



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), (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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it
    read immediately before January 1, 1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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. R.B., 2013 ONCA 36

DATE:
20130123

DOCKET: C52908

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Appellant

R. B., in person

Jill Presser, duty counsel for the appellant

Matthew Asma, for the respondent

Heard: January 9, 2013

On appeal from the conviction entered on June 17, 2009 and
    the sentence imposed on October 21, 2009 by Justice Alison Harvison-Young of
    the Superior Court of Justice, sitting without a jury.

H.S. LaForme J.A.:

introduction

[1]

The appellant is married to the
    sister of the complainants mother and is thereby the uncle of the
    complainant.  The sexual offences were found to have started in 1988 when the
    complainant was 6 years old and they continued until 1997 when she was almost 15. 
    Throughout that time the sexual contact progressed from sexual touching to
    intercourse.

[2]

The complainant reported the
    appellants conduct to her mother in 2000 when she was 18; to the police on
    October 27, 2002 when she was 20; and she gave a statement to the police on
    October 31, 2007 when she was 25.  In other words, her reporting of the
    assaults and her police statement were 4, 6 and 11 years after the last
    assault.

THE TRIAL

[3]

At trial it was essentially the
    evidence of the appellant and his wife against that of the complainant.  The
    appellants evidence was a denial of all the allegations.  His testimony was
    that the complainant became infatuated with him and that when he rejected her,
    she made the false allegations.  The result of the trial therefore turned on
    credibility findings and the application of

R. v. W.(D.)
,
    [1991] 1 S.C.R. 742.

[4]

The trial judge rejected the
    appellants denial of involvement and his assertions that the complainant was
    infatuated with him and his rejection of her when she was 14 motivated her to
    fabricate the allegations.  She held that the evidence of the defence did not
    raise a reasonable doubt, particularly the suggestion that the complainant
    would fabricate allegations as a result of having been rejected at the age of
    14.  She found that there was no air of reality to this assertion.

[5]

Finally, the trial
    judge held that the rest of the evidence proved the appellants guilt beyond a
    reasonable doubt.   She accepted the complainants evidence, finding her to be
    a credible and reliable witness.  She found that details, such as which vehicle
    the offences occurred in, were understandably unclear and peripheral.  She also
    found that the delay in reporting is not uncommon in such cases and did not
    negatively affect the complainants credibility.

[6]

The trial judge convicted the 42
    year old appellant of four historic sexual offences 
sexual assault, sexual interference, invitation to
    sexual touching, and sexual exploitation
. 
    She sentenced him to a fair, fit and global term of 5 years imprisonment.  In
    addition, he was required to provide a DNA sample for registration for a period
    of twenty years and a weapons prohibition for a period of ten years.

THE APPEAL

[7]

On appeal the appellant submitted
    that the trial judge made three critical errors.  First, he argued that the
    trial judge ought to have applied the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729.  Second, he submitted that the trial judge improperly
    reversed the onus of proof on the issue of the complainants motive to fabricate. 
    Third, he submitted that the trial judge failed to consider all the
    circumstances in her assessment of the delay of the complainant in reporting
    the offences.  Finally, the appellant argues that the sentence imposed is
    unfit.

(a) 
       Conviction appeal

[8]

We did not call upon the Crown to
    respond to any of the grounds of appeal against the convictions.  We allowed
    the appeal on the
Kienapple
issue and dismissed the balance of the
    appeal against convictions.  The following brief reasons will sufficiently
    explain our decision.

[9]

The trial judge decided that the
Kienapple

principle  that an accused cannot be convicted of two offences where they
    are both arise out of substantially the same facts - should not apply in this
    case.  On appeal, the appellant submitted that
the principle
ought to have applied and that count 2 should
    have been stayed.

[10]

Given the particularity in the
    indictment in count 1 (sexual assault) and count 2 (sexual interference) the
    Crown did not oppose this submission.  We agreed, and accordingly the less
    serious offence in count 2 was stayed
.

[11]

On the balance of the appeal
    against the convictions, we found no error in the trial judges analysis or
    decisions on either of the issues of the complainants motive to fabricate or
    the complainants disclosure.  The trial judge provided lengthy reasons for her
    decision and when those reasons are read as a whole, the appellants assertions
    of errors are simply not present.  Accordingly, apart from the
Kienapple
point, the appeal of the convictions was dismissed.

(b) 
       Sentence appeal

[12]

We were, however, somewhat
    sympathetic to the appellants submissions on his sentence appeal, and reserved
    our decision in order to consider it more fully.  In the circumstances of this
    case, we saw some merit in the approach submitted by the appellant, which is
    set out more fully below.  In essence, the totality of the sentence would not
    change and would therefore result in the appellant serving the period of
    imprisonment found by the trial judge to be appropriate.  Moreover, we
    initially wondered whether the principles and objectives of sentencing would
    still be addressed and would continue to reflect the objective seriousness of
    the offences if we were to adopt the appellants submissions.

