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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. M.C., 2020 ONCA 510

DATE: 20200814

DOCKET: C67825

Strathy C.J.O., Gillese & Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

M.C.

Respondent

Natalya Odorico, for the appellant

Kaila Wilowski, for the respondent

Heard: in writing

On appeal from the sentence imposed on November 21, 2019 by Justice Kathryn L. Hawke of the Ontario Court of Justice.

By the Court:

[1] M.C. [the respondent] pleaded guilty to a single count of sexual interference contained in an information that alleged five sexual offences.

[2] In sentencing submissions, counsel differed significantly on the length of a term of imprisonment that should be imposed as the principal component of the sentence. But the parties agreed about several ancillary orders and the terms of a probation order if such an order were to form part of the sentencing disposition.

[3] The sentencing judge did not agree with the proposal of counsel about an order under s. 161 of the Criminal Code. And she added an exception to the non-communication term in a probation order, departing from the agreement of counsel.

[4] The Crown asks us to vary the sentence to accord with the agreement of trial counsel. These reasons explain why we decline to do so.

The Background Facts

[5] The issues raised on this appeal from sentence do not require any recitation of the circumstances of the offence to which the respondent pleaded guilty. A brief canvass of the sentencing proceedings is sufficient for our purposes.

The Plea Of Guilty

[6] The respondent was charged in a five-count information alleging various sexual offences against two child complainants. The Crown elected to proceed by indictment. The respondent was arraigned on and pleaded guilty to a single count of sexual interference.

[7] After a finding of guilt was entered and a conviction recorded, the trial judge ordered a pre-sentence report and adjourned proceedings to await its preparation.

The Sentencing Submissions: The Period of Custody

[8] Although the parties agreed that a custodial sentence was warranted, their positions differed significantly as to its length.

[9] The trial Crown sought a penitentiary sentence of four years’ imprisonment. In the alternative, the Crown invited imposition of an upper-end reformatory sentence followed by probation for three years. Among the probationary terms suggested were reporting; participating in counselling programs recommended by the probation officer; and prohibitions against contacting or being in the same place as named individuals including the complainant.

[10] Counsel for the respondent advocated for a sentence of imprisonment for one year in a provincial institution followed by a period of probation on the terms suggested by Crown counsel. Defence counsel was content to leave the length of the probation order to the trial judge.

The Sentencing Submissions: Ancillary Orders

[11] As he began his sentencing submissions, the Crown said, “My friend and I are joint on the ancillary orders, it's just the difference in terms of our positions in terms of the period of custody". The ancillary orders about which there is no complaint here are:

i. a DNA sample order under s. 487.051(1) based on the primary designated offence of sexual interference;

ii. a weapons prohibition under ss. 109(1) and (2) for 10 years; and

iii. a SOIRA order for 20 years under s. 490.13(2)(b).

[12] The Crown also pointed out that he and defence counsel were agreed on orders under s. 161(1) prohibiting the respondent from attending:

• public swimming areas

• daycare centres

• school grounds

• playgrounds

• community centres

where persons under 16 are or may reasonably be expected to be present, except when the respondent was under the supervision of someone over 18. The parties also agreed on an order under s. 161(1)(b) barring the respondent from seeking, obtaining or continuing any volunteer or remunerated employment that involves positions of trust or authority towards persons under 16. The term of the prohibition, counsel agreed, should be 20 years.

The Discussion

[13] During sentencing submissions, the trial judge expressed her concern about the appropriateness of a twenty-year prohibition on the respondent's attendance at a public swimming area and community centre. She identified two factors as the basis of her concerns: the absence of any connection between public facilities and the offence committed and the lack of any risk assessment of the respondent. As a form of punishment designed to protect vulnerable children from the risk of sexual predation, the orders should only issue where there is evidence of the existence of the risk. Here, the trial judge noted, there was no such evidence.

[14] The trial judge invited counsel to make submissions about the orders they jointly proposed under s. 161(1)(a).

[15] The trial Crown relied upon the joint nature of the submission and advanced an argument that the absence of a risk assessment favoured inclusion of the terms because of their purpose and the uncertainty about any propensity on the part of the respondent.

[16] Trial counsel for the respondent explained that the proposed s. 161(1) order deleted a reference to parks and included an exception which allowed the respondent to attend a community centre while under the supervision of a person over 18 years old. This would permit the respondent and his father to play basketball together at the community centre.

[17] Counsel for the respondent pointed out that the prohibition against contact with underage persons, frequently the subject of an order under s. 161(1)(c), was omitted in favour of a probationary term requiring adult supervision.

