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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. Menard, 2013 ONCA 552

DATE: 20130910

DOCKET: C55340

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leonard Martin Menard

Appellant

Brad Greenshields, for the appellant

Suhail Akhtar, for the respondent

Heard and released orally: September 6, 2013

On appeal from the sentence imposed on April 29, 2011 by Justice Normand Glaude of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant pleaded guilty to two very serious counts of sexual assault. The parties jointly proposed a sentence of 20 months less time served of 5 months. The sentencing judge rejected this joint submission and imposed a sentence of 5 years plus time served.

[2] The appellant submits that the sentencing judge made two errors. First, as he intended to depart significantly from the joint submission, he ought to have given counsel an opportunity to make further submissions. He erred by failing to do so, see R. v. Hagen. Second, the sentencing judge failed to accord significant weight to the joint submission.

[3] We agree with the appellant’s first submission, and indeed the Crown concedes this error. However, it remains open to this court to assess the fitness of the sentence. That brings us to the appellant’s second submission.

[4] In our view, the sentencing judge was justified in departing from the joint submission. In the light of the seriousness of these offences, a sentence of 20 months would have brought the administration of justice into disrepute. The sentence that the sentencing judge did impose, 5 years on top of time served, was entirely fit.

[5] Accordingly, although leave to appeal sentence is granted, the appeal is dismissed.

“John Laskin J.A.”

“J.C. MacPherson J.A.”

“David Watt J.A.”