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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. G. C., 2010 ONCA 539
DATE: 20100729
DOCKET: C50523
COURT OF APPEAL FOR ONTARIO
Feldman, MacFarland and Karakatsanis JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
G. C.
Appellant
Brian H. Greenspan, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: June 30, 2010
On appeal from the sentence imposed by Justice E.A. Quinlan of the Superior Court of Justice, dated April 28, 2009.
ENDORSEMENT
[1] The appellant seeks leave to appeal the sentence of six years imposed following his conviction by a jury of aggravated assault, assault with a weapon and utter death threats against his wife from whom he was separated. The circumstances of the attack were egregious and horrific.
[2] The appellant specifically challenges four aspects of the sentencing judge’s reasons and decision.
[3] The first ground is that credit should have been given for the time served on strict pre-trial bail. In our view, there was no error in law in the circumstances of this case. R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.) imposes an onus on the offender to put forward the hardship. This was not raised by the defence at trial and in addition, counsel agreed that six months pre-trial credit was appropriate.
[4] In this case, the appellant was able to continue to work, had sureties and was able to contribute to society and support his child.
[5] The second ground of appeal asserts an improper use of the victim impact statement. While the victim impact statement may have been overly broad, the sentencing judge limited her consideration of the statements relating to the complainant’s self-diagnosis of health consequences and specifically noted that she did not consider the complainant’s difficulty in testifying at trial as an aggravating factor.
[6] The third ground challenges the sentencing judge’s basis for rejecting remorse as a mitigating factor. The sentencing judge was entitled to give more weight to the report of the probation officer than the report of Dr. Johnson and made no error in doing so. She also supported her conclusion with her own findings regarding the appellant based on the evidence, including his views of the complainant.
[7] The fourth objection is that the sentence is outside the range of an appropriate sentence. The appellant submits that the proper range is the low or middle end of a two to four year range. In our view, given the serious aggravating factors found by the sentencing judge, she made no error in imposing a sentence of six years which is clearly not the high end of the range for domestic assault of this level of violence and duration.
[8] Leave to appeal sentence is granted. The appeal is dismissed.
“K. Feldman J.A.”
“J. MacFarland J.A.”
“Karakatsanis J.A.”