



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    that could identify the complainant or a witness shall not be published in any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. Anderson, 2012
    ONCA 373

DATE: 20120605

DOCKET: C53603

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Anderson

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 17, 2012

On appeal from the sentence imposed on April 9, 2010 by
    Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury.

By the Court:

I.        Background

[1]

After a judge alone trial, the appellant was convicted of breaking and
    entering, aggravated sexual assault, attempt murder, unlawful confinement and
    threatening death.
[1]
He was sentenced to life imprisonment on the first three counts and five years
    imprisonment on the last two counts, to be served concurrently.

[2]

The appellant appeals against sentence.

[3]

In his factum, the appellant argued that the sentencing judge erred in
    imposing a life sentence after the Crown withdrew its dangerous offender
    application.  The appellant maintained that the sentencing judges assessment
    of his future dangerousness and of the associated need for protection of the
    public formed the primary basis for the imposition of a life sentence and that,
    absent a dangerous offender application, it was not open to the sentencing
    judge to sentence the appellant to life imprisonment on this basis.

[4]

However, during oral argument, the appellants counsel clarified that he
    does not challenge the potential availability of life imprisonment as an
    appropriate sentence for the crimes at issue in this case, even where, as here,
    no dangerous or long-term offender designation was sought by the Crown. 
    Rather, he contends that, given the circumstances of these offences and this
    offender, a sentence of life imprisonment is unjustified and unfit.

II.       Discussion

[5]

In our view, the sentencing judge made no error in principle in his
    sentencing analysis and the sentence imposed is fit.  We say this for the
    following reasons.

[6]

We begin with the circumstances of these offences.  Simply put, they were
    horrific.

[7]

The complainant, a 76 year-old woman, was asleep alone in her apartment
    when the appellant, then 26 years of age, broke into her residence in the
    middle of the night.  The complainant awoke to find the appellant standing in
    her apartment.  He was armed with a knife and threatened the complainant that
    if she screamed and did not comply with his demand for sex, he would kill her. 
    When the complainant tried to telephone for help, the appellant cut the phone cord,
    struck the complainants hand with the knife, forced the complainant onto her
    bed, groped her, digitally penetrated her vagina, forced her to engage in vaginal
    intercourse, and then attempted to vaginally penetrate her from behind.  While
    all this was occurring, the appellant stabbed the complainant three times in
    the abdomen, slashed her face (cutting all the way to the jaw bone), and
    brutally beat her.  One of the inflicted wounds was potentially fatal.  In
    addition, the complainant lost approximately one-eighth of her total blood
    supply and sustained multiple cuts to her face and hands during the appellants
    attack, which later required surgical repair.

[8]

The appellant persisted in his attack notwithstanding the complainants
    repeated pleas that he stop and the fact that she was bleeding profusely.  The
    attack lasted in excess of one hour.  The appellant left only when the
    complainant managed to escape to her apartment balcony, where she called out
    for help.  This prompted the appellant to flee from the apartment, leaving his
    clothes behind.  When the complainant re-entered her apartment and called 911,
    the appellant returned, gathered up his clothing and eventually fled the
    apartment again.

[9]

The sentencing judge reviewed the circumstances of the offences in
    detail, including the understandably traumatic effects on the victim and
    members of her family.  He concluded that, The sexual nature of the attack was
    quite degrading and constituted an extreme violation of [the complainants]
    privacy, security and dignity.  The attack involved gratuitous and excessive
    violence well beyond anything necessary to [obtain the complainants]
    compliance.  We agree with this description of the nature and gravity of the
    offences.

[10]

The
    sentencing judge was cognizant of the Crowns withdrawal of its dangerous
    offender application, necessitated by the appellants refusal to participate in
    a psychiatric assessment.  The sentencing judge expressly stated, I certainly
    will not impose a life sentence because this dangerous offender application was
    abandoned.

[11]

The
    sentencing judge heard almost a full day of submissions by counsel on the issue
    whether a life sentence or a lengthy determinate sentence was appropriate.  His
    comprehensive reasons reveal a careful and thorough consideration of all the
    aggravating and mitigating factors relevant to the fashioning of a proper
    sentence in this case and reflect no error in principle.

[12]

We
    note, in particular, that the sentencing judge had regard to the appellants
    circumstances and antecedents and factored them into his sentencing calculus. 
    He noted the appellants age; that the appellant was a first (although not a
    youthful) offender; that his past conduct suggested that he has the capacity to
    act responsibly; that he enjoys a supportive family and had not been in
    trouble while incarcerated; and that there was no evidence that he had ever
    engaged in such a violent crime in the past.

