six months in jail. The appellant did not ask the trial judge to impose a conditional sentence on either offence but, as I will explain, a conditional sentence was not available for the offences charged at the time he was sentenced, even if the trial judge found s. 153(1.1)(a) to be of no force or effect as contrary to the Charter.
[11] The trial judge decided not to consider the constitutional validity of the minimum sentence in s. 153(1.1)(a) because the minimum sentence was moot, given her view that a fit sentence of 14 months’ imprisonment was required for the sexual exploitation of L.G. That is the sentence she imposed, as well as three‑months of consecutive imprisonment for the sexual assault on D.R.
ISSUES
[12] The appellant seeks leave to appeal his sentences, arguing that the sentences imposed by the trial judge are unfit, and that even if they are not unfit, post-sentence changes to the law of conditional sentencing that work to the appellant’s benefit require this court to review the trial judge’s sentences so that the appellant can enjoy the benefit of the law that now applies. He asks us, as part of that review, to consider the constitutionality of the mandatory minimum sentence of one year’s imprisonment for sexual exploitation, provided for in s. 153(1.1)(a). He argues we should find s. 153(1.1)(a) to be unconstitutional and substitute a conditional sentence for the sentence imposed by the trial judge. The Crown opposes the sentence appeal, arguing that it is unnecessary for us to consider the constitutional validity of the minimum sentence, because the sentence the trial judge imposed for sexual exploitation was fit, and so, too, was the sentence imposed for sexual assault.
ANALYSIS
A. Is the Court Obliged to reconsider the sentence, including the challenge to the minimum sentence?
[13] It is convenient to begin with the appellant’s submission that we are required to reconsider the appellant’s sentence because of changes to the law, and therefore determine whether s. 153(1.1)(a) is unconstitutional. I would reject this submission. I agree with the Crown that we are not obliged to reconsider the sentences afresh or address the constitutionality of the minimum sentence.
[14] The post-conviction legislative change the appellant is relying upon was the repeal of two statutory provisions that prevented the appellant from seeking a conditional sentence at the time of his sentencing. Those two provisions, which were recently repealed by Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Sess., 44th Parl., 2022 (assented to 17 November 2022), S.C. 2022, c. 15, were s. 742.1(c) and 742.1(f). Section 742.1(c) made offences prosecuted by indictment for which the maximum term of imprisonment is 14 years or more, ineligible for a conditional sentence. When prosecuted by way of indictment, sexual exploitation, the offence committed against L.G., carries a maximum sentence of 14 years imprisonment. Section 742.1(f)(iii) made the offence of sexual assault, the offence committed against D.R., ineligible for a conditional sentence.
[15] The appellant argues that based on the decision in R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183, we must reconsider the sentences imposed because of these changes in the law. In my view, the circumstances in this case are different from those in Bunn.
[16] In Bunn, s. 742.1 was enacted after Mr. Bunn was sentenced to two-years’ imprisonment on breach of trust convictions. Section 742.1 created the conditional sentence, making those offences eligible for conditional sentences at the time of his appeal. The Manitoba Court of Appeal reconsidered Mr. Bunn’s two-year sentence and substituted a two-year-less-a-day conditional sentence, based largely on Mr. Bunn’s financial difficulties and his need to remain at home to care for his disabled, dependent, elderly wife. The Crown appealed the Manitoba Court of Appeal decision, arguing that the court erred in not deferring to the trial judge’s sentence. But Lamer C.J.C., for the court, upheld the Manitoba Court of Appeal decision, explaining that had s. 742.1 been in force at the time the trial judge sentenced Mr. Bunn, there was a “distinct possibility” that the trial judge would have imposed a sentence of less than two years, making him eligible for a conditional sentence: Bunn, at para. 19. Since Mr. Bunn had now had the benefit of s. 742.1, the imposition of a conditional sentence was appropriately considered by the appeal panel and imposed for appropriate reasons. Chief Justice Lamer explained that even though the trial judge had not erred in principle or imposed a demonstrably unfit sentence, “[w]here there has been an intervening change in the law between sentencing and appeal, it is as though the sentencing judge has committed an error in principle, albeit for reasons beyond his or her control, because relevant principles have not been considered”: Bunn, at para. 21. He said that in such circumstances, “[t]he Court of Appeal need not … defer to all of the trial judge’s findings, and can proceed to re-sentence in light of the new principles.”
[17] My analysis of the application of Bunn to this appeal differs relating to the sexual assault conviction and the sexual exploitation conviction. It is convenient to begin with the sexual assault conviction.
[18] With respect to the sexual assault conviction, as a result of Bill C-5 there are now no remaining statutory impediments to a conditional sentence for that offence. Had Bill C-5 been in force at the time the appellant was sentenced, the trial judge would have had to consider whether to impose a conditional sentence, not unlike the circumstances in Bunn. That said, I do not read Bunn as requiring appellate courts to reconsider anew all sentences that become eligible for more lenient treatment as the result of changes in the law. Bunn holds that courts of appeal need not defer to trial sentences. It does not say that they cannot do so, and in my view, this is an appropriate case for deference. This is not a case where the sentence may have been different had the appellant had the benefit of the current law at the time. It is patent in the trial judge’s decision that she would not have imposed a conditional sentence on the sexual assault offence, even had she considered the possibility. The trial judge concluded that a denunciatory and deterrent sentence had to be imposed to reflect the appellant’s wrongdoing and the harm caused by his offending. She commented that she believed three months of imprisonment to be too low and made it clear that she would have imposed a longer sentence had the Crown not requested three months in prison. Moreover, this is not a case like Bunn where there is a strong basis for using the restorative or rehabilitative tool of a conditional sentence. The appellant continued to deny his guilt and was no longer going to have access to children in the power dynamic of a teacher. Therefore, unlike Bunn it is not a case where there was a “distinct possibility” that the trial judge would have concluded that the need for rehabilitation or restoration should qualify the primary sentencing objectives of deterrence and denunciation. The trial judge had the benefit of presiding at the trial and hearing the sentencing submissions. Absent a real, rather than notional, error in principle, I would defer to her decision.
