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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-02-13

Docket: C63923

Panel: Feldman, Brown and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.D. Appellant

Counsel

Robert Carew, for the appellant

Lisa Joyal, for the respondent

Hearing and Appeal

Heard: February 5, 2018

On appeal from: the sentence imposed on April 12, 2017 by Justice Robert L. Maranger of the Superior Court of Justice, sitting without a jury.

Decision

Brown J.A.:

[1] Introduction

[1] The appellant, a former RCMP officer, was convicted of numerous offences involving horrendous abuse he inflicted on his 11-year old son. Specifically, the appellant was found guilty of two counts of aggravated assault, one count of assault with a weapon, one count of sexual assault causing bodily harm, one count of unlawful confinement, and one count of failing to provide the necessaries of life. In addition, the appellant was convicted of two counts relating to the improper storage of ammunition and a firearm.

[2] The trial judge imposed a global sentence of 15 years' imprisonment, less 22 months credit for pre-sentence custody. The appellant seeks leave to appeal his sentence and, if leave is granted, he seeks a reduction of five to ten years in his term of imprisonment.

[3] The appellant advances three grounds of appeal.

FIRST GROUND

[4] First, the appellant submits the trial judge erred in stating the appropriate range of sentence was 12 to 20 years. The appellant points to other cases involving the serious abuse of children in which the sentences imposed ranged from two to 16 years. He also argued that two cases the trial judge referred to which involved sentences of 18.5 and 25 years were factually distinguishable.

[5] I see no merit in this ground of appeal. The trial judge correctly noted that the range of penalty for cases of extreme child abuse varies widely. He reviewed the salient cases placed before him by the Crown and the appellant. He observed that the conviction on the count of sexual assault causing bodily harm carried with it a mandatory minimum penalty of five years. The trial judge found that "the level of child abuse here was at the furthest end of the spectrum."

[6] That finding was fully supported by the evidence. The appellant engaged in a horrific course of abusing his son over a six-month period, the details of which are set out in the trial judge's reasons for conviction: 2016 ONSC 7249. I see no reason to repeat the incomprehensibly cruel acts visited upon the young victim by his father, the extreme pain he must have endured, and the terror he must have experienced. As the trial judge commented at the end of his reasons for judgment:

This was a very difficult trial. That a parent could do the things that were done to AJ D. was gut-wrenching. That being said, however, the fact that this half-starved, burned and battered 11 year old could somehow summon up the strength to escape his cruel captivity and later seemingly rise above it, is a testament to the indomitability of the human spirit.

[7] I see no error in the trial judge's conclusion that the abuse fell "at the furthest end of the spectrum" and his resulting use of a 12 to 20-year range of sentence.

SECOND GROUND

[8] As his second ground of appeal, the appellant argues the trial judge failed to give adequate weight to the psychiatric and psychological evidence of his mental health at the time of the offences as a mitigating factor and over-emphasized denunciation and deterrence. The trial judge considered, but ultimately did not accept, the appellant's sentencing submission that there was a causal link between his mental health and the commission of the offence, which should operate as a factor reducing the length of his sentence.

[9] At the trial, the appellant had advanced the position that he was not criminally responsible by reason of a mental disorder. The trial judge did not accept the evidence of the appellant's expert clinical psychologist, Karim Jbeili. He found that Mr. Jbeili was not impartial, had no prior experience in providing forensic psychological evidence, had failed to examine in a meaningful way all of the evidence necessary to formulate a valid independent opinion – including failing to review all of the videos taken by the appellant of him torturing his son in the basement – and vacillated in the opinion he gave.

[10] Although the trial judge accepted that the appellant may have suffered from depression and post-traumatic stress disorder, he rejected the notion that a mental disorder had caused him to be in a state of dissociation to the extent the appellant was incapable of appreciating the nature and quality of his acts and/or knew that they were wrong when he committed the crimes against his son.

[11] Two expert psychiatrists testified at the sentencing hearing. Dr. Helen Ward opined that during the period of the offence, the appellant was suffering from post-traumatic stress disorder and a depressive episode, but he was not delusional. Despite his mental condition at the time of the offences, Dr. Ward testified that the appellant was aware of the physical nature and quality of his acts. As well, the appellant's PTSD would not have affected him, through cognitive distortions and re-experiencing of trauma, to the point where he would have been unable to know that the acts in question were morally or legally wrong. However, Dr. Ward opined that the appellant's PTSD and depression contributed substantially to the commission of the offences.

[12] Dr. Bradley Booth stated the appellant likely had significant depression, anxiety and PTSD, but concluded that the appellant somewhat over-reported his difficulties. Both the PTSD and the depression were described as being of mild to moderate severity around the time of the offences.

[13] In his sentencing reasons, the trial judge considered the psychiatric evidence. He concluded Dr. Booth's testimony, that the PTSD at the time of the offences was of mild to moderate severity, seemed to correspond to the evidence heard at trial, especially the evidence about how the appellant acted on the three videos that showed him torturing his son in the basement. The trial judge stated:

The offender in that video, far more reflects someone with an obsessive-compulsive narcissistic personality disorder than someone suffering from post-traumatic stress disorder. [The videos] depict a calm, cool, cruel interrogator certainly unafraid of [his son] and seemingly obsessed with his own sense of right and wrong.

[14] After reviewing the evidence, the trial judge expressed the view that the appellant's mental health provided some explanation for his behaviour, but was not the cause of it. As a result, he was not inclined to make rehabilitation the focus of crafting the appellant's sentence instead of denunciation and deterrence: R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.), at paras. 30 to 32; R. v. Prioriello, 2012 ONCA 63, at para. 11.

[15] The appellant submits the trial judge failed to properly consider the psychiatric evidence when he failed to conclude a causal link existed between the appellant's mental health and the commission of the offences. I do not accept this submission. In his sentencing reasons, the trial judge reviewed the psychiatric evidence at some length. The appellant has not pointed to any misapprehension of that evidence by the trial judge. The trial judge assessed and weighed the expert evidence together with the other evidence, including the videos taken by the appellant in the basement, as he was permitted to do. I see no error in his factual analysis concerning the role played by the appellant's mental health in his commission of the offences. Nor would I interfere with his conclusion that denunciation and deterrence were the primary considerations in his sentencing. Accordingly, I would give no effect to this ground of appeal.

THIRD GROUND

[16] Finally, the appellant contends the trial judge erred in his consideration of aggravating and mitigating factors. I see no merit in this submission. The trial judge's finding that the appellant's conduct amounted to a breach of the highest position of trust was unimpeachable. As to the appellant's submission that the trial judge should have given greater weight to some mitigating factors, the trial judge's conclusion that the appellant's mental health was the single most important issue for consideration as a mitigating factor was reasonable in the circumstances. As for his submission that the trial judge failed to take into account other mitigating factors, I do not accept these submissions. For instance, the suggestion that the child made a "quick physical recovery" does not accord with the medical records and the damage done to the child's body. Moreover, given the months of punishing psychological and physical abuse endured by this child in the basement of his family home, the suggestion that the appellant was otherwise a good parent, is without any substance. Given the horrific nature of the abuse the appellant inflicted on his son, other mitigating factors would play little practical role in the sentencing process.

DISPOSITION

[17] Accordingly, I would grant leave to the appellant to appeal his sentence, but I would dismiss his appeal.

Released: February 13, 2018

"David Brown J.A." "I agree. K. Feldman J.A." "I agree. Fairburn J.A."