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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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, Watt and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
V.L.
Appellant
Michael Davies, for the appellant
Nicolas de Montigny, for the respondent
Heard and released orally: January 31, 2020
On appeal from the sentence imposed by Justice M. Z. Charbonneau, of the Superior Court of Justice, dated December 21, 2018.
REASONS FOR DECISION
Reasons for Decision
1The appellant was convicted of sexual assault after a trial by judge alone.
2This is a sentence appeal. The issue is a narrow one. The trial judge imposed a sentence of four years. Counsel for the appellant submits, based on the case law, that the appropriate range of sentence in the circumstances was three to five years. He argues that three years is the appropriate sentence, given the absence of any physical violence beyond the violence inherent in a forcible rape.
3Counsel submits that the trial judge wrongly treated the appellant’s false vilification of the victim in his testimony as an aggravating factor on sentence. He submits that this error warrants a re-appraisal of the sentence by this court and the imposition of a sentence of three years.
Analysis
4Having regard to the totality of the sentencing record, it is not entirely clear that the trial judge made the error alleged. One passage from his reasons for sentence suggests that he did. Assuming he made that error, we are satisfied it played a minor role in his determination of the appropriate sentence. The trial judge focused on the inherent seriousness of the assault, a rape during which the appellant overpowered the victim, a neighbour and friend, in her own home, and did as he wished. The trial judge also emphasized the planning that led to the assault.
5In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (the leading authority), the majority observed, at para. 44:
In our view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigator factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.
6In our view, the error alleged by the appellant, assuming it was made by the trial judge, did not have an impact on the sentence. The aggravating features in this case fully justify the four-year sentence imposed.
Disposition
7The appeal is dismissed.
“Doherty J.A.”
“David Watt J.A.”
“C.W. Hourigan J.A.”
