Corrected decision: The text of the original judgment was corrected on July 3, 2024, and the description of the correction is appended.

COURT OF APPEAL FOR ONTARIO DATE: 20240702 DOCKET: COA-23-CR-0930 & M54510

van Rensburg, Roberts and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Daniel Wright Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Davin Michael Garg and Jacob Millns, for the respondent

Heard: February 12, 2024

On appeal from the sentence imposed by Justice Jennifer D. Strasberg of the Ontario Court of Justice dated August 16, 2023, with reasons reported at 2023 ONCJ 363.

Roberts J.A.:

A. Overview

[1] On March 21, 2023, the appellant pleaded guilty in accordance with an agreed statement of facts to one count of sexual exploitation of the complainant, who was effectively his stepdaughter at the time, contrary to s. 146(1) of the Criminal Code, R.S.C., 1985, c. C-46, as it was in 1988. [1] The offence occurred over a two-year period, from 1988 to 1990, when the complainant was between 13 and 15 years of age.

[2] At the time of the offence, the maximum penalty under s. 146(1) was five years in custody. The Crown sought a custodial sentence of between four and five years. Defence argued that a sentence of between 18 months and two years less a day was appropriate and that a conditional sentence should be imposed. On August 16, 2023, the appellant was sentenced to three and a half years in custody. The sentencing judge also imposed a DNA order and a 10-year SOIRA registration order with which the appellant took no issue at the time.

[3] On September 19, 2023, leave to appeal sentence was granted by this court, and the appellant’s application to stay the SOIRA order was adjourned to the panel hearing the appeal.

[4] The appellant’s grounds of appeal can be summarized as follows:

1. He challenges the length of the sentence as excessive and overly harsh. He submits that the sentencing judge erred in her application of the relevant sentencing principles and in relying on contemporary precedents and statutory amendments to determine a fit sentence. He also submits that the evidence did not support certain determinations of the sentencing judge and that she failed to apply the principle of restraint. He requests that his sentence be reduced to under two years or two years.
2. He moves to file fresh evidence to argue that his decision not to undergo a risk assessment was not valid and fully informed. He submits that his trial counsel failed to advise him that the Crown would have proposed a lower sentence in the reformatory range only if he had undergone a risk assessment, and that his counsel should have sought an adjournment of the sentencing hearing to obtain such an assessment. He also requests to file the risk assessment that has since been completed as well as a recording of a conversation with the complainant approximately fourteen years ago. He submits that the fresh evidence supports a reduction in his sentence.
3. He argues that, if his sentence is reduced below two years, a SOIRA exemption is warranted because he was at low risk to reoffend given the antiquity of the offence and his good character thereafter. He takes the position that this exemption is to be sought from the trial court, but that the question of this court’s jurisdiction to stay a SOIRA order is properly before this court.

[5] These reasons explain why I would dismiss the appeal. In sum, the sentencing judge made no error in principle or palpable and overriding error of fact and imposed a fit sentence. Accordingly, there is no basis for appellate intervention: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

B. Analysis

(1) The sentence was fit

[6] I am not persuaded that a three-and-a-half-year sentence was unfit or overly harsh in the circumstances of this case nor that the sentencing judge made any reversible error.

[7] The sentencing judge considered the relevant sentencing principles applicable to the circumstances of a first-time offender who pleaded guilty to a historical sexual offence against a vulnerable child. She made no error in applying those principles nor in following the governing principles concerning sexual offences against children outlined in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 and ss. 718.01 and 718.2 of the Criminal Code, including that the principles of denunciation and deterrence must be paramount considerations.

[8] The appellant submits that it is unfair to rely on contemporary sentencing ranges when sentencing for an historical offence. He argues that the increase in the statutory maximum sentence for sexual exploitation to 14 years reflects the more recent recognition by Parliament and the courts of the gravity of sexual offences against children, which was not contemplated at the time the offence was committed. He submits that the lower statutory maximum of five years that was in place at the time the offence was committed should contribute to a lower moral blameworthiness. He argues that the sentencing judge erred in relying on Friesen because Friesen did not address the sentencing of historical sexual offences.

[9] I reject these submissions. The appellant’s submissions run counter to the well-established approach to the treatment of sentencing ranges. Notably, the Supreme Court instructed in Lacasse, at paras. 57-58, that sentencing ranges serve as “guides for the application of all the relevant principles and objectives”, not “as straightjackets”. Sentencing ranges should be seen as “historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”, and a sentence falling outside the range is not necessarily unfit: Lacasse, at paras. 57-58. Similarly, in Friesen, at para. 37, the Court reiterated that sentencing ranges are “guidelines, not hard and fast rules” such that “[a]ppellate courts cannot treat the departure from or failure to refer to a range of sentence…as an error in principle.”

