Publication Restriction Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200319 Docket: C65314

Before: Juriansz, Brown and Trotter JJ.A.

Between:

Her Majesty the Queen Respondent

and

J.C.J. Appellant

Counsel: Jessica Zita, for the appellant, via teleconference Michael Fawcett, for the respondent, via teleconference

Heard: March 16, 2020

On appeal from the conviction entered on July 20, 2017 and the sentence imposed on November 7, 2017 by Justice Alissa K. Mitchell of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions for sexual assault and incest. At trial he admitted sexual intercourse with his 18-year-old biological daughter. He testified he was mentally “not present” at the time and had no recollection of the events of the night between the time he fell in the basement and ending after the admitted sexual intercourse with his daughter. He asked the court to conclude he must have intended to engage in sexual activity with his wife and not his daughter.

[2] The only ground of appeal advanced is the ineffective assistance of counsel. While recognizing the seriousness of the offences, counsel asserts that the appellant was entitled to transparency and diligence from his counsel. She submits that trial counsel was ineffective in two ways.

[3] First, counsel submits that trial counsel failed to properly prepare a planned s. 11(b) application in accordance with practice directions, and then abandoned the application without obtaining instructions from the appellant. On appeal, the appellant has failed to establish the allegation of unreasonable delay had any merit. Moreover, he has not alleged that he wanted to bring a s. 11(b) application in the first place, and that he instructed counsel to do. We are not persuaded the appellant suffered any prejudice when his trial counsel, without instructions, abandoned what must be regarded as a meritless application.

[4] Second, counsel submits that trial counsel failed to prepare the appellant and his wife to testify at trial. She asserts an accused’s entitlement to a fair trial includes the right to be properly prepared to testify in his own defence. Again, the appellant has not shown the requisite prejudice. He has not suggested how his and his wife’s testimony would have been different, or in what way the conduct of the defence at trial might have proceeded differently, had they been fully prepared to give evidence. The appellant was faced with evidence of his saliva on his daughter’s breasts and his semen in her vagina. His position was simple – he had no recollection of the event. We would not give effect to this ground of appeal.

[5] The appeal against conviction is dismissed.

[6] The appellant appeals his sentence of five years for incest, and three years, concurrent, for sexual assault. He submits that it is unduly harsh and seeks a sentence of four years.

[7] Counsel submits the trial judge erred by “basing” her sentence using the mandatory minimum under s. 155(2) as a guiding principle, by failing to give mitigating effect to his family’s support and character letters, by considering the way the defence conducted the trial as an aggravating factor, and by imposing an order under s. 161 when the complainant was over the age of 18.

[8] The trial judge was well aware that s. 155(2) did not apply in this case and said so repeatedly. She referred to s. 155(2) as a “useful guide” considering the complainant was a teenager just over 18, and “entirely dependent” on the appellant and “exceptionally vulnerable”. The complainant had recently come to reside with her biological father out of foster care. The trial judge did not err in referring to s. 155(2).

[9] The defence position on sentencing provides useful context for considering the trial judge’s treatment of the appellant’s family’s support and character letters. These were used to validate the defence’s request for a sentence of 90 days to be served intermittently. The trial judge, at para. 31, did recognize the “continued support of [the appellant’s] spouse and other family members” as a mitigating factor. However, in rejecting the defence position that the mitigating factors supported a 90 day sentence, the trial judge was entitled to characterize the family support as “misguided and misinformed”.

[10] The trial judge did review the way the defence conducted the trial. She did so in considering “the absence of mitigating factors” that might preclude the reduction of “an otherwise appropriate sentence”. It would have been better had the trial judge limited herself to noting that the appellant had not pled guilty. She reviewed the defence conduct of the trial in some detail and with a critical tone. The review was irrelevant, and despite the trial judge’s preface, might be taken to signal that defence conduct played a role in sentencing. That said, the appellant accepts the sentence imposed is within the range and we are not persuaded there is any reason to interfere.

[11] The Crown concedes that the s. 161 order should be set aside, as that section applies “in respect of a person who is under the age of 16 years”.

[12] Leave is granted to appeal sentence, and the sentence appeal is allowed. The order made under s. 161 of the Code is set aside. The sentence appeal is otherwise dismissed.

“R.G. Juriansz J.A.”

“David M. Brown J.A.”

“Gary Trotter J.A.”