



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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

CITATION: R. v. Boone, 2020 ONCA 154

DATE: 20200228

DOCKET: C63062

Doherty, Miller and Fairburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Boone

Appellant

Jonathan Shime and Ben ElzingaCheng,
    for the appellant

Christine Tier, for the respondent

Heard: February 12, 2020

On appeal from the conviction and sentence
    imposed by Justice Bonnie R. Warkentin of the Superior Court of Justice,
    sitting with a jury, on March 9, 2016, with reasons reported at 2016 ONSC 1626.

Doherty J.A.:

[1]

On August 12, 2019, this court released reasons
    allowing the appellants conviction appeal in part, and directing that the
    sentence appeal should be adjourned to a later date for further submissions:
R.
    v. Boone
, 2019 ONCA 652.

[2]

Since the release of this courts reasons,
    counsel have been attempting to obtain additional information from the correctional
    authorities. The Crown has also decided that it will not proceed on the attempt
    murder charges. Counsel have also managed to significantly narrow the issues
    before the court in this proceeding.

[3]

There are two issues:

·

What order should be made in respect of the
    three charges on which the jury returned guilty verdicts and the trial judge
    entered stays based on the principle in
R. v. Kienapple
,
[1975] 1 S.C.R. 729?

·

Given that the convictions on the three attempt
    murders have been quashed and the Crown is not proceeding with a new trial on
    those charges, what are the appropriate sentences on the remaining convictions?

A.

the 
kienapple

issue

[4]

This issue raises matters that are relevant to
    the appropriate disposition of the conviction appeal. I agree with the joint
    submission of counsel that this courts disposition of the conviction appeal
    should be varied to reflect a proper application of the 
Kienapple

    principle given the Crowns decision that it will not retry the attempt murder
    charges. The conditional stays entered at trial on the two counts of
    administering a noxious substance to D.S. (count 2) and M.C. (count 5) should
    be set aside and convictions entered on those charges:
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 686(8);
R. v. Provo
, [1989] 1 S.C.R. 3 at p. 22.
    This courts order setting aside the stay on the charge of attempting to
    administer a noxious substance to M.B. (count 7) and ordering a new trial,
    should be varied to an order setting aside the stay and entering a conviction
    on that charge.

[5]

I am told that no order has been issued to
    reflect the disposition of the court on the conviction appeal. Consequently,
    para. 144 of the reasons should be varied to read as follows:

I would allow the appeal from the convictions
    on the three attempt murder charges (counts 3, 6 and 8) and quash those
    convictions. The Crown has decided to not proceed with a new trial on those
    charges. I would set aside the stay of proceedings entered on counts 2, 5 and 7
    and enter convictions on those charges.

[6]

In summary, the appellant now stands convicted
    of:

·

aggravated sexual assault of D.S. (count 1);

·

administering a noxious substance to D.S. (count
    2);

·

aggravated sexual assault of M.C. (count 4);

·

administering a noxious substance to M.C. (count
    5);

·

attempt to administer a noxious substance to
    M.B. (count 7); and

·

aggravated sexual assault of B.C. (count 9).

B.

the appropriate sentence

[7]

The customary deferential approach taken on appeals
    from sentence must be adjusted, to some extent, to fit the unusual
    circumstances of this case. Four years have passed since the trial judge
    imposed sentence. The three attempt murder convictions, which were the focus of
    the sentencing at trial, have been quashed and the Crown has elected not to
    proceed with a new trial. The appellant has also tendered material addressing
    post-sentence events and developments, which counsel for the appellant submits
    should mitigate the sentence. In significant ways, this is a different case from
    the one that was before the trial judge on sentencing.

[8]

While these circumstances warrant a less
    deferential approach to the sentences imposed by the trial judge, they do not mandate
    a
de novo
assessment of the proper sentences. The trial judge provided
    careful, detailed reasons for sentence:
R. v. Boone
, 2016 ONSC 1626. Having
    conducted the lengthy trial, she was familiar with the case in a way that this
    court can never be.

[9]

I accept the trial judges findings of fact on
    sentence, except to the extent that those findings are dependent upon the convictions
    on the attempt murder charges. I also adopt the trial judges description of
    the seriousness of the offences and her findings as they relate to the impact
    of the crimes on the victims. Finally, I accept the trial judges findings made
    in the context of the long-term offender application. The trial judge held that
    the appellant was a long-term offender and imposed a five-year supervision
    order. The appellant has abandoned his challenge to that order.

[10]

In her reasons for sentence, the trial judge
    gave the appellant pretrial custody credit on a 1.5:1 ratio, resulting in a
    total credit of 57 months. The parties agree that 57 months is the appropriate
    credit.

