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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-01-14
Docket: C64370
Panel: MacPherson, Roberts and Paciocco JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Matthew Deiaco Appellant
Counsel
David Gildiner, for the appellant
Avene Derwa, for the respondent
Hearing and Appeal
Heard: January 10, 2019
On appeal from: the sentence imposed on June 5, 2017 by Justice Jane E. Kelly of the Superior Court of Justice.
Reasons for Decision
Background
[1] Matthew Deiaco, a young man with a long and serious criminal record, was convicted after pleading guilty to five offences related to the human trafficking of a drug-addicted woman whose vulnerability he exploited for financial and sexual gain. When his victim escaped after five days of turning tricks in exchange for drugs and money that did not fully materialize, Mr. Deiaco tracked her down and broke into her hotel room. He participated in the serious assault of her boyfriend before showing her what appeared to be a firearm, and then abducted her by placing her in the trunk of a car, conveying her to another hotel room, and erasing the contacts on her phone. Fortunately, the police managed to track that phone, liberating the victim from her ordeal.
Grounds of Appeal
[2] Mr. Deiaco now seeks leave to appeal his global sentence of eight years, less credit for time spent in pre-sentence custody. He urges that the sentencing judge erred by:
(1) failing to grant him any credit pursuant to R. v. Duncan, 2016 ONCA 754 ("qualitative credit") for the 59 days of triple bunking he experienced, and the 224 days of lockdown at the institutions where he served approximately two and one-half years of pre-sentence custody;
(2) admitting into evidence and misusing voluntary, videotaped jail-house interviews Mr. Deiaco gave to journalists about his career and business as a "manager" in the prostitution business; and
(3) imposing a sentence that was harsh and excessive.
[3] We dismiss each of these grounds of appeal.
Analysis
Qualitative Credit for Pre-Sentence Custody
[4] The sentencing judge did not err in denying Mr. Deiaco qualitative credit relating to the conditions of his pre-sentence incarceration. Specifically, she did not, as Mr. Deiaco contends, (1) fail to consider whether to give qualitative credit, or (2) act as though she did not have legal authority to give qualitative credit without subjective evidence of hardship to Mr. Deiaco, or (3) find that Mr. Deiaco did not suffer any adverse effects from the lockdowns or triple bunking. Instead, she considered whether to give such credit but exercised her discretion not to do so because she was not persuaded on the record before her that Mr. Deiaco experienced sufficient hardship to warrant a reduction in all of the circumstances. She was left unsure how frequently lockdowns materially affected Mr. Deiaco because he spent so much time in segregation, he made material progress in programming within the institution notwithstanding the lockdowns, and he chose to put himself at risk of further hardship during his incarceration through his unenviable misconduct record. These were proper matters for her to consider. We would not interfere with the sentencing judge's highly discretionary determination not to give the additional credit for pre-sentence custody sought by Mr. Deiaco.
Admission and Use of Jail-House Interviews
[5] Nor did the sentencing judge err in admitting or relying on the voluntary, videotaped interviews Mr. Deiaco gave about his work in the sex trade business. She considered and applied properly the factors identified by Rosenberg J.A. in R. v. Edwards (2001), 54 O.R. (3d) 737 (C.A.), at para. 64, for admitting and using uncharged offences when sentencing offenders. The sentencing judge cautioned herself not to punish Mr. Deiaco for the uncharged conduct, properly confining her use of Mr. Deiaco's voluntary admissions to proof of his background and character as information relevant to the objectives of sentencing. Specifically, she used Mr. Deiaco's uncontested boastful admissions as demonstrating that he has no insight into his behaviour or its impact, a consideration that may reduce the impetus for imposing a rehabilitative sentence. We would not interfere with the sentencing judge's discretionary decision to admit this evidence and to use it as she did.
Fitness of Sentence
[6] Finally, the sentence is not unfit. The sentencing judge turned her mind to the proper considerations, and the sentence she imposed was warranted given the gravity of Mr. Deiaco's offences, and the degree of his responsibility.
Disposition
[7] The appeal is dismissed.
J.C. MacPherson J.A.
L.B. Roberts J.A.
David M. Paciocco J.A.
