ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-5074

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – JOSEPH BURTON Respondent

Moiz M. Karimjee, for the Appellant

Sean J. May, for the Respondent

HEARD: 2012-10-17

SUMMARY CONVICTION APPEAL

On Appeal from the decision of the Honourable Justice Fraser of the Ontario Court of Justice on January 12, 2012, at Ottawa, Ontario

Maranger J.

[ 1 ] This was a Crown appeal of the sentence rendered by Justice Fraser on January 12, 2012. The Crown also applied to introduce fresh evidence at the hearing of the appeal.

[ 2 ] On January 12, 2012 the learned judge granted the respondent Joseph Burton an absolute discharge after he pled guilty to a charge of sexual assault.

[ 3 ] The agreed upon facts read into the record to support the plea to sexual assault were as follows:

On June 9 th , 2010, I.M. boarded an OC transport bus on Bank Street heading to Kanata. She sat in the window seat of the driver’s side, the fifth seat from the rear of the bus. At a bus stop shortly thereafter Mr. Burton got on the bus and sat next to M. in the aisle seat. Mr. Burton opened up a newspaper to read, obstructing the view of his lap and half of Ms. M.'s right leg. While the bus traveled the 417 Highway westbound, M. felt Burton brush up against her leg. Initially she believed it was accidental. Then M. felt Burton's hand travel under her skirt along her right leg. She screamed for Burton to get away, stood up and ran to the front of the bus. The bus driver pulled the bus over and waited for the police. A constable arrived on the scene and arrested Mr. Burton.

[ 4 ] Mr. Burton was a 49 year old gainfully employed family man with no criminal record. His counsel filed a report from Dr. Gray from the Royal Ottawa Hospital which indicated that he was a low-moderate risk of reoffending. His lawyer described the actions of his client as having "succumbed to a very spontaneous impulsive act”. The position advocated was that this was an appropriate case for either a conditional or absolute discharge.

[ 5 ] The Crown opposed a discharge highlighting the sentencing principles of deterrence and denunciation and submitting that the public interest would not be met by granting a discharge on the facts of this case. In their submissions they emphasized that the assault occurred in a public place and on a stranger. The Crown argued that a suspended sentence with a term of probation was the appropriate disposition.

Application for fresh evidence

[ 6 ] The appellant sought leave to introduce fresh evidence on the appeal namely: a victim impact statement and statistical information concerning the number of sexual assaults that took place in Ottawa between years 2004 and 2007. The Supreme Court of Canada in R v. G.D.B. 2000 SCC 22 () , [2000] 1 SCR 520 at paragraph 16 reiterated the following with respect to fresh evidence applications:

The well-known criteria applicable to this issue were stated in Palmer, supra , and reaffirmed recently in R v. Warsing 1998 775 (SCC) , [1998] 3 SCR 579 at paragraph 50 :

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal cases 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 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.

[ 7 ] I would deny the application; the evidence in question was available at the time of the sentencing hearing. The victim impact statement was a matter that was specifically canvassed with the sentencing judge, proceedings were adjourned to allow Crown counsel the opportunity to request a victim impact statement from the complainant. She did not wish to file one. The statistical data concerning the number of sexual assaults that took place between 2004 and 2007 in the Ottawa region, was available at the time of the hearing and its relevance is at best marginal. It is doubtful that this evidence would have affected the decision respecting sentence.

Did the sentencing judge commit an error of law/was the sentence unfit or clearly unreasonable?

[ 8 ] Before an appellate court can interfere with a sentencing judge's decision, it should find that an error of law was committed or that the sentence was clearly unreasonable in the circumstances. In R v. Shopshire (1995), 1995 47 (SCC) , 102 CCC (3d) 193 (SCC) at paragraph 46 the Supreme Court of Canada indicated the following:

An appellate court should not be given free reign to modify a sentencing order simply because it feels a different order ought to have been made. The formulation of the sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation of the sentence should only be made if the Court of Appeal is convinced that it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[ 9 ] The Crown argued that the sentencing judge in this case erred in law by applying a rehabilitative model of sentencing, the submission was that because the judge's reasons did not specifically refer to deterrence and denunciation, one could infer that these principles were ignored. I disagree. The judge's reasons when read as a whole and looked at in the context of the submissions presented by both counsel disclose that he considered all relevant principles of sentencing in arriving at his decision. The Crown's argument against a discharge and for a probation order stipulated the nature of the assault being on a stranger and in a public place. The reasons specifically reference these issues. It is reasonable to infer that the sentencing judge considered these factors and thus the principles of denunciation and deterrence in his decision.

[ 10 ] While the sentence imposed was one that I would not have granted on the facts of this case, I cannot say that it was manifestly unfit or clearly unreasonable. There is nothing in the law precluding the imposition of a discharge for this type of offence. The criminal code of Canada contains mandatory minimum sentences. If Parliament saw fit to disallow the discharge provisions from applying to sexual assaults the code would specifically stipulate that they were not available.

[ 11 ] This was not a case where the sentencing judge was faced with the choice between a lengthy period of incarceration or the granting of a discharge. The crime of a sexual assault has a very wide range of sentencing options, the penalty imposed should be proportionate to the gravity of the assault. In this case the crown was asking for a suspended sentence and probation, clearly they considered it to be a sexual assault that was at the lower end of the spectrum. The nature of the sexual assault and the circumstances of the respondent, allowed for the sentence imposed.

[ 12 ] The sentencing judge in this case was an experienced and well-regarded criminal judge, and while I may disagree with the imposition of an absolute discharge on the facts of this case, it was an available disposition. The judge is entitled to deference. The appeal is therefore dismissed.

Mr. Justice Robert L. Maranger

Released: November 1, 2012,

COURT FILE NO.: 10-5074

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Appellant – and – JOSEPH BURTON Respondent summary conviction appeal Maranger J.

Released: 2012-11-01