Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-10-28 Docket: COA-22-CR-0241 & COA-23-CR-0881

Judges: Simmons, van Rensburg and Thorburn JJ.A.

Between: His Majesty the King Respondent/Appellant

And: C.P. Appellant/Respondent

Counsel: Colleen McKeown and Julia Kirby, for the appellant (COA-22-CR-0241) and the respondent (COA-23-CR-0881), C.P. Rebecca De Filippis, for the respondent (COA-22-CR-0241) and the appellant (COA-23-CR-0881), His Majesty the King

Heard: August 14, 2024

On appeal from: the conviction entered on August 24, 2022, and the sentence imposed on July 10, 2023, by Justice Annette Casullo of the Superior Court of Justice.

Reasons for Decision

A. Overview

[1] After a trial by judge alone, C.P. was convicted of sexual assault and sentenced to a conditional sentence of two years less a day followed by two years of probation. The trial judge also imposed a $10,000 restitution order to permit the complainant to obtain counselling.

[2] C.P. appealed his conviction. The Crown sought leave to appeal the sentence and an order to incarcerate C.P. to serve a three and one-half year penitentiary sentence with credit for time served on his conditional sentence. These reasons explain why, after hearing oral argument, we dismissed the conviction appeal and why, although we consider the sentence to be manifestly unfit, we are dismissing the sentence appeal.

B. Background Evidence

[3] The charge arose out of events that occurred at a cottage party in August of 2020. C.P. was a 26 year-old owner of a trucking business. The complainant was a 20 year-old student. The two had never met prior to the party and did not have any significant interaction prior to the incident that gave rise to the conviction.

[4] The complainant arrived at the cottage the day before the incident. C.P. arrived at the cottage with three of his friends (including his friend B.N.) sometime after 2:00 p.m. the next day.

[5] On the day of the incident, the complainant started drinking alcohol with her friends shortly after breakfast. The complainant said that she felt very intoxicated by around 9:00 p.m. and started to feel sick. She went to her assigned room at the cottage to try to take a quick nap to sleep off the effects of the alcohol before rejoining the party.

[6] The complainant testified that she was lying on her back when she was awakened by someone straddling her waist with their hands around her neck to hold her down. The complainant said that she was “in and out” of consciousness as the person aggressively fingered her anus and vagina, attempted vaginal penetration from behind, performed oral sex on her, and forced his penis into her mouth.

[7] She said that at one point he straddled her from behind and placed his hand down her throat. She recalled saying “no” multiple times, but the person responded “[y]ou like this” and “[y]ou want this”.

[8] According to the complainant, after the sexual activity stopped she sat up and turned on the light. She recognized C.P. and began to cry, yelling at him to get out. He was “freaking out”, and said she was “crazy for acting the way [she] was”.

[9] The next day, the complainant reported the incident to the police and then went to the hospital to be examined. The sexual assault nurse who examined her testified that the complainant had a red area eight centimetres long by four centimetres wide on her neck. The nurse also observed that the complainant had pain when swallowing and there was redness inside her mouth, which the trial judge concluded was consistent with someone forcefully inserting fingers into her mouth.

[10] C.P. also testified. He said he drank about thirteen beers and a Caesar over the course of the afternoon and evening. He estimated that by the end of the day his intoxication level was six out of ten.

[11] C.P. testified that he did not know where he was to sleep at the cottage, so at the end of the evening, he went inside to find somewhere to lie down. He saw the door open in the middle bedroom on the left, where the complainant was fully awake and lying down on a bed. He entered the room, sat down on the bed, and asked if she was okay.

[12] He said they began kissing and making advances toward one another. He estimated her intoxication level was about a six out of ten. He kissed her breasts, she performed oral sex on him, and he performed oral sex on her. He then attempted vaginal intercourse from behind but was unable to stay erect. He put his hands on her throat while performing oral sex because while they were kissing, she had mentioned she liked being choked during sex.

[13] C.P. testified that the complainant “freaked out” when he attempted vaginal intercourse. He said she “just lost it” and he was in shock. It was “like a light switch” with the complainant having “a good time” to yelling at him to get out. According to C.P., the whole incident lasted about ten minutes.

[14] B.N. was a friend of C.P.’s who came to the party with him. She testified for the defence.

[15] She testified that she felt unwell from drinking after dinner and returned to her room to have a nap. Her room was next to the complainant’s. She remembered being awake and playing with her cellphone when she first heard moans coming from the next room. She did not hear any words, but she could tell it was a male and a female. To her, it simply sounded like two people enjoying themselves, until suddenly, it was like the “flip of the switch” and she heard the female loudly say “stop” and “get out.” B.N. went into the hallway to see what was happening and realized that the woman who was yelling was the complainant.

[16] The only issue at trial was whether the complainant consented to the sexual encounter.