[10] While the five-year statutory maximum sentence under the former provision had to be respected, the sentencing judge was not restricted to relying on sentencing ranges from a distant era. As Huscroft J.A. stated in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 61, application for leave to appeal requested but application for leave discontinued, [2020] S.C.C.A. No. 93, a historical sexual abuse sentencing case, “it was incumbent on the sentencing judge to impose a sentence with regard to the jurisprudence and understanding of sexual offending as it exists today.” Moreover, as Pepall J.A. explained, at para. 112, in concurring reasons in Stuckless, a sentencing judge can take into account changes to the maximum sentence to contextualize Parliament’s and society’s concern about the sexual abuse of children when determining a proportionate sentence:

These legislative amendments, while not applicable to the offences committed by the respondent, indicate a significant societal recognition of the gravity of sexual offences against children. This recognition is not an alteration of weight to be assigned to a factor, or justification for imposing a higher sentence than is fit in the circumstances. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. It serves to contextualize the seriousness of the offences and recognizes that sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences. The legislative amendments are not a standalone justification for imposing a higher sentence, nor do I rely on them for that purpose. As mentioned, they simply reflect society’s better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing process as argued by the Crown. [Footnote omitted.]

[11] Contrary to the appellant’s submission, the sentencing judge’s reliance on Friesen was not misplaced but required: R. v. De Flores Bermudez, 2024 ONCA 433, at paras. 27-29. In Friesen, at para. 45, the Supreme Court reaffirmed that the overarching objectives of the legislative scheme governing sentencing sexual offences against children are “to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children.”

[12] The sentencing judge was required to recognize and give effect to the inherent wrongfulness of the appellant’s offence and to the potential and actual harm that the complainant suffered as a result of the offence: Friesen, at para. 76. Further, the sentencing judge was required to “take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining [the appellant’s] degree of responsibility” and “not discount [the appellant’s] degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children” (citation omitted): Friesen, at para. 87.

[13] I also reject the appellant’s submission that the sentencing judge erred in law by retroactively applying the statutory sentencing principles in ss. 718.01 and 718.2 of the Criminal Code to the appellant’s conduct, contrary to s. 11(i) of the Canadian Charter of Rights and Freedoms. The sentencing principles enumerated in ss. 718.01 and 718.2 represent well-established common law principles that long predate their codification in these statutory provisions and the commission of the offence in this case: “General Principles of Sentencing” in Clayton C. Ruby, Sentencing, 10th ed. (Markham: LexisNexis Canada Inc., 2020), at §1.14. There was no error in the sentencing judge’s approach. Importantly, defence counsel at trial acknowledged that the primary sentencing principles were denunciation and deterrence.

[14] I also disagree with the appellant’s submission that the sentencing judge’s balancing of the relevant factors was undermined by an alleged duplicative enumeration of the aggravating factors in this case. The sentencing judge gave fair consideration to all the relevant circumstances.

[15] The sentencing judge considered and gave appropriate weight to the mitigating factors of the appellant’s early guilty plea, his age at the time of the offences and at present, his lack of a criminal record, his family support, his difficult childhood, his work record, his otherwise prosocial life for over thirty years, and his low risk of reoffending. I disagree that the sentencing judge devalued the appellant’s expression of remorse; as she noted in her reasons, his guilty plea was a very significant mitigating factor.

[16] The sentencing judge rightly concluded that there were significant aggravating factors in this case. The aggravating factors that the sentencing judge reviewed supported her determination that the appellant’s offence represented a gross abuse of his relationship with the complainant and resulted in great harm to the complainant who is estranged from her family.

[17] The appellant admitted in the agreed statement of facts that he was either in a position of trust or authority over the complainant or was a person with whom the complainant was in a relationship of dependency at the relevant times. The sentencing judge found that the appellant took advantage of his relationship with the complainant’s family and his ready access to the complainant. He was an employee in the family business. Shortly after the suicide of the complainant’s father, the appellant began a relationship with the complainant’s mother whom he eventually married. He lived with the complainant’s mother, the complainant, and her brother. The sentencing judge found that the appellant exploited the complainant’s youth and grief due to her father’s suicide and that she was manipulated to believe that she was in a relationship with the appellant. These factual findings were open to the sentencing judge.

[18] Until the appellant ended it, the sexual abuse continued, as agreed in the agreed statement of facts, “sometimes two times a week and sometimes more often over the course of approximately two years.” While the appellant submits that the sentencing judge exaggerated the magnitude of the appellant’s misconduct and accused him of “gross minimization”, an approximate calculation of the admitted frequency of the sexual abuse results in over two hundred incidents. The sexual exploitation in issue commenced with consensual massages that turned sexual, culminating in kissing, fondling of the complainant’s breasts and genitals, digital penetration, and oral sex on the complainant. Although the appellant’s wife and his stepson have forgiven and support him, the complainant has become estranged from her family and had to leave the family business, which resulted in economic hardship. She and her son provided victim impact statements describing the devastating effects of the appellant’s sexual exploitation on the complainant that deleteriously affected their lives and her relationship with her son.

[19] I disagree that the sentence was overly harsh or that the sentencing judge failed to apply the restraint principle for a first-time offender. In applying the restraint principle, sentencing judges “should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction”: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 96, citing Allan Manson, The Law of Sentencing, (Toronto: Irwin Law, 2001), at p. 95.

