



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




WARNING

THIS JUDGMENT REFERS TO AN OFFENCE UNDER
    THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

111(1)          Subject to this
    section, no person shall publish the name of a child or young person, or any
    other information related to a child or a young person, if it would identify
    the child or young person as having been a victim of, or as having appeared as
    a witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)
Every person who contravenes subsection 110(1) (identity of offender not
    to be published), 111(1) (identity of victim or witness not to be published),
    118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,


(a)     is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)     is guilty of an offence
    punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Booth, 2021 ONCA 80

DATE: 20210205

DOCKET: C68094

Huscroft, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Caelan Booth

Respondent

Emily E. Marrocco, for the appellant

Mark C. Halfyard and Chris Rudnicki,
    for the respondent

Heard: November 6, 2020 by
    video conference

On appeal from the sentence imposed on February
    4, 2020 by Justice Jennifer Broderick of the Ontario Court of Justice.

Huscroft J.A.:

OVERVIEW

[1]

Caelan Booth, the respondent, was convicted of sexual assault and breach
    of a youth probation order. The assault included intercourse he forced on a
    woman who was asleep. The assault was brief but ended only when someone turned
    on a light in the bedroom where the assault was occurring.

[2]

The respondent was 19 years of age when he committed the offence. He was
    on probation for a sexual assault he committed less than two years earlier.
    That sexual assault also included intercourse.

[3]

The sentencing judge sentenced the respondent to 18 months imprisonment
    for the sexual assault and 30 days concurrent for the breach of probation, and
    put him on probation for a two-year period.

[4]

For the reasons that follow, I conclude that the sentence was
    demonstrably unfit. The appropriate sentence was three years, as sought by the
    Crown. In the unusual circumstances of this case, I would not require the
    respondent to serve additional time in prison. However, I would vary the terms
    of the original sentence to increase the period of his probation from two years
    to three.

BACKGROUND

[5]

The complainant, a 24-year-old woman, attended a house party along with
    several others, including the respondent. The complainant and the respondent
    had never met before the night of the assault.

[6]

The complainant and some friends left the house party to go to a bar,
    while the respondent and some of his friends went to a different bar. The
    complainant and respondent returned to the house at different times later that
    evening. At approximately 3:00 a.m. the complainant, who was intoxicated, went
    upstairs to sleep in the hosts bedroom along with several friends. The respondent
    followed the group into the bedroom but was asked to leave. He returned downstairs.

[7]

The complainant testified that she went to sleep on the bedroom floor
    and awoke sometime later to find a man on top of her. He was kissing and
    touching her. She was groggy and felt as though she was dreaming. She testified
    that the man told her to lay down and be quiet, but she did not recognize his
    voice or who he was.

[8]

The host, who was also sleeping in the bedroom, testified that he heard
    noises that seemed like sex. He turned a light on and saw the respondent,
    naked, rolling off the complainant, who appeared to him to be asleep. The trial
    judge found that the respondent penetrated the complainants vagina with his
    penis just before the light came on. The respondent was confronted by the complainants
    friends and forced out of the house, following which the police were called.

The sentencing judges decision

[9]

The sentencing judge reviewed the complainants Victim Impact Statement,
    which described the emotional, physical, and economic impact of the offence on
    her. She felt distant from her friends, found it difficult to focus when school
    and work were difficult, and experienced anxiety and a feeling of a loss of autonomy.
    She had to take medication to prevent sexually transmitted infection, which
    made her feel ill, and incurred the expense of travelling in order to obtain
    that medication.

[10]

The
    sentencing judge then reviewed the circumstances of the respondent. She noted
    that he was completing a business administration and marketing diploma while
    working three part-time jobs, in addition to a seasonal position at a golf
    course. He was in a two-year relationship with a young woman who reported that
    he was respectful, caring, and supportive. The sentencing judge found that the
    respondent expressed remorse for the offence and that his pre-sentence report
    and character letter portrayed him in a very positive light.

[11]

The
    sentencing judge found that the case law distinguishes between acts of
    completed intercourse and penetration short of ejaculation. She characterized
    this as a case of momentary penetration but added that she did not want to
    minimize the impact of penetration on the complainant.

