



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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. E.C., 2019 ONCA 688

DATE: 20190904

DOCKET: C64996

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

E.C.

Respondent

Mabel Lai, for the appellant

Ariel Herscovitch, for the respondent

Heard: April 25, 2019

On appeal from the sentence imposed by Justice J.
    Christopher Corkery of the Superior Court of Justice on January 22, 2018.

van Rensburg J.A.:

[1]

The Crown seeks to appeal the respondents
    sentence for sexual interference on the basis that it was demonstrably unfit.

[2]

The respondent was charged with one count each
    of sexual assault and sexual interference. The charges arose out of events
    occurring during the evening of June 24 into the morning hours of June 25, 2015,
    after the complainant, who was 15 years old, and the respondent, who was almost
    22, and their friends were drinking and doing drugs together in a trailer park.
    There was evidence of three sexual encounters between the complainant and the
    respondent: (1) over the clothing fellatio while the group was driving in a
    truck; (2) sexual intercourse in a field near the trailers; and (3) sexual
    intercourse in an enclosed shelter attached to a trailer, called the fuck
    hut. The DNA of both the respondent and another male were identified in oral
    and vaginal swabs, although the complainant had no memory of sexual contact
    with the second individual.

[3]

After a trial by jury, the respondent was found
    guilty on both counts  of sexual interference, contrary to s. 151 of the
Criminal
    Code
, R.S.C., 1985, c. C-46, and sexual assault, contrary
    to s. 271. The sexual assault charge was conditionally stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.
    On the day sentence was imposed, the respondent also pleaded guilty to one
    count of a breach of undertaking. He was sentenced to six months custody, less
    three months pre-sentence credit, for a total sentence of 90 days to be served
    intermittently for sexual interference and 30 days concurrent for the breach of
    undertaking.

[4]

The parties agreed, and the trial judge
    determined, that the least culpable version of events that was consistent with
    the jury verdict was that the respondent had believed the complainant was over
    16 but did not take reasonable steps to confirm her age, and that they had
    engaged in a single incident of
de facto

consensual intercourse in the fuck hut. The respondent was
    sentenced based on this version of the evidence.

[5]

Mitigating factors were: the respondents lack
    of criminal record; the support of his parents and the mother of his young
    child; his meaningful work history; and his sincere efforts toward
    rehabilitation, demonstrated by the measures he had taken since the events
    leading to the charges to address a problem of alcohol dependence.

[6]

There were a number of aggravating factors: first,
    there were two incidents of sexual contact, one of which involved unprotected
    sexual intercourse. The respondent had supplied alcohol to the complainant, and
    she was severely intoxicated at the time of both incidents. The effects of the
    offence on the complainant were profound, as confirmed by her victim impact
    statement, and notwithstanding the trial judges acceptance that it was
impossible
    to determine the degree to which the impact on her was attributable to the
    respondents conduct or the other encounter involving the second male.
At the time of the events, the respondent was in breach of an
    undertaking prohibiting him from purchasing, possessing or consuming alcohol. And,
    finally, in a
Gardiner

hearing (
R.
    v. Gardine
r
, [1982] 2
    S.C.R. 368), the Crown had established that the respondent was a willing
    participant in the first encounter of fellatio in the truck, and that the
    respondent was reckless as to the complainants age.

[7]

The Crown sought a custodial sentence of two
    years less a day, followed by two years probation. The defence sought a
    sentence of 90 days to be served intermittently, or alternatively, six months,
    with credit for pre-sentence custody and house arrest, leaving an effective
    sentence of 90 days.

[8]

In his reasons for sentence, the trial judge
    outlined the various mitigating and aggravating factors (which are consistent
    with the factors I have noted, except as indicated below). He referred to and
    followed
R. v. Hussein
,
    2017 ONSC 4202, as authority that the one-year minimum sentence for sexual
    interference was unconstitutional.
[1]
After referring to a number of cases where offenders had received sentences of
    90 days for sexual interference (but without considering that a number of such
    cases involved very different circumstances from the present case, or were
    silent about the relevant circumstances), the trial judge imposed a sentence of
    six months imprisonment. After credit, the respondent was sentenced to 90
    days, to be served intermittently, on weekends. The trial judge also imposed an
    order of two years probation, with a term that the respondent receive
    counselling for substance abuse issues, a DNA order, a SOIRA registration order
    for 20 years, and a weapons prohibition for ten years, under s. 109 of the
Criminal
    Code
.

