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Criminal - Sentencing - Jury Trial. R. v. S.P.
In R. v. S.P. (Ont CA, 2024) the Ontario Court of Appeal reviews the process of criminal sentencing in a jury trial:B. Sentence Appeal
[37] It is uncontroversial that when it comes time to sentence an accused after a jury trial, the trial judge must determine the facts necessary for sentencing. The trial judge is bound by the express and implied factual implications of a jury’s verdict: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, at p. 523; Ferguson, at para. 17. The trial judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict”: Criminal Code, s. 724(2)(a).
[38] When executing this task, the law does not require the trial judge to take the view of the evidence most favourable to the accused: see R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 56, citing Ferguson.
[39] During the sentencing proceedings, the trial Crown argued that the verdict of guilty meant that the jury had accepted the whole of the complainant’s account of events. The Crown sought three years’ incarceration.
[40] Defence counsel sought a sentence of 12 months’ imprisonment and argued that since the jury may have found the appellant guilty simply for having touched the complainant’s breasts, the appellant should be sentenced for a sexual assault on the appellant’s breasts. Put another way, defence counsel urged the trial judge to make findings of fact that were favourable to the appellant.
[41] The trial judge recognized and stated that “to the extent that the evidence creates some ambiguity, I will make an independent determination of the facts”. He then proceeded to explain why he rejected the appellant’s submission that he should be sentenced for a sexual assault in the form of having touched in some manner the complainant’s breasts.
[42] The trial judge reasoned that since the complainant did not give any evidence about a sexual assault involving her breasts, there was a lack of evidence to satisfy a sexual assault involving the touching of them. He stated:[T]he presence of DNA on [the complainant’s] breasts could prove some contact by the accused with her breasts ... [H]owever, it could not prove the other elements of sexual assault, i.e. that the touching was intentional and that it was knowingly done without the consent of the complainant. Since the complainant did not give any evidence about a sexual assault involving her breasts, there was no evidence to satisfy those other elements of sexual assault involving the touching of the complainant's breasts. [Emphasis added.] [43] The trial judge accepted the complainant’s testimony and concluded that the assault took place in the manner she had described.
[44] On the sentence appeal, the appellant submits that the trial judge erred in trying to follow the jury’s path to conviction when sentencing the appellant, in violation of Ferguson; and that in making a factual finding that the assault had occurred as the complainant had testified, he gave insufficient reasons.
[45] I do not accept the submission that the trial judge attempted to reconstruct the logical process of the jury in finding facts under s. 724(2). I accept that there are aspects of the trial judge’s reasons that, read in isolation, might support that interpretation. However, when the reasons are read as a whole, it is clear that the trial judge understood his obligation to make an independent determination on the facts, and that he did so. He concluded his fact-finding exercise by stating:I therefore find that the only factual findings available to me that are consistent with the guilty verdict of the jury is that the accused applied force of a sexual nature to the complainant without her consent, essentially as she described in her testimony, which included forcibly inserting his penis into her mouth and having vaginal and anal intercourse with her. And on the evidence I would have arrived at the same independent conclusion. [Emphasis added.] [46] In my view, the trial judge did not attempt to follow the logical process of the jury, but came to his own independent findings for sentencing.
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