



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Franchino, 2018 ONCA 350

DATE: 20180410

DOCKET: C63434

Feldman and Benotto JJ.A. and Sachs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Duilio Franchino

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Molly Flanagan, for the respondent

Heard and released orally: March 27, 2018

On appeal from the conviction entered on September 23,
    2016, by Justice John McMahon of the Superior Court of Justice, sitting with a
    jury and the sentence imposed on February 7, 2017.

REASONS FOR DECISION

[1]

The appellant was charged with administering a noxious substance,
    administering a stupefying substance for the purpose of sexual assault and
    sexual assault, in connection with events that took place on April 17, 2014. He
    was also charged with two other counts of administering a noxious substance
    regarding incidents alleged to have occurred on February 17, 2014 and March 29,
    2014 with the same complainant.  The appellant was convicted of one count of
    administering a noxious substance on April 17, 2014 and sentenced to nine
    months in custody plus two years probation. He was acquitted of all the other
    charges.

[2]

The appellant appeals both conviction and sentence.

Conviction Appeal

[3]

The appellant submits that the conviction is inconsistent with the two
    acquittals in relation to the same incident on April 17, 2014. The appellant
    argues that the evidence with respect to the three charges was so interlinked
    that an acquittal on the two regarding the reason for administering the noxious
    substance, sexual assault, necessarily makes it inconsistent to convict on the
    third count of administering a noxious substance.

[4]

We do not accept this submission. The jury was given a decision tree that
    guided them as to available verdicts, one of which was to convict on the
    administration of a noxious substance count and acquit on the other two. The
    jury could have had a reasonable doubt about the sexual assault and the sexual
    assault motive for administering the noxious substance, but no reasonable doubt
    that the appellant put GHB into the wine that he brought to the complainants
    apartment and served it to her while he drank beer.

[5]

The appellant also argues that, as this was a circumstantial evidence
    case on the issue of who spiked the wine, then based on the decision of the
    Supreme Court of Canada in
Villaroman
, 2016 SCC 33, the jury could not
    be satisfied that the only reasonable conclusion was that the perpetrator was
    the appellant.

[6]

We also do not accept this submission. The jury was entitled to reject
    as unreasonable or speculative that there was any other explanation on the
    evidence for how the drug got into the wine other than it was put there by the
    appellant.  It caused the complainant to become ill which was observed by her
    roommate. That occurred before the wine was left in the fridge.

[7]

We see no basis to interfere with the jurys verdict.

Sentence Appeal

[8]

The trial judge rejected the appellants submission that this was an
    appropriate case for a conditional sentence. The maximum sentence for a
    conviction under s. 245 (b) of the
Criminal Code
is two years. The
    Crown asked for a sentence of 12-15 months, while the appellant asked for
    either a conditional sentence, a suspended sentence, or a 90-day sentence to be
    served intermittently.

[9]

The trial judge rejected a suspended sentence as entirely inappropriate.
    He also considered, in accordance with the Supreme Court of Canadas decision
    in
R. v. Proulx
, 2000 SCC 5, the general deterrent effect of a
    conditional sentence, but rejected a conditional sentence for the following
    reasons:

In this [case] however, based upon the degree of planning, the
    breach of trust of his friend, the significant risk of the health of the victim
    and the nature of the drug used, I am not satisfied that a conditional sentence
    could adequately address the issues of general deterrence and denunciation.

[10]

The
    appellant submits that the trial judge erred in principle by rejecting a
    conditional sentence without explaining why that sentence could not achieve the
    general deterrent purpose of sentencing in this case.

[11]

While
    we agree that a conditional sentence was available to the trial judge, we do
    not agree that he erred in principle by rejecting it. He acknowledged all of
    the mitigating factors that could ground the imposition of a conditional
    sentence, as well as the aggravating factors. While he recognized that a
    conditional sentence was available for the reasons he articulated, he found
    that a conditional sentence would not adequately address the issues of general
    deterrence and denunciation in this case. He was entitled to make that finding.
    There is no basis to interfere.

[12]

The
    final submission the appellant makes is that the nine month sentence in this
    case was too long and too harsh a sentence in the circumstances. The trial
    judge was focused on the need for general deterrence, where a person is
    convicted of administering a noxious substance. He described the serious
    factors that required him to impose a significant sentence. Notably, the
    sentence he imposed was well below what the Crown was asking for, in order to
    reflect the mitigating factors. We see no basis to interfere with the trial
    judges discretionary decision to impose the sentence he did, to which this
    court owes deference.

[13]

In
    the result, the appeal against conviction is dismissed, leave to appeal
    sentence is granted, but the appeal is dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

Sachs J.


