Publication Ban Warnings

Warning: Publication Restriction under ss. 486.4 and 486.6 of the Criminal Code

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Warning: Publication Restriction under s. 517 of the Criminal Code

WARNING

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17 ]

R.S., 1985, c. C-46, s. 517 ; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17 .

Court of Appeal for Ontario

Date: 2021-09-08 Docket: C68371

Before: Paciocco, Nordheimer and Coroza JJ.A.

Between:

Her Majesty the Queen Respondent

and

C.C. Appellant

Counsel: Mindy Caterina, for the appellant Nicolas de Montigny, for the respondent

Heard: August 30, 2021 by video conference

On appeal from the sentence imposed on December 12, 2018 by Justice Marcella Henschel of the Ontario Court of Justice.

Reasons for Decision

[1] C.C. was convicted after trial of human trafficking-related charges involving two victims, one an adult and the other a minor. He was also convicted of assaulting the adult victim, and of child pornography charges relating to the child victim. The trial judge imposed a global sentence of 6 years in custody for the 12 charges for which C.C. was found guilty.

[2] C.C. seeks leave to appeal that sentence. He does not claim that the sentence was unfit, or identify any errors relating to the trial judge’s identification of the global sentence. Nonetheless, he asks to have his sentence reduced. He argues that the trial judge erred in failing to mitigate his sentence because of the harsh conditions of bail he had been under, pursuant to the decision in R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.). He urges, in the alternative, that fresh evidence underscores his rehabilitative potential and provides an exceptional basis upon which this court should revisit his sentence, even if the trial judge committed no error. The fresh evidence C.C. relies upon includes letters of support from his family and community, an affidavit confirming his remorse, and proof of the counselling he has taken and the employment opportunities he has developed.

[3] We are not persuaded by either submission.

[4] First, we do not accept C.C.’s contention that the trial judge failed to consider whether C.C.’s sentence should be mitigated as a result of the punitive terms of bail he was under. The trial judge stated explicitly that she decided not to credit C.C. for those restrictive bail conditions, and she gave reasons for not doing so. C.C.’s submission is based on the mistaken belief that there is a difference between a Downes credit and treating harsh conditions of bail as a mitigating factor. There is not. As this court explained in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108:

Although it is not uncommon to speak of providing “credit” for stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Yue (2007), 2007 ONCA 598, 226 C.C.C. (3d) 349 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 29.

[5] Some judges choose to achieve that mitigation by granting a “Downes credit” that is set off against the sentence that would otherwise have been imposed. Other judges choose to factor the punitive impact that bail conditions have had on the offender into their overall determination of a fit sentence. Neither approach is in error. In this case, the trial judge explained why she would not grant a credit for the stringent bail conditions C.C. had been under. In doing so, she gave the requisite consideration to whether to exercise discretion to reduce C.C.’s sentence because of those conditions.

[6] C.C. makes a secondary argument relating to Downes credit. He contends that the sentencing judge erred by relying on the fact that she sentenced C.C. concurrently as a reason for denying Downes credit. This argument is more compelling. The factors that drove the trial judge to sentence C.C. concurrently, namely, the close link between the offences, and the fact that consecutive sentences would be too harsh and would interfere with C.C.’s rehabilitation, have nothing to do with whether a lesser sentence should be imposed because the offender has already received some punishment through stringent bail conditions. However, the trial judge offered another correct and persuasive reason for not reducing C.C.’s sentence. She concluded that Downes credit should not be given because of the totality principle. Put otherwise, she determined that if the global sentence fell below six years, it would not be a fit sentence. That was her determination to make.

[7] Indeed, even if we were to find that the trial judge erred in principle by relying on the concurrent sentence she imposed as a basis for denying C.C. Downes credit, we would not have reduced C.C.’s sentence. We agree with the Crown that the crimes he committed were grave and that the sentence imposed was required as a fit punishment even after considering all mitigating factors.

[8] The reasoning we have just expressed is also fatal to C.C.’s request to reduce his sentence based on the fresh evidence. The sentence C.C. is now seeking would not be fit, even considering the fresh evidence he has offered.

[9] Moreover, the fresh evidence is relevant to C.C.’s rehabilitative potential. The trial judge gave full recognition to C.C.’s rehabilitative potential at the time of sentencing and imposed a fit sentence with that rehabilitative potential in mind. Although C.C.’s subsequent rehabilitative efforts are commendable, they do not reflect the kind of rare post-sentencing change in circumstance that could impel this court to reconsider a sentence in the absence of judicial error.

[10] We therefore grant C.C. leave to appeal his sentence but deny the appeal.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“S. Coroza J.A.”