



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. G.F., 2022 ONCA 44

DATE: 20220121

DOCKET: C65125 & C65126

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.F. and R.B.

Appellants

Richard Posner and Alexander Ostroff, for the appellants

Philippe G. Cowle, for the respondent

Heard: in writing

On appeal from the sentences imposed by Justice Edward J.
    Koke of the Superior Court of Justice on September 6, 2017, with reasons
    reported at 2017 ONSC 5203.

REASONS FOR DECISION

[1]

On June 9, 2016, the appellants were convicted of sexual assault of the
    complainant, C.R. On September 6, 2017, G.F. was sentenced to three and one‑half
    years incarceration and R.B. was sentenced to three years incarceration. On
    June 14, 2019, this court allowed their appeal against conviction and ordered a
    new trial.
[1]
As a result, this court did not address the appellants sentence appeal. The
    Crown then successfully sought leave to appeal that decision to the Supreme
    Court of Canada. On May 14, 2021, that appeal was allowed, and the appellants
    convictions were restored.
[2]
Consequently, this court is now called upon to hear and decide the sentence
    appeals. For reasons that need not be detailed, the parties written
    submissions, that were filed a few months ago, were only recently received by
    the panel.

[2]

The facts underlying the convictions are set out in detail in this
    courts earlier reasons and in the reasons of the Supreme Court of Canada. They
    do not need to be repeated in detail. The appellants were convicted of engaging
    in the sexual assault of a 16-year-old complainant at a campground. The
    complainant was there with her parents and her younger brother. Her parents and
    the appellants were friends. The complainant had been provided with alcohol by
    G.F. and was intoxicated at the time of the sexual assault.

[3]

In terms of personal background, G.F. was born in the United Kingdom and
    immigrated to Canada when he was six years old. He never sought Canadian
    citizenship. He was 42 years old at the time of the offence. He had no criminal
    record. R.B., upon her graduation from high school, entered the workforce and
    always maintained gainful employment. She was 38 years old at the time of the
    offence. She also had no criminal record.

[4]

In his reasons for sentence, the trial judge noted that both counsel
    agreed that deterrence and denunciation are primary objectives in sentencing
    for offences such as those committed by the appellants. In terms of aggravating
    circumstances, the trial judge noted:

·

the complainant was only 16 years old, and both of the appellants
    were more than twice her age;

·

the complainant was under the influence of alcohol and most of
    the alcohol she drank was given to her by G.F. without the consent or approval
    of her parents;

·

the sexual activity was a violation of trust. The complainants
    parents trusted that their 16-year-old daughter would be treated with respect
    and consideration when they agreed to let her sleep in the trailer with the two
    appellants;

·

the sexual activity took place without any protection. This
    naturally gave rise to concerns about STIs and pregnancy; and

·

the extent of the sexual activity was not low-end conduct. The
    appellants manipulated the complainant into several physical positions, over
    the course of some time, and the complainant was completely objectified and
    degraded as a sexual object.

[5]

In terms of mitigating factors, the trial judge noted that neither of
    the appellants had a criminal record; they did not have any history of
    inappropriate conduct with young persons; and they were both hardworking
    individuals. The trial judge was concerned, however, by the fact that neither
    of the appellants had accepted any responsibility for their conduct.

[6]

The Crown had sought a four year custodial sentence for G.F., and a
    three year custodial sentence for R.B. The appellants both sought two year
    suspended sentences, with three years probation. As earlier noted, the trial
    judge imposed a sentence of three and one-half years on G.F. and three years on
    R.B.

[7]

The appellants raise a number of complaints with respect to the trial
    judges approach to the sentences. These include:

·

the trial judge used his own personal objection to the type of
    conduct involved, that is, group sexual activity along with sexual activity
    involving persons of very different ages, to increase the sentence;

·

the trial judges use of the appellants failure to take
    responsibility penalized them for maintaining their innocence;

·

the trial judge erred in finding that there was a breach of trust
    involved in this case;

·

the trial judge did not adequately distinguish between the appellants
    relative culpability;

·

the trial judge erred by failing to consider collateral
    immigration consequences for G.F.;

·

the trial judge erred by failing to consider collateral
    consequences for R.B. involving her history of mental health issues; and

·

the sentences were outside the range for similarly situated
    offenders.

[8]

We do not accept any of these complaints. In particular, while we accept
    that some of the language used by the trial judge in describing the sexual
    activity was inappropriate and unnecessary, we do not view it as having
    impacted the ultimate sentences imposed. We believe that it was open to the
    trial judge to find that there was an element of a breach of trust in this case
    given the particular circumstances. In that regard, we note that trust
    relationships can arise in varied circumstances and they fall along a spectrum:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 125. The
    immigration consequences were not ones that could have driven the appropriate
    sentence down to the point where they would have had any impact. Immigration
    consequences cannot be used to justify the imposition of inappropriate and
    artificial sentences:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at
    para. 15.

[9]

In advancing their argument about similarly situated offenders, the
    appellants have relied on case law that does not reflect facts that are similar
    to the ones here. The Crown points to a collection of different cases more
    closely resembling the facts of this case, which justify a sentence in the
    range of three to four years. It is this reality that often makes reference to
    other cases of limited use in determining an appropriate sentence. What is
    important is that the sentences imposed in this case are clearly far from being
    demonstrably unfit.

[10]

An
    appellate court may only interfere with a sentence if the sentencing judge
    erred in principle, failed to consider a relevant factor or erroneously considered
    an aggravating or mitigating factor, and the error had an impact on the
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    44. The appellants have failed to show that any of these errors occurred in
    this case.

[11]

In
    our view, the trial judge imposed sentences that were proportionate to the
    activities underlying the offences committed. His differentiation between the
    two appellants in terms of sentencing was reasonable and is entitled to deference.

[12]

While
    we would grant leave to appeal the sentences, the appeals are dismissed.

David Watt J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.





[1]

R. v. G.F.
, 2019 ONCA 493, 146 O.R.
    (3d) 289.



[2]

R. v. G.F.
, 2021 SCC 20, 404 C.C.C.
    (3d) 1.