[13]

However, after further
    consideration, and although my initial impressions of the merits remain, I
    conclude that the authorities limit our ability to accede to his request.  The
    following will explain my reasons for this conclusion.

[14]

At the sentencing hearing defence
    counsel argued for a total sentence of 3-4 years imprisonment, while the Crown
    sought the maximum of 10 years.  The trial judge noted that the appellant came
    to Canada, having fled war-torn El Salvador in 1987  She rejected the Crowns
    submission that this was a case deserving of the maximum sentence of 10 years. 
    Also, it is clear that she did not consider this case to be one which required
    strict adherence to this courts decision in
R. v. D.D.
(2002), 58 O.R.
    (3d) 788 (C.A.).

[15]

As noted, the trial judge
    ultimately sentenced the appellant to a 5 year total term of imprisonment.  She
    apportioned his imprisonment as follows: on count 1, sexual assault, 5 years;
    on count 2, sexual interference, 5 years (concurrent); on count 3, invitation
    to sexual touching, 1 year (concurrent); and on count 4, sexual exploitation, 4
    years (concurrent).  Given that count 2 is stayed, the sentence being
    considered by us is only in respect of counts 1, 3 and 5.

[16]

The only submission the appellant
    makes on appeal is that the totality of the sentence be apportioned differently
    from that of the trial judge.  In other words, he does not argue against the
    five years total sentence.  Rather, he asks this court to recognize the circumstances
    of the appellant and the consequences to his family and to assist them by
    imposing a maximum sentence of two years less a day for any of the counts of 1,
    3 and 4, but have them run consecutively and maintain the total sentence of
    five years imprisonment.  He submits that this would not impose a shorter
    sentence in totality and would be entirely in keeping with the principles and
    objectives of sentencing.

[17]

The appellant is a permanent
    resident of Canada, originally from El Salvador, and was convicted of criminal
    offences that resulted in his being ordered deported.  Thus, one of the avenues
    by which he could challenge that deportation order has been lost by virtue of
    the length of the sentences imposed for those offences, namely more than two
    years imprisonment: see,
Immigration and
    Refugee Protection Act
,
    S.C. 2001, c. 27
.  Under s. 64(1) of the
Act
, the
    appellant has no right to appeal the deportation order if he receives a
    sentence of two years imprisonment or more for any single offence.  While the
    trial judge may have been aware of the appellants permanent resident status,
    she does not consider its implications in her sentencing analysis.

(i)

The appellants circumstances

[18]

I begin, as the appellant
    suggests, with the comments of Doherty J.A. in
R. v. Hamilton
(2004),
    72 O.R. (3d) 1 (C.A.), at para. 87:

Sentencing is a very human process.  Most attempts to describe
    the proper judicial approach to sentencing are as close to the actual process
    as a paint-by-numbers landscape is to the real thing.  I begin by recognizing,
    as did the trial judge, that the fixing of a fit sentence is the product of the
    combined effects of the circumstances of the specific offence with the unique
    attributes of the specific offender.

[19]

It is the unique attributes and
    circumstances of the appellant, which he says can allow this court to reflect
    the human face of the sentencing process by giving him another opportunity to
    remain in Canada with his family.  He has been in Canada since 1987, his family
    is here and he wishes to access every opportunity to remain here with them. 
    His statutory release date we were told is February 19, 2013.

[20]

The appellant says he left El
    Salvador in 1985 because of the war, which the trial judge seems to accept. 
    He originally entered the United States as a refugee and in 1987 came to
    Canada.  He obtained landed immigrant status in Canada in 1991.

[21]

Also in 1991, the appellant
    married the sister of the complainants mother and they have three children now
    aged 15, 17 and 19.  He did not complete high school because, he says, of the
    war in El Salvador.  Nevertheless, since in Canada he has learned to be an auto
    mechanic, which was his occupation at the time of these offences.  He is the
    sole provider for his family.

[22]

In his pre-sentence report he is
    described by others as being devoted to his wife and children and has a close
    connection with his Christian church.  He is a first time offender.

ANALYSIS

[23]

Generally speaking I think the
    overall principles and objectives of sentencing would still be addressed and
    would continue to reflect the objective seriousness of the offences if we were
    to adopt the appellants submissions.  However, there are also the interests of
    the Parliament of Canada and existing legal principles from this court that
    must be considered.  Because of these considerations, I believe the Crowns
    arguments must prevail, and ultimately compel the dismissal of the appeal
    against sentence.