[11]

The trial judge also appreciated that the
    totality principle requires a mitigation of the sentences that would otherwise
    be appropriate on individual counts. While the trial judge appears to have
    approached the calculation of the reduction based on totality differently than
    this court did in cases like
R. v. Jewell
(1995), 100 C.C.C. (3d) 270,
    at p. 279 (Ont. C.A.) and
R. v. Ahmed
, 2017 ONCA 76, 346 C.C.C. (3d)
    504 it is common ground that the sentences imposed on individual counts must be
    tempered to take into account totality. Consequently, the sentences imposed on
    some of the individual counts, viewed in isolation, would appear wholly inadequate.

[12]

After taking into account credit for presentence
    custody and the mitigating effect of the totality principle, the trial judge
    determined that sentences totalling 9 years, 3 months (111 months) should be
    imposed. She then entered sentences on the individual counts totalling that
    amount. Sentence was imposed on March 9, 2016. The appellant has served almost
    48 months of his sentence.

[13]

The appellant and Crown agree that the quashing
    of the three convictions on the attempt murder charges requires a downward
    adjustment in the totality of the sentences imposed. They disagree on the
    quantum of that deduction. The appellant submits that the total sentence
    imposed should be reduced from 9 years, 3 months (111 months) to 3 years, 9
    months (45 months). On that calculation, the appellant has effectively served
    his prison term but would still be subject to the long-term offender order. The
    Crown argues for a reduction from 9 years, 3 months to 6 years, 9 months (81
    months).

[14]

Counsel for the appellants submission in
    support of a substantial sentence reduction is straightforward. He submits that
    the trial judge, quite correctly, focused primarily on the moral
    blameworthiness attached to the three attempt murder convictions. Each of those
    verdicts indicated that the jury was satisfied, beyond a reasonable doubt, that
    the appellant had meant to kill his victims.

[15]

Counsel further contends that the trial judges finding
    that the appellant meant to kill his victims influenced her sentencing on all
    counts. Counsel acknowledges that the offences of aggravated sexual assault and
    the administering of a noxious substance carry their own serious culpable
    mental states. He argues, however, that those culpable mental states are
    significantly less blameworthy than the culpability that attaches to the crime
    of attempt murder. Attempt murder requires an actual intention to kill. Counsel
    submits that the significantly reduced level of moral culpability in respect of
    the remaining convictions justifies the substantial reduction in the total
    sentence imposed.

[16]

There can be no doubt that the sentences imposed
    must be reassessed in light of the quashing of the convictions on the attempt
    murder charge. I also agree with counsels submission that an intention to kill,
    the
mens rea
required for attempt murder, carries with it a higher
    level of moral blameworthiness than the fault components attached to the crimes
    of aggravated sexual assault and administering a noxious substance.

[17]

I do not, however, accept counsels submission
    that the moral blameworthiness of the appellants conduct is determined
    exclusively by reference to the fault component of the offences for which he still
    stands convicted. The fault element of an offence describes the
mens rea
required for a finding of guilt. The moral blameworthiness of an individual
    offenders conduct depends not only on the existence of the
mens rea
required to convict, but also on the trial judges findings made in relation to
    the appellants conduct and mental state. Those findings can mitigate or
    aggravate the moral blameworthiness of the offenders conduct.

[18]

In this case, the trial judge found that the
    appellant set out, with considerable planning, effort and deception, to infect
    young men with HIV. He wanted to mark his victims for life. Tragically, in
    the case of D.S., he achieved that goal. As the trial judge correctly observed,
    the appellants conduct was predatory and dangerous in the extreme.

[19]

Although it can no longer be said that the
    appellant meant to kill his victims, he did clearly intend to infect them, appreciating
    the very real risk that he would succeed and that his victims could ultimately
    die from medical problems associated with HIV. The appellant maximized that
    risk by not taking the appropriate medication or using condoms. He sought out
    victims upon whom he could inflict that risk for his own gratification. I agree
    with the trial judges characterization of the appellants conduct as
    deliberate and malicious.

[20]

The high degree of moral blameworthiness
    properly attached to the appellants conduct is best exemplified by the trial
    judges findings in respect of D.S., the complainant on counts 1 and 2. D.S.
    was a 17-year old, sexually inexperienced boy when he met the appellant on the
    internet. The appellant, who was HIV positive and not taking antiviral
    medication, assured D.S. that he was clean. Ultimately, the appellant and
    D.S. had unprotected anal sexual intercourse several times over a 10-day
    period. In various chatrooms, the appellant bragged about lying to D.S. about
    his HIV status and spoke of his desire to convert D.S. to a HIV positive
    status.

[21]

D.S. became infected with HIV. The trial judge
    found as a fact that the appellant was the source of that infection. I accept
    that finding.

[22]

According to the expert evidence, D.S.s life
    expectancy has been greatly reduced by virtue of his HIV infection. He will be
    on medication for the rest of his life and may well encounter significant
    medical problems as a result of both the disease and the medication.

