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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-02-21

Docket: C64345 and C65036

Panel: MacPherson, Sharpe and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

D.W. Appellant

Counsel

D.W., appearing in person

Amy Ohler, duty counsel

Andreea Baiasu, for the respondent

Heard: February 13, 2019

On appeal from: the conviction entered on June 10, 2015 and the sentence imposed on June 10, 2015 by Justice J.S. Nadel of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant was convicted of sexual assault over a lengthy period of time on his seven year old nephew. He received a custodial sentence of nine years' imprisonment. He appeals the conviction and sentence.

[2] On the conviction appeal, the appellant contends that the trial judge erred by believing the complainant and failing to recognize that the complainant's testimony was probably coerced by his mother.

[3] There is no basis in the record for either of these submissions. The trial judge saw the young complainant's testimony in the two police interviews and believed him, which he was entitled to do.

[4] On the sentence appeal, the appellant, through duty counsel, advances two arguments.

[5] First, the appellant asserts that the trial judge did not properly apply the principle of parity in sentencing the appellant. We disagree. He explicitly cited and applied R. v. Lacasse, 2015 SCC 64, on the question of parity and carefully considered both the appropriate range and individualized assessment in his sentence reasons.

[6] Second, the appellant submits that the trial judge erred by not giving appropriate weight to several mitigating factors – the appellant's youth, absence of previous criminal record, and his own prior experience with sexual assault as a victim. In addition, the appellant says that the trial judge mistreated the medical evidence about the level of the appellant's intellectual disability.

[7] We do not accept this submission. The trial judge's sentencing reasons, coupled with the exchange between the trial judge and counsel during closing submissions, establish clearly that the trial judge was very cognizant of all these factors. In particular, the trial judge dealt explicitly with the reports of the psychologist and psychiatrist and reached a conclusion that was open to him on this issue.

[8] The conviction appeal is dismissed. The sentence appeal is allowed, but only to the extent of vacating the victim fine surcharge.