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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. M.R.M., 2020 ONCA 75

DATE: 20200131

DOCKET: M51178 (C67259)

van Rensburg J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.M.

Applicant

Ricardo Golec, for the applicant

Nicolas de Montigny, for the respondent

Heard: January 23, 2020

REASONS FOR DECISION

[1] The applicant is serving a sentence of five years’ imprisonment for incest. After serving one year, he applies for bail pending appeal as to sentence only. In accordance with s. 679(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, leave to appeal sentence is required before bail can be granted. In this case leave to appeal sentence is granted on consent of the Crown.

[2] The criteria for bail pending appeal of sentence alone are set out in s. 679(4). The applicant must satisfy the court that:

(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[3] The Crown opposes bail. There is no issue with respect to the second criterion. Rather, the Crown opposes release on the basis that the applicant has not demonstrated that his appeal has sufficient merit such that detention in custody pending the appeal would cause unnecessary hardship. The Crown says that there is no unnecessary hardship in serving an appropriate sentence, and that here the applicant’s sentence was fit given the existence of several aggravating factors. The Crown also opposes release on public interest grounds based on the seriousness of the offence, the impact on the victim, and the very low likelihood that the applicant’s five-year sentence will be disturbed on appeal. The Crown does not assert any public safety concern in relation to the public interest criterion.

[4] The issue before the court is whether the applicant’s appeal is more likely than not to succeed to the extent that he will have served his sentence by the time the appeal is heard. As Justice Trotter notes in The Law of Bail in Canada, loose-leaf (2017-Rel.2), 3d ed. (Toronto: Thomson Reuters, 2010), at pp. 10-39 to 10-40: “The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he/she will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than what is subsequently determined to be appropriate.”

[5] The applicant pleaded guilty in the Superior Court to one charge of incest and one charge of sexual interference in relation to multiple incidents of sexual intercourse with his sister, T.D. There was an agreed statement of facts, and he was convicted of both offences. The sentencing judge, after considering the Crown’s opposition to doing so, stayed the conviction for sexual interference under Kienapple (R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729). Following a Gardiner hearing (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368) at which both the applicant and T.D. testified, the sentencing judge found that the applicant and the complainant had sexual intercourse commencing when the complainant was 12 years old, on three to five occasions, including after the applicant was already involved with his current partner. T.D. gave birth to the applicant’s child when she was 14. The complainant and the applicant did not grow up together and first met when the applicant came to Canada from Haiti at the age of 18, in 2011 when T.D. was 11. He had difficulty adjusting to life in Canada and developed a close relationship with T.D.

[6] The sentencing judge dismissed the applicant’s challenge to the five-year mandatory minimum sentence under s. 155(2) of the Criminal Code (for incest when the complainant is under 16 years). Applying the two-step test in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, he began by considering a just and proportionate sentence for the offence having regard to the sentencing criteria set out in s. 718 of the Code.

[7] The sentencing judge considered the fact that the offence was serious, and committed against a child. He looked at the circumstances of the offence, the offender and the effect of the offence on the complainant. He took into consideration the mitigating circumstances: the applicant’s relative youth and immaturity, his guilty plea, the fact that he and T.D. had not grown up as brother and sister, the applicant’s difficult adjustment to Canada, and the support of his mother and partner (with whom he had a child). The sentencing judge also addressed the aggravating circumstances: the number of times sexual intercourse took place, over a prolonged period of time, the fact that the applicant fathered a child with T.D., T.D.’s age, the age difference, the fact that the applicant was more than 20 years old at the time of the last incident, the devastating impact on T.D., and the impact on the child, who has severe health issues and special needs. The sentencing judge observed that the primary sentencing objectives in such a case are deterrence and denunciation.

[8] Finally, the sentencing judge referred to the various sentencing precedents provided by counsel for both sides. He concluded that, since this court’s decision in R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 450, the appropriate range would be 4.5 to 6.5 years for incest, whether by a parent or a sibling of the victim, and that, after considering the mitigating and aggravating factors in this case, a fit sentence for the applicant would be five years.

[9] The sentencing judge went on to consider the second part of the Nur test. The mandatory minimum sentence was not disproportionate to what he had determined to be a fit sentence for the applicant. As for whether it was grossly disproportionate to a reasonable hypothetical offender, the sentencing judge rejected the hypothetical proposed by the applicant’s counsel as lacking in detail and far-fetched (as it assumed the accused came from a place where incest was legal, without addressing whether incest with a minor would be legal). Instead, he considered a different hypothetical where the complainant and accused were close in age, and had not grown up together, with one incident of intercourse, and no pregnancy. The sentencing judge concluded that the mandatory minimum sentence of five years was not grossly disproportionate to a 3.5-year sentence that might be appropriate for such a reasonable hypothetical.