[19] There is an additional impediment to relying on Bunn to compel reconsideration by this court of the sexual exploitation sentence of 14-months’ imprisonment. Bill C-5 removed only one of two legal disqualifications to a conditional sentence for that offence, namely, s. 742.1(c). Even had Bill C-5 been enacted before the appellant’s sentencing, the appellant would not have been eligible for a conditional sentence because of the minimum sentence in s. 153(1.1)(a). Unlike Bunn, the legislative change relating to sexual exploitation did not put a conditional sentence for this offence on the table for the appellant.
[20] Moreover, the trial judge did not err in declining to consider the constitutional challenge to s. 153(1.1)(a) that the appellant brought. The appellant was being sentenced in the provincial court, where judges do not have competent jurisdiction to make formal declarations of constitutional invalidity, pursuant to s. 52 of the Constitution Act, 1982: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15. To be sure, provincial court judges have the power to determine constitutional validity “when the issue arises in a case they are hearing”, a power that derives from their statutory power to decide the cases before them: Lloyd, at para. 16. However, McLachlin C.J.C. explained for the majority in Lloyd that a provincial court judge faced with a constitutional challenge to a statutory provision is not obliged to consider that issue when it would have no impact on the sentence in the case at issue. For example, where the provincial court judge decides that the minimum sentence does not materially exceed the fit sentencing range in the case at hand, the trial judge need not consider the constitutional challenge: Lloyd, at para. 18. The circumstances in this case are similar. The trial judge turned her mind to the constitutional validity of s. 153(1.1)(a) and decided the resolution of this issue would not alter the 14-month sentence she was imposing, since a fit sentence exceeds the minimum sentence that s. 153(1.1)(a) would require. So, the constitutional challenge was moot. In my view, the trial judge committed no error in coming to this conclusion.
[21] I understand the appellant’s submission that had s. 742.1(c) not been in effect, the trial judge may have felt differently about considering the constitutional validity of s. 153(1.1)(a) since, in those circumstances, the removal of the minimum sentence would not merely open the possibility that a sentence under 12 months could be imposed, but would also resolve whether the sentence could be served conditionally. Once again, for the reasons I have already described with respect to the sexual assault offence, there is no “distinct possibility” that had the repeal of s. 742.1(c) occurred prior to the appellant’s sentencing, the trial judge may have considered the constitutional validity of s. 153(1.1)(a), struck it down, and imposed a conditional sentence on the sexual exploitation conviction. Given the trial judge’s analysis, there is no “distinct possibility” that she may have imposed a conditional sentence had s. 742.1(c) not been in force. I would not reconsider the sentence, nor would I reconsider the trial judge’s decision not to resolve the challenge to the mandatory minimum sentence.
B. Are the sentences DEMONSTRABLY Unfit?
[22] The sentences were not demonstrably unfit. I appreciate that the actus reus of the offences – the episodes of touching – were each transient and not as physically intrusive as many sexual offences. However, to find the sentence demonstrably unfit on that basis alone would be to disregard the admonition by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 141-44, that although the type of sexual act can reflect on the level of moral fault involved, courts should not give excessive emphasis to the physical act involved and should not “justify a lower sentence by labelling the conduct as merely sexual touching”.
[23] With respect to children, even relatively unobtrusive touching can cause extensive psychological and emotional harm, notwithstanding that the harm to bodily integrity is at the lower end of the scale. This is particularly so where the conduct is repeated: Friesen, at para. 131 (citations omitted). Here, in L.G.’s case, the touching was repeated on numerous occasions, over a long period of time, and it occurred in public, which increased the risk of her shame, and embarrassment. The trial judge accepted the descriptions of the psychological and emotional harm which, in L.G.’s case in particular, was profound, a factor to be given emphasis in sentencing sexual offences against young persons: Friesen, at paras. 74-76. The actual harm a child victim experiences is to be a “key determinant” in assessing the gravity of the offence: Friesen, at para. 85. It is also material that L.G. was an adolescent. This made her particularly vulnerable based on her age alone: Friesen, at para. 136. The appellant not only exploited her immaturity but in the case of both L.G. and D.R. he abused his elevated power as their teacher to treat them as sexual objects, a highly morally culpable engagement in wrongful conduct in breach of trust: Friesen, at para. 129. To make matters worse, he did this in a context where the trial judge found him to have groomed L.G. In these circumstances, the sentences were not demonstrably unfit.
[24] I would grant leave to the appellant to appeal his sentence but dismiss the sentence appeal.
Released: September 11, 2023 “G.H.”
“David. M. Paciocco J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. S. Coroza J.A.”
