



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Milani, 2021 ONCA 567

DATE: 20210813

DOCKET: C65310

Feldman, Lauwers and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Milani

Appellant

Jill Makepeace, for the appellant

Avene Derwa, for the respondent

Heard: February 18, 2021 by videoconference

On appeal from the sentence imposed by
    Justice Helen M. Pierce of the Superior Court of Justice on April 21, 2017.

Feldman J.A.:

A.

INTRODUCTION

[1]

The appellant seeks leave to appeal the 20-year custodial
    sentence that he received after his conviction by a jury on 18 counts of home
    invasion sexual assaults and related offences, including robbery. The offences
    took place between 1985 and 1987 in the rural areas of Thunder Bay. The
    appellant broke into the homes of his female victims at night, usually when
    they were alone, and forced them to participate in sexual acts. Of the five
    sexual assaults (two against the same victim on different occasions), one was carried
    out with a knife and two were carried out at gunpoint. Each time, the appellant
    planned his attacks, took steps to hide his identity, and gave himself an
    opportunity to get away, either by confining his victims or by cutting their
    phone lines. Although the appellant was arrested and charged in 1987, he was not
    committed to trial at the preliminary hearing. The Crown was only able to
    proceed with the case in 2016, approximately 30 years after the crimes had occurred.
    By the time of trial, two of the victims had passed away. The appellant was
    sentenced when he was 69 years old.

[2]

The appellant submits that the sentencing judge
    made two errors: (1) the sentencing judge erred in her approach to the totality
    analysis and, as a result, imposed a sentence exceeding his overall
    culpability; and (2) the sentencing judge failed to properly consider the
    passage of time and the appellants advanced age as mitigating factors. The
    appellant argues that when these mitigating factors are taken into account, a
    global sentence of 14 years imprisonment is appropriate in the circumstances.

[3]

For the reasons that follow, I disagree. The sentencing
    judge gave thorough and thoughtful reasons that responded to the evidence and
    the submissions of counsel. The sentence she imposed was a fit one for the
    crimes committed and the circumstances of the offender. I would grant leave to
    appeal the sentence, but I would dismiss the appeal.

B.

FACTS

[4]

The appellant was charged with offences that
    arose out of four incidents. As this was a jury trial, the sentencing judge found
    the facts of each incident in her reasons for sentence. The following is the
    sentencing judges description of the incident from 1985, when the appellant
    entered the home of E.N., used a knife to bind her hands and feet with rope,
    and then coerced her into performing oral sex on him and having vaginal
    intercourse:

The [E.N.] Offences


Mr. Milani was convicted on the following
    charges in relation to [E.N.]:

Count Number 1: break and entering a dwelling house
    and commit sexual assault;

Count Number 2: sexual assault; and

Count Number 4: unlawful confinement.

At the time of the assault, [E.N.] was about
    58 years old. She died before trial; consequently, her testimony at the
    preliminary hearing was read into the record as her evidence at trial.

The facts are that, in the darkness of the
    early morning hours of April 20, 1985, Mr. Milani broke into [E.N.]s home
    through a window. She had locked the doors before retiring for the night. Her
    home was in a rural area outside Thunder Bay. A shoe impression resembling a
    shoe seized later at the Milani home was documented outside the window. At the
    time of the offences, Mr. Milani appeared to know some of [E.N.]s personal
    circumstances; particularly that she lived alone at the time.

She was sleeping and awoke to a flashlight
    shining in her face. Mr. Milani tied her hands and feet, threatening to hurt
    her if she did not cooperate. She was frightened. He warned her not to look at
    him. She could hear him cut the rope with a knife although she did not see a
    knife. He ran water in the adjacent bathroom and then returned to her bedroom.
    He untied her and he demanded that she give him oral sex twice. She complied,
    and then he engaged in vaginal intercourse with her twice.

When Mr. Milani left, [E.N.] called her son.
    He found his mother in a distraught condition. The police also attended, and
    she was taken for medical attention. Bedding seized was tested for DNA in later
    years, and the results did not exclude Mr. Milani.

[5]

The second and third incidents, dated 1986 and
    1987 respectively, involved the same victim, J.B. On both occasions, the
    appellant broke into her home late at night and demanded oral and vaginal sex
    from her. The sentencing judge described the details of the incidents as
    follows:

The First [J.B.] Offences

[J.B.] was assaulted by Mr. Milani on two
    different occasions. He was convicted of the following offences relating to the
    first incident:

Count Number 5: break and entering a dwelling
    house and commit sexual assault;

Count Number 6: sexual assault;

Count Number 7: intend to commit indictable
    offence while masked; and

Count Number 8: unlawful confinement.

At the time of these offences, [J.B.] and her
    husband lived in an isolated rural area outside Thunder Bay with no near
    neighbours. Mr. Milani seemed to know that her husband was at work at the time
    he assaulted [J.B.]. She was then 26 years old.

[J.B.] locked the doors before she went to bed
    and was sleeping in the early hours of September 9, 1986. At about 1 a.m., she
    was awakened by the sound of water running in the bathroom. Then, a man wearing
    a balaclava and carrying a flashlight entered her bedroom. He forced her to
    perform oral sex on him and then he required her to continue oral sex on him
    while he performed oral sex on her.

Next, he took her into the bathroom and
    required her to perform more oral sex on him. He ran water in the tub and
    required her to wash her genitals. They returned to the bedroom where he had
    sexual intercourse with her. During the assault, Mr. Milani, who was a customer
     where [J.B.] worked, called her by a nickname that was used [at her work
    location].

After sexual intercourse, he tied her feet
    which he explained was to give him time to get away. Mr. Milani was in the
    house for about an hour. The telephone in the house was dead, as he pulled out
    the wires in the basement.