The Grounds of Appeal

[18] The Crown asks that we vary the sentence imposed at trial to align it with the agreement trial counsel reached about the terms of a s. 161 prohibition and the probation order. Our intervention, the Crown says, is warranted on two grounds:

i. the trial judge erred in failing to give effect to the parties' agreement on ancillary orders according to the principles in R. v. Anthony-Cook, 2016 SCC 43; and

ii. the ancillary orders imposed are unreasonable.

Ground #1: The Misapplication of Anthony-Cook

[19] The principal ground of appeal the Crown advances is that the trial judge failed to properly apply the principles put in place by Anthony-Cook when counsel present a joint submission on sentence. A brief reference to the trial judge's reasons for sentence will fill in the remainder of the background essential to an assessment of the merits of this claim.

The Reasons for Sentence

[20] The trial judge imposed a sentence of imprisonment of 15 months which she recommended be served at the Ontario Correctional Institute. The custodial sentence was to be followed by a period of probation for two years. The probation order included terms that the respondent:

i. report to a probation officer upon his release and thereafter as required;

ii. undertake assessment, treatment and counselling as recommended by his probation officer, which is not to include phallometric testing; and

iii. not contact named persons except in the presence of either parent.

The trial judge did not explain why she did not impose a blanket prohibition against contact with the complainant or her sister, or make an order prohibiting the respondent from being within 100 metres of any place where the complainant lives, works, goes to school, frequents or the respondent knows her to be.

[21] The trial judge explained the content of the order under s. 161(1) in this way:

And then with respect to the issue of 161, it will only be under one subsection, and that is subsection (b) where he is not to be seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. And that is for 10 years.

The Arguments on Appeal

[22] The Crown begins by characterizing the agreement of the parties about the ancillary orders as a “joint submission" as the term is used in Anthony-Cook. It is apt to do so, the Crown says, because the agreement involved a quid pro quo. Something for the respondent. And something for the Crown.

[23] The respondent was facing trial on a five-count indictment with two complainants and a count that carried a significant sentence of imprisonment as a minimum punishment. The allegations included several incidents. Instead, the respondent pleaded guilty to a single count of sexual interference, with a single complainant, with no allegation of penetration and a limited number of incidents.

[24] The benefit of the agreement for the Crown included entry of a conviction; sparing the complainants the emotional cost of the testimony at a very young age; and saving judicial and court resources.

[25] As a true joint submission, the Crown continues, the trial judge could only depart from it if its imposition would bring the administration of justice into disrepute or it was otherwise contrary to the public interest. The trial judge failed to apply the proper standard when she departed from the joint submission. She viewed the applicable standard as simply a matter of judicial discretion. Doubtless, discretion is involved. But it is a closely-confined discretion, not engaged simply by what is in an accused’s best interests. In addition to the failure to apply the proper standard when considering a departure from the joint submission, the trial judge also did not provide counsel with an adequate opportunity to make further submissions in support of their agreement about the package of ancillary orders.

[26] The respondent rejects the appellant's claim that the trial judge erred in the standard she applied or the procedure she followed in departing from the parties’ agreement about ancillary orders.

[27] The respondent says that, from the outset, the trial judge identified the constituents of the agreement on ancillary orders about which she was concerned. She explained why. As Anthony-Cook makes clear, it then fell to counsel to justify the agreement. Crown counsel failed to provide any meaningful answer. To rely on the joint nature of the submission when the submission itself is challenged falls short of what is required. The hearing was procedurally fair.

[28] The respondent accepts that the trial judge's reasons could have been more fully expressed. However, her exchanges with counsel reveal a proper evaluation of the agreement put before her. As the respondent's counsel explained, the offence committed had nothing to do with public facilities. The Crown tendered no risk assessment, thus the record was barren of any evidence that children in public facilities would be put at risk by the respondent's attendance there. The respondent has a social phobia and had no connection with playgrounds, swimming pools or other recreational areas except for a community centre where he played basketball with his father. Orders under s. 161 and probationary terms should be evidenced-based and linked to public safety concerns or measures to assist in an offender's rehabilitation.

Analysis

[29] As we will briefly explain, this ground of appeal fails. We are not persuaded that what took place here is governed by the principles in Anthony-Cook.

[30] In Anthony-Cook, the appellant appeared for trial on an indictment charging him with manslaughter. He pleaded not guilty. After several days of trial, the appellant reached a resolution agreement with the Crown. Under the agreement, the appellant would change his plea to guilty of manslaughter. In doing so, he would give up his right to a trial and, with it, the possibility of advancing self-defence as a justification for having caused the death of the deceased. In return, the appellant would serve a sentence of a further 18 months in custody – in addition to the time he had already spent in pre-trial custody – without any period of probation thereafter.