[9]

The parties agree that the trial judge erred in
    treating as a mitigating factor the fact that the complainant was three months
    short of her 16th birthday when she was assaulted by the respondent. The Crown,
    however, does not advance this error as a stand-alone basis for this courts
    intervention. Rather, the Crown says that the sentence was demonstrably unfit
because
    it unreasonably departs from the fundamental principle of proportionality, and
    from the acceptable range of sentence for similar offences committed in similar
    circumstances by similar offenders.

[10]

I agree that the sentence imposed on the
    respondent was demonstrably unfit.

[11]

The offence of sexual interference can be
    committed in any number of ways, and with varying levels of moral turpitude.
    The broad range of available sentences is rooted in the infinitely variable
    ways in which the offence can be committed:
R. v. M.B.
, 2013 ONCA 493, at para. 21. Within the wide range of available sentences,
    the court must impose an appropriate sentence  one that is proportionate to
    the gravity of the offence and the degree of responsibility of the offender,
    and, respecting the principle of parity, is proportionate to
sentences
    imposed for similar offences committed in similar circumstances:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[12]

In my view, the six-month sentence imposed by
    the trial judge was too lenient. The sentence did not adequately reflect the
    objectives of deterrence and denunciation, which are key in sentencing offences
    of this kind:
Criminal Code
, s. 718.01;
R.
    v. Al-Shimmary
, 2017 ONCA 122, at para. 6. The sentence
    also was not proportionate to the offenders level of moral culpability and the
    serious circumstances of the offence. Before turning to the appropriate
    sentence, I will address the arguments made by the respondent to support the
    fitness of the sentence imposed by the trial judge.

[13]

First, the respondents counsel asserts that the
    offence in this case was at the less serious end of the spectrum because,
    according to the facts found by the trial judge, the complainant initiated the
    sexual contact with the respondent. I would reject this argument in the
    strongest terms.
De facto

consent of an
    underage complainant is not a defence and cannot be a mitigating factor in a
    case of sexual interference:
Criminal Code
,
s.

150.1(1);
R. v. Hajar
, 2016
    ABCA 222, 39 Alta. L.R. (6th) 209, at para. 1;
R. v. Scofield
,
    2019 BCCA 3, at paras. 8 and 38.
In any event, the
    circumstances of this case were highly aggravating: when the sexual contact
    took place, the complainant was extremely intoxicated by alcohol and drugs, a
    fact that was known to the respondent, and a condition to which he had
    contributed by supplying her with alcohol. Whether she was the
de
    facto

initiator of the sexual contact or not does
    not render the respondents conduct in relation to this vulnerable complainant
    any less morally culpable.

[14]

Nor does the parties relative proximity in age detract
    from the complainants vulnerability, or from the respondents blameworthiness
    in taking advantage of that vulnerability. While a greater discrepancy in age
    can be an aggravating factor, the opposite is not true. It is not a mitigating
    factor that the respondent was only six years and two months older than the
    complainant. The gravamen of the offence of sexual interference was described
    by Feldman J.A. in
R. v. A.B.
, 2015 ONCA 803,
    333 C.C.C. (3d) 382, at para. 45, as follows:

[T]he protection for children is
    not simply from sexual exploitation but from any sexual contact or the
    invitation to sexual contact with adults. Parliament viewed the protection to
    be necessary because of the inherent power imbalance that undermines consent,
    and because of the physical and psychological consequences of a sexual
    encounter between a child and an adult stemming from that imbalance.

See also
R. v. J.D
.
, 2015 ONSC 5857, at paras. 22-24.

[15]

Finally, the respondents counsel argued that
    the sentence imposed by the trial judge could be justified by consideration of
    the respondents aboriginal heritage. I disagree.

