



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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. Hopwood, 2020 ONCA 608

DATE: 20200928

DOCKET: C67206

Miller, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jake Hopwood

Respondent

Jeremy Tatum, for the appellant

Colleen McKeown, for the respondent

Heard: September 11, 2020 by
    videoconference

On appeal from the sentence imposed on June
    25, 2019 by Justice David Berg of the Ontario Court of Justice, with reasons
    reported at 2019 ONCJ 450.

Nordheimer
    J.A.:

[1]

The Crown appeals the sentence of eight and
    one-half years that was imposed on the respondent on his conviction for a
    variety of offences arising out of a home invasion robbery. The Crown also
    appeals the sentence of six months that was imposed on the respondent on his
    conviction for attempt to obstruct justice.

A.

Background

(a)

The home invasion

[2]

Since the facts underlying the convictions are
    of importance to the determination of the appropriateness of the sentences
    imposed, I will set them out in some detail. I take them largely from the
    sentencing judges reasons.

[3]

The respondent was found guilty of robbing,
    confining, seriously assaulting, kidnapping, and attempting to extort the
    victim over a course of 42 hours. The respondent and three others began by
    conniving their way into the victims apartment. I should mention that the
    victim is intellectually challenged, although there is no evidence that this
    fact motivated the respondent and the others to commit the offences.

[4]

While in the apartment, the victim was struck by
    all three of his assailants. The blows drew blood. He was ordered to sit down
    and be silent. The assailants demanded the PIN for the victims bank card. They
    removed from the apartment any object they thought might have some value
    including the victims identification documents, his cell phone, loose change,
    a video game console, game cartridges, a television and 150 videotapes.

[5]

The assailants then forced the victim to
    accompany them to their vehicle. They drove him to a park where he was
    assaulted again. The assailants told him that they wanted $300,000. The victim
    was taken to a gas station and required to use a pay phone in an attempt to
    contact his father in order to convey the ransom demand. He was told he would
    be killed if he did not assist them in this endeavour. They may have threatened
    him with death at other points during his ordeal. When the victims father
    could not be reached, the assailants took the victim to a house in Ottawa. He
    was taken into the basement laundry room and placed inside a dog cage. The
    dimensions of that cage did not allow him to stand or stretch out. The victim
    estimated that he was kept caged for two days. While he was fed by his
    assailants, they forced him to urinate into a bag.

[6]

His assailants continued to hit the victim while
    asking about money. They threatened to kill or mutilate his two cats, who were
    back at his apartment. They threatened to hurt his mother and later told the
    victim that his mother was already dead. The victim recalled at one point they
    took him out of the cage and taped him by his wrists and ankles to a chair.
    There was also an incident in the basement when his assailants had him stand
    and they then poured bleach and gasoline on his naked torso and scrubbed him
    with a brush. Finally, his assailants drove the victim to a remote spot in the Kingston/Gananoque
    Region. Upon reaching the forested area, the victim was told to remove his
    outer clothing and footwear, leaving him in his undergarments. The respondent
    and one of the other assailants took the victim some distance into the forest,
    where the other assailant choked the victim into unconsciousness and left him
    lying in the woods.

[7]

When the victim regained consciousness, he
    wandered until he came upon a house. He rang the doorbell. The people of that
    house contacted the police. The victim suffered swelling, bruises, cuts and
    abrasions from his ordeal.

(b)

The attempt to obstruct justice

[8]

On July 8, 2017, two correctional officers at the
    Ottawa-Carlton Detention Centre intercepted the respondent attempting to pass a
    note to T.M., a co-accused, who was being held in a unit neighbouring the respondents
    unit. T.M. was scheduled to testify in the near future against the respondent at
    the trial related to the home invasion, as well as another incident near
    Toronto. The respondents trial ended up not going ahead at that time. In his
    note, the respondent asked T.M. to change his anticipated testimony to reflect
    a position more favourable to the respondent. In effect, the respondent asked T.M.
    to lie for him.

(c)

The sentencing decision

[9]

The Crown sought a sentence of 12 years for the
    home invasion offences. The defence sought a sentence of five years. On the
    attempt to obstruct justice count, the Crown sought a sentence of two and one-half
    years consecutive. The defence sought a sentence in the range of four to six
    months.