After Mr. Milani left, [J.B.] located her car
    keys and drove to a [location] where she called her husband and the police. She
    also received medical attention that night.



The Second [J.B.] Offences

Mr. Milani was convicted of the following
    offences related to [J.B.], committed on July 11, 1987:

Count Number 9: break and entering a dwelling
    house and commit sexual assault;

Count Number 10: sexual assault; and

Count Number 11: intend to commit indictable
    offence while masked.

The second assault occurred in the same
    isolated rural residence as the first. [J.B.] locked the doors and windows and
    prepared to retire for the night. She heard her dog barking in the bedroom and
    her apprehension was borne out when she found a masked man waiting in the dark.
    She asked, Why did you come back? He replied, Because youre nice.

Mr. Milani ripped open her shirt and fondled
    her breasts. He demanded oral sex. He attempted to blindfold her with the belt
    from her bathrobe but it kept falling off. He had intercourse with her and
    attempted anal sex to which she objected. Before he left he remarked, I wont
    tie your feet this time.

After he left, she discovered that he had
    again pulled out her phone lines and that $67 was missing from her purse. She
    drove to a nearby neighbours home and called the police. She received medical
    attention that night.

Bedding seized at this scene was later tested
    for DNA with the result that Mr. Milani could not be excluded as the donor.

Identification Officer Don MacDougall also
    recovered distinctive tire prints from where Mr. Milani hid his vehicle in the
    bush. By careful investigation, the police were able to determine that Mr.
    Milani was an owner of this rare brand of tire.

Footprints recovered at the scene were similar
    to those found at the [S.R.]/[A.C.] and [E.N.] scenes.

[6]

The final incident took place on December 3,
    1987. The victims, S.R. and A.C., were attacked at a cabin located on the same
    property as their workplace. After using a gun to direct the women into
    separate bedrooms, the appellant went back and forth between them, forcing them
    to engage in various sexual acts with him. The appellant stole cash and
    multiple items from the victims before he left the premises. Below is the
    sentencing judges description of how the incident unfolded:

The [S.R.]/[A.C.] Offences

The [S.R.] and [A.C.] offences were committed
    on December 3, 1987 at the same place. Mr. Milani was convicted of the
    following offences in relation to [S.R.]:

Count Number 12: steal rings using threats of
    violence;

Count Number 13: unlawful confinement;

Count Number 14: threaten to use a weapon
    while committing a sexual assault;

Count Number 15: intent to commit an
    indictable offence while masked; and

Count Number 16: break and enter a dwelling
    house and commit sexual assault.

He was convicted of the following offences in
    relation to [A.C.]:

Count Number 17: steal money using threats of
    violence;

Count Number 18: unlawful confinement; and

Count Number 19: threaten to use a weapon
    while committing a sexual assault.

[S.R.] testified at trial; however, [A.C.]
    died before trial. Consequently, her testimony at the preliminary hearing was
    read into the record as her evidence.

On December 3, 1987, the two women were
    working at a roadside restaurant and tavern  in a rural area outside Thunder
    Bay. Mr. Milani came into [the] restaurant for coffee a couple of times, and
    had been there twice the day before the incident, including at about 8 p.m. the
    night of the incident. He asked [S.R.] whether she was staying out for the
    evening.

[S.R.] was then about 38 and married. She was
    working that evening with her friend, [A.C.]. They closed the business around
    midnight and went to a cabin on the property, intending to stay overnight. When
    they entered the dimly lit cabin, a man wearing a balaclava jumped out from
    behind the fridge and pointed a gun at them. He told them to hit the fucking
    ground. [S.R.] felt traumatized. She told him that her husband would return
    around midnight, but Mr. Milani did not leave.

Mr. Milani split the women up, directing each
    to a separate bedroom. He blindfolded [S.R.] and told her to undress and lie
    down on the bed. Then he tied her hands and feet. Before and after she undressed,
    he fondled her breasts and genitals, first with his hands and then with his
    gun. He held a penlight-style flashlight.

He demanded oral sex and placed his penis in
    her mouth. He rubbed the gun near her mouth and up and down her thighs. He told
    her that if she did not suck his penis and give him an erection, he would make
    her suck the gun. He tried unsuccessfully to have vaginal, then anal
    intercourse with her. When he was not successful, he went to [A.C.]s room.

[S.R.] attempted to escape but Mr. Milani
    caught her in the kitchen and redirected her back to the bedroom. He pushed her
    down on the bed and pressed so hard on her throat that [S.R.] was scared.
    Bruising around her throat was apparent on medical examination later that
    night. She said that she had no lasting physical injuries, but there were
    continuing emotional injuries.

Mr. Milani went back and forth a few times
    between the womens rooms that night. [S.R.] could hear her friend whimpering
    in the next room. Mr. Milani told her to Shut the fuck up.

Mr. Milani rummaged in [S.R.]s purse before
    he left, taking cash, rings, a watch and lottery tickets.

At the time of this incident, [A.C.] was about
    58 years old. When she was directed into the dark bedroom, Mr. Milani tied her
    hands and feet and blindfolded her. He also rummaged through her purse and
    stole about $65 and $70 and one of her credit cards.

Mr. Milani demanded oral sex from [A.C.] but
    she refused. Then he insisted that she hold his penis, and she complied. He
    fondled her breasts and undid the snap on her jeans. Then he went out into the
    living area and ultimately, left the cabin.

When she was satisfied that Mr. Milani had
    departed, [S.R.] freed herself and went to [A.C.]s room where she untied her
    friend. Mr. Milani was in the cabin for at least an hour. [A.C.] flagged down a
    truck and got a ride home, then she called the police. [S.R.] also called the
    police who attended and took her to the hospital for medical care.

The police secured the area and investigated.
    Tire tracks from the Milani vehicle were discovered in the snow at a boat
    launch road. These had been brushed or scuffed through in an attempt to
    obliterate them. Footprints leading to and from the cabin were also brushed
    out.

