



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. U. A., 2019 ONCA 946

DATE: 20191203

DOCKET: C64015

Strathy C.J.O., Harvison Young
    and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

U. A.

Appellant

Nicholas St-Pierre, for the appellant

E. Nicole Rivers, for the respondent

Heard: November 25, 2019

On appeal from the conviction entered on
    January 27, 2017 and the sentence imposed on June 20, 2017 by Justice Julie Bourgeois
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting the
    complainant, his cellmate, at the Ottawa Carleton Regional Detention Centre, by
    forcing him to engage in oral sex on three occasions on November 5, 2015. The
    appellant was sentenced to four years imprisonment
, together
    with certain ancillary orders. He now appeals his conviction and sentence.

The Trial

[2]

The only live question at trial was consent, which turned on
    credibility.

[3]

The trial judge disbelieved the appellant
    and found that his evidence did not raise a reasonable doubt. She concluded
    that the appellants evidence varies, changes or is imprecise and at times
    clearly contradicts itself, precisely on the issue of consent. She also
    accepted the complainants evidence that he did not consent. She therefore
    concluded that the Crown had proved its case beyond a reasonable doubt and
    found the appellant guilty of sexual assault.

The Appeal from Conviction

[4]

On appeal from conviction, the appellant seeks to challenge the trial
    judges credibility assessments on several grounds. He argues that the trial
    judge applied uneven scrutiny, failed to articulate sufficiently how
    credibility concerns were resolved, and misapprehended the evidence relevant to
    credibility. In essence, the appellant invites this court to reevaluate the
    witnesses credibility based on the transcripts and to reach conclusions
    contrary to those of the trial judge.

[5]

We decline to do so. Credibility assessments are the domain of the trial
    judge, who has the benefit of seeing and hearing the witnesses in the context
    of all the other evidence adduced at trial. A trial judges credibility
    assessments are therefore afforded substantial deference on appeal:
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.

[6]

Here, the trial judge recognized that the main question at trial was
    credibility. She gave detailed and cogent reasons for rejecting the appellants
    evidence and accepting the complainants evidence on the issue of consent,
    reasons which amply permit meaningful appellate review. The trial judge also
    understood from the complainants own testimony that the complainant suffered
    from conditions affecting his attention span, mental development, and memory,
    and therefore carefully considered his evidence in that light. Far from
    applying uneven scrutiny to the evidence, the trial judge properly assessed the
    complainants credibility and evidence by reference to criteria appropriate to
    [his] mental development, understanding and ability to communicate:
R. v. R.W.
, [1992] 2 S.C.R. 122, at p. 134. We see
    no basis for this court to intervene.

[7]

The appeal from conviction is therefore dismissed.

The Appeal from Sentence

[8]

The trial judge sentenced the appellant to four years imprisonment,
    less 267 days credit for pre-sentence custody (178 days credited at 1.5:1),
    resulting in 39 months to be served.

[9]

The appellant seeks leave to appeal his sentence on three grounds.

[10]

First,
    the appellant asserts that the trial judges decision involves a significantly
    higher sentence than prior cases for similar offences.

[11]

We
    disagree. Although the circumstances of each case are different, numerous
    offenders have been sentenced in the three- to five-year range for sexual
    assault involving forced oral sex in analogous circumstances: see, for example,
R. v. S.A.
, 2014 ONCA 266, affirming
R. v. Ajimotokan
, 2013 ONSC 1961, at paras. 3-6, 39;
R. v. Allen
, 2017 ONCJ 405, at paras. 5-11, 43-44;
R. v. Allard
, 2011 BCSC 915, at paras. 4, 9, 24-25;
R. v. Dyck
, [1986] B.C.J. No. 3278 (S.C.), at paras. 3,
    6;
R. v. W.N.C.
, [2005] B.C.J. No. 1389
    (C.A.), at paras. 2, 4, 19; and
R. v. Nadeau
,
    2017 BCPC 158, at paras. 6-11, 24-28, 80.

[12]

Second,
    the appellant asserts that the trial judge inappropriately applied the step
    principle (which provides that a subsequent sentence for the same type of
    offence should generally be higher than the previous sentence), as the
    appellant was still awaiting sentence for an unrelated sexual assault on
    another person.

[13]

Again,
    we disagree. The trial judge concluded that the sentence imposed was fit with
    or without the step principle  she therefore did not rely on the step
    principle. The trial judge also noted that the appellant had recently been
    convicted of another sexual offence for which he was later sentenced to three years
    imprisonment. Although the appellant did not know his sentence at the time he
    committed the sexual assault at issue in this appeal, the trial judge stated
    that [o]ne would think that his detention ought to have triggered some sense
    of behavioural acknowledgement and nexus or a link between his status and his
    sexualized behaviour. She thus properly treated this prior conviction as an
    aggravating factor. We see no basis to impugn this conclusion.

[14]

Finally,
    relying on
R. v. Duncan
, 2016 ONCA 754, at
    para. 6, the appellant asserts that this court has held that in the
    appropriate circumstances, particularly harsh presentence incarceration
    conditions can provide mitigation apart from and beyond the 1.5 credit referred
    to in s. 719(3.1) of the
Criminal

Code
, R.S.C. 1985, c.
    C-46, and that sentencing courts should consider both the conditions of the
    presentence incarceration and the impact of those conditions on the accused.
    The appellant asserts that he should have received enhanced credit here because
    he was in segregation for his entire pre-sentence custody.

[15]

Once
    again, we disagree. The decision as to whether to award enhanced credit for
    harsh pre-sentence incarceration conditions is a highly discretionary
    determination to which considerable deference is owed:
R.
    v. Deaico
, 2019 ONCA 12, at para. 4;
Duncan
,
    at paras. 6-7; and
R. v. Ledinek
, 2018 ONCA
    1017, at para. 13.

[16]

Here,
    the trial judge exercised her discretion to reject the appellants claim for
    enhanced credit because: (1) the appellant was placed in segregation as a result
    of his own behaviour in sexually assaulting his cellmate; (2) she concluded
    that the appellants evidence about his time in segregation, the conditions
    and how it impacted him to be exaggerated, and he had declined each and every
    offer of yard time and fresh air; and (3) most importantly, the appellant had
    refused several alternatives to segregation that were offered to him. We see no
    basis to intervene with these reasons for refusing enhanced credit.

[17]

In
    the final analysis, we see no error in principle, failure to consider a
    relevant sentencing factor, or erroneous consideration of an aggravating or
    mitigating factor that might justify appellate intervention:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 44. The sentence imposed was not demonstrably unfit, but rather properly
    reflected the principle of proportionality, namely, that
a
sentence
must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender.

Disposition

[18]

The
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal from sentence is dismissed, except that the victim surcharge imposed
    at trial is set aside.

G.R. Strathy C.J.O.

A. Harvison Young J.A.

M. Jamal J.A.


