



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R.M., 2020 ONCA 231

DATE: 20200319

DOCKET: C66700 & C67200

Hourigan, Miller and Nordheimer
    JJ.A.

DOCKET:
    C66700

BETWEEN

Her Majesty the Queen

Respondent

and

R.M.

Appellant

DOCKET: C67200

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.M.

Respondent

Andrew Burgess, for R.M.

Ken Lockhart, for Her Majesty the Queen

Heard: February 21, 2020

On appeal from the conviction entered by
    Justice Brian P. OMarra of the Superior Court of Justice, dated September 27,
    2018, with reasons reported at 2018 ONSC 5358, and the sentence imposed on June
    18, 2019, with reasons reported at 2019 ONSC 3007.

Hourigan J.A.:


I.

overview

[1]

R.M. was found guilty of gang sexual assault,
    sexual assault with a weapon, uttering threats, and robbery. He was 17 years
    old at the time of the offences but was not charged until approximately 24
    years later. R.M. appeals both his convictions and sentence. The Crown cross-appeals
    the conditional stay of the gang sexual assault conviction. As will be
    discussed, I would dismiss the conviction and sentence appeals, but allow the
    Crowns cross-appeal.

[2]

R.M. advances two grounds of appeal against his
    conviction. First, he submits that the verdict is unreasonable because other
    reasonable inferences could have been drawn from the circumstantial evidence. I
    would not give effect to this ground of appeal, as the alternative inferences
    proposed by R.M. are entirely speculative.

[3]

The second argument made on the conviction
    appeal is that the trial judge erred in his assessment of the complainant's
    credibility. I do not accept that submission. The trial judge properly
    considered inconsistencies in the complainant's evidence and determined that
    those inconsistencies were immaterial to his finding that the complainant was
    credible.

[4]

The trial judge sentenced R.M. to six years
    incarceration for the sexual assault with a weapon conviction, and one year
    each for the convictions for robbery and uttering threats, all to be served
    consecutively for a total of eight years. On the sentence appeal, R.M. submits
    that a youth sentence is appropriate, or alternatively, an adult sentence of
    three years incarceration should be imposed.

[5]

In support of his position that a youth sentence
    is appropriate, R.M. submits that the Crown failed to rebut the presumption of
    diminished moral culpability for a young offender (the Presumption). Given
    that the trial took place approximately 27 years after the offences, there was
    not extensive evidence regarding R.M.s maturity, moral sophistication, and
    capacity for independent judgment at the time of the offences. However, there
    was sufficient evidence on the record to permit the trial judge to conclude
    that the Crown had met its onus of rebutting the Presumption. Accordingly, I
    would dismiss this ground of appeal.

[6]

The second ground of appeal on sentence is that
    the trial judge violated the Coke principle, which will be explained below at
    para. 31, by relying on R.M.s subsequent criminal record as an aggravating
    factor in sentencing him for what were his first offences. Assuming, without
    deciding, that the Coke principle applies in this case, I am not satisfied that
    the trial judge used the subsequent record as an aggravating factor on
    sentence. Instead, he made a brief reference to the record for the permissible
    purpose of evaluating R.M.s rehabilitative prospects.

[7]

Regarding the fitness of the sentence, this was
    a vicious sexual assault of a vulnerable victim. The trial judge did not err in
    fixing the sentence, and the sentence was not demonstrably unfit. There is,
    therefore, no basis for appellate interference.

[8]

Concerning the Crown cross-appeal, the trial
    judge erred in conditionally staying the gang sexual assault conviction because
    there is an insufficient legal nexus between that conviction and the conviction
    for sexual assault with a weapon. Therefore, the conditional stay order must be
    set aside.


II.

Facts

[9]

In the summer of 1990, the complainant was 21
    years old and was a sex worker in Toronto. On the night of August 16, a client
    drove her back from his apartment to the intersection of Church and Carlton
    Streets. The complainant got out of the car and was looking through her purse
    for a cigarette when someone grabbed her and dragged her into a parking lot.
    Two men violently and repeatedly raped her at knifepoint. They debated whether
    they should let her get away. They threatened her not to tell anyone,
    ridiculed her, robbed her of $500, and then fled.

[10]

Fearful that the assailants might still be in
    the area, the complainant gathered her belongings and flagged down a taxi,
    which took her to the hospital. The subsequent police investigation was
    unfruitful.