[13]

However,
    the sentencing judge also held that the appellants family members are
    woefully deficient historians who were unable to reliably portray the
    appellants true character; the appellants attack was a random crime of
    opportunity; the victim of the attack was a vulnerable old lady; and the
    appellants crime demonstrated a callous lack of empathy.  These were all
    relevant and proper sentencing considerations.

[14]

After
    identifying the applicable aggravating and mitigating circumstances, the
    sentencing judge undertook a lengthy review of the governing sentencing
    principles, set out in the
Criminal Code
.  He also addressed, in some
    detail, the approach to be taken in sentencing first offenders (including for
    very serious, violent offences) and the principles relevant to the imposition
    of a life sentence.

[15]

In
    connection with the latter principles, the sentencing judge explicitly
    addressed the defence submission that a life sentence should not be imposed in
    the absence of supporting psychiatric evidence of both continuing dangerousness
    and the limited likelihood for successful treatment.  He also took account of
    the defence contentions that the imposition of a life sentence would be to
    overreach and that protection of the public should not trump all other
    sentencing objectives.

[16]

In
    this case, as we have mentioned, the appellant declined to participate in a
    forensic psychiatric assessment, thereby depriving the sentencing judge of
    insight into his personality or how it is that he could have committed this
    terrible crime, and precipitating the Crowns withdrawal of its dangerous
    offender application.

[17]

The
    appellant was entitled to make this choice.  However, it does not follow that,
    by virtue of that fact, the sentencing judge was precluded from giving any
    weight to the appellants future dangerousness.  On the contrary, the
    sentencing judge was entitled  indeed obliged  to consider the full
    circumstances of these offences and this offender in determining whether the
    gravity of the appellants offences and his moral blameworthiness justified the
    maximum sentence of life imprisonment.  This included the available indicators
    of the appellants future dangerousness and the random and gratuitous nature of
    his attack on the complainant.

[18]

After
    reviewing the relevant authorities, including
R. v. L.M.
, 2008 SCC 31,
    [2008] 2 S.C.R. 163;
R. v. Cheddesingh
, 2004 SCC 16, [2004] 1 S.C.R.
    433;
R. v. Klair
(2004), 71 O.R. (3d) 336 (C.A.);
R. v. Horvath
(1982), 2 C.C.C. (3d) 196 (Ont. C.A.); and
R. v. Knoblauch
, 2000 SCC
    58, [2000] 2 S.C.R. 780, and considering the governing sentencing principles
    and submissions of counsel, the sentencing judge concluded:

In a case such as this, I must fashion a sentence that has as
    its paramount goals denunciation [s. 718(a)], general deterrence [s. 718(b)]
    and the need to separate the offender from society [s. 718(c)].

....

After anxious consideration, and taking into account the
    circumstances of both the offence and the offender, I have concluded that ...
    the facts of this case are so bizarre and shocking that I can infer from the
    circumstances of the offence itself that [the appellant] poses an ongoing
    danger to the public.

...

Thus, I am of the firm view that the appropriate sentence for
    [the appellant] is imprisonment for life.  This result is required by the need
    to separate [the appellant] from society for the protection of the latter [s.
    718(c)] as well as the principle of proportionality set out in s. 718.1 of the
Code
both with respect to the gravity of the offence and the degree of responsibility
    of the offender.

[19]

We
    see no error in the sentencing judges sentencing analysis.  As
R. v. L.M.
holds, at para. 21: [t]here is still place in criminal law for maximum
    sentences in appropriate circumstances.  In this case, the appellant was
    convicted of two offences, which each carry a maximum sentence of life
    imprisonment (aggravated sexual assault and attempt murder).  The circumstances
    of his crimes, described above, were especially egregious and aggravating.  The
    sentencing judge thoughtfully considered all the relevant sentencing principles,
    including the appellants dangerousness and the need to protect the public. 
    For the reasons expressed by him, a life sentence in this case is a fit
    sentence.

III.      Disposition

[20]

Leave
    to appeal sentence is granted and the appeal against sentence is dismissed.

Released:

JUN -5 2012                                    Karen M.
    Weiler J.A.

EAC                                                Janet
    Simmons J.A.


E.A. Cronk J.A.





[1]
Charges of sexual assault with a weapon and possession of a weapon were stayed
    in accordance with the principle in
R. v. Kienapple
, [1975] 1 S.C.R.
    729.


