



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    that could identify the victim shall not be published in any document or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. A.S., 2019 ONCA 900

DATE: 20191114

DOCKET: C60249

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.S.

Appellant

Alexander Ostroff, for the appellant

Tracy Kozlowski, for the respondent

Heard: October 22, 2019

On appeal from the sentence imposed on June 17, 2014 by
    Justice Anne M. Molloy of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal a 20-year sentence of imprisonment
    imposed in 2014 for historical sexual offences. He also applies to introduce
    fresh evidence related to time spent in solitary confinement post-sentence and filed
    a notice of constitutional question in relation to that request. At the
    conclusion of the appeal, we dismissed the appeal and fresh evidence
    application for reasons to follow. These are our reasons.

Background

(i)

The offences and the appellants guilty pleas

[2]

In September 2013, the appellant pleaded guilty to five charges relating
    to two incidents, one of which occurred in 1981 and the other in 1993.

[3]

The first incident was the rape of a 14-year-old girl at gunpoint in
    1981. The appellant initially claimed to be a police officer when he accosted
    the young girl. The second incident was the sexual assault, unlawful
    confinement and robbery of a 53-year-old woman at gunpoint in her home in 1993.

[4]

Although the police were unable to identify the perpetrator of these
    offences when they were committed, DNA testing of evidence preserved from the
    incidents later connected the appellant to the crimes. When the police located
    the appellant in 2003, he was in prison in Pennsylvania, serving a sentence for
    various offences, including illegal entry into the United States and possession
    of a firearm as a convicted felon. Extradition proceedings ensued and the
    appellant was eventually returned to Canada in 2011.

[5]

The appellant was charged with 12 offences arising from the 1981 and
    1993 incidents.
Following a preliminary inquiry, he was committed for trial
    in July 2012. At the request of the Crown, the defence then obtained a forensic
    psychiatric assessment. Upon receipt of the report, the appellant agreed to
    plead guilty to five offences and to join in a recommendation for a long-term
    offender designation.

[6]

On September 23, 2013 the appellant pleaded guilty to rape in relation
    to the 1981 incident and to sexual assault with a weapon, unlawful confinement,
    robbery and uttering a death threat in relation to the 1993 incident.

(ii)

The appellants criminal record

[7]

By the time of his guilty pleas in 2013, the appellant had amassed a significant
    criminal record. Although the 1981 rape was acknowledged to be a first offence,
    some of the convictions were for offences that pre-dated the 1993 offence.
    These included a 1994 conviction for a rape that occurred at knifepoint in 1982
    in Canada and convictions in the 1980s in the United States for robbery with a
    firearm, larceny and manslaughter.

(iii)

The forensic psychiatric assessment

[8]

The assessor concluded the appellants history and presentation was consistent
    with the following diagnoses: Paraphilic Disorder (coercive interest) 
    non-exclusive; Cocaine Abuse Disorder (and possibly other substances); and Personality
    Disorder with Antisocial and Narcissistic features.

[9]

As for risk assessment, the assessor concluded:

Overall, [the appellant] is a high risk to re-offend generally,
    with a lower probability of re-offending sexually with age, with appropriate
    supervision (albeit he is not a good supervision candidate), and with high
    potency sex drive reducing medication.

(iv)

The sentencing proceedings

[10]

The sentencing proceedings became protracted at least in part because
    the Crown failed to obtain the Attorney Generals consent to the long-term
    offender designation application. The Crown eventually abandoned that
    application.

[11]

When the appellant pleaded guilty he was almost 58 years old and remained
    subject to American prison sentences which the Crown anticipated would extend
    until September 2019.

[12]

The Crown submitted that sentences of 8 years and 12 years
    imprisonment would be fit for the 1981 and 1993 offences, respectively. Subject
    to a 5-year reduction for totality, this yielded a 15-year global sentence. The
    Crown also acknowledged that a reduction of up to 25% of the 15-year global
    sentence could be appropriate to account for the appellants assistance to the
    police in an unrelated homicide investigation.

