WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.R., 2014 ONCA 484

DATE: 20140623

DOCKET: C57724

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.

(A Young Person)

Appellant

Sam Goldstein, for the appellant

Michael Fawcett, for the respondent

Heard: June 18, 2014

On appeal from the sentence imposed on September 11, 2013 by Justice Michael S. Block of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, a young offender, was convicted of sexually assaulting his friend. He was 16 years old at the time, she 15. The sentencing judge imposed a custodial sentence of 300 days (200 in secure custody and 100 days of community service) followed by 14 months’ probation.

[2] The appellant seeks to set aside that sentence on two grounds. First, he argues that the sentencing judge erred by treating the appellant’s testimony at trial as an aggravating factor. Secondly, he contends that the sentence imposed was excessive. In addition, he makes a fresh evidence application in which his social worker describes him as posing a low risk of re-offending sexually.

[3] The sexual assault was serious. The appellant was invited by his friend and classmate to her house to talk about his relationship problems and his recent breakup with another girl. They began kissing (the complainant agrees this was consensual). But then the appellant became more aggressive and increasingly physical. The complainant resisted. When she refused to perform oral sex on him, he forced her pants down and forced her to have anal sex. She said “no” again. The appellant did not respond but proceeded to penetrate her anus.

[4] Later that evening, the appellant aggravated the seriousness of the offence, in an exchange of text messages where he acknowledged the assault but applied pressure in an attempt to persuade the complainant not to disclose it to anyone.

[5] We do not agree that the sentence imposed was excessive in the circumstances.

[6] The sentencing judge applied all the appropriate principles of sentencing relating to young offenders and concluded that a period of probation alone or a deferred custody arrangement would not properly address the needs of rehabilitation, reintegration, specific deterrence and denunciation. He took into account the considerable mitigating factors favouring the appellant (his intellect, good family background, community involvement and the lack of any prior record). There were countervailing aggravating factors, however. These included what the sentencing judge described as the egregious and degrading nature of the act of non-consensual anal intercourse, compounded by the appellant’s profound lack of empathy as disclosed in the subsequent exchange of text messages. In this exchange, the appellant first tried to paint the conduct as consensual; he then attempted to slander the complainant into silence; finally he implied that she might be bribed into silence.

[7] As a result, the sentencing judge concluded that a stern sanction was needed to communicate to the appellant the consequences of the very serious nature of what he had done and to address his lack of empathy.

[8] We see no error in principle in the sentence he imposed. The sentence was a fit sentence in the circumstances.

[9] Nor do we accept the argument that the sentencing judge improperly used the manner in which the appellant testified as an aggravating factor in sentencing. His observation that the appellant’s “profound lack of empathy” was a significant aggravating factor requiring “a powerful just sanction” was not based upon the appellant’s testimony at trial. It was based upon the exchange of text messages that revealed the appellant’s failure to appreciate the seriousness of his conduct and his willingness to go to some lengths to cover it up.

[10] It is permissible for a sentencing judge to take into account lack of remorse, together with an offender’s lack of understanding of his or her involvement in the offence, as factors demonstrating that the young person has not accepted responsibility for his actions: R. v. J.F., 2011 ONCA 220, per Rosenberg J.A., at para. 86. Here, the sentencing judge concluded that the appellant’s lack of remorse and his conduct displayed in the exchange of text messages were important factors in crafting the appropriate youth sentence in order to give effect to s. 38(2)(e)(iii) of the Youth Criminal Justice Act, S.C. 2002, c.1, which requires that a sentence imposed on a young person “must … promote a sense of responsibility in the young person, and an acknowledgment of the harm done to victims and the community.” These were proper considerations on sentencing.

[11] Finally, nothing in the proposed fresh evidence alters this result, in our view.

[12] The appeal is therefore dismissed.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”