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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Doherty, Simmons and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael McLellan
Appellant
Paul Calarco, for the appellant
Jessica Smithjoy, for the respondent
Heard: March 14, 2016
On appeal from the sentence imposed by Justice Campling of the Ontario Court of Justice on February 5, 2015.
APPEAL BOOK ENDORSEMENT
1The Crown and defence at trial advanced a joint submission of 7 years (6 years and 17 days having regard to pre-sentence custody). The trial judge, following the correct procedure, advised counsel that he had some difficulty with the proposed sentence and invited further submissions. After hearing further submissions, he imposed an effective sentence of 10 years.
2This court has made it clear that joint submissions must be carefully considered and should be followed absent an articulable basis upon which the trial judge concludes that the proposed sentence would bring the administration of justice into disrepute: see R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.). While the appellant’s terrible record and the distinct possibility, if not probability, that he will reoffend justified a substantial sentence, we do not agree that those concerns were not adequately reflected in the 7-year joint submission. The trial judge should, have followed the joint submission which was clearly the product of a careful consideration by counsel of the relevant circumstances, including the appellant’s guilty pleas and the Crown’s prospects for conviction absent guilty pleas.
3We are also satisfied that the sentence imposed was demonstrably unfit. The appellant’s criminal record required a long sentence, however, the nature of the offence for which the appellant was being sentenced also had to be taken into account in arriving at a proportionate sentence. With respect, the trial judge ignored completely the facts of the offence in favour of a sentence which would incarcerate the appellant for the maximum time available. In doing so, he imposed an unfit sentence.
4We would allow the appeal. In accordance with the joint submission, we would impose a total sentence of 6 years and 17 days (7 years having regard to pre-sentence custody). The specific sentences are varied as follows:
Sexual interference – 6 years and 17 days
Breach of probation – 1 year and 17 days concurrent; and
Breach of prohibition – 1 year and 17 days concurrent.