Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

Court of Appeal for Ontario

Date: 2024-05-15 Docket: COA-23-CR-0444

Judges: Zarnett, Coroza and Monahan JJ.A.

Between:

His Majesty the King Respondent

And

E.M. Appellant

Counsel: Howard L. Krongold, for the appellant Philippe G. Cowle, for the respondent

Heard: May 6, 2024

On appeal from the sentence imposed by Justice Marlyse Dumel of the Ontario Court of Justice on April 5, 2023.

Reasons for Decision

[1] At the conclusion of the oral hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant pleaded guilty to sexually assaulting his intimate partner and received a sentence of 30 months’ imprisonment. He seeks leave to appeal his sentence and asks this court to vary it to a conditional sentence of imprisonment of two years’ less a day or alternatively to a sentence of two years’ incarceration.

[3] The appellant and the complainant were in a relationship for five years. They did not live together or have children. On the night of the assault, they were staying over at her parents’ home. The complainant fell asleep in bed with the appellant. She awoke feeling pressure and discomfort in her vagina. The appellant admitted that after spending time kissing her neck and fondling her breasts, he had vaginally penetrated the victim all without her consent. The appellant was conscious and sober the entire time.

[4] The sentencing judge’s decision is an exercise of discretion. This court owes significant deference to that decision, and it is not open to us to interfere with it unless (1) the sentencing judge committed an error in principle, or wrongly considered or failed to consider a relevant factor, and that error had an impact on the sentence imposed; or (2) the sentence is demonstrably unfit.

[5] The appellant argues that the sentencing judge did not give sufficient weight to his guilty plea and remorse. The overarching submission is that although the sentencing judge recognized that there was “significant mitigation,” the ultimate sentence she imposed did not properly reflect this significant mitigation, since he likely would have received a similar sentence had he chosen to plead not guilty. The appellant points to the fact that the guilty plea spared the complainant from having to testify in a “triable” case, and to his immediate and ongoing remorse, his insight, and the concrete steps he took to address his offending behaviour before sentencing.

[6] We do not accept these submissions.

[7] Sentencing is a "profoundly subjective process" and the sentence ultimately imposed by a sentencing judge will reflect a multiplicity of considerations: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46.

[8] We see no error in how the sentencing judge arrived at the sentence she imposed. The sentencing judge noted that this court has held that “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of three years in the penitentiary”: see R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77; R. v. S.W., 2024 ONCA 173, at paras. 30-32. She outlined the relevant aggravating factors, and the mitigating factors including the steps taken by the appellant towards rehabilitation and the guilty plea. She ultimately imposed a sentence of two and a half years (30 months). Her reasons plainly demonstrate that the sentence was crafted in light of the mitigating factors that the appellant stresses.

[9] Essentially, the appellant’s complaint comes down to this: the sentencing judge’s deviation from the bottom end of the established range for a penetrative sexual assault was not large enough given his guilty plea and extreme remorse. In our view, this is not a reviewable error. Sentencing judges have wide latitude to determine what is a proportionate sentence, and deviation from a sentencing range or starting point does not in itself justify appellate intervention: R. v. Parranto, 2021 SCC 46, 463 D.L.R (4th) 389, at para. 29. It bears repeating that sentencing is a highly subjective exercise of discretion, as is a sentencing judge’s determination of what weight is to be given to a guilty plea: R. v. Shah, 2017 ONCA 872, at paras. 13-14. Appellate courts are not to intervene in a sentence simply because another judge may have weighed the aggravating and mitigating factors differently, or have deviated more from the bottom end of a range.

[10] Nor is this sentence demonstrably unfit. Given the mitigating and aggravating factors outlined by the sentencing judge, the sentence is proportionate and does not fall outside the range of sentences that could reasonably have been imposed in the circumstances.

[11] As for the fresh evidence, in our view, it would not have affected the sentence imposed in this case. The fresh evidence consists of materials that show that the appellant is doing volunteer work, is registered as a full-time student in college, and is continuing to receive psychotherapy. The fresh evidence simply confirms the appellant’s strong rehabilitative prospects, which the sentencing judge explicitly recognized.

[12] For these reasons, the motion to introduce fresh evidence is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

"B. Zarnett J.A."

"S. Coroza J.A."

"P.J. Monahan J.A."