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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240227 DOCKET: COA-23-CR-0775

Gillese, Thorburn and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

D.M. Appellant

Counsel: Andrew Furgiuele and Rebecca Silver, for the appellant Samuel Mazzuca, for the respondent

Heard: February 26, 2024

On appeal from the sentence imposed on June 19, 2023, by Justice Giulia Gambacorta of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexually abusing his daughter. The abuse took place over a four-year period decades ago, when the victim was 10 to 13 years old. The appellant pleaded guilty at trial to one count of sexual exploitation and one count of sexual interference. He was sentenced to five years in custody, various prohibition orders, a DNA order, and a 20-year SOIRA order.

[2] After hearing from the appellant’s counsel, we dismissed the appeal without calling on the Crown, with reasons to follow. These are our reasons.

[3] The appellant advanced three grounds of appeal.

[4] First, he contended that the sentencing judge erred in principle by treating the appellant’s lack of remorse as an aggravating factor. In the section of her decision entitled “Aggravating factors”, the judge noted that the appellant did not acknowledge his wrongdoing to the complainant until the sentencing hearing.

[5] Read in context, the judge’s remark did not amount to a finding that the appellant’s lack of remorse was an aggravating factor. She listed five aggravating factors:

1. The vulnerability of the victim and the position of trust held by the appellant;
2. The nature, duration, and frequency of the offences;
3. The degree of physical interference or invasiveness;
4. The degree of psychological interference; and
5. The impact on the victim.

[6] With respect to the last factor, the sentencing judge stated: “As evidenced by her victim impact statement, [the complainant] continues to experience the emotional and a psychological impact of these offences almost 23 years later. There is no doubt that her father’s actions have had a profound psychological impact on her, and it has impacted her other relationships.” In a further paragraph, she added:

Up until the last appearance, [the complainant] had not received an apology or even an acknowledgement by him that what he did was wrong. In fact, the forensic report demonstrates his continual denial of his conduct even post-guilty plea, abating only with his final version to the doctor which still was devoid of detail and encumbered by memory loss.

[7] The sentencing judge did not identify the appellant’s lack of remorse as a sixth aggravating factor. On the contrary, she identified the appellant’s guilty pleas as a mitigating factor. She referred to the appellant’s lack of apology or acknowledgment as contributing to the ongoing psychological impact of the appellant’s acts on the victim since the sexual abuse took place.

[8] The appellant contended the sentencing judge’s failure to give weight to the appellant’s remorse was further illustrated by her remarks in the section of her reasons entitled “Remorse and Medical Condition”. In that section, the judge acknowledged the appellant’s apology to the victim and his acceptance of responsibility by virtue of his guilty pleas. She found, however, that the appellant had not demonstrated any real insight into his offending behavior. According to the appellant, she did not give him any credit for his apology or pleas.

[9] We do not agree. As already mentioned, the sentencing judge explicitly identified the appellant’s guilty pleas, as well as his prospect of rehabilitation, his prosocial lifestyle, and his low risk to reoffend, as mitigating factors. She rejected his argument that his apology and guilty pleas at trial took this case out of the usual range of sentences for these offences. We see no error here.

[10] The appellant’s second argument was based on the sentencing judge’s use of a forensic psychiatric report filed by the defence. Despite the appellant’s guilty pleas and his apology at trial, the sentencing judge stated that the appellant had “not demonstrated any real insight into his offending behaviour as is outlined in the forensic report”. The appellant contended that this inaccurately characterizes the report, in which the psychiatrist observed that the appellant’s admission of his culpability in their last session was an indication that the appellant “has the ability to acknowledge his past actions”.

[11] We do not agree. In his report, the psychiatrist observed that the appellant had a “limited ability or willingness to acknowledge fully his behaviour”, perhaps due to his narcissistic personality traits or the circumstances of their sessions. The psychiatrist concluded that “[o]nly time and ongoing psychotherapy will determine if [the appellant] has the capacity to explore further his past behaviour.” Accordingly, it was open to the sentencing judge to find, as she did, that the appellant had not demonstrated any real insight.

[12] Finally, the appellant contended that the five-year sentence is unfit. He sought to adduce fresh evidence, which was not opposed by the Crown. The fresh evidence consisted of positive letters from individuals the appellant has interacted with while in prison and attestations to his post-conviction completion of programs through his church. Based on this evidence, the appellant argued that the court should set aside the custodial sentence and substitute a conditional sentence of two years less a day.

[13] The sentencing judge based her analysis on correct legal principles, took the relevant factors into account and made findings based on the record before her. The sentence is within the range for offences involving the sexual abuse of children, particularly where the offender is a parent, the sexual abuse continued over years, and it has had a profound and lasting impact on the victim. The judge made no errors that warrant appellate intervention.

[14] The court considered the fresh evidence that the appellant seeks to adduce. It attests to the appellant’s work ethic and good character. While commendable, these general attributes have no bearing on the factors properly weighed by the sentencing judge.

[15] For these reasons, the appeal is dismissed.

“E.E. Gillese J.A.”

“Thorburn J.A.”

“S. Gomery J.A.”