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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-12

Docket: C64410

Panel: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

M.S. Appellant

Counsel: Jeffrey Berman, for the appellant Adam Wheeler, for the respondent

Heard and released orally: November 6, 2019

On appeal from: the sentence imposed on July 17, 2019 by Justice Beverly A. Brown of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant, a youthful first offender, pleaded guilty to counts of incest; sexual assault; and making, possessing and distributing child pornography. The victim in the counts of incest and sexual assault, and the person depicted in the child pornography, was the appellant's four-year-old daughter of whom he had sole custody.

[2] The trial judge imposed a global sentence of ten years which she reduced to seven and one-half years on account of pre-sentence custody. She also made several ancillary orders, among them a victim surcharge.

[3] The appellant appeals sentence. He seeks a reduction in the custodial portion of the sentence to a net term of four and one-half years, and asks that the victim surcharge be set aside under R. v. Boudreault, 2018 SCC 58.

[4] In this court, the appellant advances three grounds of appeal. He says that the sentencing judge erred:

i. in relying on a dissenting opinion in a prior decision of this court in determining a fit sentence;

ii. in considering the sexual abuse of the complainant as an aggravating factor in the sentences imposed in the child pornography offences (a ground contained in his factum, but not pursued in oral argument); and

iii. in imposing a demonstrably unfit sentence.

[5] In our view, except for the victim surcharge, which should be set aside, this appeal fails.

[6] In appeals from sentence, an intermediate appellate court is only entitled to intervene in connection with a sentence imposed at trial on the basis that the sentencing judge:

i. erred in principle;

ii. failed to consider a relevant factor; or

iii. erroneously considered an aggravating or mitigating factor, and that the error had an impact on the sentence imposed.

R. v. Lacasse, 2015 SCC 64, at para. 44.

[7] Our inquiry focuses on the fundamental principle of proportionality, which requires that the sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender. A sentence is demonstrably unfit if, but only if, it constitutes an unreasonable departure from that fundamental principle: Lacasse, at para. 53.

[8] We acknowledge that the sentencing judge erred in her reference to the dissenting judgment in R. v. P.M., 2012 ONCA 162, as if it were that of the majority of the court on the issue of a fit sentence. It was, however, but one of several authorities which the sentencing judge considered.

[9] More importantly, in our view, this error had no impact on the fitness of the sentence the sentencing judge ultimately imposed. Tested against the fundamental principle of proportionality, the reference to the dissenting judgment in P.M. did not result in a sentence that was disproportionate to the gravity of the offences or the moral blameworthiness of the appellant.

[10] Nor are we persuaded that the sentencing judge erred in considering the sexual abuse of the complainant as an aggravating factor in determining the sentence to be imposed on the child pornography counts. These offences involved an egregious breach of trust. They violated the physical and sexual integrity of a four-year-old child. The appellant's conduct – that of a predator, not a protector – attracted the operation of the aggravating factors in ss. 718.01 and 718.2(a)(ii.1) and (iii). We are satisfied that the sentence imposed is fit.

[11] In the result, leave to appeal sentence is granted and the appeal allowed to the extent that the victim surcharge imposed at trial is set aside. The appeal from sentence is otherwise dismissed.

David Watt J.A. Grant Huscroft J.A. Gary Trotter J.A.