Publication Restriction Warning

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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

DATE: 20240328 DOCKET: COA-23-CR-0680

Coroza, Sossin and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.D.V. Appellant

Counsel: Mindy Caterina, for the appellant Stephanie A. Lewis, for the respondent

Heard: March 21, 2024

On appeal from the sentence imposed on June 15, 2023 by Justice Gethin B. Edward of the Ontario Court of Justice.

Reasons for Decision

Background

1The appellant pleaded guilty to sexual assault and distributing intimate images of the complainant without her consent. The appellant and the complainant are cousins. The complainant’s mother invited the appellant in while he was experiencing difficulties with his own immediate family related to his cocaine use. One night, the two shared a bed because the appellant claimed his bed had been soiled by the family pet. The appellant touched his cousin’s breasts, thighs, stomach, and buttocks over her pyjamas, causing her to awake from sleep. He also pulled her face towards him in an attempt to kiss. Several months later, the appellant sent two topless photos of the complainant to her mother. The complainant had not consented to the appellant taking the photos, nor to anyone distributing them.

2At the sentencing hearing, the complainant provided a Victim Impact Statement detailing the severe impact of the offences on her life. The appellant submitted that a conditional sentence of 12 months should be imposed followed by a period of probation. The Crown submitted that a penitentiary sentence was required.

3The appellant was sentenced to six months’ incarceration on each count, to run consecutively, plus two years’ probation and ancillary orders. He now appeals from sentence.

Analysis

4The appellant argues that the sentencing judge committed several errors. The overarching submission made by the appellant is that the sentencing judge erred in arriving at the conclusion that a conditional sentence was not appropriate in this case.

5This court owes significant deference to a sentencing judge’s decision, and it is not open to us to interfere with a sentencing decision because we would have imposed a different sentence or weighed relevant factors differently: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 49.

6The appellant submits that the primary reason the sentencing judge refused to impose a conditional sentence was because he erroneously found that it would not protect society. The appellant argues that the sentencing judge, when making this determination, failed to consider the appellant’s risk of reoffending and the gravity of the damage that could ensue in the event of reoffence.

7We would not give effect to this submission. When contemplating imposing a conditional sentence, a sentencing judge must ultimately determine whether the imposition of a conditional sentence would be consistent with "the fundamental purpose and principles of sentencing": see s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. Section 718 speaks to the fundamental purpose of sentencing as contributing "to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions". The section goes on to identify that one of the objectives is to “denounce unlawful conduct” and to “deter the offender and other persons from committing offences”. It is clear from the sentencing judge’s reasons that his focus was not on public safety but rather on denouncing the appellant’s serious crime. Indeed, the sentencing judge plainly stated that in his view a conditional sentence would not meet the principle of denunciation. It was not an error for him to conclude that this objective should feature prominently in this case. The offences were serious and there was evidence that the offences had a devastating impact on the complainant. The sentencing judge was in the best position to determine whether a conditional sentence for these offences would be consistent with the principles of sentencing: Lacasse, at para. 48.

8The appellant also argues that the sentencing judge did not properly consider the causal link between the appellant’s addiction to cocaine and his culpability and prospects for rehabilitation. However, a review of the sentencing submissions indicates the sentencing judge was alive to the relevance of the appellant’s drug use. With respect to the appellant’s culpability, it bears noting that the Agreed Statement of Facts did not state that the appellant was using cocaine during either offence. It is not clear that a causal link between his cocaine use and the offences was established at sentencing, although defence counsel asserted the appellant used cocaine during the second offence.

9With respect to the appellant’s prospects for rehabilitation, the sentencing judge specifically drew attention to passages of the Pre-Sentence Report that, in his view, indicated potentially continuing drug use. In the circumstances of these offences, the sentencing judge refused to view the appellant’s drug addiction as a significant mitigating factor. We see no error in this approach.

10The appellant also argues that the sentencing judge did not apply the principle of restraint in relation to the appellant who was a first offender. We reject this submission. During the sentencing proceedings the sentencing judge observed that the appellant was a youthful first offender and that he could not impose a sentence that would “crush” the appellant. The sentencing judge stated:

We can’t ignore the fact that it was a guilty plea. That’s a pretty clear sign of remorse. We can’t ignore the fact that this is a youthful first offender; we can’t ignore that fact. We can’t ignore the fact, although I’ve managed to argue against it, that he’s turned his life around as a result of his conduct. And I think that speaks to his success of future rehabilitation.

11These were oral reasons delivered shortly after submissions made by counsel. When the submissions and sentencing reasons are read together, in our view, the reasons are explicitly responsive to the submissions regarding the principle of restraint. In the end, the sentencing judge believed that denunciation and general deterrence should be emphasized and that a conditional sentence was not consistent with the fundamental purpose and principles of sentencing. There is no basis to interfere with his conclusion.

12In sum, the sentencing judge did not make any errors in principle; nor did he impose a sentence that was demonstrably unfit. In light of our conclusion, it is not necessary to deal with the fresh evidence except to say that the appellant is to be commended for the positive steps he has taken to date.

Disposition

13For these reasons, leave to appeal the sentence is granted but the appeal is dismissed.