[11]

In 2002, a police review of cold cases
    discovered deposits of two male DNA profiles in the complainant's underwear. In
    2016, a blood sample was matched to one of these DNA profiles. There was no
    dispute that the major DNA profile in the complainant's underwear belonged to
    R.M.

[12]

At trial, the complainant was able to recount
    the details of the sexual assault but was inconsistent in describing some of
    the events that occurred before, and during, the assault. R.M. did not testify
    or call any evidence.


III.

Analysis

(a)

Conviction Appeal

(i)

Unreasonable Verdict

[13]

This was a
    circumstantial case. The only evidence tying R.M. to these crimes was the
    presence of his DNA in the complainant's underwear. Accordingly, the trial
    judge could only have found R.M. guilty if he was satisfied that guilt was the
    only reasonable conclusion on the evidence:
R. v.
    Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, at paras. 18-19, and 55.

[14]

In support of the
    unreasonable verdict argument, R.M. submits that there were various reasonable
    possibilities inconsistent with his guilt. Specifically, he argues that there
    are three ways in which his DNA could have been deposited in the complainants
    underwear:

(1)

He may have been one of the complainants customers shortly before
    the attack, and his semen may have been deposited in the complainants
    underwear, directly or indirectly.

(2)

He may have had sex with the complainant at an earlier point, and
    condom failure may have deposited his semen within the complainant. The semen
    may have then drained onto her underwear over time, and the complainant either
    did not change her underwear, or the semen withstood washing, in the interim.

(3)

The semen may have been located on a surface which made contact with
    the complainant or her underwear, and such contact may have transferred the
    semen to the underwear if either the semen or the underwear was wet.

[15]

R.M. relies on the fact
    that the complainant performed sex acts on a commercial basis and could not
    recall, many years later, whom she had intercourse with, to support the
    possibility that he may have been one of those men.

[16]

In a mostly
    circumstantial case, the trier of fact must consider all plausible theories
    inconsistent with guilt. However, those theories must not be speculative and
    must be rooted in logic and experience as applied to the evidence or lack of
    evidence. A trier of fact is not required to negate every possible conjecture
    which might be consistent with the innocence of the accused:
R. v. Onyedinefu
, 2018 ONCA 795, at para 12.

[17]

All of these theories
    were considered by the trial judge and rejected as speculative. That finding
    was open to him as there was no evidence to support the theories. There was,
    for example, no evidence that R.M. had ever been a customer of the complainant.
    There was also evidence to negate the theories. The complainant testified that
    she did not recognize R.M., which casts doubt on whether he was a customer on
    the evening of the attacks or at any other point. Further, at the time of the
    attacks, the only person the complainant was having unprotected sex with was
    her boyfriend. Finally, the complainant was consistent and reliable in her
    evidence as to her meticulous practices as a sex worker. She always made
    customers use double condoms, and she avoided contact with semen.

[18]

For these reasons, I
    would dismiss this ground of appeal.

(ii)

Credibility Assessment

[19]

R.M.s second argument
    on his conviction appeal is that the trial judge erred in his assessment of the
    complainants credibility. There were inconsistencies in the complainants
    evidence related to the details of events that preceded the attack, in
    particular the nature of the sex acts she engaged in with her clients before
    the attack. R.M. argues that these inconsistencies are crucial, and they
    support the argument that he may have been a client of the complainant at some
    relevant point.

[20]

This argument is not
    persuasive. There is no question that the complainant was violently sexually
    assaulted. She provided details regarding the assault, including information
    about the perpetrators actions and what they said during and after the attack.
    The credibility and reliability of that evidence are not challenged. The trial
    judge did not err in finding that the inconsistencies regarding whom the
    complainant had sex with, and precisely what happened during those encounters,
    were immaterial to his credibility assessment. R.M. relies on them solely to
    support his speculative alternative theories of liability, which do not raise a
    reasonable doubt about his guilt
.
The trial judge found the complainant
    reliable and consistent on key points of relevance to these alternative
    theories: she had unprotected consensual sex only with her boyfriend; her
    invariable practice as a sex worker was to always use condoms; and the only
    unprotected sex she had on the night of the attack was with her two attackers.

(b)

Sentence Appeal

(i)

Appellate Review of Sentence

[21]

Before considering the
    submissions made by R.M. on sentence, it is helpful to reflect on the authority
    of intermediate courts of appeal on sentence appeals.

