WARNING

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 20231103 DOCKET: C70174

Fairburn A.C.J.O., Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.M. Appellant

Counsel: Aman S. Patel, for the appellant Étienne Lacombe, for the respondent

Heard and released orally: October 31, 2023

On appeal from the sentence imposed by Justice Shaun S. Nakatsuru of the Superior Court of Justice, dated December 11, 2020.

Reasons for Decision

[1] Following a single sexual encounter with the complainant, the appellant continuously communicated electronically with her. These communications included the appellant sending the complainant pictures that he appears to have taken without her knowledge during their time together. He claimed to have more photos. She was clear that she wanted those communications to stop. He did not stop. The appellant was convicted of criminal harassment.

[2] The trial judge imposed a suspended sentence and three years’ probation. The appellant says that he should have received a conditional discharge. He claims that there is an error in principle in the trial judge’s reasons, specifically that the trial judge used the “gendered context” within which the criminal harassment occurred as an aggravating factor on sentence.

[3] In our view, this does not constitute an error in principle. It was open to the trial judge to take into account the fact that criminal harassment is often committed in the context of a woman saying she does not want a relationship or further contact with a man. There is nothing controversial about this fact. Moreover, this only constituted one of several aggravating factors noted in the reasons for sentence.

[4] Deference is owed to the trial judge’s conclusion that a conditional discharge was contrary to the public interest in this case.

[5] The appellant also brings a fresh evidence application that includes a significant amount of community service completed since sentencing. He has also successfully completed counselling. While we commend the appellant for his efforts and contributions in this regard, none of the information provided to the court constitutes a basis upon which to interfere with the suspended sentence that was imposed.

[6] Leave to appeal sentence is granted. The appeal is dismissed.

“Fairburn A.C.J.O.”

“L. Favreau J.A.”

“J. Copeland J.A.”