By virtue of careful policing by Identification
    Officer Ed Linkewich, the police were able to recover footwear and tire
    impressions that had not been obscured. Investigation demonstrated that Mr.
    Milani had tires of a similar make on his vehicle. The police also discovered
    that the day after this incident, Mr. Milani attended at a garage in a rush to
    have the tires on his truck changed to a different brand, even though his tires
    were relatively new.

A beer bottle from which Mr. Milani was
    observed drinking in the cabin was also seized and preserved. Ultimately, it
    yielded saliva from which Mr. Milanis DNA could not be excluded.

[7]

The appellant committed these offences in 1985, 1986,
    and 1987 when he was between 37 and 39 years old. He was originally arrested in
    1987, but was discharged after the preliminary hearing. He was re-arrested on
    the current charges in 2010 when advanced DNA testing techniques made it
    possible to identify him as the perpetrator.

C.

REASONS OF THE SENTENCING JUDGE

(1)

The appellants history

[8]

The sentencing judge described the appellants
    history. He was raised in a stable home by his mother and stepfather. He left
    high school at age 16, later married and moved to Thunder Bay, where the above
    offences occurred. He and his wife had two children, whom they raised in a
    comfortable lifestyle. The appellant was a hard worker and good provider. They
    had an active social and family life, and were financially secure.

[9]

The appellant was arrested in December 1987. He was
    unemployed for five months after he was released on bail. His children, who
    were teenagers at the time, felt the stigma of his arrest. In order to pay his legal
    fees, the appellant sold the family home in Thunder Bay and moved to their camp
    at Ignace. The children did not stay with their parents.

[10]

In the 1990s, the appellant and his wife enjoyed
    their time with friends and neighbours in Ignace. The appellant bought a small
    plane that he docked at their waterfront home.

[11]

The appellant and his wife separated in 2004,
    but she remained supportive of him over the years and did not believe he had
    committed the offences.

[12]

In 2005, the appellant began co-habiting with
    his current partner. They kept a large garden, and the appellant stayed busy
    with handyman projects until the age of 57, when he sustained a shoulder injury.
    The appellant went on WSIB benefits until he was 65 years old.

[13]

In 2008, at age 60, the appellant fell and
    suffered a head injury that continues to cause him some long-term memory loss.
    He also has a pacemaker. At sentencing, the defence did not file a medical
    report about the current state of the appellants health.

[14]

The appellant was re-arrested in 2010 and was on
    bail pending trial for six years. He and his partner had to sell their house in
    2016 and move to their isolated winterized camp.

[15]

On November 30, 2016, the appellant was
    convicted by a jury. The sentencing hearing took place in April 2017. According
    to the sentencing judge, the appellant was well-regarded by a close neighbour
    as well as by his current and former partners. He had a dated, minor criminal
    record from 1964 and 1970 for theft and possession of a prohibited weapon. The
    sentencing judge also noted that although the appellant told the author of the pre-sentence
    report that he was innocent and intended to appeal, at the sentencing hearing, he
    stated that while he had no memory of events from the 1980s, he was sorry for
    the victims. He also regretted that his children had suffered following his
    arrest, and mentioned that he had to deal with financial losses as a result of
    the charges.

(2)

The Victim Impact Statements

[16]

The sentencing judge reviewed the Victim Impact
    Statements filed by the two surviving victims. J.B., who was attacked twice,
    suffered ongoing, crippling fear. She sold her house and moved, and when the
    case was re-opened, had to be treated for post-traumatic stress disorder. S.R.
    expressed that the appellant had stolen 30 years from her. She was never able
    to let anyone get close to her because she was afraid of being hurt, and she
    drank a lot. She also attributed the fact that she lost her business, her home,
    and her self-esteem to the attacks.

(3)

Analysis

[17]

The sentencing judge set out the parties positions
    before turning to her analysis of the appropriate sentence. The Crown submitted
    that the sentencing judge should determine the appropriate sentence for each of
    the four incidents, then reduce the global total to reflect the totality
    principle. Applying that approach, the Crown proposed a global total of 23-30
    years, to be reduced to 20 years to life. The defence agreed that consecutive
    sentences were appropriate for the separate incidents, but because specific
    deterrence was not a factor, argued that three years for each attack should be
    the maximum. The defence also asserted that although the passage of time does
    not have a significant impact, the sentence imposed should not exceed the
    appellants life expectancy, which he submitted was just another ten years.
    Therefore, based on the totality principle, the defence submitted that the appellants
    global sentence should be between five and eight years.

[18]

The sentencing judge next conducted a thorough
    review of the case law presented by both sides, including defence cases on the
    range of sentences for offences with some similarities to the appellants case,
    and Crown cases that addressed certain features of the appellants
    circumstances, including the implications of delay and sentencing for home
    invasions.

[19]

The sentencing judge identified aggravating and
    mitigating factors. She treated the following as aggravating factors:

·

the fact that the appellants offences involved
    home invasions;

·

the appellants escalating planning and
    deliberation;

·

the multiple victims, one of whom the appellant
    terrorized twice;

·

the horrific nature of the appellants conduct,
    which included forced oral and vaginal sex, the use of a gun as part of a sex
    act, attempted anal intercourse, and in the last incident, the splitting up of the
    two women to ensure better control of his victims and instill terror;

·

the appellants use of a disguise and weapons.
    In order to avoid detection and identification, the appellant also hid his
    vehicle, brushed away any tire tracks and footprints, and changed his tires;
    and

·

the long-term effects of the appellants attacks
    on the victims.

