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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

CITATION: R. v. M.S., 2011 ONCA 245

DATE: 20110330

DOCKET: C51694

COURT OF APPEAL FOR ONTARIO

Gillese, Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.S.

Appellant

Russell Silverstein, for the appellant

Grace Choi, for the respondent

Heard: March 29, 2011

On appeal from the sentence imposed on July 10, 2009, by Justice Gregory P. Rodgers of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of sexual assault. Although the trial judge found that the appellant met the Criminal Code criteria for being a dangerous offender, he designated him a long term offender as he concluded that there was a reasonable possibility of eventual control of the risk he posed. During the dangerous offender proceedings, the appellant pleaded guilty to assault, criminal harassment, violation of a s. 515(12) order and failing to comply with probation. These offences related to the same complainant but pre-dated his trial.

[2] The appellant was sentenced to 6 years’ imprisonment in addition to 31 months of pre-sentence custody, to be followed by a long term offender supervision order in the community for 10 years. He seeks leave to appeal sentence on a single issue: whether the trial judge erred in failing to give enhanced credit for the appellant’s pre-sentence custody.

[3] We see no basis on which to interfere with the sentencing judge’s exercise of discretion in determining the credit to be given for the pre-sentence custody or with the sentence.

[4] The sentencing judge gave reasons for exercising his discretion to credit pre-sentence custody time on a 1 for 1 basis, including that he found it unlikely, based on the appellant’s record, that the appellant would be eligible for early release. This is a legitimate consideration and one that, on the record, the sentencing judge was entitled to make.

[5] Another consideration was that the sentencing judge had found that the appellant met the dangerous offender criteria. It is in this context that the sentencing judge found the appellant’s dangerousness to be a relevant consideration on the issue of credit to be given for pre-sentence custody.

[6] Moreover, the total sentence was fit and not rendered manifestly unfit by reason of pre-sentence custody being credited on a 1 for 1 basis, rather than on a 2 for 1 or 1.5 for 1 basis, as the appellant contends. The instant offences included acts of forced fellatio and anal rape on a vulnerable victim with intellectual disabilities. It was a significant aggravating factor that the offences took place within a domestic relationship. At the time of the offences, the appellant was on probation having only recently been released for violent offences against another domestic partner.

[7] Accordingly, leave to appeal sentence is granted and the appeal is dismissed.

“E. E. Gillese J.A.”