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(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c. 43, ss. 4, 8; 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court of Appeal for Ontario

Date: 2019-02-14

Docket: C65068

Panel: MacPherson, Sharpe and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

J.D. Appellant

Counsel

Appellant: J.D., in person; Ian Smith, duty counsel

Respondent: Jessica Smith Joy

Heard: February 14, 2019

Appeal Information

On appeal from the conviction entered on June 16, 2017 and the sentence imposed on February 21, 2018 by Justice Laurie Lacelle of the Superior Court of Justice, sitting without a jury.

Appeal Book Endorsement

Conviction Appeal

[1] The appellant appeals his conviction and sentence on the following charges:

1. sexual assault; and
2. forcible confinement.

[2] These charges arose out of an incident involving an altercation with his domestic partner which resulted in a number of other charges to which the appellant has pled guilty.

[3] He pled not guilty to the allegations of sexual assault and forcible confinement. Following a judge alone trial, the appellant was found guilty and sentenced to a global sentence of 3 years and 9 months, less 3 months for pre-sentence bail conditions. He appeals his convictions on the following basis:

1. that the trial judge misapprehended the evidence; and
2. that the verdict was unreasonable.

[4] We do not agree. The trial judge gave very detailed and comprehensive reasons addressing all the concerns raised by the appellant, as well as his counsel at trial. The trial judge itemized every point raised by the appellant in her reasons for judgment and reconciled all concerns. We see no basis to interfere with this decision. Accordingly, conviction appeal is dismissed.

Sentence Appeal

[5] In our view, the global sentence of 3 years and 9 months was a fit sentence in all the circumstances. The Crown concedes that the imposition of a victim fine surcharge is now unconstitutional.

[6] Accordingly, the sentence appeal is dismissed, except for the portion of the sentence imposing a victim fine surcharge, which is set aside.