[20]

As for the mitigating factors, the sentencing
    judge agreed to consider the appellants medical condition, but noted that
    without any current medical evidence, it would not be accorded much weight. The
    defence also pointed to the positive pre-sentence report that described the
    appellant as employed and as a productive member of society with supportive friends
    and family. Finally, the sentencing judge recognized that the appellant had a
    minor and dated record with no offences in the 30 years since the offences
    occurred.

[21]

The sentencing judge then identified the
    applicable principles of sentencing, including the fundamental principles of
    proportionality and totality.

[22]

The sentencing judge ultimately agreed with defence
    counsel that consecutive sentences for each incident were appropriate, and that
    concurrent sentences could be imposed for the counts within each incident. However,
    the sentencing judge rejected the defence submission that credit should be
    given for the appellants restrictive bail terms over the six years he was on
    bail. The sentencing judge did not find the bail terms to be onerous since the appellant
    was not on house arrest, he was able to work, and he did not seek a variation
    of the order.

[23]

On the issue of the impact of the appellants age,
    the sentencing judge rejected the defence submission that the appellants sentence
    should not overtake his life expectancy; she found that there was no medical evidence
    regarding his life expectancy. However, she was prepared to take into account
    that at age 69, the appellant was a senior citizen.

[24]

The sentencing judge firmly rejected the defence
    submission that the appellant did not intend to cause injury and did not intend
    violence. She stated that this submission was belied by the facts, specifically
    the evidence of the planned home invasions when the appellant knew the victims
    were home alone, the controlling and humiliating nature of the sexual assaults,
    the use of weapons, the cutting of the phone lines to isolate the victims, and the
    profound long-term emotional consequences on the victims.

[25]

She also rejected the defence submission that
    because the violence element was already part of the sexual assault, the
    appellant should only be sentenced for theft, rather than robbery. The
    sentencing judge recounted that the appellant was convicted of robbery by the
    jury, and that he used the gun in the sexual assault of S.R. and A.C. to commit
    robbery. She found that [t]he egregiousness of this conduct should not be
    minimized by a sentence equated with theft.

[26]

Finally, the sentencing judge considered and rejected
    the defence submission of a global sentence of five to eight years, which would
    amount to a sentence of one and a quarter to two years for each incident. She
    noted that the appellant had avoided detection for 30 years, enjoying his
    freedom, and that such a low sentence would send the wrong message. Relying on
R.
    v. Hall
, 2011 ONSC 61, she stated that delay in sentencing should not
    encourage offenders to lay low as [the appellant] did, hoping to avoid
    detection. While the appellant may not have needed specific deterrence, the sentencing
    judge held that his conduct deserved general denunciation and deterrence: [O]thers
    who are minded to commit similar offences must be deterred. And [the appellant]
    must be held accountable for what he has done.

[27]

Turning to the specific sentence to be imposed,
    the sentencing judge first determined what she would have imposed for each incident
    as a stand-alone:

·

For the E.N. incident which took place in the
    victims own home, and included fellatio and vaginal intercourse twice, use of a
    weapon, and the tying of her hands and feet, five years.

·

For the first J.B. incident, where the victim
    was also assaulted in her own home, and the appellant was masked, demanded oral
    sex three times as well as vaginal intercourse, and tied her feet, five years.

·

For the second J.B. incident, where the
    appellant was masked, terrorized the victim again in her own home, fondled her
    breasts, sought oral sex, had vaginal intercourse, and attempted anal
    intercourse, six years.

·

For the S.R. and A.C. incident, where the appellant
    used a gun to commit the sexual assaults and robberies, he split up the victims,
    tied their hands and feet, fondled S.R. with the gun and his hands, forced S.R.
    to perform oral sex and attempted vaginal and anal sex with her, put his hands
    around S.R.s throat when she tried to escape, fondled A.C. and required her to
    hold his penis, and stole the victims cash and valuables, eight years.

[28]

The total of 24 years was ultimately reduced to
    a 20-year global sentence:

The total of these sentences on a stand-alone
    basis is 24 years. Reducing the global sentence in accordance with the totality
    principle and considering [the appellants] age and the fact that he has not
    been in trouble with the law since the offences were committed, I find that the
    appropriate global sentence is 20 years in prison.

[29]

The sentencing judge then broke down the 20-year
    sentence among all the offences that were not stayed in accordance with the
Kienapple
principle as follows:

·

With respect to the E.N. offences: count one,
    i.e. the break and enter of a dwelling house and commission of sexual assault,
    four years; count two, i.e. sexual assault, stayed; and count four, i.e.
    unlawful confinement, two years concurrent with count one.

·

With respect to the first J.B. offences: count
    five, i.e. the break and enter of a dwelling house and commission of sexual
    assault, four years consecutive to count one; count six, i.e. sexual assault,
    stayed; count seven, i.e. the commission of an indictable offence while masked,
    two years concurrent to count five; and count eight, i.e. unlawful confinement,
    two years concurrent to count five.

·

With respect to the second J.B. offences: count
    nine, i.e. the break and enter of a dwelling house and commission of sexual
    assault, five years consecutive to counts one and five; count ten, i.e. sexual
    assault, stayed; count eleven, i.e. the commission of an indictable offence
    while masked, two years concurrent to count nine.

·

With respect to the S.R. and A.C. offences:
    count twelve, i.e. robbery, five years concurrent to count fourteen; count
    thirteen, i.e. unlawful confinement, two years concurrent to count fourteen;
    count fourteen, i.e. the commission of sexual assault with a weapon, seven
    years consecutive to counts one, five, and nine; count fifteen, i.e. the
    commission of an indictable offence while masked, two years concurrent to count
    fourteen; count sixteen, i.e. the break and enter of a dwelling house and
    commission of sexual assault, five years concurrent to count fourteen; count
    seventeen, i.e. robbery, five years concurrent to count fourteen; count
    eighteen, i.e. unlawful confinement, two years concurrent to count fourteen;
    and count nineteen, i.e. the commission of sexual assault with a weapon, seven
    years concurrent to count fourteen.