[23]

The trial judge described the appellants actions
    towards D.S. as calculated and ruthless. She also said, at para. 88:

At all times during his interaction with this
    complainant, Mr. Boone acted with the intention of causing him harm that could
    end his life.

[24]

The trial judges finding that the appellant intended
    to cause D.S. bodily harm that could end his life stands even though the
    convictions on the attempt murder have been set aside. Attempt murder requires
    a specific intent to kill. The trial judges finding speaks, not to an
    intention to kill, but rather to an intention to cause bodily harm, coupled
    with an appreciation of the risk that death could result. This
mens rea
,
    while short of the
mens rea
for attempt murder, demonstrates a high
    level of moral blameworthiness.

[25]

Counsel for the appellant referred to cases
    involving convictions for aggravated sexual assault based on an accuseds
    failure to disclose his or her HIV status to a sexual partner. None of those
    cases match the appellants moral culpability. Unlike the offenders in those
    cases, the appellant set out to infect his sexual partners with HIV for his own
    perverse gratification. He vigorously pursued that goal and, as noted above,
    tragically succeeded in achieving that goal in respect of D.S.

[26]

Counsel for the appellant relied, to some
    degree, on the post-sentence material placed before the court. I think it is
    fair to say that he put less emphasis on this argument than on his submission arising
    out of the quashing of the attempt murder convictions.

[27]

I do not find the post-sentence material of much
    assistance in determining the fit sentence. The allegations of mistreatment by
    correctional authorities are largely unsubstantiated. I agree with Crown
    counsel that, in light of the appellants propensity for misrepresentation and
    manipulation, it would be unwise to rely on his unsupported assertions. The
    allegations of violence toward the appellant by other prisoners, at least one
    of which is substantiated, while regrettable, do not warrant any reduction in
    the sentence.

[28]

It is concerning that the post-sentence material
    provides nothing to suggest that the appellant has gained any appreciation for
    the profound harm his conduct caused. In making that observation, I do not suggest
    that the appellant should be punished for his obvious lack of remorse. However,
    his lack of insight, even at this point, four years post-sentencing, indicates
    that there remains, as there was at the time of sentencing, a substantial risk
    that the appellant will reoffend if afforded the opportunity.

[29]

In my view, the total sentence of 6 years, 9
    months (81 months), proposed by the Crown, is the appropriate disposition. I
    come to that conclusion having regard to the totality of the appellants
    conduct, as revealed in the evidence at trial, the seriousness of the six
    remaining convictions, and the number of complainants. A total reduction of 30
    months fairly reflects both the quashing of the attempt murder convictions and
    the seriousness of the remaining convictions.

[30]

In fixing the appropriate sentence on each
    count, I start by recognizing that there are four victims. Two, D.S. and M.C.,
    are the complainants on two convictions each. The other two victims, M.B. and
    B.C., are the subject of one conviction each. The sentences imposed in respect
    of different victims should be consecutive to each other. The sentences imposed
    in respect of counts involving the same victim should be concurrent to each
    other.

[31]

All of the convictions are for serious
    offences. However, for the purpose of fixing individual sentences, the offences
    against D.S. are the most serious, followed by the offences against M.C., the
    aggravated sexual assault of B.C., and the attempt to administer a noxious
    substance to M.B.

[32]

The sentences I would impose are set out in the chart
    below. In keeping with the direction in s. 719(3.3) of the
Criminal Code
,
    I have first identified the sentence I would impose on each count prior to any credit
    for presentence custody. I have next attributed, based on the relative
    seriousness of the offences, parts of the presentence custody to each of the
    convictions on counts 1, 4, 7 and 9. The deduction of the credit for
    presentence custody results in the actual sentence imposed. The sentences, as
    varied by these reasons, run from March 9, 2016, the date on which the trial
    judge imposed sentence.




Count

Offence

Sentence Prior to Credit for Presentence Custody

Credit for Presentence Custody

Sentence Imposed



1

Aggravated sexual assault of D.S.

6 years, 9 months (81 months)

27 months

4 years, 6 months (54 months)



2

Administer a noxious substance to D.S.

4 years



4 years concurrent to count 1



4

Aggravated sexual assault of M.C.

3 years (36 months)

18 months

18 months consecutive to count 1



5

Administer a noxious substance to M.C.

18 months



18 months concurrent to count 4



7

Attempt to administer a noxious substance
          to M.B.

9 months

6 months

3 months consecutive to counts 1 and 4



9

Aggravated sexual assault of B.C.

1 year (12 months)

6 months

6 months consecutive to counts 1, 4 and 7



TOTAL:



11 years, 6 months (138 months)

57 months

6 years, 9 months (81 months)



[33]

In addition to the period of incarceration as
    described above, the appellant remains subject to the long-term supervision
    order imposed by the trial judge. All other orders imposed by the trial judge
    also remain in effect.

Released: DD FEB 28 2020

Doherty J.A.

I agree B.W. Miller J.A.

I agree Fairburn J.A.