[22]

In
R. v. Adan
, 2019
    ONCA 709
, at paras. 103-106,
    Watt J.A. provided a useful summary of the principles of appellate review of
    sentences after
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089:

First, sentencing judges are in the best position
    to determine a just and appropriate sentence that pays heed to the sentencing
    objectives and principles set out in the
Criminal
    Code
. It is especially so where the sentence is
    imposed after a contested trial. Accordingly, appellate courts accord
    substantial deference to sentencing decisions when exercising their powers of
    review under s. 687(1) of the
Criminal Code
:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 11, 48.

Second, an appellate court is entitled to
    intervene under s. 687(1) of the
Criminal Code
where the sentencing judge erred in principle, failed to consider a
    relevant factor, or erred in considering an aggravating or mitigating factor,
    but only if it appears from the sentencing judges decision, read as a whole,
    the error  had an impact on the sentence ultimately imposed:
Lacasse
, at paras. 43-44.

Third, the mere fact that a judge deviates from
    the proper sentencing range does not, on its own, justify appellate
    intervention. The choice of sentencing range or of a category within a range
    falls within the trial judges discretion and cannot, on its own, constitute a
    reviewable error. Apart from errors of law or principle that impact the
    sentence, appellate intervention is only warranted where the sentence imposed
    is demonstrably unfit, that is to say, clearly unreasonable:
Lacasse
, at
    paras. 11, 51-52.

The final point concerns aggravating and
    mitigating factors. While it is an error to consider an element of the offence
    an aggravating factor, such an error must have had an impact on the sentence
    imposed to permit appellate intervention:
Lacasse
, at paras. 42-44. Likewise, a sentencing judges decision to weigh
    aggravating and mitigating factors in a particular way does not, in itself,
    permit appellate intervention unless the weighing is unreasonable:
Lacasse
, at para. 49, 78.

[23]

As is apparent from the
    foregoing, the authority of appellate courts to interfere with sentences
    imposed by trial judges has been significantly constrained by the Supreme Court
    as a result of
Lacasse
and subsequent jurisprudence. With those principles
    in mind, I turn to the grounds of appeal advanced by R.M. on his sentence
    appeal.

(ii)

Presumption of Moral Blameworthiness

[24]

Section. 72(1) of the
Youth Criminal Justice
    Act
, S.C. 2002, c.1, provides:

72

(1)
The youth justice court shall order that an adult sentence be imposed if it
    is satisfied that

(a)
the presumption of diminished moral blameworthiness or culpability of
    the young person is rebutted; and

(b)

a youth sentence imposed in accordance with
    the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38
    would not be of sufficient length to hold the young person accountable for his
    or her offending behaviour.

[25]

The leading case in
    Ontario on the Presumption is

R. v. M.W.
, 2017 ONCA 22, 134 O.R. (3d) 1, leave to
    appeal refused, [2017] S.C.C.A. No. 109. There, this court stated, at para. 98:

In order to rebut the Presumption the Crown
    must satisfy the court that, at the time of the offence, the evidence supports
    a finding that the young person demonstrated the level of maturity, moral
    sophistication and capacity for independent judgment of an adult such that an
    adult sentence and adult principles of sentencing should apply to him or her.

[26]

Due to the passage of time, in the present case,
    the Crown was unable to adduce the type of evidence that might typically be
    relied on to rebut the Presumption. There was, for example, no psychological
    evidence regarding R.M.s maturity at the time of the offences. In the absence
    of that evidence, R.M. argues that the trial judge erred by merely relying on
    the nature of the offences as evidence of R.M.s character at the time. He
    submits that if sentencing judges need look no further than the constituent
    elements of the offence charged for evidence that the Presumption has been
    rebutted, then in any case where there is planning and deliberation, the
    Crowns onus will be satisfied, defeating the purpose of the Presumption.

[27]

I do not accept this submission. A fair reading
    of the trial judges reasons for sentence refutes the suggestion that he relied
    solely on the nature of the offences to rebut the Presumption. At para. 19 of
    his reasons for sentence the trial judge stated:

The joint planning in bringing a knife,
    targeting a vulnerable victim, carrying out the attack in a secluded place away
    from witnesses, taking the time to rob the victim instead of immediately
    fleeing, and debating but declining to commit a more serious offence by not
    letting their victim get away all support a level of maturity, independent
    judgment, and foresight similar to that of an adult. Moreover, [R.M.] was
    chronologically very close to the adult age of 18 years at the time of the
    offence.

