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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-01-09

Docket: C65489

Panel: Doherty, Hourigan and Harvison Young JJ.A.

Between

Her Majesty the Queen Appellant

and

Isabel Hernandez-Mejia Respondent

Counsel:

• Elise Nakelsky, for the appellant
• Eva Tache-Green, for the respondent

Heard and released orally: January 9, 2019

On appeal from: the sentence imposed on May 14, 2018 by Justice Susan G. Himel of the Superior Court of Justice.

Reasons for Decision

[1] The respondent was convicted of four counts of sexual interference and four counts of sexual assault after a trial by judge alone. The trial judge stayed the sexual assault charges and imposed sentences totaling 2 and a half years on the sexual offence charges. The Crown seeks leave to appeal from the sentences.

[2] The facts relating to the offences and the respondent's background are fully and clearly set out in trial judge's reasons for sentence at 2018 ONSC 2481. The Crown argues that the sentence is manifestly unfit. She does not allege any error in principle. She acknowledges, correctly in our view, that the reasons for sentence demonstrate that the trial judge fully appreciated the applicable principles. Crown counsel argues, however, that a sentence of 2 and a half years is woefully inadequate to properly reflect those principles. She asks the court to impose a sentence of 5 years.

[3] Counsel for the respondent accepts that the offences are serious and have had a very negative impact on the victims. She acknowledges that the respondent deserves to go to the penitentiary. She contends that a sentence of 2 and a half years imposed on the 70 year old, first offender, is a proportionate response having regard to the offence and the offender. More to the point, counsel for the respondent argues that the sentence imposed is not so inadequate as to warrant appellate intervention.

[4] This court must defer to the trial judge's assessment of the appropriate sentence. When, as here, there is no argument that the trial judge erred in principle, this court can interfere only if the sentence imposed is manifestly inadequate, in that it is outside of the range of sentences which could reasonably be imposed for this offence and this offender.

[5] While we agree with the Crown's submissions, to the extent that we think the sentence could well have been higher, we agree with counsel for the respondent that the sentence cannot be characterized as manifestly unfit having regard to the totality of the circumstances.

[6] Leave to appeal is granted, but the appeal is dismissed.

"Doherty J.A."

"C.W. Hourigan J.A."

"Harvison Young J.A."