[24]

I acknowledge at the
    outset that the risk of deportation can be a factor to be considered in
    choosing among the appropriate sentencing responses and tailoring the sentence
    to best fit the crime and the offender:
R. v. Melo

(1975), 26 C.C.C. (2d) 510, at p. 516 (Ont.
    C.A.).  However, the loss of a potential remedy against a deportation order is
    not a mitigating factor on sentence, nor can the sentencing process be used to
    circumvent the provisions and policies of the
Immigration and Refugee Protection Act
:
Hamilton
, at
    paras. 156 and 157.  The Crown submits that circumventing the Act is what
    results here if the appellants submissions are accepted.  I agree.

[25]

The second submission by the Crown
    is that the appellants suggested approach is simply not available even if the
    totality of the sentence is not disturbed.  This is because, it is argued, the
    appropriate sentence for either of counts 1 and 4 in this case cannot
    reasonably be less than 5 years imprisonment.  The Crown relies on several
    authorities including this courts decision in
R. v. D.M.
,

111 O.R. (3d) 721.  Once again I agree.

[26]

This courts fairly
    recent decision in
R. v. Badhwar
, 2011 ONCA 266 comments on both the
Immigration and Refugee Protection Act
issue and adjusting the length of
    sentences where an accused person has been convicted of multiple counts as
    here.  Moldaver J.A. first described the adjustment of the length in counts
    without interfering with the total length of sentence as amounting to a benefit
    over someone convicted of a single count.  He then goes on in para. 45 to
    caution that:

No matter how one chooses to come at the issue, the bottom line
    remains the same.  Courts ought not to be imposing inadequate or artificial
    sentences at all, let alone for the purpose of circumventing Parliaments will
    on matters of immigration.

[27]

Without commenting on whether or
    not there is any benefit to the appellant because of his multi-count
    convictions, the fact remains, a sentence of 2 years less a day for either of
    counts 1 or 4 would be patently inadequate or artificial.  This was made
    abundantly clear by this court in
D.M.
where the issue on appeal was the
    proper range of sentence for prolonged sexual assault including intercourse on
    a single child by a person in a position of trust.  At para. 44, Feldman J.A.
    left little doubt about the appropriate range of sentence:

To conclude on the issue of the proper range of sentence,
    although sentencing is always an individualized process of decision-making, where
    there is prolonged sexual abuse and assault of a child, including penetration,
    by an adult in a position of trust, the minimum sentence will be five or six
    years in the penitentiary.

[28]

It is important to recall that
    Feldman J.A. observed that the reason the courts were being called upon to
    focus on sentencing in this type of case is because of the increasing number of
    them over the past 20 years.  Partly because of this increase, the courts
    strict sentencing has evolved to respond to it: see
D.M.
,

at
    paras. 24-26. The appellant in our case was found to have committed sexual
    offences against his niece from 1988 when she was 6 years old continuously
    until 1997 when she was almost 15.  And as I noted at the outset, the sexual
    assaults progressed from sexual touching to intercourse.

[29]

Finally, I want to comment briefly
    on the principle of totality:
i.e.
a series of sentences, each properly imposed in
    relation to the offence to which it relates, is on the whole just and
    appropriate.  When this principle is properly understood and applied to facts
    of the appellants case, it will be seen that it does not assist him.

[30]

The proper approach to applying
    the principle of totality on sentencing is to first identify the most serious
    part of the accusations or offences made against the person that resulted in
    the criminal offenses he or she was charged with.  Next, the court is to
    determine the total sentence to be imposed, and then to impose sentences with
    respect to each offence that they add up to the total sentence.  In doing so,
    the sentence for each offence must properly reflect the most serious part of
    the overall criminal conduct and must reflect the proper sentence for that offence. 
    At this stage the court will then decide whether a particular sentence should
    be consecutive or concurrent to the other sentences imposed:
R. v. Jewell
;
R. v. Gramlick
, [1995] O.J. No. 2213 (Ont. C.A.), at para. 27.

[31]

Once again, in the appellants case,
    the most serious part of the offences is the sexual assault of his niece
    reflected in count 1.  And, as I explained, this has a sentencing range that
    begins at least at 5 years.  To accept the appellants submissions would
    require the imposition of a sentence that is inadequate or artificial. 
    Although sympathetic to the appellants concerns to remain in Canada with his
    family, I believe this court is required to dismiss the appeal against
    sentence.

DISPOSITION

[32]

For these reasons I would dismiss
    the appeal against convictions.  I would grant leave to appeal the sentence,
    but I would dismiss it.

[33]

I would conclude by noting that
    although the appellant may be denied his right of appeal to the Immigration
    Appeal Division as a consequence of this result, he is not entirely without
    further recourse.  The appellant still has the right to apply to the Minister
    of Public Safety and Emergency Preparedness for protection:
Immigration and Refugee Protection Act
, at ss. 112-114.

Released:
    JAN 23 2013          H.S. LaForme J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree Alexandra Hoy J.A.


