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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.
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. Quesnelle, 2014 ONCA 634 Date: 2014-09-12 Docket: C53116
Before: Hoy A.C.J.O., MacFarland and Watt JJ.A.
Between:
Her Majesty the Queen Respondent
and
Vincent Quesnelle Appellant
Counsel: Najma Jamaldin, for the appellant Susan Reid, for the respondent
Heard and released orally: September 5, 2014
On appeal from the conviction entered by Justice Thorburn, of the Superior Court of Justice, dated June 4, 2010 and the sentence imposed on July 27, 2010.
Endorsement
[1] The appellant does not argue that the sentence imposed by the trial judge was demonstrably unfit. Indeed, the sentence imposed was essentially that sought by the defence. Rather, the appellant contends that this court should vary the sentence imposed based on the fresh evidence he seeks to have admitted.
[2] That evidence addresses three matters. First, the appellant now asserts that he is Métis and argues that this court should apply Gladue and, based on Gladue, reduce his sentence. Second, he provides evidence of his efforts at rehabilitation since he was sentenced. Third, he documents the period during which he was on bail pending appeal to this court and then to the Supreme Court of Canada and says that this period of restricted liberty warrants a reduction in sentence.
[3] We are not persuaded that the proposed fresh evidence warrants reducing the sentence imposed by the trial judge.
[4] Aboriginal Legal Services has been unable to confirm the appellant’s status. His troubled background was, in any event, before the trial judge at the time of sentencing.
[5] Further, the trial judge appropriately considered the appellant’s prospects of rehabilitation in fashioning the sentence that she did. As she noted, in cases such as this that involve violence and sexual exploitation, denunciation and deterrence are paramount.
[6] Nor are we persuaded that in this case the sentence imposed should be reduced because of the time that the appellant was on bail pending appeal. The sentence imposed by the trial judge for these violent crimes was at the low end of the range. And the restrictions on the appellant’s liberty while on bail were moderate. Except for the period when post-conviction charges of threatening one of the complainants were outstanding, the bail conditions imposed permitted the appellant to work, to attend medical appointments and to attend Cocaine Anonymous and medical appointments.
[7] Accordingly, although leave to appeal sentence is granted, the appeal from sentence is dismissed.
“Alexandra Hoy A.C.J.O.” “J. MacFarland J.A.” “David Watt J.A.”