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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-02-08

Docket: C62955

Panel: Hoy A.C.J.O., Doherty and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

S.M.C. Appellant

Counsel

Marc E. Schiffer, for the appellant

David Finley, for the respondent

Hearing

Heard and released orally: February 7, 2017

On appeal from: the sentence imposed on October 25, 2016 by Justice Peter Tetley of the Ontario Court of Justice.

Endorsement

[1] The appellant acknowledged that he had engaged in an act of anal intercourse while the complainant, his estranged spouse, was asleep and pled guilty to the offence of sexual assault. The complainant was in a highly intoxicated state at the time of the commission of the offence.

[2] The sentencing judge imposed a sentence of 15 months, plus two years' probation. The appellant seeks leave to appeal against the sentence imposed. He argues that the sentencing judge erred in applying the wrong sentencing range, namely the range for forced intercourse with a spouse, rather than the range for cases involving intercourse with an unconscious complainant. He says that the intercourse was not "forced", because the complainant was unconscious and there was no will to overcome. He submits that the range for cases where the offender has intercourse with an unconscious victim is between 12 to 14 months to three years.

[3] He also argues that the sentence imposed was excessive and harsh. He says that a sentence of six to 10 months is a fit sentence in these circumstances.

[4] We reject these arguments.

[5] An appellate court is justified in interfering with a sentence only if the sentencing judge imposed a sentence that is demonstrably unfit or committed an error of principle that had an impact on sentence: R. v. Lacasse, 2015 SCC 64, paras. 11, 44-46. There is no basis for appellate intervention in this case.

[6] The sentencing judge accepted that R. v. Smith, 2011 ONCA 564, para. 87 identified the appropriate sentencing range. Smith held that sentences in the range of 21 months to four years are appropriate in cases of sexual assault involving forced intercourse with a spouse or former spouse. He noted that the Crown's sentencing position of 18 months was below this range. After considering the mitigating circumstances, including the appellant's lengthy restriction of liberty while on bail pending sentence, he imposed a lesser sentence than that sought by the Crown. The sentence that he imposed was within the range that the appellant says is correct.

[7] We note that both at trial, and in this court, there was much discussion about different sentencing ranges for sexual assaults, depending on specific features of the sexual assault. The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in the specific circumstances of the case. This sentence was fit in these circumstances.

[8] Accordingly, while we grant leave to appeal sentence, we dismiss the appeal against sentence.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"B.W. Miller J.A."