[12]

The
    sentencing judge rejected the Crowns submission that the range of three to
    five years applied in the case of momentary penetration of an unconscious or
    sleeping victim. She referred to this courts decision in
R. v. Ghadghoni
,
    2020 ONCA 24, in which the complainant was penetrated for a brief period while
    asleep. The accused had no criminal record. In that case, Pardu J.A. stated, at
    para. 48, that the usual range in past jurisprudence for sexual assaults
    committed in similar circumstances has been between 18 months and three years.
    The sentencing judge adopted this as the appropriate range for this case. She
    stated that the primary objectives of sentencing in this case were
    denunciation, deterrence, and rehabilitation, but that denunciation and deterrence
    took precedence. She found that the prior conviction for sexual assault
    required the sentence to address specific deterrence and went on to consider
    aggravating and mitigating factors.

[13]

The
    sentencing judge considered three aggravating factors: 1) the prior and recent
    finding of guilt for sexual assault; 2) the fact that there was penetration;
    and 3) the impact of the offence on the victim. She considered six mitigating
    factors: 1) the respondents youth; 2) his good prospects for
    rehabilitation; 3) his hard-working character and contribution to the
    community; 4) his character traits of kindness, empathy, and loyalty; 5) his
    family and girlfriends support; and 6) his remorse.

[14]

Having
    identified a range of 18 months to three years, the sentencing judge considered
    whether anything justified a sentence outside of the range. She noted the
    serious nature of sexual assault, that it took place while the complainant was
    intoxicated and asleep, and that the impact on the complainant was significant.
    She found, further, that the respondents degree of responsibility was high.
    Although the respondent was under the influence of alcohol, he was not so
    intoxicated that did not know what he was doing. On the contrary, the
    respondent attempted to sexually assault the complainant without waking up
    others in the room.

[15]

The
    sentencing judge recognized that the respondent was not a first offender and
    that he was on probation for a prior sexual assault when he committed the
    offence. Despite the many aggravating factors in this case, the sentencing
    judge imposed a sentence at the bottom of the range she identified. She stated:

Had [the respondent] not had a relatively recent prior
    conviction for sexual assault, I may have found it appropriate to impose a
    sentence outside of the lower end of the range of 18 months given the factual
    circumstances of the offence. His prior conviction, however, is an aggravating
    factor that I must consider in respect of the circumstances of the offender,
    and that in my view requires a sentence within the range set out.

I am also mindful of the sentencing principle of restraint. The
    sentence should only be as long as is required to achieve the sentencing
    objectives of denunciation and deterrence, and further, the sentence must
    promote, rather than frustrate, [the respondents] rehabilitation.

In my view, the sentence that takes into account all of the relevant
    factors and that will achieve denunciation and deterrence, and one that will
    not have a devastating effect on [the respondents] rehabilitation, is one at
    the very bottom of the range and that is 18 months imprisonment.

ISSUES ON APPEAL

[16]

The
    Crown raises three arguments on the sentence appeal:

1.

The sentencing judge erred when she found that
    the fact that the penetration was momentary was mitigating;

2.

The sentencing judge erred in her consideration
    of the rehabilitative potential of the respondent and failed to properly
    account for his prior record; and,

3.

The sentence was demonstrably unfit and did not reflect the gravity of
    the offence or the moral blameworthiness of the respondent.

DISCUSSION

[17]

The
    principles governing the appellate review of sentences are not in dispute. In
    general, the decisions of sentencing judges are entitled to deference but an
    appeal court may intervene if: 1) the sentencing judge errs in law or in
    principle and that error has an impact on the sentence, or 2) the sentence is
    demonstrably unfit regardless of any error:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11.

[18]

The
    Crowns argument focuses on the sentencing judges treatment of the duration of
    the assault. In essence, the Crown argues that the sentencing judge minimized
    the harm caused by sexual assault involving penetration by emphasizing the
    brief duration of the assault committed by the respondent.

