Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211108 Docket: C69724
Before: Tulloch, Hourigan and Sossin JJ.A.
Between: Her Majesty the Queen Respondent
and
Jesse David Harvey Appellant
Counsel: Jesse David Harvey, acting in person Michael Crystal, appearing as duty counsel Philippe Cowle, for the respondent
Heard and released orally: November 4, 2021 by video conference
On appeal from the conviction entered on May 27, 2021 and the sentence imposed on July 13, 2021 by Justice Graeme Mew of the Superior Court of Justice.
Reasons for Decision
[1] The appellant was convicted of numerous breaches of probation orders contrary to s. 733.1 of the Criminal Code, R.S.C. 1985, c. C-46, and of assault contrary to s. 266 of the Criminal Code. He received a global sentence of 3 years’ incarceration. The appellant abandons his conviction appeal but is pursuing his sentence appeal.
[2] His primary submission is that the sentencing judge erred because he referred to the Crown submission that the Crown had considered commencing a dangerous offender application.
[3] As this court stated in R. v. Soriano, 2020 ONCA 276, an appellate court will not vary a sentence unless it is demonstrably unfit or the sentencing judge made an error that affected the sentence imposed. A sentence that is demonstrably unfit is “clearly excessive” or “clearly unreasonable”: Soriano, at para. 7. We echo the court’s comments in Soriano. In this case, given the appellant’s incorrigible behaviour, we cannot say that the sentence was clearly excessive.
[4] There was a mention of a possible dangerous offender application in the reasons for sentence. However, that statement must be put in context. The sentencing judge made a brief reference to the submission, while identifying what we believe to be the key issue before him, being the appellant’s repeated failure to abide by court orders in a situation rife with domestic violence.
[5] We reject the submission that the sentencing judge turned the case into an informal dangerous offender application.
[6] The sentence was fit, and we see no error in the sentencing judge’s analysis. In the result, leave to appeal sentence is granted, but the appeal is dismissed.
“M. Tulloch J.A.”
“C.W. Hourigan J.A.”
“Sossin J.A.”