[30]

The sentencing judge concluded with the addition
    of some ancillary orders.

D.

Issues

[31]

Counsel for the appellant acknowledged that the
    20-year sentence imposed by the sentencing judge was not demonstrably unfit and
    was within the range for these types of offences. However, the appellant
    submits that the sentencing judge made two errors which require this courts
    intervention: (1) the improper application of the totality principle; and (2) the
    failure to give adequate emphasis to the passage of time and the age of the
    appellant.

E.

Analysis

(1)

Standard of Review

[32]

The Supreme Court of Canada recently reiterated
    that appellate courts are to defer to the sentencing decisions of trial courts with
    limited exceptions. In
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, the
    court stated, at paras. 25-26:

Appellate courts must generally defer to
    sentencing judges decisions. The sentencing judge sees and hears all the
    evidence and the submissions in person (
Lacasse
, at para. 48;
R. v.
    Shropshire
, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has
    regular front-line experience and usually has experience with the particular
    circumstances and needs of the community where the crime was committed (
Lacasse
,
    at para. 48;
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 91).
    Finally, to avoid delay and the misuse of judicial resources, an appellate
    court should only substitute its own decision for a sentencing judges for good
    reason (
Lacasse
, at para. 48;
R. v. Ramage
, 2010 ONCA 488, 257
    C.C.C. (3d) 261, at para. 70).

As this Court confirmed in
Lacasse
, an
    appellate court can only intervene to vary a sentence if (1) the sentence is
    demonstrably unfit (para. 41), or (2) the sentencing judge made an error in
    principle that had an impact on the sentence (para. 44). Errors in principle
    include an error of law, a failure to consider a relevant factor, or erroneous
    consideration of an aggravating or mitigating factor. The weighing or balancing
    of factors can form an error in principle [o]nly if by emphasizing one factor
    or by not giving enough weight to another, the trial judge exercises his or her
    discretion unreasonably (
R. v. McKnight
(1999), 135 C.C.C. (3d) 41
    (Ont. C.A.), at para. 35, cited in
Lacasse
, at para. 49). Not every
    error in principle is material: an appellate court can only intervene if it is
    apparent from the trial judges reasons that the error had an impact on the
    sentence (
Lacasse
, at para. 44). If an error in principle had no impact
    on the sentence, that is the end of the error in principle analysis and
    appellate intervention is justified only if the sentence is demonstrably unfit.

[33]

The appellants position is that the sentencing
    judges two errors in principle impacted his sentence because if the sentencing
    judge had properly applied the totality principle and given sufficient weight
    to the passage of time and the appellants age, she would have imposed a lower
    sentence in the range of 14-16 years.

(2)

The totality principle

[34]

The totality principle is codified in ss. 718.1
    and 718.2(c) of the
Criminal Code
.
    These sections
provide that a sentence must be proportionate to the
    gravity of the offence and the degree of responsibility of the offender, and
    that where consecutive sentences are imposed, the combined sentence should not
    be unduly long or harsh. The appellant submits that the sentencing judge erred
    in how she applied the totality principle, ultimately failing to achieve a
    sentence that was proportionate to the gravity of the offence and the conduct
    of the offender, and crafting one that was unduly long and harsh instead.

[35]

In
Friesen
,
at para. 157, the Supreme Court described the two methods
    that are used by courts across Canada to apply the totality principle when
    imposing consecutive sentences:

The principle of totality requires any court
    that sentences an offender to consecutive sentences to ensure that the total
    sentence does not exceed the offenders overall culpability (see
Criminal
    Code
, s. 718.2(c);
M. (C.A.)
, at para. 42). While this principle
    is applied throughout Canada, there have been divergences in the methodology
    used by various appellate courts. Some jurisdictions require the sentencing
    judge to decide what would be a fit sentence
for each offence
before
    considering totality (see, e.g.,
Hutchings
, at para. 84;
R. v.
    Adams
, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28;
R. v. Punko
,
    2010 BCCA 365, 258 C.C.C. (3d) 144, at para. 93;
R. v. Draper
, 2010
    MBCA 35, 253 C.C.C. (3d) 351, at paras. 29-30;
R. v. J.V.
, 2014 QCCA
    1828, at para. 28 (CanLII);
R. v. Chicoine
, 2019 SKCA 104, 381 C.C.C. (3d)
    43, at paras. 66-68). In other jurisdictions, sentencing judges start by
    determining an overall fit sentence and then impose individual sentences adding
    up to the total (
R. v. Ahmed
, 2017 ONCA 76, 136 O.R. (3d) 403).
    [Emphasis in original.]

[36]

Friesen
recognized
    that neither method constitutes an error in principle. If done properly, both can
    be appropriate ways to ensure that the total sentence is not overly long and
    harsh, and not disproportionate to the gravity of the offence and the conduct
    of the offender.

[37]

The Ontario practice of first determining the
    total appropriate sentence and then breaking it down among the counts
    originated in the case of
R. v. Jewell
(1995), 100 C.C.C. (3d) 270
    (Ont. C.A.). That case involved numerous charges related to the production of
    home videos depicting sexual activity with young boys. The two offenders
    (Jewell and Gramlick) pleaded guilty. In sentencing them, the sentencing judge first
    identified the most serious charge, imposed a sentence for that, then
    proceeded to deal with all the other charges
seriatim
and meted out
    consecutive sentences in three more of them: at p. 14. On appeal, Finlayson
    J.A. determined, at p. 14, that [t]he resulting ten-year sentence offend[ed]
    the principle of totality.