[28]

This passage makes
    plain that the trial judge considered the dynamics of the commission of the
    offences to determine what those circumstances tell us about the offender. The
    attackers had a knife at the ready. They targeted a vulnerable sex worker at
    night close to a secluded spot suitable for the assault. They cooperated
    throughout their attack, so that one could keep a knife to her throat while the
    other assaulted her. They thought to check the insole of her shoe for concealed
    cash. They joked about the money she had made that evening, and one attacker
    laughed at the others inability to penetrate. They weighed the costs and
    benefits of letting her get away, as she might go to the police, and after
    considering what would be more trouble, one of them said that they should
    leave her, as this was just raping. Such deliberations suggest an appreciation
    of the crimes they were committing, the crimes they considered committing, and
    the risks and consequences attendant on both.

[29]

The seriousness of the
    offence and the presence of planning and deliberation do not in themselves lead
    to the conclusion that an offender should be sentenced as an adult. However,
    the seriousness of the offence must be considered in the analysis. The level of
    moral judgment or sophistication demonstrated in the planning and
    implementation of the offence, and the offenders role in carrying out the
    offence, are relevant to the analysis:
M.W.
at para. 112;
R.
    v. Ellacott
, 2017 ONCA
    681, at paras. 15-21.

[30]

The trial judge
    carefully reviewed the circumstances of the offences and reached a conclusion
    that was open to him. He found that both attackers were equal participants,
    with neither serving as the leader or follower. There was no error in that
    analysis. There is no basis for appellate interference with this finding, and
    this ground of appeal must fail.

(iii)

The Coke Principle

[31]

The Coke principle, and
    its underlying rationale, was recently described by Paciocco J.A. in
R. v. Wilson
,
    2020 ONCA 3, at paras 60-61, as follows:

Lord Cokes principle is a common law rule
    applicable to sentencing proceedings unless ousted by a clear statutory
    provision or by necessary implication:
R. v.
    Hexamer
, 2019 BCCA 285, at para. 171, leave to appeal
    requested, [2019] S.C.C.A. No. 343, citing
Skolnick
, at p. 58. It holds that subsequent convictions cannot be relied upon
    to aggravate the sentence imposed for a prior offence.

Lord Cokes principle makes sense. A repeat
    offender who has already been sentenced for offending may require increased
    punishment to achieve specific deterrence since they have not learned from
    their earlier sentence. Their degree of responsibility is heightened by the
    contempt their subsequent conduct may show for the sentencing process:
R. v. Cheetham
(1980), 1980 CanLII 2978
    (ON CA), 53 C.C.C. (2d) 109 (Ont. C.A.), at p. 114. These considerations do not
    operate where the offender committed the offence being sentenced before being
    punished for subsequent offences.

[32]

R.M. argues that the trial
    judge erred by taking into account, as aggravating factors, convictions that
    were registered after the commission of the offences at issue in this appeal.
    Before dealing with that submission, conflicting case law on the breadth of
    application of the Coke principle should be considered. An issue that has
    divided appellate courts in Canada is whether the Coke principle applies to
    subsequent convictions in sentencing generally, or whether its application is
    restricted to situations where a penal statute imposes a harsher sentence for a
    second or subsequent offence.

[33]

It appears that the
    principle was so restricted when first formulated by Lord Coke over 200 years
    ago.
The Court of Appeal of New Brunswick
in
Andrade v. R.
, 2010 NBCA
    62, 363 N.B.R. (2d) 159, has adopted this restrictive view. However, the
Court of Appeal for British Columbia
    recently considered and rejected the approach from
Andrade
in
R. v. Pete
, 2019 BCCA 244. There, the court held that while the Coke
    principle originated as a common law principle of statutory interpretation, it
    has since become the proper general approach
to first offenders who have been subsequently
    convicted of other offences by the time they are sentenced
.

[34]

This court has not
    definitively ruled on the issue. I note that in
Gill
    v. Ontario (Registrar of Motor Vehicles)

(1985), 21
    D.L.R. (4th) 202
, leave to
    appeal refused, 64 N.R. 396 (note), which involved increasing civil
    consequences under the
Highway Traffic Act
, R.S.O. 1980, c. 198, for subsequent
    criminal offences, this court held that the Coke principle does not relate
    solely to criminal sanctions but can include sanctions of any kind imposed by
    statute. The court wrote at p. 205 that the Coke principle is not a criminal
    rule at all, but a rule of statutory interpretation derived from
Cokes Institutes
, vol. 2, involving the application of increased penalties for second and
    subsequent offences. The court seems to have assumed that the rule is only
    concerned with statutorily-imposed increasing sanctions, be they criminal or
    civil.