[10]

The sentencing judge imposed a sentence of eight
    and one-half years on the home invasion offences and a sentence of six months
    consecutive on the attempt to obstruct justice offence. The sentencing judge noted
    that the respondent was 25 years old at the time of the offences and had no
    criminal record. He was in a relationship. He had a grade 11 education and had
    taken some further courses while in custody.

[11]

The sentencing judge also took into account that
    T.M., who had pleaded guilty to some offences arising out of the home invasion,
    had been sentenced to six and one-half years. T.M. was 18 years old at the time
    of the offences and he also did not have a criminal record. The sentencing
    judge noted that, unlike the respondent, T.M. had pleaded guilty to the
    offences. The sentencing judge was of the view that the principle of parity in
    sentencing played a significant role in this matter. He also said that the
    principles of denunciation and deterrence were the primary objectives in
    sentencing the respondent.

[12]

In sentencing the respondent on the attempt to
    obstruct justice count, the sentencing judge noted the fairly wide range of
    sentences that have been imposed for this offence. He also noted that the
    respondent was facing very serious charges and that the attempted obstruction
    was in order to avoid having to take responsibility for his actions. However,
    the sentencing judge also noted that there were no threats or inducements made
    or offered. I note that this latter finding appears to be a generous one given
    the wording of the note that the respondent authored in which he twice said to T.M.:
    You know I got you.

B.

Analysis

(a)

The home invasion offences

[13]

As will be apparent from the background facts,
    this was an especially egregious instance of a home invasion robbery. The
    length of the events surrounding the home invasion, the abuse of the victim,
    the caging of the victim, and leaving the victim in a remote area unconscious,
    place this home invasion at the higher end of the spectrum of these types of
    robberies.

[14]

When considering the sentences for home invasion
    robberies, reference is often made to this courts decision in
R. v. Wright
(2006), 83 O.R. (3d) 427 and the mention of a range of 4 to 13 years. However,
    it is best to reproduce exactly what was said in that case on that point. Blair
    J.A. said, at para. 23:

The cases to which we have been referred, and
    which my own research has uncovered, reflect a gamut of sentencing dispositions
    in "home invasion" cases from as low as four or five years, to as
    high as eleven to thirteen years  with the suggestion that even higher
    sentences may be reserved for situations involving kidnapping, the infliction
    of serious injuries, sexual assault or death. Whether a "range" of
    that elasticity is of much assistance to trial judges in their efforts to
    preserve sentencing parity for similar offences involving similar offenders 
    apart from signalling that a significant penitentiary jail term is generally
    called for  is not clear to me. The downside of attempting to articulate a
    range for a type of crime that can manifest itself in such a wide variety of
    ways, and be committed by such a wide variety of individuals, is that the
    "range" becomes so broad, it is virtually meaningless. Nonetheless,
    to the extent there can be said to be a range in home invasion cases, it would
    appear that the one that currently exists is the expansive one outlined above.
    [footnotes omitted]

[15]

To the extent that
Wright
establishes a
    range, it will be seen that the sentence sought by the Crown was at the high
    end of the range. The sentence imposed by the sentencing judge was more towards
    the middle of that range but was still one that constituted a significant
    penitentiary jail term.

[16]

The Crown complains that the sentencing judge
    was unduly influenced by the parity principle. The Crown also points out that
    the sentencing judge did not have the reasons for sentence that were given when
    T.M. was sentenced and, consequently, the sentencing judge did not have a
    proper foundation for evaluating the basis for the sentence that was imposed on
    T.M. or for properly applying the parity principle.

[17]

There is merit to the Crowns position but, in
    the end result, this court must still abide by the principles about sentence
    review established by the Supreme Court of Canada in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089 where Wagner J. said that, in order for an
    appellate court to intervene in a sentencing, it must be found that the
    sentencing judge made an error in principle, failed to consider a relevant
    factor, or erroneously considered an aggravating or mitigating factor. Further,
    this error must have had an effect on the sentence. An appellate court may also
    intervene where the sentence is demonstrably unfit.

[18]

I consider the sentence imposed on the
    respondent to fall at the very lowest end of an acceptable spectrum of
    sentences for the offences involved, given the manner in which those offences
    were committed. However, I cannot say that the sentence was demonstrably unfit.
    I do not see any error in principle or any failure to consider a relevant
    factor. Parity did play some role in the analysis and I am not satisfied that
    the sentencing judge overemphasized that principle in deciding on the sentence
    he imposed.