C. The Trial Judge’s Reasons for Conviction and Sentence

[17] The trial judge accepted the complainant’s version of events and rejected C.P.’s.

[18] She found that there was no air of reality to the defence of honest but mistaken belief in communicated consent.

[19] In her reasons for sentence, the trial judge considered the sentencing principles in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, and articulated the factors she found to be mitigating and aggravating. She concluded that a conditional sentence would be appropriate:

I can discern no risk that C.P. will reoffend, and C.P. has been on bail for almost three years without any reported incidents.

In light of C.P.'s unblemished criminal record and the fact that this incident was completely out of character for him (according to all 10 letters of support), I find that the safety of the community would not be endangered if C.P. were to receive a conditional sentence. C.P. is not criminally minded.

Given the punitive aspect of a conditional sentence, particularly if stringent conditions are imposed, a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

I am satisfied that in this particular case, based on these particular circumstances, an appropriate sentence for C.P. is a conditional sentence of two years less a day. The first year under strict house arrest, followed by two years of probation. These conditions will be construed in order to maximize denunciatory and general deterrence impact. C.P.'s rehabilitation prospects are strong given his position as a business owner, in addition to the strong community and familial ties he enjoys. A conditional sentence will allow him to continue running his business and not set back the progress he has already achieved.

[20] In addition, the trial judge imposed a restitution order of $10,000 to enable the complainant to pay for counselling.

D. The Grounds of Appeal

[21] In his conviction appeal, C.P. claims the trial judge erred:

a) in using the evidence of the complainant’s injuries to support her credibility;

b) in confining her analysis of the actus reus of the offence to the complainant’s direct evidence; and

c) in concluding that B.N.’s evidence was entitled to no weight.

[22] In its sentence appeal, the Crown submits that the trial judge erred:

a) in her assessment of the mitigating and aggravating factors; and

b) in imposing a sentence that is demonstrably unfit.

[23] The Crown argues that if this court agrees C.P.’s sentence should be increased, this is an appropriate case for incarceration.

E. Analysis and Conclusion on the Conviction Appeal

[24] At the hearing of this appeal, we dismissed C.P.’s conviction appeal without calling on the Crown. The reasons are as follows:

[25] First, the trial judge did not err in using evidence of the complainant’s injuries to support her credibility. The trial judge referred to the injury to the complainant’s neck, and the redness inside her mouth, and noted that they were consistent with the complainant’s version of events. C.P. asserts that, in the absence of medical evidence, this evidence ought not to have been considered supportive of the complainant’s evidence, and that, because the evidence was equally consistent with his version of events – that he had applied pressure to the complainant’s neck because she told him she enjoyed it, the trial judge erred in relying on this evidence as supportive of the complainant’s credibility.

[26] We disagree. A trial judge’s determination that a piece of evidence is confirmatory of or supports a witness’ testimony, and the weight to be given to such evidence, is part of the trial judge’s credibility assessment and fact-finding, which are accorded deference in the absence of a palpable and overriding error: R. v. De Flores Bermudez, 2024 ONCA 433, at para. 21, citing R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 71. The trial judge did not require medical evidence to conclude that the injuries identified the following day were consistent with the complainant’s account of the sexual assault, nor was it necessary that the injuries be consistent with no other explanation.

[27] In any event, this evidence was more consistent with the complainant’s account of having been choked and having C.P.’s fingers inserted forcefully into her mouth, than C.P.’s account.

[28] C.P. testified that he applied pressure with his hand on the complainant’s neck for two to four minutes but that she was still able to breathe and to talk. In other words, as the trial judge noted, C.P. was describing the application of only light pressure to the complainant’s neck and C.P. made no reference to having inserted his fingers in the complainant’s mouth. Accordingly, we do not agree that the trial judge erred in finding that the complainant’s injuries were consistent with her account of C.P.’s application of force.

[29] Second, the trial judge did not, as asserted by the appellant, confine her analysis of the actus reus to the complainant’s direct evidence. The trial judge’s reasons make clear that she considered all of the evidence, including the evidence proffered by C.P., in making her findings of fact and concluding that the Crown had satisfied its burden of proving the actus reus for sexual assault. She noted that C.P. “testified in a straightforward and detailed manner. However, there were inconsistencies in his evidence that go to the core of the issues [she had] to decide, particularly in respect to whether [the complainant] communicated her consent to [C.P.]”. She also found that his reply evidence contradicted his evidence in chief in respect of the words exchanged by the complainant, and she questioned C.P.’s ability to assess the complainant’s level of intoxication.

[30] Third, the trial judge did not err in concluding that the evidence of C.P.’s friend, B.N., was entitled to no weight. The trial judge found that B.N. was biased in C.P.’s favour. Reading the trial judge’s reasons as a whole, we are not persuaded that she erred in applying the well-known test from R. v. W.(D.), [1991] 1 S.C.R. 742, to the evidence.