[38]

Finlayson J.A. then set out, at pp. 14-15, the
    approach to be used to give effect to the totality principle:

In my view, the appropriate approach in cases
    such as the two under appeal is to first, identify the gravamen of the conduct
    giving rise to all of the criminal offences. The trial judge should next
    determine the total sentence to be imposed. Having determined the appropriate
    total sentence, the trial judge should impose sentences with respect to each
    offence which result in that total sentence and which appropriately reflect the
    gravamen of the overall criminal conduct. In performing this function, the
    trial judge will have to consider not only the appropriate sentence for each offence,
    but whether in light of totality concerns, a particular sentence should be
    consecutive or concurrent to the other sentences imposed.

[39]

The appellant submits that by not following the
    procedure set out in
Jewell
, the sentencing judge erred in principle by first
    determining the fit sentence for each incident, and then reducing the total to
    reflect the totality principle.

[40]

I would reject this submission. In my view, the
    sentencing judge applied
Jewell
,
but adapted it to the circumstances of the appellants offences, which were committed
    in four separate attacks. She made no error in principle in her approach.

[41]

Since there were four distinct and separate
    incidents, the sentencing judge, supported by the submissions of counsel, decided
    that the correct approach was to first determine the gravamen of the overall conduct
    for each individual incident, each of which involved a number of different
    charges. While the four incidents had many similarities, the appellants
    conduct escalated to using a gun in the final attack.

[42]

The sentencing judge ultimately did not make the
    error criticized by this court in
Jewell
. After determining the
    correct individual sentence for each incident, she did not simply add up the four,
    but reduced the total in accordance with the totality principle to achieve a
    total sentence that was proportional to the gravity of the offences and the
    conduct of the offender: see
R. v. Hannora
, 2020 ONCA 335, at paras. 9-11.
    The sentencing judge also determined that the overall sentence of 20 years was
    not too long or overly harsh.

[43]

Pursuant to
Jewell
, the sentencing
    judge then broke down the overall sentence among the counts, and in so doing, determined
    which sentences should be consecutive and which should be concurrent. There is
    no basis to interfere with the sentencing judges approach.

(3)

The passage of time and the appellants age

[44]

The appellant submits that the sentencing judge
    erred by failing to give sufficient weight to the passage of time as a
    mitigating factor. He argues that his case is unique because while he was
    initially prosecuted and released following the preliminary inquiry, he
    remained subject to prosecution many years later, and therefore, he did not
    lay low or evade detection.

[45]

I would reject this submission for three main reasons.
    First, as the sentencing judge noted, defence counsel (not appeal counsel) conceded
    in the opening of his submissions on sentence that the passage of time should
    not play a very significant issue in the determination of sentence. Defence
    counsel focused only on the appellants age as an important factor.

[46]

Second, counsel relies on
R. v. Critton
,
    2002 CanLII 3240 (Ont. S.C.), a decision of Hill J., at para. 76, for the
    principles that apply when considering the effect of delay between the
    commission of the offence(s) and sentencing:

(1) the effect of delay on sentencing is a
    case-specific inquiry;

(2) deliberate acts to evade detection by the
    authorities, whether flight or contribution to delayed complaint tend to weigh
    against assigning mitigating impact to the fact of delay;

(3) reform and rehabilitation during the
    intervening period tend to eliminate the prospect of recidivism and to nullify
    the need for specific deterrence to be reflected in the courts disposition;

(4) certain very serious crimes require
    sentences with measures of general deterrence and denunciation regardless of
    the offenders lengthy crime-free existence subsequent to the crime(s); and

(5) objectively speaking, taking into account
    delay, the courts disposition should not be seen as a reward or benefit
    eliminating or depreciating the concept of proportionate punishment.

[47]

Contrary to the appellants argument, these
    factors are likely what motivated defence counsel at trial to take the position
    he did, as well as what led the sentencing judge to determine that general denunciation
    and deterrence demanded that the appellant receive no distinct benefit from the
    delay in his prosecution. As the sentencing judge noted, the appellant was able
    to enjoy the benefit of living a full life in the 30 years following his
    offences, while the victims continued to suffer the long-term effects of his
    attacks. The fact that the appellant spent these intervening years crime-free
    was a mitigating factor that allowed the sentencing judge to conclude that
    there was no need to address specific denunciation and deterrence. However, it did
    not render the appellants 20-year global sentence disproportionate to the
    gravity of his offences and his responsibility as an offender.

[48]

Third, at the time of the offences, the
    appellant took steps to disguise himself and to destroy evidence that could identify
    him as the perpetrator. The sentencing judge made no error in describing his
    conduct as steps he took to lay low. The appellants deliberate actions
    ensured that he could not be identified with certainty or prosecuted by the
    Crown until the evolution of DNA technology.

[49]

In conjunction with his passage of time
    submission, the appellant argues on appeal, as he did at sentencing, that his
    age should have been treated as a significant mitigating factor in the totality
    analysis, and that the 20-year sentence imposed was harsh and had the effect of
    removing all hope.

[50]

The appellant was 69 years old at the time of his
    sentencing. The appellant submitted to the sentencing judge that the life span of
    a white Canadian male was around 79.5 years, but he did not adduce evidence to
    support that position. As the sentencing judge stated, he also did not have any
    medical evidence regarding his own particular circumstances to substantiate the
    submission that his life expectancy was only ten more years.

[51]

The sentencing judge specifically addressed the
    appellants concerns about his age in her reasons. She appreciated the
    appellants status as a senior citizen, but was not prepared to find that the
    sentence she considered fit would exceed his life expectancy.

[52]

The appellant relies on the case of
R. v.
    Johnson
, 2012 ONCA 339, 285 C.C.C. (3d) 120, to contend that the
    sentencing judge erred in her approach to his advanced age. In
Johnson
,
    the court reduced a global sentence of 23 years to 20 years recognizing that the
    accused would be 77 years old after his incarceration of 23 years. The court
    held that such a sentence would come close to crushing all hope. The appellant
    asserts that his 20-year sentence would do the same.