[19]

The sentence sought by the Crown would not have
    reflected parity with the sentence imposed on T.M., even accepting that T.M.
    pleaded guilty and he did so to different offences than the respondent was
    convicted for. More importantly, the sentence sought by the Crown did not take
    into account the relatively young age of the respondent or the fact that he had
    no criminal record. A sentence of 12 years for a first offender would be
    excessive, even given the seriousness of the events underlying the offences.

[20]

In the end result, while the sentence imposed
    was lenient in all of the circumstances, the Crown has failed to overcome the
    very high hurdle that would justify this court interfering with the sentence
    imposed on the home invasion offences.

(b)

The attempt to obstruct justice offence

[21]

I reach a different conclusion on the attempt to
    obstruct justice offence. In my view, a six-month sentence, for what the
    respondent attempted to achieve, is demonstrably unfit. The sentencing judge
    also committed an error in principle in failing to give proper consideration to
    a decision of this court, as I shall explain.

[22]

I begin with the principle that efforts by
    accused persons (whether directly or through others) to interfere with
    witnesses strike at the very heart of our justice system. There are already
    very serious concerns regarding the willingness of people, who observe crimes,
    to come forward and offer themselves as witnesses. Concerns around the code of
    silence, and possible repercussions from being considered a rat or a
    snitch, often lead persons to remain silent when they ought to be coming
    forward and assisting the authorities to properly investigate and prosecute
    criminal activities.

[23]

Against that backdrop, interference with persons
    who are prepared to be witnesses only serves to exacerbate the problem. It must
    be clear to all accused persons that attempting to interfere in any way with a
    witness represents conduct that will not be tolerated. In that regard, I
    respectfully adopt what the British Columbia Court of Appeal said in
R. v.
    Hall
, 2001 BCCA 74, per Saunders J.A. at para. 12:

Obstruction of justice or attempting to
    obstruct justice strikes at our system of a lawful society. The message must be
    clear that this type of interference with the community system for handling
    criminal offences will not be tolerated. It is for this reason that the courts
    must act firmly to express society's disapproval and denunciation of such
    conduct.

[24]

While there may be other conduct that would
    constitute an attempt to obstruct justice that would warrant a minor sentence
    of the type that was imposed here, attempting to interfere with a witness does
    not fall into that category. Indeed, I would say that, as a general
    proposition, attempting to interfere with a witness should normally attract a
    penitentiary term of imprisonment. I find support for that position in the fact
    that penitentiary terms of imprisonment are often imposed for persons who
    refuse to testify:
R. v. Yegin
, 2010 ONCA 238. If a persons personal
    choice not to give evidence can attract such sentences, then it seems to me that
    a persons choice to interfere with another persons right to testify should draw,
    at least, equal condemnation. In this case, therefore, the sentence sought by
    the Crown of two and one-half years was entirely appropriate.

[25]

On that latter point, I note that this court upheld
    a two and one-half year sentence for obstruction of justice in
R. v.
    Williams
, 2016 ONCA 937. That case was provided to the sentencing judge.
    The sentencing judge attempted to locate the trial judges reasons for sentence,
    but he was unable to. This inability then led the sentencing judge to conclude
    that the appellate ruling in
Williams
is of no use to me in
    sentencing the respondent.

[26]

With respect, it was not open to the sentencing
    judge to dismiss this courts decision in
Williams
in that fashion.
    While the particulars underlying the sentence may not have been available to
    the sentencing judge, he nonetheless had a decision of this court suggesting
    that the sentence being sought by the Crown with respect to the respondent was clearly
    one that was open to him. He also had this courts view of the seriousness of
    these types of offences. He committed an error in principle by failing to take
    that decision into account in arriving at the sentence.

C.

Conclusion

[27]

I would grant leave to appeal and allow the appeal
    only to the extent that I would impose a sentence of two and one-half years on
    the attempt to obstruct justice count, consecutive to the sentences on the
    other counts. The appeal of the sentence on the other counts is dismissed.

Released: BWM September 28, 2020

I.V.B Nordheimer J.A.

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

I agree. Thorburn J.A.


