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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
Court of Appeal for Ontario
Date: 2023-05-04 Docket: COA-23-CR-0086
Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.
BETWEEN
His Majesty the King Respondent
and
Bradley Munroe Appellant
Counsel: Bradley Munroe, acting in person Peter Copeland, appearing as duty counsel Nicholas Hay, for the respondent
Heard and released orally: May 2, 2023
On appeal from the convictions entered by Justice Durno of the Superior Court of Justice on November 25, 2022 and from the sentence imposed on November 25, 2022.
Reasons for Decision
[1] The appellant pled guilty to, and was convicted of, two offences – arrange to commit sexual assault on a person he believed to be under 16 and distribution of child pornography. He received a global sentence of 66 months. He appeals the conviction and the sentence.
[2] On the conviction appeal, the appellant raises issues relating to his arrest by the police (entrapment), the lack of a warrant to obtain Facebook records, failure to prove the age of one of the complainants, and failure to charge the two young girls in the photos. The appellant also calls into question the quality of assistance provided by his trial counsel.
[3] We see no merit in these bald assertions. They are not supported by anything in the trial record. Indeed, the appellant pled guilty after a very careful and comprehensive inquiry conducted by the trial judge.
[4] On the sentence appeal, the appellant contends that the trial judge erred by not giving sufficient credit for the extensive amount of time he spent in a triple bunk cell while in custody.
[5] We disagree. The adequacy of the Duncan [1] factor must be assessed in context. We are satisfied that, ultimately, the trial judge properly followed the principles laid down in R. v. Marshall, 2021 ONCA 344, treating the harsh conditions of the pre-sentence custody as a strong mitigating factor. Ultimately, he arrived at a fit sentence.
[6] Finally, the appellant submits that the Criminal Code, R.S.C. 1985, c. C-46, s. 161 order should be set aside. We see no basis for doing so.
[7] The appeal is dismissed.
“Fairburn A.C.J.O.”
“J.C. MacPherson J.A.”
“B. Zarnett J.A.”