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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. C.T.W., 2011 ONCA 598

DATE: 20110916

DOCKET: C53196

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.T.W.

Appellant

Dale E. Ives, for the appellant

Emile Carrington, for the respondent

Heard and released orally: September 14, 2011

On appeal from the sentence entered on November 16, 2010 by Justice T. David Little of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] We are not persuaded that a global sentence of 22 months for these offences was unfit. We agree with the Crown that these offences reflect a level of domination, humiliation and intimidation that justified the overall sentence. However, we interfere with the sentence because the trial judge erred in one of the reasons he gave for giving only 1:1 credit for pre-trial custody.

[2] Sentencing in this case took place before the amendments to s. 719 of the Criminal Code limiting the amount of credit for pre-trial custody. Moreover, when he sentenced the appellant, the trial judge did not have the benefit of this court’s decision in R. v. Monje, 2011 ONCA 1, [2011] O.J. No. 1. In that case, LaForme J.A. for this panel, wrote that parole ineligibility is a relevant consideration in assessing credit for pre-trial custody. Thus, in refusing to consider the unavailability of parole when he assessed the credit to be given to the appellant for his pre-trial custody, the trial judge erred. In Monje we increased the credit to 2:1 and we do so here. Giving 2:1 credit the appellant has now effectively served his sentence.

[3] Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed and the appellant’s sentence is varied to time served.

“John Laskin J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”