[19]

I agree that the some of the sentencing judges remarks can be
    read in this way. Although the sentencing judge was careful to state that she
    did not wish to minimize the impact of penetration, at several points in her
    decision she appears to do just that by emphasizing the momentary nature of
    the penetration. She also states that there was no overt violence by the
    respondent, which appears to overlook the inherently violent nature of the assault
    committed by the respondent.

[20]

Read in context, however, these remarks can be understood as
    distinguishing the facts of this case from the cases proffered by the Crown
    that involved longer, completed acts of vaginal intercourse and threats of
    violence.

[21]

Nevertheless,
    in my view the sentence imposed in this case is demonstrably unfit regardless
    of any error in law or principle and the appeal must be allowed on this basis.

The sentence is demonstrably unfit

[22]

It
    is not necessary to reconcile what the Crown submits is conflicting case law
    concerning the appropriate range for sexual assaults involving intercourse with
    incapacitated complainants. The sentence imposed is demonstrably unfit
    regardless of any error identifying the range, for it does not satisfy the
    principle of proportionality: it is not proportionate to the gravity of the
    offence and the degree of responsibility of the offender: s. 718.1 of the
Criminal
    Code
,
R.S.C., 1985, c. C-46.

[23]

The
    moral blameworthiness of the respondent is high. He sexually assaulted a victim
    who was extremely vulnerable  she was incapacitated by alcohol and
    unconscious. This is intolerable conduct that requires denunciation and general
    deterrence.

[24]

The
    fact that this is the respondents second conviction for sexual assault
    involving penetration emphasizes the need for specific deterrence. Thirteen
    months prior to committing the assault in this case, the respondent pleaded
    guilty to sexually assaulting a 15-year-old girl. The respondent was 17 years old
    at the time. These facts are taken from the transcript of his guilty plea.
[1]


[25]

The
    assault occurred when the girl became separated from her friends at a large
    graduation party. She walked off with a boy, whom she knew, and the accused,
    whom she had never met. She described kissing and sexually touching both boys.
    She was intoxicated and was panicking. Eventually one or both of the boys
    removed her shirt against her will and she backed away. She fell to the ground
    and the respondent ended up on top of her. He penetrated her with his penis
    without her consent.

[26]

The
    respondent received a non-custodial sentence for this sexual assault  six
    months of deferred custody and an 18-month probation order. Plainly, this
    sentence failed to achieve the objective of deterrence as the respondent
    committed another sexual assault within 13 months of his first conviction, a
    mere six months into his probation.

[27]

What
    we have, in summary, is this: Despite the respondents relative youth, he is a
    repeat sexual offender. He committed a second sexual assault involving
    penetration against a vulnerable/intoxicated victim  a victim who was asleep
    at the time. These were significant aggravating factors, requiring a sentence
    that emphasized denunciation as well as general and specific deterrence.

[28]

Although
    the sentencing judge acknowledged the relevant considerations, with respect, she
    failed to accord them the significance they were due. On the contrary, she stated
    that, but for the respondents relatively recent conviction for sexual assault,
    she may have found it appropriate to impose a sentence outside the lower end
    of the 18-month to three-year range she identified as appropriate.

[29]

These
    remarks wrongly downplay the seriousness of the sexual assault committed by the
    respondent. Again, the offence involved intercourse forced upon a highly
    vulnerable woman. Yet, even though she acknowledged the need to address specific
    deterrence, the sentencing judge concluded that the respondent should be
    sentenced at the very bottom of the range in order to avoid a devastating
    effect on his rehabilitation.

[30]

The
    18-month sentence that was imposed fails to reflect the fact that not only was this
    the respondents second serious sexual offence, but it was committed while he
    was on probation for having committed the first. The sentence is neither proportionate
    to the gravity of the respondents offence nor his degree of responsibility in committing
    that offence, as required by s. 718.1 of the
Criminal Code
.

[31]

Taking
    into account the mitigating factors as well as the aggravating factors, I agree
    with the Crown that a sentence of three years should have been imposed. However,
    the court is required to sentence the respondent having regard to the
    circumstances now obtaining.

[32]

The
    respondent has proffered fresh evidence in this regard. The Crown does not
    object to the admission of the fresh evidence but argues as to the implications
    of requiring the respondent to serve additional time in prison.

[33]

I
    would admit the fresh evidence.

