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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
MacPherson, Coroza and Sossin JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.M.
Appellant
M.M., acting in person
Christopher S. Rudnicki, appearing as duty counsel
Avene Derwa, for the respondent
Heard and released orally: December 9, 2021
On appeal from the conviction entered on March 5, 2020 and the sentence imposed on March 24, 2021 by Justice Gilles Renaud of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant pleaded guilty to sexual interference and invitation to sexual touching pursuant to the Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 151 and 152. The complainant was a young girl and a member of the appellant’s extended family.
2The appellant received a global sentence of seven years’ imprisonment along with various ancillary orders – an order to comply with the Sex Offender Information Registration Act, a DNA order, a weapons prohibition order, a non-communication order, and prohibition order regarding permissible locations post-sentence pursuant to s. 161 of the Criminal Code.
3The appellant contends that the global sentence of seven years is excessive and should be reduced to four to five years.
4We do not accept this submission. The appellant committed very serious offences against a vulnerable young girl. The sentencing judge was well aware of the mitigating factors relating to the appellant and balanced them appropriately in arriving at the seven-year sentence. We see no basis for interfering with the sentence.
5The appellant and Crown jointly agree that the proposed conditions pursuant to s. 161 of the Criminal Code need to be amended to reflect accurately what the trial judge actually ordered. The following amendments are ordered:
re s. 161(a) – for a period of 10 years
re s. 161(b) – for a period of 20 years
re s. 161(c) – for a period of 10 years
re s. 161(d) – for a period of 3 years
6With respect to the s. 161(a.1) component of the Order, the appellant and Crown agree that the appellant is prohibited from being within one kilometer of the complainant’s dwelling house. The complainant will be named in the court’s final order and the address will be specified in the court’s final order.
7In all other respects, the appeal from sentence is dismissed.
“J.C. MacPherson J.A.”
“S. Coroza J.A.”
“Sossin J.A.”
