WARNING

Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child

87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Court of Appeal for Ontario

Date: 20240618 Docket: COA-24-CR-0229

van Rensburg, Harvison Young and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

Ryan MacPhail Appellant

Counsel: Ryan MacPhail, acting in person Janani Shanmuganathan, appearing as duty counsel Jacob Millns, for the respondent

Heard: June 3, 2024

On appeal from the sentence imposed on January 29, 2024 by Justice Jenny Restoule-Mallozzi of the Ontario Court of Justice.

Reasons for Decision

[1] In January 2024 the appellant, Mr. MacPhail, was convicted of offences arising out of a violent assault of the victim who was his domestic partner in March 2023. They had a child together. The child was about 3 years old and was present during the entire incident. The victim described waking up the next morning and seeing the child sleeping beside her covered in her blood. The appellant pled guilty to offences in relation to the assault as well as breaches of a probation order and a non-communication order respecting the victim and child. After a joint submission on sentence the appellant was sentenced to two years less a day in custody with various ancillary orders and three years’ probation. He has a significant criminal record which includes violent offences as well as breaches of probation.

[2] In sentencing the appellant, the sentencing judge also imposed orders prohibiting the appellant’s contact and communication with the victim and the child.

[3] The appellant takes no issue with any aspect of the sentence except to the extent that it precludes him from any contact with the child. As he stated:

There was a non communication placed between my 4 year old son and I. I need this removed in order to be in my son’s life. [The Children’s Aid Society (“CAS”)] is not willing to work with me because of this. Stephanie Baker (the Crown) said it would be up to [CAS’s] discretion for me to see my son, when I plead guilty. This is not the way it works. I can have no access or updates regarding my son because of the non-communication the courts put between him … and I. My son needs me. I need him. I would have never plead guilty if I knew I couldn’t see my son.

[4] In particular, the appellant argues that there is no basis for the court order that precludes him from having any communication or contact with his son because he did nothing to his son and that he wants to be a part of his life as he grows up. He points out that he has an older son from a previous relationship that he continues to be in contact with and submits that he should be able to have the same relationship with his younger son.

[5] The appeal is dismissed for the following reasons.

[6] There are two orders which are relevant to this appeal.

[7] First, while the appellant is in custody, he is subject to a s. 743.21(1) order that prohibits contact or communication with the victim and his son.

[8] Second, when the appellant is released, his probation order prohibits him from contacting or communicating with the victim and his son upon his release and continuing for 3 years, except with respect to his son “pursuant to a family court and/or CAS order .”

[9] Crown counsel advised that the child has recently returned to live with his mother and that CAS has a 6-month supervision order.

[10] We agree with the Crown’s submission that there is no basis for interfering with the court order that is in effect during the appellant’s incarceration. This is particularly so given the involvement of CAS in this young child’s life so far, and the fact that he and his mother are currently in the process of adjusting again to living together.

[11] Nor is there a basis to interfere with the terms of the probation order as it relates to the appellant’s contact with his son. It was warranted for a number of reasons, including the traumatic circumstances of the violent assault in the presence of the child, and the fact that the appellant at the time was subject to a family court restraining order prohibiting his contact with the victim and the child.

[12] The probation order, however, does contemplate the possibility that circumstances may change. It is open to the appellant to seek an order in the family court or CAS proceedings (if they are continuing). It will be for the family court and the CAS (if still involved) to determine whether and to what extent contact with the appellant is in the child’s best interests.

[13] We have considered the fresh evidence filed by the Crown on behalf of the appellant, which the Crown did not oppose. This evidence indicates that the appellant has received both medication and counselling for his mental health conditions while in the Sudbury jail before he was transferred to the Central North Correctional Centre. He also has apparently completed many programs while incarcerated. While this and other information about his progress while incarcerated may be relevant to any determinations of a family court or the CAS about future contact between the appellant and the child, it does not affect the outcome of this appeal.

[14] The appellant is granted leave to appeal his sentence, but the sentence appeal is dismissed.

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”

“L. Sossin J.A.”