[35]

The determination of
    this ground of appeal does not depend on a resolution of this conflict in the
    jurisprudence. The authorities are consistent that, irrespective of whether the
    Coke principle applies, a subsequent record may be used to assess an offender's
    rehabilitative prospects: see
Wilson
, at para 67;
Pete
, at para 40. This is a sound policy, as rehabilitative
    prospects should be assessed as they stand at the time of sentencing, not as
    they stood at the time the offence was committed.

[36]

In the present case,
    the trial judge included a reference to the subsequent record under the heading
    Aggravating Factors, at para. 24:

[R.M.] has accumulated an extensive criminal
    record, all of it since the offences were committed in August 1990. They were
    not prior convictions that would otherwise support an increased sentence based
    on well-established principles. However, he is not Jean Valjean who stole half
    a loaf of bread long ago and has led an exemplary life since. In my view his
    record of convictions since 1990 are of some limited relevance on the issue of
    prospects for rehabilitation.

[37]

The trial judge was
    aware that these were first offences. He did not treat the subsequent record as
    an aggravating factor. Instead, the trial judge used it as an aid in
    determining the current rehabilitative prospects of R.M. This was not a
    violation of the Coke principle, and therefore this ground of appeal must be
    rejected.

(iv)

Fitness of Sentence

[38]

The fact that the
    reviewing court would have put the sentence in a different range or category is
    not a basis for appellate interference. However, the reviewing court may
    intervene, even in the absence of error, where the sentence imposed is
    demonstrably unfit:
Lacasse
, at paras. 51-52.

[39]

As the Supreme Court
    stated in
Lacasse
, the term demonstrably unfit has been used
    interchangeably with other terms such as: clearly unreasonable, clearly or
    manifestly excessive, "clearly excessive or inadequate, or representing
    a substantial and marked departure. All of these terms are a caution to
    appellate courts that there is a very high threshold that applies when
    determining whether they should intervene based on the fitness of a sentence:
Lacasse
, para.
    52.

[40]

At trial, the Crowns
    position was that a sentence of ten years incarceration was appropriate, while
    the defence argued that the fit sentence was three years incarceration, if
    sentenced as an adult. The trial judge carefully considered the appropriate
    sentence. He referenced the relevant principles, considered the issue of
    time-lapse in sentencing sexual assaults, and relied on
R. v. Kavanagh
,
2009 ONCA 759, 255
    O.A.C. 285, where this court imposed a sentence of ten years' incarceration for
    a similar sexual assault.

[41]

On appeal, the Crown
    has filed several cases which it says establish that the appropriate range in
    the present case is between five and ten years. Of particular relevance is
R v. Assing
, 2008
    CanLII 58607 (Ont. S.C.). In that case, the defendant assaulted the victim
    while she walked past a wooded area and threatened her with a knife. He then
    dragged her to a townhouse where he bound her and forced intercourse on her
    twice. The defendant had no prior record, had strong family support, and showed
    signs of rehabilitative potential. He received a global sentence of nine years
    incarceration for convictions for sexual assault with a weapon, robbery, and
    forcible confinement.

[42]

In
R v. Wyatt
,
    2017 ONCJ 390, another case relied on by the Crown, the defendant was convicted
    of sexual assault causing bodily harm and sentenced to eight years
    incarceration. In that case, he ambushed the victim and forced fellatio,
    digital penetration, and intercourse. The defendant had a prior criminal record
    and was on release at the time of the offence. However, he also pleaded guilty,
    and there was evidence of rehabilitative efforts in advance of sentencing.

[43]

Finally, in
Kavanagh
,
this court, in imposing a ten-year
    sentence, described the circumstances of the offence and the offender as
    follows, at para. 7:

This was a brutal sexual assault on a
    vulnerable woman working at night in a convenience store. The appellant came
    into the store, waited until there were no other customers, then locked the
    door and threatened the complainant that he would kill her with the knife he
    claimed to have in his back pocket. He forced her into the back room and forced
    her to perform oral sex, then penetrated her vaginally without using a condom.
    The offence was premeditated and brutal on a totally vulnerable victim who
    suffered significant long-term consequences in her personal life, including
    estrangement from her family and ongoing fear. The appellant had a criminal
    record that included a domestic assault.

[44]

A global sentence of 8
    years' incarceration for a 17-year-old first-time offender may appear to be
    harsh. However, the trial judge appears to have been influenced by the very
    serious nature of the offences. The complainant was repeatedly raped, by two
    men, without condoms, while a knife was held to her throat. They threatened her
    with death, robbed her, and ridiculed her. After raping her, they debated
    whether they should let her get away as she would go to the cops if they
    did. This was a particularly vicious attack where a vulnerable victim was
    terrorized and humiliated.

