Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-10-12 Docket: COA-22-CR-0159

Judges: Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.

Between: His Majesty the King, Respondent and C.L., Appellant

Counsel: C.L., acting in person Peter Copeland, appearing as duty counsel Erica Whitford, for the respondent

Heard and released orally: October 4, 2023

On appeal from the sentence imposed by Justice Marlyse Dumel of the Ontario Court of Justice on August 30, 2022.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual assault and one count of assault. The complainant was someone he had met on Facebook Dating. They dated for about one week before the incidents that gave rise to the criminal charges took place. The trial judge imposed a sentence of 4.5 years on each count and made the sentences concurrent. He gave the appellant credit for 848 days of presentence custody, leaving a balance of 772 days left to serve.

[2] The appellant’s conviction appeal is going to proceed at a later stage.

[3] The appellant appeals his sentence. He raises a few points. The primary one, though, focuses upon the alleged failure to take into account the harsh conditions of presentence custody. We do not agree. The trial judge specifically adverted to those conditions and, in accordance with this court’s decision in Marshall, approached them as a mitigating factor. We are satisfied that all proper mitigating factors were accounted for in the sentencing reasons and that the sentence is fit.

[4] It does appear, however, that the appellant is making very good progress with self-improvement while in custody. We commend him in these efforts, and we encourage him to continue in this regard.

[5] The sentence appeal is dismissed.

"Fairburn A.C.J.O." "J.C. MacPherson J.A." "B. Zarnett J.A."