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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231019 DOCKET: C68197 Tulloch C.J.O., Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.L. Appellant

Paolo Giancaterino, for the appellant Heather Fregeau, for the respondent

Heard: October 13, 2023

On appeal from the sentence entered by Justice Kimberly E. M. Moore of the Ontario Court of Justice dated August 8, 2018.

REASONS FOR DECISION

[1] On April 19, 2018, the appellant was convicted of a violent sexual assault against his former stepdaughter. On August 8, 2018, the appellant was sentenced to a total of six years and six months’ imprisonment. The appellant appeals from this sentence.

[2] At the hearing, we dismissed the appeal, for reasons to follow. These are our reasons.

BACKGROUND

[3] The appellant sexually assaulted the complainant on July 31, 2017. During the sexual assault, which took place next to the complainant’s six-month old baby, the appellant choked the complainant with bedsheets and repeatedly punched her. The assault lasted for over 20 minutes, during which the appellant digitally penetrated and raped the complainant, in addition to beating her. The complainant eventually escaped and was able to call the police. The complainant suffered extensive injuries and was hospitalized for several days.

[4] At the time of the assault, the appellant was breaching a recognizance ordering him to keep the peace and remain in the Province of Alberta. Moreover, while awaiting the disposition of his charges, the appellant threatened to kill a correctional officer.

[5] The appellant pled guilty to sexual assault causing bodily harm, choking, uttering a threat to cause death to a correctional officer, and breach of recognizance. During sentencing, the judge considered as mitigation the appellant’s early years being filled with abuse, neglect, and loss, as well as his guilty plea. In doing so, the sentencing judge specifically acknowledged the significance of a guilty plea in sexual assault trials, as victims are spared from having to relive their traumas.

[6] The appellant was sentenced to four years and nine months’ imprisonment for sexual assault causing bodily harm and 32 months for choking, to be served consecutively for a total sentence of seven years, five months. An additional four months, served consecutively, was ordered for the threats made to the correctional officer, as well as four months served concurrently for failing to comply with his recognizance. After deducting for pre-trial custody, the appellant’s total sentence was of six and a half years.

ANALYSIS

[7] The appellant raises two grounds of appeal against his sentence:

i. That the trial judge erred in tempering the mitigating factor of the appellant’s guilty plea. ii. That the trial judge erred in her analysis of enhanced credit for pre-trial custody.

[8] We do not find either ground of appeal has merit.

(1) The sentencing judge did not err in tempering the mitigating factor of the appellant’s guilty plea with his lack of insight

[9] Sentencing decisions are entitled to substantial deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44, 49. The court will only disturb the sentence if the sentencing judge made an error in principle that had an impact on the sentence, or if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26.

[10] With respect to the sentencing judge’s analysis on mitigation, she clearly considered the appellant’s guilty plea and expressly stated that the appellant, “receives great credit for his guilty pleas.” She added that, “[t]his significant mitigation is, however, tempered by [his] lack of insight into the impact of his actions.” The appellant submits that the sentencing judge erred in law by minimizing the true mitigating value of his guilty plea towards the ultimate sentence as a result of her finding that the appellant lacked insight into his offence.

[11] We disagree. This court has repeatedly found that a while a guilty plea is a mitigating factor to be considered, it does not entitle an offender to a set standard of mitigation, furthermore, the amount of credit a guilty plea attracts will vary with the circumstances of each case: R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 22; R. v. Shah, 2017 ONCA 872, at para. 8.

[12] Contrary to the appellant’s argument, the sentencing judge did not treat the appellant’s lack of remorse as an aggravating factor. She accepted that his guilty plea and his apology to his stepdaughter showed remorse. However, based on comments in the pre-sentence report, she found that the appellant lacked insight into the impact of his actions. She was entitled to consider a lack of insight as relevant to his potential for rehabilitation.

[13] The appellant also questions whether this finding was supported by the record. The sentencing judge’s finding in this regard is entitled to deference and was rooted in the evidence before her, including that the appellant refused to discuss the offences with the pre-sentence report (“PSR”) writer and responded with merely “I feel bad, I guess” regarding the impact of the assault on the victim.

[14] This ground of appeal fails.

(2) The sentencing judge did not err in her analysis of enhanced credit for pre-trial custody

[15] With respect to the issue of credit for pre-trial custody, the sentencing judge provided the appellant with enhanced credit between his first date of incarceration, August 1, 2017, to the date that the threat was made against the jail guard on January 17, 2018 (170 days of custody plus 85 days of credit, totalling 255 days). For the remainder of the time period between January 18, 2018 and his sentencing date of August 8, 2018 the appellant did not receive enhanced credit (202 days). The total amount of credit subtracted from the appellant’s sentence was 457 days, or the equivalent of 15.25 months.

[16] The determination of credit for pre-trial custody is discretionary and entitled to deference: R. v. Huang, 2020 ONCA 341, at para. 11. The sentencing judge was entitled to consider the likelihood of the appellant obtaining statutory release as part of the calculation of the appropriate amount of credit: R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at paras. 16, 19-20.

[17] Here, the judge found a likelihood that the appellant would be denied statutory release because of his “very clear misconduct” in custody when he threatened to kill a correctional officer. This finding was supported by the record and was open to the sentencing judge.

[18] We see no error in principle with the sentencing judge’s approach to this calculation and would not disturb her conclusion as to the appropriate credit in these circumstances.

[19] This ground of appeal fails as well.