The fresh evidence

[34]

The
    respondent was released on parole on August 7, 2020, having served one-third of
    the 18-month sentence that was imposed. He is now employed full time and is working
    approximately 48 hours per week. He is re-enrolled in college and is working
    towards completing a diploma in business and marketing administration in the
    spring of 2021.

[35]

The
    respondent has attended counselling for alcohol abuse twice monthly as well as
    sexual offending on a weekly/biweekly basis and is seeing a personal therapist.
    His addiction counselor reports that the respondent has attended all scheduled
    appointments and presents as motivated to engage in his treatment. The
    executive director of the sexual accountability support program reports that
    the respondent is dedicated to the process and committed to making the personal
    changes required so that he will not reoffend.

[36]

The
    respondent notes that, as of the date of the appeal, he would have served the
    equivalent of over one-half of his original sentence, part in custody and part
    on parole. Assuming that he received the three-year sentence now sought by the
    Crown and would qualify for one-third release in the federal system, he would
    have had the equivalent of three months remaining on his sentence. However, the
    respondent argues that if he were reincarcerated, it is unlikely he would
    receive a parole hearing in time to obtain release following the service of one-third
    of the higher sentence, as he would have to be re-assessed and another parole
    hearing would have to be convened. The respondent argues that serving this additional
    period pending a parole hearing would constitute an undue hardship and that
    this is an appropriate case for staying the balance of any increased sentence
    imposed.

[37]

The
    Crown does not accept that the respondents ability to seek parole would be
    prejudiced by requiring him to serve additional time in the federal system and submits
    that he should be required to serve additional time.

[38]

In
    my view, although a three-year sentence of imprisonment should have been
    imposed by the sentencing judge, in light of the fresh evidence that sentence
    is no longer appropriate. Further incarceration of the respondent for a brief
    period is not required to achieve the goals of denunciation and deterrence.

[39]

The
    respondent is a young man. He has now completed a substantial portion of the
    sentence that was imposed by the sentencing judge, part in custody and part on
    parole. Importantly, he has made the most of the opportunity presented by his
    parole. The fresh evidence demonstrates that he has taken meaningful steps
    towards rehabilitation and reintegration into the community. These steps would
    be undermined if he were required to return to prison to serve additional time
     time that would presumably be brief  before he would again be eligible for
    parole.

[40]

However,
    I do not accept the respondents submission that it would be appropriate to
    impose the three-year sentence sought by the Crown, only to stay the balance of
    that sentence and not re-incarcerate the respondent. If a three-year sentence were
    imposed, the probation order could no longer remain in place, as a probation
    order can accompany only sentences of two years or less:
Criminal Code
,
    s. 731(1)(b).

[41]

Although
    the respondent appears to be making progress on parole, it must be recalled
    that he breached the terms of a prior probation order. In these circumstances, I
    would vary the respondents sentence by increasing the period of his probation
    from two years to three, the maximum period of probation that is permitted. An additional
    year of the supervision afforded by probation is the best means of supporting
    his rehabilitation and reintegration into the community.

CONCLUSION

[42]

I
    would grant leave to appeal sentence and admit the fresh evidence.

[43]

I
    would allow the appeal and vary the sentence to increase the term of the respondents
    probation from two years to three. I would otherwise leave the terms of the
    probation order and the other orders in place.

Released: February 5, 2021 (G.H.)

Grant
    Huscroft J.A.

I agree. B.W.
    Miller J.A.

I agree.
    I.V.B. Nordheimer J.A.





[1]
The respondent was a young person within the meaning of the
Youth
    Criminal Justice Act
, S.C. 2002, c. 1 when he committed this offence. Because
    his adult conviction was within the access period for the youth offence, the
    records relating to his youth offence are to be dealt with as records of an
    adult, which includes being available for publication: see
YCJA
, ss.
    119(2)(h) and 119(9)(b).

The transcript of the respondents
    guilty plea to the youth offence was sealed by the trial judge. The parties to
    this appeal agree that this was not required by the
YCJA
and that this
    court can unseal the transcript. By order dated January 21, 2021, this court ordered
    the transcript unsealed on consent.


