W A R N I N G

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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(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.

(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).

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.

(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.

CITATION: R. v. Ferriman, 2007 ONCA 710

DATE: 20071018

DOCKET: C46115

COURT OF APPEAL FOR ONTARIO

WEILER, MOLDAVER and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

TIMOTHY FERRIMAN

Appellant

David E. Harris for the appellant

Randy Schwartz for the respondent

Heard and released orally: October 5, 2007

On appeal from the sentence imposed by Justice J. David McCombs of the Superior Court of Justice, sitting with a jury, on September 30, 2006.

ENDORSEMENT

[1] The appellant, Timothy Ferriman, was found guilty of manslaughter by a jury. Mr. Ferriman applies for leave to appeal and if leave is granted, he appeals against the sentence imposed.

[2] The sentencing judge decided that the appellant should be sentenced as an adult and imposed a sentence of two years less a day incarceration and three years probation. However, the sentencing judge ordered that he serve his sentence in the youth facility where he had been detained pending trial and where he was receiving treatment and making progress. Mr. Ferriman also served three years pre-trial custody before being sentenced.

[3] The appellant seeks a reduction of his sentence to time served. He has served one year of the two-year sentence imposed in addition to the pre-trial custody.

[4] The appellant raises four issues: one, whether the sentence imposed was demonstrably unfit in that it was disproportionate to the appellant's culpability for the crime; two, whether the trial judge failed to adequately consider the greater dependence and reduced maturity of the appellant as required by the Youth Court Justice Act; three, whether the trial judge erred in his treatment of the psychiatric evidence; and four, whether the trial judge failed to properly consider the three years pre-trial custody served by the appellant.

[5] In our opinion, the trial judge committed no error in principle in sentencing the appellant as an adult and in imposing the sentence he did. The trial judge correctly determined that the key question was whether a youth sentence would be long enough to hold Mr. Ferriman accountable for his crime and correctly identified the factors to be considered.

[6] In his reasons, the trial judge specifically referred to the need to consider a young person's age, maturity, character, background, and previous record in fashioning his sentence. The appellant's immaturity was obvious. We reject the appellant's contention that the trial judge erred in accepting the opinion of the court appointed psychiatrist over the defence psychiatrist concerning the appellant's treatment needs. Contrary to the submission of the appellant, the trial judge was not required to be satisfied of the correctness of the court appointed psychiatrist's opinion to the standard of beyond a reasonable doubt before acting on it. That opinion was but one of the number of factors and he was entitled to act on it if, on balance, he was satisfied that it was more reliable and compelling than the defence psychiatrist's point of view.

[7] We reject as well the submission that the trial judge's reasons do not comply with the Sheppard test. In our view, though concise, they fully captured the trial judge's reasoning process and address the issues of concern in a cogent fashion.

[8] Finally, we see no merit in the submission that the trial judge erred in failing to give enhanced credit for pre-trial custody. While the trial judge did not specifically give reasons for doing so, we take into consideration the fact that the appellant was not subject to more harsh pre-trial restraint and was not deprived of any rehabilitation programs. The trial judge looked at all the circumstances and fashioned a sentence that was appropriate, including allowing the appellant to remain in a provincial youth facility.

[9] Overall, the trial judge's reasons speak eloquently to the horrific nature of the appellant's crime. They also address his troubled past, his deep-seated emotional and psychological problems, his need to obtain long-term treatment (initially in a structured setting), and the danger he presents should he be released into society prematurely.

[10] The adult sentence imposed exemplified balance and restraint and is a fit sentence. Accordingly, while leave to appeal sentence is granted, we would dismiss the appeal as to sentence.

"K.M. Weiler J.A."

"M.J. Moldaver J.A."

"Paul S. Rouleau J.A."