[53]

Johnson
can be
    distinguished from this case. Unlike in
Johnson
, the sentencing judge had
    already imposed a greater reduction of four years based on the totality
    principle, taking into account the appellants age as one of the factors.

[54]

In addition, while a sentencing judge should not
    increase or decrease a sentence based on parole considerations (
R. v.
    Passera
, 2019 ONCA 527, 146 O.R. (3d) 449, at paras. 26-27, leave to
    appeal refused, [2019] S.C.C.A. No. 327), a court may consider the opportunity
    for parole when assessing whether a sentence will crush all hope. I agree with
    the approach taken by the British Columbia Court of Appeal in
R. v. Swope
,
    2015 BCCA 167, 370 B.C.A.C. 218, at para. 36:

The judge in this case did take Mr. Swopes
    age into consideration in passing sentence. While the time he will spend in
    prison is likely to be a significant portion of his remaining lifespan, I am
    not persuaded that the sentence runs afoul of the above-quoted comments from
C.A.M
.
    I am unable to say that the sentence that the judge imposed was overly-long or
    oppressive. I note that, despite the fact that Mr. Swope has been on bail
    pending appeal, he will, when returned to prison, be eligible for day parole in
    less than five months time and for full parole in less than one year. There
    are special provisions in s. 121 of the
Corrections and Conditional Release
    Act
, S.C. 1992, c. 20, that may be used to expedite parole in the event of
    certain deteriorations in a prisoners health.

[55]

Here, Crown counsel advised in its factum that
    the appellant will be eligible for full parole on December 21, 2023. During his
    incarceration, the appellant will also have access to s. 121 of the
Corrections
    and Conditional Release Act
, S.C.
    1992, c. 20,
which can be used to expedite his parole if terminal
    illness or serious mental or physical health damage will result from continued
    confinement.

[56]

The sentencing judge thus did not fail to take
    the appellants age into account. She considered the submissions of defence counsel,
    and found that the appellants older age was a relevant, but not determinative,
    factor in fashioning the appropriate sentence. She made no error in principle
    in her approach.

F.

Conclusion

[57]

The appellant concedes that the 20-year global
    sentence is a fit one and within the appropriate range for the offences committed.
    The appellants crimes were extremely serious and horrific, perpetrated against
    four women in their homes in the remote areas of Thunder Bay. The victims were sexually
    assaulted as well as tied up and cut off from telephone communication. They
    were isolated, terrified, and humiliated. The appellant did this four times
    over a two-year period. He targeted one of the women twice.

[58]

The sentencing judge, who conducted the jury
    trial, heard all of the evidence from the witnesses. In her reasons for
    sentence, she considered every argument made, including the ones raised on this
    appeal. The sentencing judge reviewed all of the case law and all of the principles
    of sentencing in detail. Everyone agreed that a lengthy penitentiary term was
    required and that consecutive sentences should be imposed.

[59]

It was within the discretion of the sentencing
    judge to impose the sentence that she determined appropriate. She found that a
    20-year global sentence was proportionate to the gravity of the appellants
    offences and his responsibility as an offender. She made no error of law or
    principle, and her decision is to be accorded deference.

[60]

I would grant leave to appeal the sentence, but
    dismiss the appeal.

K. Feldman J.A.

I agree. P. Lauwers J.A.


Nordheimer J.A.: (Dissenting)

[61]

I have read the reasons of my colleague. I do
    not agree with her conclusion. Given my view on the second ground of appeal, I
    do not need to directly address whether the trial judge properly applied the
    totality principle. Rather, I say that the trial judge erred in failing to give
    proper effect to the passage of time and the appellants advanced age as
    mitigating factors and thus failed to impose a proportionate sentence.
    Consequently, I would grant leave to appeal the sentence, allow the appeal, and
    reduce the sentence to 14 years, as requested by counsel for the appellant.

[62]

My colleague has set out the background facts
    underlying the offences. I do not need to repeat those facts. I agree that the
    circumstances surrounding the commission of the offences were especially
    egregious. Notwithstanding those circumstances, the trial judge was still
    required to impose a sentence that reflected the principle of proportionality.
    Indeed, the proper application of this principle ensures that the egregious
    nature of some offences will not overwhelm other considerations of an
    appropriate sentence.

A.

ERRONEOUS CONSIDERATION OF AGGRAVATING AND
    MITIGATING FACTORS

[63]

I recognize the deference that appellate courts
    are required to give to the sentencing decisions of trial judges. That
    deference does not, however, preclude appellate intervention in appropriate
    cases. As Wagner J. said in
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 43:

I agree that an error in principle, the
    failure to consider a relevant factor or the erroneous consideration of an
    aggravating or mitigating factor can justify the intervention of an appellate
    court and permit that court to inquire into the fitness of the sentence and
    replace it with the sentence it considers appropriate.

[64]

In my view, the trial judge engaged in an
    erroneous consideration of both the aggravating and mitigating factors in this
    case, in at least two respects.

(1)

Laying low

[65]

In her sentencing reasons, the trial judge said
    at p. 101: As was articulated in R. v. Hall, delay in sentencing should not
    encourage offenders to lay low as Mr. Milani did, hoping to avoid detection.

[66]

In making this observation, it is not clear what
    the trial judge was suggesting the appellant ought to have done that would have
    ameliorated the impact of his conduct. The appellant was arrested and charged.
    He proceeded to a preliminary inquiry at which he was discharged. Thereafter,
    for more than three decades, he carried on with his life, just like any other
    citizen protected by the presumption of innocence is entitled to do. There is
    no evidence that he committed any other offences during this time. Indeed, the
    evidence is that the appellant was a productive, contributing member of his community.

