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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N. F., 2015 ONCA 51

DATE: 20150127

DOCKET: C57468

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N. F.

Appellant

Adetayo G. Akinyemi, for the appellant

Amy Rose, for the respondent

Heard: January 21, 2015

On appeal from the sentence imposed on July 29, 2013 by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of aggravated assault and assault with a weapon in connection with second degree burns she inflicted on her ten year old son by pressing a hot iron against both his arms. The trial judge entered a conviction on the count of aggravated assault and a Kienapple stay on the count of assault with a weapon.

[2] The appellant, who has been on bail pending appeal for about 16 months, seeks to have the 20 month carceral portion of the sentence imposed upon her reduced to a term of imprisonment of five months. She does not contest the period of probation and the several ancillary orders imposed by the trial judge. She also seeks leave to introduce fresh evidence in support of her claim for a reduction in her sentence.

[3] The appellant’s complaints, reduced to their essence, are that the trial judge:

i. overemphasized the sentencing objectives of denunciation and deterrence;

ii. misapprehended the relevant range of sentence and thus failed to give effect to the principle of parity; and

iii. failed to appreciate and give proper effect to the potential immigration consequences of the sentence to be imposed.

[4] The circumstances of the offence revealed conduct that extends well beyond “excessive discipline” as the appellant would characterize it.

[5] When the appellant returned home from work one day, the victim’s older brother told her that the victim, contrary to the appellant’s edict, had taken some food out of the refrigerator and had eaten it. The victim denied it. The appellant instructed her older son to get her iron and to plug it in. She then embarked on a lengthy interrogation of the victim in an effort to obtain a confession from him. No admission was forthcoming. The appellant burned the victim on one of his arms with the hot iron. Still no confession. The appellant burned her son on his other arm.

[6] The appellant, who worked as nurse, did not provide or seek any medical assistance for the victim’s burns. His injuries, second degree burns, were noticed by a gym teacher at school. Police were called.

[7] Children’s Aid authorities apprehended all three of the appellant’s children and placed them in foster care.

[8] The appellant is a permanent resident of Canada having emigrated here from Nigeria in 2006. She has no prior convictions. She was gainfully employed and is a person of strong religious convictions. A psychiatric report prepared for sentencing describes her as suffering from “a personality disorder of substantial degree involving easy prevarication, substantial moral indifference and a striking lack of capacity for self-doubt.”

[9] We would not interfere with the sentence imposed. The carceral portion of the sentence was within the range of sentence for this offence and offender. The predominant sentencing objectives, recognized and applied by the sentencing judge, were denunciation and deterrence. This offence involved an egregious breach of trust, consisting not only of the abuse of a child of ten years, but also of the recruitment of his older brother to bring the tools of that abuse to his mother, the abuser. Remorse was not evident before the sentencing judge. The appellant rejects any suggestion of fault and appears unamenable to treatment.

[10] We accept that no one told the trial judge about the specific immigration consequences of a carceral term of six months or more. Crown counsel did point out to the trial judge the appellant’s immigration status (which the appellant confirmed) and reminded the judge of the need to consider immigration consequences in determining the sentence to be imposed. The sentencing reasons do not reflect, however, any express consideration of the precise issue raised here.

[11] The failure to consider the specific immigration consequences of a carceral sentence of six months or more was an error in principle disentitling the sentencing judge’s decision to the deference usually accorded to such decisions in this court. Left to consider the fitness of the sentence, as is our mandate under s. 687 of the Criminal Code, we are satisfied, however, that in this case and despite those consequences, the sentence imposed reflects no error.

[12] The term of imprisonment sought by the appellant to preserve a right of appeal against a removal order for a person who is and will remain inadmissible in Canada by virtue of her conviction would accord a collateral consequence a significance well beyond its due. The result would be, in this case, the imposition of a sentence outside the range of sentence appropriate for this offence and the offender who committed it as well as one that would fail to apply the relevant sentencing objectives of deterrence and denunciation and the fundamental principle of proportionality.

[13] Although leave to appeal sentence is granted, the appeal against sentence is dismissed.

“K.M. Weiler J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”