[16]

There was information at the sentencing hearing that
    the respondent, who was adopted at birth, is part Cree through his biological great-grandmother.
    There was no
Gladue
report, or even a pre-sentence
    report that might have informed any real consideration of the respondents
    aboriginal heritage as a factor in his sentencing. More is required than a bare
    assertion of aboriginal status:
R. v. F.H.L.
,
2018 ONCA 83, 360 C.C.C. (3d) 189, at
    paras. 38-47;
R. v. Monckton
, 2017 ONCA 450,
    349 C.C.C. (3d) 90, at paras. 114-117;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60. The trial judge
    properly gave little weight to the respondents aboriginal status in sentencing
    in this case, and so would I.

[17]

I agree with the Crown that in all the
    circumstances of this case, the respondent ought to have received a substantial
    reformatory sentence.  Taking into consideration the various aggravating and
    mitigating circumstances that were present here, a sentence of 18 months
    imprisonment was warranted.

[18]

The respondent, who has served the custodial
    part of the sentence imposed by the trial judge, asked that this court stay the
    execution of any further custodial sentence that might be imposed on appeal. The
    respondent asserted that society would be better served by his continued
    rehabilitation, including allowing him to complete his probation order and
    associated counselling, reducing the likelihood that he would commit further
    offences associated with the consumption of alcohol, rather than
    re-incarcerating him.

[19]

No fresh evidence was tendered on the appeal,
    and no information was provided in order that the respondents request could be
    properly considered. As such, the court consulted with counsel, ordered and
    obtained a post-sentence report, and received further submissions. The
    post-sentence report has been considered only for the purpose of determining
    whether to stay the balance of the respondents custodial sentence, and not to
    evaluate the fitness of the sentence that was originally imposed.

[20]

While typically this court has been reluctant to
    re-incarcerate an offender who has served the sentence originally imposed and
    has been released into the community, ultimately the issue is whether the
    principles of denunciation and deterrence require re-incarceration or whether
    the community is best protected if the offender continues along the
    rehabilitative path that he has followed since his release from custody. The
    overarching issue is whether re-incarceration is in the interests of justice:
R.
    v. Davatgar-Jafarpour
, 2019 ONCA 353, at para. 50 (and
    cases cited therein).

[21]

Having reviewed the post-sentence report and the
    submissions of counsel, in the context of the exhibits filed at the sentencing
    hearing and the sentencing judges reasons, in my view it is appropriate to stay
    the execution of the balance of the respondents sentence.

[22]

The respondent completed his sentence in January
    2018, and has been in the community for more than 20 months without incident. He
    has not reoffended. He remains bound by a probation order, until January 2020.
    As the post-sentence report indicates, there is no indication that substance
    use, including alcohol (that played a role in the commission of the offence),
    is an ongoing concern. After receiving social assistance for a number of
    months, the respondent has been working again since at least June 2019. He has
    the ongoing support of his family. There is no question that all of this is
    positive, and consistent with the observations and expectations of the
    sentencing judge.

[23]

This is not to say that the post-sentence report
    is exemplary. The respondent has been resistant to the psychological
    counselling and anger management program directed by his probation officer. Moreover,
    he has yet to fully accept responsibility for the serious harm he caused to the
    complainant.  One of the purposes of sentencing is to promote a sense of
    responsibility in offenders, and an acknowledgment of the harm they have done:
Criminal
    Code
, s. 718(f). While requiring the respondent to serve
    the balance of his sentence in prison is one way to bring home to him the
    seriousness of the offence he committed, it is not the only way. The respondent
    remains bound by a probation order. The law requires that he follow the direction
    of his probation officer, including that he participate in counselling and address
    his anger issues. Failure to follow the direction of his probation officer may
    lead to further legal consequences.

[24]

In the circumstances, while the respondent
    served an inadequate sentence for this serious offence, on balance, I am
    satisfied that the principles of deterrence and denunciation, which are the
    primary sentencing objectives for this offence, can be addressed without
    further incarceration.

[25]

I would therefore allow the Crowns appeal,
    substitute a sentence of 18 months, less pre-sentence credit, and stay the
    execution of the remaining custodial portion of the sentence. All other aspects
    of the sentence imposed by the trial judge will remain in place.

Release:
    September 4, 2019

K. van Rensburg J.A.

I agree. P. Lauwers J.A.

I agree. G.T. Trotter J.A.





[1]

The
    issue of the constitutionality of the one-year mandatory sentence is currently
    before this court, and under reserve in an appeal of
R. v. B.J.T.
, 2016 ONSC 6616.