[45]

Another sentencing
    judge may well have imposed a lesser sentence. However, that is not the test. The
    test is whether the sentence is demonstrably unfit. Based on the circumstances
    of the offences and the offender, and mindful of the jurisprudence that I have
    just reviewed, I am not satisfied that the sentence is demonstrably unfit. I
    would, therefore, dismiss the sentence appeal.

(v)

Crown Cross-Appeal

[46]

The Crown submits that
    the trial judge erred in unilaterally staying the conviction for gang sexual
    assault based on the principles in
Kienapple v. R.
,
[1975] 1 S.C.R. 729. In making this submission, the
    Crown does not seek an increase in the sentence; the only remedy it seeks is a
    more accurate criminal record.

[47]

The
Kienapple
principle provides that where the same transaction gives rise to two or more
    convictions on offences with substantially the same elements, the accused
    should be convicted only of the most serious offence. There must be both a
    factual and legal nexus between the offences. The requisite factual nexus is
    established if the charges arise out of the same transaction; the legal nexus
    is established if the offences constitute a single criminal wrong or delict:
R. v. Rocheleau
,
    2013 ONCA 679, 311 O.A.C. 295, at para. 24.

[48]

As Doherty J.A. noted
    in
R. v. Kinnear
(2005)
, 199 O.A.C. 323 (C.A.), at para. 34, the identification of a factual
    nexus is usually a straightforward exercise when compared to the more nuanced
    identification of a legal nexus:

A comparison of the constituent elements of
    the offences in issue is an essential part of the legal nexus inquiry. 
    However, the mere fact that offences share common elements does not establish a
    sufficient legal nexus between those offences to warrant the application of the
Kienapple
rule.  The legal nexus inquiry is directed not at finding
    common elements between offences, but at determining whether there are
    different elements in the offences which sufficiently distinguish them so as to
    foreclose the application of the
Kienapple
rule.  As indicated in
    Prince at p. 49:

[T]he
    requirement of sufficient proximity between offences will only be satisfied if
    there is no additional and distinguishing element that goes to guilt contained
    in the offence for which a conviction is sought to be precluded by the
Kienapple
principle.

[49]

The crucial question is whether the offences
    represent different criminal wrongs or the same wrong committed in different
    ways. A sufficient legal nexus is not established where the offences target
    different societal interests, different victims, or prohibit different
    consequences: Kinnear, at para, 39.

[50]

In the present cross-appeal, the Crown argues
    that there is an insufficient legal nexus because the offences have different
    elements and protect different interests. R.M. submits that gang sexual assault
    and sexual assault with a weapon are two ways of committing the same offence.

[51]

This courts decision in
R. v. Osbourne
(1994), 75 O.A.C. 315 (C.A.), leave to appeal refused, [1995] S.C.C.A. No. 91,
    is instructive. There, the appellant pulled out a gun and fired at police
    officers, but missed them. He was convicted of aggravated assault and of using
    a firearm in the commission of the aggravated assault. Finlayson J.A. upheld
    both convictions and rejected a
Kienapple
argument. The aggravated
    assault conviction was based on the fact that the appellants conduct
    endangered the life of the police officer. The court found that aggravated assault
    could be committed in a variety of ways, with or without weapons, and that if
    the offender chose to commit aggravated assault using a firearm, this attracted
    additional liability.

[52]

In my view, sexual assault with a weapon and
    gang sexual assault are not two ways of committing the same offence. Though
    both involve heightened coercion, the two offences protect different interests.
    The use of a weapon significantly increases the risk of physical harm.
    Committing sexual assault in a group compounds the violation of the victims
    sexual integrity and may significantly increase the risk of sexually
    transmitted disease and pregnancy. Following Osbourne, R.M.s decision to
    commit sexual assault with a weapon, and his decision to commit the offence
    with another party, should each attract criminal liability. Therefore, I would
    allow the Crowns cross-appeal.


IV.

disposition

[53]

I would dismiss the
    conviction appeal, grant leave to appeal the sentence and dismiss the sentence
    appeal. I would also allow the Crown's cross-appeal, set aside the conditional
    stay of the gang sexual assault conviction, and enter a conviction.

Released: I.V.B.N. March 19, 2020

C.W.
    Hourigan J.A.

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

I agree.
    I.V.B. Nordheimer J.A.