(v)

Pre-sentence solitary confinement

[13]

Apparently as the result of media reports about his assistance to the
    police, the appellant was assaulted in September 2013 while in pre-sentence
    custody. The appellant was then placed, and remained, in solitary confinement
    until his sentencing on June 17, 2014.

(vi)

The sentencing judges reasons

[14]

During the proceedings, the sentencing judge advised the parties that
    she was considering a sentence higher than that requested by the Crown.
    Ultimately, she found that leaving aside totality and the appellants
    cooperation, an 11-year sentence would be appropriate sentence for the 1981
    offence and a 13-year sentence for the 1993 offences. Taking account of the
    totality principle and the appellant's assistance to the police, the sentencing
    judge reduced the sentence for each offence by two years and imposed a sentence
    of 9 years for the 1981 offence and 11 years for the 1993 offences, for a total
    sentence of 20 years imprisonment.
[1]

[15]

In reaching these conclusions, the sentencing judge identified two
    mitigating factors: first, the appellants advancing age, which 
might

    make him less likely to commit sexual offences or crimes of violence in the
    future; and second, the appellants cooperation with the authorities, which put
    him in danger in prison and resulted in him being kept in solitary confinement.
    Concerning this latter factor, the sentencing judge said:

The fact that [the appellant] has
    cooperated with the police has put him in some danger in prison. On one
    occasion  he was brutally attacked, kicked and beaten. Since then he has been
    kept in solitary confinement, which is a significantly more onerous
    circumstance of his incarceration. This is a factor which I recognize to be
    mitigating and which I have taken into account in determining a fit sentence.

[16]

As for the appellants guilty pleas, having regard to the inevitably of his
    conviction and her conclusion that his current expression of remorse was
    opportunistic, the trial judge declined to recognize them as mitigating.

[17]

The trial judge identified the circumstances of the offences as the most
    aggravating factor and noted that both victims suffered significantly as a
    result of the attacks, both in the short and long term. She went on to review
    the appellants criminal record, albeit noting that much of it post-dated these
    offences. She also referred to the predominance of general deterrence and
    denunciation as sentencing factors, to the parity principle, and case law
    relating to that principle.

[18]

Before turning to the appropriate sentence, the trial judge observed
    that in this case, protection of the public was necessarily a principle of
    prime importance. Quite simply, [the appellant] is a danger to the public, and
    in particular to vulnerable members of our society, she said. Although
    recognizing that she could not do indirectly what she could have done directly
    had this matter proceeded as a long-term or dangerous offender application, the
    trial judge concluded, [t]his is one of those rare cases where a substantial
    sentence is required in order to separate [the appellant] from society.

[19]

In crafting an appropriate sentence, the trial judge concluded this was
    a proper case for consecutive sentences. As the appellants presentence custody
    was being credited to his American sentences, she declined to give credit for
    presentence custody. In making that decision, she also noted there was no
    evidence before her that the appellant was at any disadvantage in serving his
    time here as compared to in an American penitentiary.

[20]

Concerning defence counsels request for additional credit based on the
    appellants pre-sentence solitary confinement and the likelihood of
    post-sentence solitary confinement, the trial judge noted again that the
    appellants pre-sentence custody was being credited to his American sentences
    and that she had taken account of the need for more restrictive custody in
    giving credit for cooperation with the authorities. Further, she observed it
    would not be appropriate for her to assume that penitentiary authorities would
    continue to keep the appellant in isolation for years on end. Should that
    occur, he would have remedies within the prison system.

Analysis

[21]

The appellant raises multiple issues on appeal and in addition seeks a
Charter
remedy for time spent in both pre- and post- sentence solitary confinement.

[22]

On appeal, the appellant submits that the sentencing judge made several errors,
    including the following:

·

overemphasized
    the need to separate the appellant from society;

·

mischaracterized
    the potential impact of the appellants advancing age on the likelihood of his
    reoffending as speculative at best;

·

failed
    to consider various factors identified in the forensic assessment report as
    lessening the risk of sexual recidivism;

·

failed
    to take account of the institutional savings arising from the appellants
    guilty pleas and in giving his guilty pleas no mitigating effect;

·

failed
    to give proper effect to parity; and

·

took
    an erroneous approach to totality and credit for cooperation with the
    authorities, including failing to give proper effect to the likelihood that the
    appellants detention conditions would include protective custody and solitary
    confinement.

