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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. D.B., 2020 ONCA 512

DATE: 20200818

DOCKET: C67835

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.

Appellant

D.B., acting in person

Lynda Morgan, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: August 10, 2020 by videoconference

On appeal from the sentence imposed by Justice Hugh K. O’Connell of the Superior Court of Justice on November 26, 2019.

REASONS FOR DECISION

[1] The appellant pled guilty to and was convicted of the sexual assault of his estranged wife and use of an imitation firearm. He was sentenced to a four-year custodial sentence less pre-sentence custody of 31.5 months.

[2] The appellant appeals from his sentence. With the able assistance of duty counsel, he submits the sentencing judge made the following reversible errors:

i. The sentencing judge erroneously considered premeditation of the sexual assault as an aggravating factor that materially impacted his sentence for that offence. The inference of premeditation of the sexual assault was not the only reasonable inference open to the sentencing judge on the agreed statement of facts.

ii. The sentencing judge failed to give sufficient enhanced credit for pre‑sentence custody. The additional amount of four months allotted by the sentencing judge for the harsh conditions that the appellant endured while in custody prior to sentencing was so low that it resulted in an error of law.

[3] The appellant himself made the submission that the three-year probationary period was too long and unnecessary.

[4] We do not accept these submissions.

[5] The agreed statement of facts amply supports the sentencing judge’s finding that the entire sequence of events resulting in the offences committed by the appellant was the product of deliberate planning and premeditation, trickery and luring.

[6] According to the agreed statement of facts that formed the foundation of the appellant’s guilty plea, under the admitted false pretence of collecting winnings from a bet to share with her, the appellant lured his estranged wife to a motel room that he had previously reserved. To persuade her to enter the motel room, he told her others would be present, which the appellant also admitted was false. Once his estranged wife was inside the motel room, the appellant locked and barred the door with handcuffs that he had brought with him and a chair. He advised her that he was going to kill himself, showing her what appeared to be a firearm and bullets that he had previously placed in a drawer in the motel room, but that he would first sexually assault her, which he did. He told his estranged wife that he would not use the firearm against her but that he would become physical if she tried to leave or use her cell phone. Out of fear that he would kill himself, the appellant’s wife remained with him overnight and then drove him the next morning for food and back to his car.

[7] In the circumstances of this case, it would have been highly artificial for the sentencing judge to separate out the different components of what was clearly planned as a sequence of events that the appellant intended to and did commit against his estranged wife and against her will. The sentencing judge did not stray beyond the agreed facts; any inferences that the sentencing judge drew followed clearly from what was set out in the agreed statement: R. v. Druken, 2006 NLCA 67, at para. 18.

[8] Even if the sentencing judge had erred as argued, the alleged error had no impact on sentence which was entirely fit and there is no basis for appellate intervention: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[9] First, there is no issue that the sentence is well within the appropriate range of 21 months to four years in cases of sexual assault involving forced intercourse with a spouse or former spouse, as identified by this court in R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 (C.A.), at para. 87. Moreover, there were numerous other aggravating features of the offences that amply justified the three-year custodial sentence for sexual assault. These included: the appellant’s planning and deliberation of the entire scenario by reserving the motel room and bringing what appeared to be bullets and a firearm; his trickery and luring that breached the trust relationship with his estranged wife; his confinement of her and threats of physicality if she attempted to leave; and his sexual assault of a former domestic partner. The sentencing judge properly considered and applied the appropriate sentencing principles and reasonably balanced the aggravating and mitigating factors, including the appellant’s guilty plea.

[10] With respect to the sentencing judge’s determination of four months of enhanced credit for the harsh conditions of the appellant’s detention, we see no error in the exercise of his discretion. As this court most recently reiterated in R. v. Brown, 2020 ONCA 196, at para. 13, it is well-established that the amount of enhanced credit granted engages the sentencing judge’s discretion. It is not subject to any rigid formula or calculus. The sentencing judge thoroughly considered the relevant circumstances and his decision was reasonable and not demonstrably unfit.

[11] Duty counsel submitted that if this court rejects this ground of appeal, consideration should nevertheless be given to facilitate the appellant’s early release because of the risks that the appellant runs while incarcerated during the COVID-19 pandemic. The appellant’s statutory release date is in October 2020.

[12] We cannot intervene. Whether or not the appellant should be granted early parole because of COVID-19 considerations is a matter strictly within the jurisdiction of the Parole Board. While he remains in custody, the primary responsibility for his welfare and safety lies with the federal government and Corrections Canada.

[13] Finally, with respect to the probationary order, the appellant has not pointed to any error in the exercise of the sentencing judge’s discretion that would permit appellate intervention.

[14] We find no basis to interfere with the appellant’s sentence.

[15] Accordingly, the appeal is dismissed.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“Gary Trotter J.A.”