[20] That is what the sentencing judge did here. The sentence imposed sits roughly at the midpoint of the parties’ proposed sentences. It similarly falls halfway between the appellant’s proposed sentence of about two years and the five-year statutory maximum.

[21] Accordingly, I would reject the first ground of appeal.

(2) The fresh evidence does not render the sentence unfit or the sentencing process unfair

[22] The test for the admission of fresh evidence on appeal is uncontroversial. The court has broad discretion, and the overarching consideration is whether the admission would be in the interests of justice: Criminal Code, s. 683(1)(d). The application and weighing of the following principles enumerated in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775 informs the exercise of the court’s discretion:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this principle will not be applied as strictly in a criminal case as in civil cases. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citations omitted.]

[23] The appellant’s fresh evidence should not be admitted.

[24] The appellant’s fresh evidence consists of, first, a risk assessment and his affidavit explaining why the assessment was not undertaken prior to sentencing. The risk assessment concludes that “[the appellant] represents a low risk of re-offending”. In his affidavit, the appellant explains that he did not undergo a risk assessment at the time of sentencing because he did not appreciate that the Crown’s seeking of a reformatory sentence was contingent on him obtaining a risk assessment. He deposes further, attaching his counsel’s file notes and emails, that there was a misunderstanding as to the Crown’s position on sentence. Had he understood the Crown’s actual position, he would have undergone a risk assessment. The appellant does not argue that his trial counsel was ineffective but submits that the misunderstanding between them resulted in a miscarriage of justice and supports a reduction of the sentence.

[25] Neither the appellant’s fresh evidence of the miscommunication with his counsel and the Crown nor the risk assessment itself meets the well-established criteria for admission because neither could reasonably be expected, when taken with the other evidence at trial, to have affected the outcome. I would therefore not admit it.

[26] First, Crown counsel’s discussions with defence counsel did not amount to an unqualified commitment by the Crown to a reformatory sentence if the appellant obtained a positive risk assessment. Rather, Crown counsel advised defence counsel that she would consider a sentence in the reformatory range if the appellant obtained a risk assessment.

[27] I disagree that the appellant would have chosen a different path had his counsel suggested adjourning the proceedings. The appellant was informed of his options prior to sentencing and chose to proceed. While the appellant’s March 21, 2023 written guilty plea instructions reflect a misunderstanding of the Crown’s position, defence counsel explained the miscommunication to the appellant prior to sentencing and asked for the appellant’s instructions to seek to withdraw the plea, which the appellant declined to do, understanding that the Crown would seek a custodial sentence in the four to six-year range.

[28] Finally, as noted above, notwithstanding the absence of a risk assessment, the sentencing judge accepted and took into account as a mitigating factor that the appellant was at a “very low” risk to reoffend, which was the conclusion expressed in the present risk assessment proffered as fresh evidence.

[29] The fresh evidence also includes a transcript from a conversation that the appellant had with the complainant as well as his affidavit showing that he was ready to take responsibility for the offence in about 2009 or 2010 and then again in 2017 or 2018 but did not come forward at that time because the complainant did not want him to, and he deferred to the complainant’s wishes.

[30] The appellant was a party to the conversation with the complainant and, on October 18, 2022, well in advance of his guilty plea and sentencing, he was informed of the existence of the recorded conversation. As a result, it could have been put before the sentencing judge. In any event, the appellant’s recorded expression of his desire to report the offence to the police could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The evidence of his early willingness to take responsibility for the offence and his guilty plea were already before the sentencing judge. The sentencing judge gave significant weight to his guilty plea. She also took into account his earlier expression of responsibility, concluding that: “I also agree that his history of being forthcoming about the offence shows some insight and is mitigating”.

[31] As a result, I would dismiss the appellant’s motion for the admission of fresh evidence.

(3) The SOIRA Order

[32] I would not reduce the appellant’s sentence below two years. Accordingly, as the appellant concedes, this court has no jurisdiction to consider the SOIRA order exemption.

[33] Section 490.012 of the Criminal Code requires mandatory registration under SOIRA because the appellant was convicted of a designated offence; the offence was prosecuted by indictment; the sentence for the offence was a term of two or more years of imprisonment; and the victim of the offence was under 18.

[34] The appellant’s application for a stay of the SOIRA order pending appeal is moot.

[35] I would therefore quash this ground of appeal for want of jurisdiction. I would decline to determine the issue of jurisdiction to stay a SOIRA order due to mootness.

C. Disposition

[36] For these reasons, I would dismiss the appeal.

Released: July 2, 2024 “K.M.v.R.” “L.B. Roberts J.A.” “I agree. K. van Rensburg J.A.” “I agree. S. Gomery J.A.”

Corrections made on July 3, 2024: In light of the fact the publication ban under s. 486.4 of the Criminal Code was revoked on February 9, 2024, the citation and the title of proceedings have been changed to include the appellant’s full name instead of his initials.

[1] The Criminal Code was subsequently amended, and s. 146 became s. 153 in 1989: see R.S.C. 1985, c. 19 (3rd Supp).