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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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

Date: 2017-06-08

Docket: C63367

Panel: Tulloch, Lauwers and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

A.G. Appellant

Counsel:

• Yoni S. Rahamim, for the appellant
• Andrew J. Hotke, for the respondent

Heard and released orally: June 5, 2017

On appeal from: the conviction entered by Justice Irving W. André of the Superior Court of Justice on February 26, 2016, with reasons reported at 2016 ONSC 1406, and the sentence imposed on December 15, 2016.

Reasons for Decision

[1] The appellant appeals his conviction for sexual interference and seeks leave to appeal his sentence of 22 months, less credit for pre-sentence custody.

[2] On his conviction appeal, the appellant raises an issue concerning the DNA testing of the complaint's underwear. He states the reasons of the trial judge record two different officers describing different coloured underwear. However, we see no suggestion in the reasons that the DNA testing was performed on the wrong set of underwear.

[3] The appellant also submits the trial judge erred in not accepting his evidence that he was at his auto shop at the time the complainant alleged she was assaulted. He argues the trial judge should have believed him. We do not accept this submission. The trial judge gave detailed reasons why he did not accept the appellant's evidence. We see no reversible error.

[4] We dismiss the appeal from conviction.

[5] The appellant was not represented by counsel at his sentencing hearing. Duty counsel, on behalf of the appellant, submits the sentencing judge made two related errors: (i) he treated lack of remorse as an aggravating factor; and, (ii) he improperly used information from the pre-sentence report in his analysis as evidence of extreme lack of remorse. In this regard, duty counsel specifically points to the statement in the sentencing reasons: "[The appellant] manifested a great deal of hostility to women during the course of his interview with the probation officer." It is unclear whether the pre-sentence report was marked as an exhibit.

[6] We agree the sentencing judge erred in principle by treating the absence of remorse by the appellant as an aggravating factor. However, we are not persuaded that error had an impact on the sentence such as to justify the imposition of a lesser sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The sentence of 22 months' imprisonment imposed by the sentencing judge was justified in light of the young age of the victim, the appellant's breach of trust toward the victim, the serious impact of the offence on the victim, and the appellant's prior criminal record.

[7] We would grant the appellant leave to appeal his sentence, but we would not interfere with the sentence imposed on the appellant. His appeal from sentence is dismissed.

M. Tulloch J.A. P. Lauwers J.A. David Brown J.A.