[23]

As we have said, the appellant also seeks to introduce fresh evidence on
    appeal. The proposed fresh evidence consists of detention records obtained from
    Correctional Services Canada. The appellant asserts that these records
    demonstrate that when he arrived back in Canada after completing his American
    sentence, he remained in administrative segregation (effectively, solitary
    confinement) from December 10, 2014 until June 15, 2015. This period totals 187
    days (just over six months) and is in addition to the nine months the appellant
    spent in solitary confinement between sentencing submissions in September 2013
    and the imposition of sentence in June 2014.

[24]

The appellant submits that the proposed fresh evidence demonstrating
    continued and prolonged solitary confinement meets the criteria for introduction
    on an appeal against sentence, assists in demonstrating that the sentence
    imposed was unfit and disproportionate, and should give rise to a sentence
    reduction under s. 24(1) of the
Charter
. The appellant relies on
Canadian Civil Liberties Association v. Canada
, 2019 ONCA 243,
144 O.R.
    (3d) 641,
in which this court declared that administrative segregation
    longer than 15
days violates s. 12 of the
Charter
and cannot be
    saved under s. 1.

[25]

We see no basis on which to interfere with the decision of the
    sentencing judge. The sentencing judge correctly identified the import of the
    forensic assessment report when she referred to the psychiatrists overall risk
    assessment as set out in para. 9 above. That risk assessment, the circumstances
    of the offences, and the appellants criminal record for violent offences all
    supported the sentencing judges reliance on the sentencing objective relating
    to the need to separate an offender from society.

[26]

On our reading of her reasons, the sentencing judge fully considered the
    parity principle. She also took account of the circumstances under which the
    appellant had been detained in determining a fit sentence and reduced the
    sentence she would otherwise have imposed to account for totality and the
    appellants cooperation with the authorities.

[27]

However, even assuming the trial judge committed any of the errors the
    appellant suggests, we conclude that such error had no impact on the fitness of
    the sentence imposed and that the global sentence she imposed was entirely fit.
    Accordingly, there is no basis for appellate interference:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[28]

The 1981 and 1993 crimes for which the appellant was sentenced were
    callous and violent attacks on vulnerable victims that have had profound and
    lasting effects upon them. Both incidents involved the use of a firearm. The
    appellant impersonated a police officer in the 1981 incident to take advantage
    of a 14-year-old victim. The 1993 incident took place in the victims home. The
    appellants criminal record includes other violent offences involving firearms
    or other weapons. In our view, the sentencing judges description of the
    appellant as a career criminal was amply supported by the record, as was her
    assessment of his level of risk. Given these circumstances, even taking account
    of totality and the appellants cooperation with authorities with its resulting
    impact on the conditions of the appellants presentence detention, as we have
    said, in our view, the global sentence imposed was entirely fit.

[29]

Turning to the fresh evidence application, even assuming there has been
    a post-sentence breach of the appellants
Charter
rights warranting a
    remedy under s. 24(1), in our view, it would not be appropriate to grant a
    retroactive sentence reduction. To do so would be to depart from the principle
    in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 4, that
    circumstances unrelated to the offence or the offender fall outside the scope
    of the statutory sentencing regime.

Conclusion

[30]

Based on the foregoing reasons, we dismissed the appellants appeal and
    fresh evidence application.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.





[1]
The appellant was sentenced as follows:

·

Count 8 (Sexual assault with a weapon, s. 272(1)(a))  11 years

·

Count 7 (Uttering death threats, s. 264.1(1)(a))  2 years
    concurrent to Count 8

·

Count 6 (Robbery with a weapon, s. 344)  8 years concurrent to
    Count 8

·

Count 9 (Unlawful confinement, s. 279(2))  2 years concurrent to
    Count 8

·

Count 11 (Unlawful sexual intercourse, s. 144)  9 years
    consecutive