[67]

Nevertheless, the trial judge appears to have
    used the appellants conduct as a negative factor. She said that it sends the
    wrong message to do otherwise. She added that the appellant has enjoyed his
    freedom for the better part of 30 years as if that was something that the
    appellant was not entitled to do. With respect, the appellant was entitled to
    act exactly as he did. The trial judges treatment of this factor infringes
    upon, indeed I would say that it ignores, the presumption of innocence. The
    appellant was entitled to live his life until such time as the police and the
    Crown mustered the necessary evidence to once again arrest and charge him. The
    trial judge erred in using the appellants position, as a presumptively
    innocent person, as a negative factor on sentencing. In that respect, I reject
    the approach set out in
R. v. Hall
, 2011 ONSC 61, upon which the trial
    judge relied.

[68]

The trial judges treatment of this issue also
    ignores another principle of sentencing; the gap principle. The gap principle
    is said to be a foundational consideration in sentencing. Where the principle
    is relevant, it is [an] error for the sentencing court to fail to apply it:
R.
    v. Singh
, 2012 ONSC 30, 286 C.C.C. (3d) 204, at para. 182. In that case,
    Hill J. helpfully set out the rationales behind the principle:

1.

a gap in an offender's criminal record is
    relevant to future risk and to rehabilitative potential;

2.

a person who has rectified past behaviour for a
    substantial period of time should be considered as having better prospects for
    individual deterrence and rehabilitation;

3.

if someone with a criminal record has not had
    any convictions for several years, they are to be treated if not as a first
    offender, then almost as a first offender; and,

4.

ordinarily, the gap should reflect a sufficient
    passage of time to be relevant.

[69]

There can be no reasonable debate that a 30-year
    conviction-free period is a relevant factor to consider. It suggests not only
    that the appellant had the potential to rehabilitate his conduct, but also that
    he has done so. This long interval, free from serious convictions, is entitled
    to due weight:
R. v. Harrell
(1973)
,
    12 C.C.C. (2d) 480 (Ont. C.A.), at para. 7.

[70]

The trial judges treatment of these
    considerations in her reasons for sentence reflects an error in principle, one
    that impacted the sentence she imposed.

(2)

Life expectancy

[71]

The appellant was 69 years old at the time of
    his sentencing. The defence argued that imposing a sentence of 20 years would
    exceed the appellants reasonable life expectancy. The trial judge rejected
    that argument on the basis that [t]here is no medical evidence as to his life
    expectancy.

[72]

The trial judge also erred in her treatment of
    this factor. There was no need for medical evidence regarding the appellants
    life expectancy. A common-sense approach to the issue leads to the conclusion
    that a 20-year sentence would likely exceed the appellants reasonable life
    expectancy. Indeed, I would have thought that this was a matter upon which the
    parties would have agreed, or judicial notice would have been taken. In any
    event, if further confirmation was required, a simple trip to Statistics
    Canadas website would have provided it.

[73]

I will add a general observation. Trial judges
    should tread carefully before imposing requirements for expert evidence. Expert
    evidence is expensive and complicates proceedings. Further, the concerns
    regarding its misuse are well-established:
White Burgess Langille Inman v.
    Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182. Expert
    evidence should only be required where it is directed to an issue "which
    is likely to be outside the experience and knowledge of a judge or jury:
R.
    v. Mohan
, 1994 SCC 80, [1994] 2 S.C.R. 9, at para. 26. That prerequisite
    for expert evidence was not met in this case.

[74]

My conclusion that medical evidence was not
    necessary on this point also appears to align with the conclusions reached in
R.
    v. M. (C.A.)
, 1996 SCC 230, [1996] 1 S.C.R. 500, where Lamer C.J.C. said,
    at para. 74:

However, in the process of determining a just
    and appropriate fixed-term sentence of imprisonment, the sentencing judge
    should be mindful of the age of the offender in applying the relevant
    principles of sentencing. After a certain point, the utilitarian and normative
    goals of sentencing will eventually begin to exhaust themselves once a
    contemplated sentence starts to surpass any reasonable estimation of the
    offender's remaining natural life span. [Emphasis added].

[75]

My colleague seeks to deflect the impact of this
    factor by referring to the possibility of parole for the appellant. In my view,
    it is improper for this court to rely on the Parole Board of Canada to
    ameliorate the effects of excessive sentences. We cannot, and certainly ought
    not, delegate our responsibility to ensure that sentences comply with the
    principles of sentencing. Further, relying on the Parole Board to come to
    decisions that will offset the impact of the sentence imposed is entirely
    speculative. We have no idea what the Parole Board will, or will not, do in any
    given case. It follows from my views on this point that I do not agree that the
    approach adopted in
Swope
is the appropriate one. Rather, it falls to
    this court, and this court alone, to decide whether the sentence imposed is a
    proper one.

(3)

Summary

[76]

These errors led to the imposition of a sentence
    that did not properly reflect the individual circumstances of the offender.
    When those circumstances are properly considered, the sentence imposed is
    revealed to be harsh and excessive. It effectively deprives the appellant of any
    realistic hope of release or rehabilitation. Indeed, the trial judge makes no
    reference to the sentencing objective of rehabilitation at any point in her
    reasons for the sentence. The sentence imposed is crushing in that respect.

[77]

I note on this point that one of the indicia of
    sentences that are harsh and excessive are ones where the combined effect of
    the sentences threatens to encroach upon  or exceed  the offender's
    reasonable life expectancy:
R. v. Johnson
, 2012 ONCA 339, 285 C.C.C.
    (3d) 120, at para. 20. This is such a case.

B.

CONCLUSION

[78]

I would grant leave to appeal sentence, allow
    the appeal, and reduce the total sentence to one of 14 years, as submitted by
    the appellant.

Released: August 13, 2021 K.F.

I.V.B.
    Nordheimer J.A.