[10] The applicant says that the sentence appeal has merit. First, he argues that the sentencing judge erred in his conclusion about the constitutionality of the mandatory minimum sentence. The applicant asserts that the sentencing judge instructed himself incorrectly with respect to the reasonable hypothetical. He refers to para. 62 from Nur and asserts that a passage in the French version (“Les hypothèses fantaisistes ou n’ayant qu’un faible rapport avec l’espèce doivent être écartées”), which was referred to by the sentencing judge here, has a different meaning in the English version (“Fanciful or remote situations must be excluded”). This gave rise to the sentencing judge’s error, which, according to the applicant, was to require the reasonable hypothetical to be related to the facts of the applicant’s case. The applicant points to the reasonable hypotheticals set out in the Court of Appeal of Quebec decision in Y.P. c. R., 2019 QCCA 1506, at para. 21, as more appropriate and reasonable (although the court in that case considered the hypotheticals inadequate and refused to rule on the constitutional question where, under the first step in Nur, the sentence was fit: see paras. 29, 50-54).

[11] The Crown asserts that para. 62 of Nur must be considered in the context of the entire reasons, and disagrees that there is any difference in the formulation of the test between the French and English versions. Moreover, the Crown asserts that there was no error in the trial judge’s interpretation and application of the second step in Nur. According to the Crown, the sentencing judge simply rejected the hypothetical offered by the defence as fanciful, and instead used a hypothetical that was consistent with the so-called “best offender” whose conduct might be caught by this section.

[12] The constitutionality of the five-year mandatory minimum sentence at issue here has not yet been considered by this court. The applicant could succeed on this part of his appeal if this court accepted that the mandatory minimum sentence was grossly disproportionate to a reasonable hypothetical, or using terminology from R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, the “reasonably foreseeable applications” of the mandatory minimum. In the circumstances I cannot say that the constitutional challenge is without merit.

[13] However, even if the applicant were successful in persuading this court that the mandatory minimum sentence of five years is grossly disproportionate when applied to a reasonably foreseeable “best offender”, he would still need to demonstrate a legal error that would warrant interference with his sentence and then that a lesser sentence is warranted, before he will succeed in his appeal.

[14] This brings us to the applicant’s second ground of appeal: that the sentencing judge erred in imposing a five-year sentence, and that a fit sentence in this case would be much lower (at the sentencing hearing defence counsel asked for a custodial sentence of less than six months because of the immigration consequences of the sentence; the applicant’s counsel in this court says that a fit sentence is one that the applicant will reasonably have served at the time his appeal is heard).

[15] The applicant says that the error of the sentencing judge was in identifying 4.5 to 6.5 years as an appropriate range, in reliance on a number of cases that had little bearing on the facts of his case. He points to examples of cases where much lesser sentences were imposed, including R. c. Y.G., 2016 QCCA 1075, where the Court of Appeal of Quebec, while upholding a sentence of 15 months, said in a short endorsement that a more appropriate sentence for a similar case would have been between 18 and 24 months (the case report gives very few details of the offence).

[16] The Crown says that the sentencing judge committed no error in principle, that his determination of sentence is entitled to deference, and that in any event, having regard to the mitigating and aggravating circumstances, all of which were specifically mentioned and taken into consideration, the applicant’s sentence was fit. Moreover, the Crown says that, even if an error could be demonstrated, there is no reasonable prospect that the applicant, at the time of his appeal, will already have served any sentence that this court might impose.

[17] I agree with the Crown’s position. First, while the applicant’s counsel referred to some reported incest cases attracting sentences of less than five years, the sentencing judge here acknowledged that there were such cases, and explained why, in his opinion, the aggravating and mitigating circumstances would warrant a sentence of five years. It is not suggested that the sentencing judge ignored any circumstance that was relevant to this case, although the applicant’s counsel argues that the circumstances ought to have been weighed differently. While the failure to give effect to a mitigating circumstance can be a reversible error, a judge’s weighing of aggravating and mitigating factors is typically entitled to deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49; R. v. Mahmood, 2016 ONCA 75, 343 O.A.C. 380, at para. 18. The sentencing judge also pointed to this court’s decision in R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), which signaled that the sexual abuse of a child will attract lengthy penitentiary sentences, and R. v. M. (P.), 2012 ONCA 162, 282 C.C.C. (3d) 450, which cited this principle in sentencing for incest as recently as March 2012. In my view, the applicant has an uphill battle to demonstrate a reversible error in the sentencing judge’s approach to sentence or, even if there were an error, that the sentence is unfit.

[18] In any event, the applicant has not persuaded me that it is more probable than not that a successful appeal would result in a significantly lower sentence than that imposed at trial. And I see no prospect at all that if the applicant is successful on appeal, he will already have completed any sentence this court might impose in substitution for the five-year sentence. There was no pre-sentence custody. The applicant has just now completed one year of his five-year sentence. It is anticipated by both counsel that the appeal can be perfected within weeks and the appeal will be scheduled for a hearing shortly thereafter. There is no undue hardship in serving a fit sentence, and it would not be in the public interest to release the applicant in these circumstances.

[19] Accordingly, while leave to appeal sentence is granted, the application for bail pending appeal is dismissed.

“K. van Rensburg J.A.”