[31] Accordingly, we dismissed the conviction appeal.

F. Analysis and Conclusion on the Sentence Appeal

[32] Deference is owed to sentencing decisions. This court will only intervene if the sentence imposed by the trial judge is demonstrably unfit or if the trial judge erred in principle by failing to consider a relevant factor or giving erroneous consideration to an aggravating or mitigating factor and the error has an impact on the sentence: R. v. Lacasse, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, [2020] 1 S.C.R. 424, at para. 26.

[33] The Crown submits that the trial judge erred in her assessment of the mitigating and aggravating factors and that the sentence was demonstrably unfit.

[34] The trial judge correctly noted a number of mitigating factors, including C.P.’s status as a first-time offender, his strong and committed network of friends and family, his participation in counselling, and his record of self-employment.

[35] However, the trial judge went on to incorrectly state that certain other factors, including the fact that this was not a planned offence and that C.P. did not ply the complainant with alcohol or use a weapon, mitigated the seriousness of the offence. It is an error in principle to treat the absence of an aggravating factor, including the absence of gratuitous violence in a sexual assault, as mitigating: see R. v. Friesen, [2020] 1 S.C.R. 424, at para. 150; R. v. B.M., 2008 ONCA 645, at para. 7.

[36] We are not persuaded that the trial judge’s mischaracterization of some of the circumstances of the offence and the offender as mitigating factors, materially affected the sentence she imposed. Overall, however, we conclude that the general tenor of her reasons minimizes the seriousness of the offence. In particular, we note that, after reviewing the authorities submitted by counsel, the trial judge emphasized the facts that the appellant did not supply the complainant with alcohol, that his actions were not predatory and that the choking that occurred was not done to overcome the complainant’s resistance. These comments fail to capture the very serious nature of the appellant’s actions in using force to sexually assault in multiple ways a highly vulnerable sleeping and intoxicated victim.

[37] The sentence imposed by the trial judge was unfit given the nature and seriousness of the offence.

[38] Although conditional sentences are available in sexual assault cases, proportionality remains key to sentencing: R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 4. In sexual assault cases such as this, conditional sentences are rarely proportionate, as the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the three to five-year range: R.S., at para. 4; R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77.

[39] While the conditions of strict house arrest and the restitution order increase the denunciatory effect of the sentence and assist with the appellant’s rehabilitation by requiring him to assume responsibility, this was a serious sexual assault involving a sleeping and intoxicated complainant. A conditional sentence is not proportionate to the gravity of the offence and is below the range. It is therefore demonstrably unfit: R.S., at para. 27. Instead, a global sentence of 3 years and 6 months’ imprisonment, which is at the low end of the range of 3 to 5 years, would have given effect to the relevant sentencing principles for this serious, penetrative sexual assault.

[40] The question is: having served almost 15 months of his conditional sentence of two years less a day, is it in the interests of justice that C.P. now be reincarcerated?

[41] Section 120(1) of the Corrections and Conditional Release Act S.C. 1992, c. 20 provides that, with some exceptions, an offender is not eligible for full parole until he has served “the lesser of one third of the sentence and seven years”. As such, if the trial judge had imposed a sentence of 3 years and 6 months’ incarceration on the original sentencing date of July 10, 2023, C.P. would now be eligible to be considered for full parole.

[42] The fact that an appellant has served over half of a conditional sentence by the time this court considers imposing a longer sentence, such that the appellant may have already received parole had the trial judge imposed the longer sentence in the first place, can weigh against incarcerating the appellant: R. v. Scott, 2024 ONCA 608 at para. 194.

[43] Moreover, a penitentiary sentence would reduce the further two-year oversight and supervision of C.P.’s progress in the community because a probationary period cannot attach to a custodial sentence over two years.

[44] Like Scott, this is a close case. However, in all the circumstances, including the fact that C.P. may well have been released on parole by now if the trial judge had imposed a sentence of incarceration, his status as a first offender, his compliance with the terms of his somewhat onerous conditional sentence and his continuing self-employment operating a flatbed trucking company, we do not believe it would be in the interests of justice to substitute a term of incarceration: R. v. M.M., 2022 ONCA 441, at para. 20. As in M.M., instead of imposing and staying a penitentiary sentence, C.P. should continue to serve the balance of his conditional sentence, with the two years’ probation and other orders remaining in place, including the restitution order which was stayed pending appeal.

[45] Accordingly, although the sentence imposed was demonstrably unfit, we dismiss the sentence appeal.

G. Disposition

[46] For the above reasons, we dismissed the conviction appeal. We grant leave to appeal the sentence but dismiss the sentence appeal.

“ Janet Simmons J.A. ”

“K. van Rensburg J.A.”

“Thorburn J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.