WARNING The judge hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221004 Docket: M53776 (COA-22-CR-0165) Before: Trotter J.A. (Motion Judge)

Between: His Majesty the King Respondent

And

Nicholas Dubeau Applicant (Appellant)

Counsel: Jolene Hansell and Howard Krongold, for the applicant Keith Garrett, for the respondent

Heard: September 29, 2022 by video conference

Reasons for Decision

[1] This is an application for bail pending the appeal of a 23-month reformatory sentence for sexual assault.

Background

[2] Following a trial in the Ontario Court of Justice, the applicant was found guilty on a single count of sexual assault: Criminal Code, R.S.C. 1985, c. C-46. The victim of the sexual assault is his girlfriend, with whom he was living at the time (alternating between their parents’ homes). In her sentencing reasons, the sentencing judge described the offence as follows:

On March 16th of this year, I found Mr. Dubeau guilty of one count of sexual assault following a trial. Very briefly, I found that Mr. Dubeau had penetrative intercourse with the victim despite her having said “No” and “Stop” repeatedly. The offender’s perception was that the “No” was not serious. When she attempted to raise herself off the bed he pushed her back down on the bed. It lasted 20 to 30 seconds. The offender did not ejaculate and was immediately remorseful, referring to himself as a “monster” and “one of those people”.

[3] At the time of sentencing, the applicant was 24 years old. He has no prior criminal record. He lives with ADHD (inattentive type). The Crown sought a three-year penitentiary sentence. The defence sought a sentence of 12-18 months, to be served in the community. The sentencing judge declined to make a conditional sentence order (“CSO”). She sentenced the applicant to 23 months’ imprisonment. She also imposed a 12-month probation order, along with other ancillary orders.

Discussion

[4] On an application for bail pending the appeal of sentence alone, an applicant must first obtain leave to appeal (s. 679(1)(b) of the Criminal Code). The following criteria in s. 679(4) must also be met:

(4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by the judge of the court of appeal if the appellant establishes 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. [Emphasis added.]

In my view, the application must fail on the basis of s. 679(4)(a) – the applicant has failed to establish that the appeal has sufficient merit.

[5] The applicant identifies the following grounds in his Notice of Appeal:

1. The sentencing judge failed to consider that a conditional sentence order also serves the function of denunciation and deterrence;
2. The sentencing judge failed to consider the interplay between the Appellant’s autism and ADHD (inattentive type) and the circumstances of this case in her determination that a conditional sentence order was unavailable to the Appellant in this case; and
3. Such further and other grounds as counsel may advise and this Honourable Court may permit.

In her written submissions, the applicant’s counsel states: “The Applicant asks this Court to substitute a conditional sentence order for his term of imprisonment.”

[6] Both counsel made helpful submissions on whether the sentencing judge properly considered the appropriateness of imposing a CSO. The applicant claims that the sentencing judge ruled out the availability of a CSO for the type of offence committed by the applicant.

[7] I do not read her reasons this way. The sentencing judge explained in considerable detail why a CSO was not appropriate in this case, ultimately concluding: “With respect to the availability of a conditional sentence, I agree that such a sentence is not illegal or fundamentally unavailable. That having been said, I do not view it as an available option here.”

[8] More generally, her reasons were guided by this court’s recent decision in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230, which addresses the principles of sentencing in cases of sexual violence committed against an intimate partner. The sentencing judge concluded that the applicant’s moral blameworthiness was “somewhat attenuated” by his ADHD. This, in conjunction with other mitigating factors (i.e., remorse, treatment, rehabilitative efforts, and family support), led her to impose a sentence well below the three-year mark (i.e., 23 months). These reasons are entitled to deference on appeal: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309.

[9] But I need not dwell on this issue any further because the applicant faces a more significant obstacle. Section 742.1(f) of the Criminal Code provides that a CSO is not available for a number of offences that are prosecuted by indictment, including sexual assault (s. 742.1(f)(iii)).

[10] This court has not addressed the constitutionality of s. 742.1(f)(iii). However, related provisions (ss. 742.1(c) and (e)(ii)) were struck down under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209 (Miller J.A., dissenting). That decision has been appealed to the Supreme Court of Canada and is currently under reserve.

[11] Some Superior Court decisions have found that s. 742.1(f)(iii) violates the Charter: see R. v. R.S., 2021 ONSC 2263, 484 C.R.R. (2d) 127; R. v. Browne, 2021 ONSC 6097, 495 C.R.R. (2d) 346; and R. v. Leavoy, 2021 ONSC 6291. The constitutional issue was not litigated in this case, [1] presumably because the sentencing judge considered herself bound by these Superior Court decisions. As a matter of vertical stare decisis, she was bound: see R. v. Sullivan, 2022 SCC 19, 413 C.C.C. (3d) 447, at para. 65; R. v. R.S., 2019 ONCA 906, at paras. 68-73.

[12] Crown counsel advises that the issue of the constitutionality of s. 742.1(f)(iii) is on its way to this court by virtue of a Crown appeal and a defence appeal. These appeals have not yet been perfected.

[13] Thus, the applicant finds himself in a legal quagmire. Although the Superior Court has pronounced on the constitutional issue, this court has not. In the absence of a constitutional challenge, the applicant’s Notice of Appeal invites this court to impose a sentence that is specifically precluded by the Criminal Code.

[14] In all of these circumstances, the application of s. 679(4)(a) must result in the denial of bail. The applicant has failed to establish that his appeal has “sufficient merit” such that a detention order would cause him “unnecessary hardship.” However, given the unusual circumstances of this application discussed above, I refrain from deciding whether leave to appeal should be granted or refused at this stage.

[15] Lastly, I am advised by the Appeal Scheduling Unit that there are numerous available dates before the end of the year on which sentence appeals may be heard.

Disposition

[16] The application for bail pending the appeal of sentence is dismissed.

“G.T. Trotter J.A.”

[1] At the time this application was heard, transcripts of the sentencing proceedings were not yet available. Thus, it is not known whether the issue was raised or discussed. There is no mention of the issue in the sentencing judge’s reasons.