[31] The joint submission in Anthony-Cook related to the fundamental, principal or core element of the sentence. The length and nature of the custodial sentence and the absence of any post-custodial supervision through a probation order. In other words, this joint submission was not about ancillary orders. Indeed, there is nothing said about ancillary orders.

[32] In addition to this factual distinction from this case, the Court in Anthony-Cook makes it clear that their reasons do not address sentencing flowing from plea agreements in which the parties are not in full agreement about the appropriate sentence: Anthony-Cook, at paras. 2, 50 and footnotes 1, 3. In this case, the parties were in agreement about the ancillary orders, but far apart on the principal component of the sentence – the length of the term of imprisonment.

[33] Further, the agreement about ancillary orders could scarcely be characterized as the product of resolution discussions. Two of the orders - a DNA order and a SOIRA order – were mandatory as a result of the offence to which the appellant had entered his plea of guilty and of which he had been convicted.

[34] In addition, that the parties may be in agreement about ancillary orders, some of which are mandatory, cannot, without more, convert submissions that are several into one that is joint.

[35] In this case, the trial judge advised counsel of her concern about the proposed prohibitions under s. 161. She provided counsel with ample opportunity to justify the proposed orders. None was forthcoming.

[36] The trial judge was properly concerned about including within the prohibition under s. 161(1) places such as swimming areas, daycare centres, school grounds and playgrounds. And also about the duration of the order – 20 years. None of these locations had any connection to the appellant or to the offence of which he was convicted. No risk assessment was provided. Prohibitions that overshoot the mark serve no valid sentencing purpose.

[37] Despite our rejection of this ground of appeal, the Crown is not without its remedies. Section 161(3) of the Criminal Code permits the Crown to apply to the sentencing judge or another judge of equivalent jurisdiction for an order varying the conditions if a variation is desirable because of a change in circumstances since the order was made.

Ground #2: The Unreasonableness of the Orders

[38] The Crown advances a second ground of appeal. She says that the s. 161(1) prohibition and the term of the probation order permitting contact with the complainant and her sister under parental supervision are unreasonable. Each affords inadequate protection to the complainant (the probation order) and the underage public (the s. 161 order).

[39] We do not agree. Our reasons are four fold.

[40] First, the standard of review.

[41] A prohibition under s. 161 and a probation order under s. 731 fall within the definition of “sentence" in s. 673 of the Criminal Code. Appellate intervention in a sentence imposed at trial is limited to cases in which the sentencing judge has:

i. erred in principle;

ii. failed to consider a relevant factor; or

iii. erroneously considered an aggravating or mitigating factor

and the error has had an impact on the sentence imposed or imposed a sentence that is manifestly unfit: R. v. Lacasse, 2015 SCC 64, at para. 44.

[42] A submission that failure to extend the prohibition under s. 161(1) to swimming areas, playgrounds and schoolyards and to include a parental supervision exception in the non-association term of the probation order is unreasonable, without more, does not meet the standard required for appellate intervention.

[43] We acknowledge, of course, that a sentence may be demonstrably unfit even if the sentencing judge made no error in imposing it. This too is a very high threshold, reflecting a sentence that is “clearly excessive or inadequate" or representing a “substantial and marked departure": Lacasse, at para. 52. The appellant's complaint falls well short of this threshold.

[44] Second, the discretionary nature of the order at issue.

[45] Unlike the DNA and SOIRA orders included as part of the sentence, whether a s. 161(1) prohibition or a probation order is included in a sentence is largely a matter that engages the discretion of the sentencing judge. Likewise, the terms of each order. The exercise of this discretion in both its aspects is entitled to substantial deference in this court.

[46] Third, the absence of evidentiary support.

[47] It is well settled that s. 161(1) orders are “punishment for the purposes of s. 11(i) of the Charter: R. v. J. (K.R.), 2016 SCC 31. The sentencing judge was concerned that there was no nexus between the respondent and his offence and the breadth and time period requested for the order. No one suggested or offered any evidence of any such nexus. Her questions unanswered, the sentencing judge was entitled to conclude that the expansive prohibition sought was not warranted.

[48] Finally, we reiterate the availability of review mechanisms that the Crown may invoke to vary the terms of both orders should circumstances change: Criminal Code, ss. 161(3) and 732.2(3).

Disposition

[49] For these reasons, leave to appeal sentence is granted, but the appeal from sentence is dismissed.

Released: “GRS” August 14, 2020

“G.R. Strathy C.J.O.”

“E.E. Gillese J.A.”

“David Watt J.A.”