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), (2.1), (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 in respect of a victim or a witness, or on application of 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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(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 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; 2015, c. 13, s. 19

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

Date: 2018-12-19

Docket: C64020

Panel: Feldman, MacPherson and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Joel France Appellant

Counsel

Joel France, in person

Nathan Gorham, for the appellant

Benita Wassenaar, for the respondent

Heard and released orally: December 10, 2018

Reasons for Decision

[1] The appellant seeks leave to appeal the sentence of nine years imposed by the trial judge, following a guilty plea to unlawful act manslaughter based on failing to seek medical attention for a distressed child. The plea was based on an agreed statement of facts. It was agreed that the failure to seek medical attention was the significant cause of the two year old child's death. The trial judge conducted a Gardiner Hearing to make findings regarding: (1) whether the appellant assaulted the mother; (2) whether he repeatedly assaulted the child; and, (3) whether he inflicted the blow that caused the fatal injury. The trial judge answered yes to the first two but could not make a determination with respect to the third factor.

[2] The appellant submits that in sentencing him the trial judge made palpable and overriding errors not grounded in the evidence which she used as aggravating factors. She found that the appellant had decided not to take the child to the hospital to protect himself from blame for the multiple injuries to the child and that he had inflicted most of the wounds on the child. He also argues that the sentence imposed was disproportionate to the six year sentence that the mother received.

[3] We do not accept these submissions. The trial judge held a lengthy Gardiner Hearing and wrote careful, detailed reasons for her findings on that hearing and for her sentence. The findings she made were open to her on the evidence. The Crown submits that the overriding consideration for the trial judge was that the appellant moved in with the mother, dominated her and the child, and within a short time, the child who had been healthy and fine became horribly injured and abused and died of sepsis because his injuries were neglected.

[4] The Criminal Code aggravating factors based on the child's young age, the breach of trust and assaults on the mother, were also very important to the trial judge.

[5] With respect to the disparity in the sentence received by the mother, we note that her sentence was based on a joint submission and she was also being deported. Also based on the trial judge's findings of the appellant's role in dominating the mother and the child, the disparity in the two sentences does not amount to an error. Parity does not require the imposition of equal sentences, see R. v. Flowers, 2010 ONCA 129.

[6] In the result, while leave to appeal is granted, the appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

I.V.B. Nordheimer J.A.