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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-12-20

Docket: C64779

Panel: Feldman, MacPherson and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Normand John Beaudoin Appellant

Counsel

Peter Copeland, duty counsel

Andrea Baiasu, for the respondent

Heard and released orally: December 12, 2018

Appeal Book Endorsement

[1] The appellant received a sentence of five years for aggravated sexual assault. The circumstances were very serious, including forced sexual intercourse with a 19 year old pregnant woman who trusted the appellant and his spouse.

[2] The appellant has a related criminal record including conviction for two prior sexual assaults on young women. However, his sentence was suspended with probation for those offences in 2006.

[3] The appellant had been under the care of his physician for 25 years who reported to the court that he functions at the level of a 14-16 year old. The trial judge referred to the appellant's intellectual limitations and mental health status as the most obvious mitigating factor. However, in our view it is not clear that the trial judge took them into account in arriving at the ultimate sentence.

[4] The trial judge referred to the case law in the low range; i.e. under five years, as including three factors: a guilty plea, consensual sexual relations vitiated by non-disclosure of HIV status, and no related criminal record. As none of those three pertained, the trial judge imposed a sentence of five years. However, she did not explain why the significant mitigating factor of the appellant's diminished intellectual capacity would not bring the sentence properly into the low, under five year range.

[5] On this appeal duty counsel submitted that 3.5-4 years would have been the appropriate sentence. The appellant submitted a written letter to the court including how remorseful he is, his deeper understanding of the offence and its impact on and consequences for the victim, as well as the 16 programs he has completed in custody with the certificates.

[6] In our view, in all the circumstances it is appropriate to reduce the sentence to 4 years.

[7] The appeal is allowed to that extent.