



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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

CITATION: R. v. M.C., 2020 ONCA 510

DATE: 20200814

DOCKET:
C67825

Strathy C.J.O., Gillese &
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

M.C.

Respondent

Natalya Odorico, for the appellant

Kaila Wilowski, for the respondent

Heard: in writing

On appeal from the sentence imposed on November
    21, 2019 by Justice Kathryn L. Hawke of the Ontario Court of Justice.

By the Court:


[1]

M.C. [the respondent] pleaded guilty to a single
    count of sexual interference contained in an information that alleged five
    sexual offences.

[2]

In sentencing submissions, counsel differed
    significantly on the length of a term of imprisonment that should be imposed as
    the principal component of the sentence. But the parties agreed about several
    ancillary orders and the terms of a probation order if such an order were to
    form part of the sentencing disposition.

[3]

The sentencing judge did not agree with the
    proposal of counsel about an order under s. 161 of the
Criminal Code
.
    And she added an exception to the non-communication term in a probation order, departing
    from the agreement of counsel.

[4]

The Crown asks us to vary the sentence to accord
    with the agreement of trial counsel. These reasons explain why we decline to do
    so.

The Background Facts

[5]

The issues raised on this appeal from sentence do
    not require any recitation of the circumstances of the offence to which the
    respondent pleaded guilty. A brief canvass of the sentencing proceedings is
    sufficient for our purposes.

The Plea Of Guilty

[6]

The respondent was charged in a five-count
    information alleging various sexual offences against two child complainants.
    The Crown elected to proceed by indictment. The respondent was arraigned on and
    pleaded guilty to a single count of sexual interference.

[7]

After a finding of guilt was entered and a
    conviction recorded, the trial judge ordered a pre-sentence report and
    adjourned proceedings to await its preparation.

The Sentencing Submissions: The Period of Custody

[8]

Although the parties agreed that a custodial
    sentence was warranted, their positions differed significantly as to its
    length.

[9]

The trial Crown sought a penitentiary sentence
    of four years imprisonment. In the alternative, the Crown invited imposition
    of an upper-end reformatory sentence followed by probation for three years.
    Among the probationary terms suggested were reporting; participating in
    counselling programs recommended by the probation officer; and prohibitions
    against contacting or being in the same place as named individuals including the
    complainant.

[10]

Counsel for the respondent advocated for a
    sentence of imprisonment for one year in a provincial institution followed by a
    period of probation on the terms suggested by Crown counsel. Defence counsel
    was content to leave the length of the probation order to the trial judge.

The Sentencing Submissions: Ancillary Orders

[11]

As he began his sentencing submissions, the
    Crown said, My friend and I are joint on the ancillary orders, it's just the
    difference in terms of our positions in terms of the period of custody".
    The ancillary orders about which there is no complaint here are:

i.

a DNA sample order under s. 487.051(1) based on
    the primary designated offence of sexual interference;

ii.

a weapons prohibition under ss. 109(1) and (2) for
    10 years; and

iii.

a SOIRA order for 20 years under s. 490.13(2)(b).

[12]

The Crown also pointed out that he and defence
    counsel were agreed on orders under s. 161(1) prohibiting the respondent from
    attending:

·

public swimming areas

·

daycare centres

·

school grounds

·

playgrounds

·

community centres

where persons under 16 are or may
    reasonably be expected to be present, except when the respondent was under the
    supervision of someone over 18. The parties also agreed on an order under s.
    161(1)(b) barring the respondent from seeking, obtaining or continuing any
    volunteer or remunerated employment that involves positions of trust or
    authority towards persons under 16. The term of the prohibition, counsel
    agreed, should be 20 years.

The Discussion

[13]

During sentencing submissions, the trial judge
    expressed her concern about the appropriateness of a twenty-year prohibition on
    the respondent's attendance at a public swimming area and community centre. She
    identified two factors as the basis of her concerns: the absence of any
    connection between public facilities and the offence committed and the lack of
    any risk assessment of the respondent. As a form of punishment designed to
    protect vulnerable children from the risk of sexual predation, the orders
    should only issue where there is evidence of the existence of the risk. Here,
    the trial judge noted, there was no such evidence.

[14]

The trial judge invited counsel to make
    submissions about the orders they jointly proposed under s. 161(1)(a).

[15]

The trial Crown relied upon the joint nature of
    the submission and advanced an argument that the absence of a risk assessment
    favoured inclusion of the terms because of their purpose and the uncertainty
    about any propensity on the part of the respondent.

[16]

Trial counsel for the respondent explained that
    the proposed s. 161(1) order deleted a reference to parks and included an
    exception which allowed the respondent to attend a community centre while under
    the supervision of a person over 18 years old. This would permit the respondent
    and his father to play basketball together at the community centre.

[17]

Counsel for the respondent pointed out that the
    prohibition against contact with underage persons, frequently the subject of an
    order under s. 161(1)(c), was omitted in favour of a probationary term
    requiring adult supervision.

The Grounds of Appeal

[18]

The Crown asks that we vary the sentence imposed
    at trial to align it with the agreement trial counsel reached about the terms
    of a s. 161 prohibition and the probation order. Our intervention, the Crown
    says, is warranted on two grounds:

i.

the trial judge erred in failing to give effect
    to the parties' agreement on ancillary orders according to the principles in
R.
v. Anthony-Cook
, 2016 SCC 43; and

ii.

the ancillary orders imposed are unreasonable.

Ground #1: The Misapplication of
Anthony-Cook

[19]

The principal ground of appeal the Crown
    advances is that the trial judge failed to properly apply the principles put in
    place by
Anthony-Cook
when counsel present a joint submission on
    sentence. A brief reference to the trial judge's reasons for sentence will fill
    in the remainder of the background essential to an assessment of the merits of
    this claim.

The Reasons for Sentence

[20]

The trial judge imposed a sentence of
    imprisonment of 15 months which she recommended be served at the Ontario Correctional
    Institute. The custodial sentence was to be followed by a period of probation
    for two years. The probation order included terms that the respondent:

i.

report to a probation officer upon his release
    and thereafter as required;

ii.

undertake assessment, treatment and counselling
    as recommended by his probation officer, which is not to include phallometric testing;
    and

iii.

not contact named persons except in the presence
    of either parent.

The trial judge did not explain why
    she did not impose a blanket prohibition against contact with the complainant
    or her sister, or make an order prohibiting the respondent from being within
    100 metres of any place where the complainant lives, works, goes to school, frequents
    or the respondent knows her to be.

[21]

The trial judge explained the content of the
    order under s. 161(1) in this way:

And then with respect to the issue of 161, it
    will only be under one subsection, and that is subsection (b) where he is not
    to be seeking, obtaining or continuing any employment whether or not the
    employment is remunerated or becoming or being a volunteer in a capacity that
    involves being in a position of trust or authority towards persons under the
    age of 16 years. And that is for 10 years.

The Arguments on Appeal

[22]

The Crown begins by characterizing the agreement
    of the parties about the ancillary orders as a joint submission" as the
    term is used in
Anthony-Cook
. It is apt to do so, the Crown says,
    because the agreement involved a
quid pro quo
. Something for the
    respondent. And something for the Crown.

[23]

The respondent was facing trial on a five-count
    indictment with two complainants and a count that carried a significant sentence
    of imprisonment as a minimum punishment. The allegations included several
    incidents. Instead, the respondent pleaded guilty to a single count of sexual
    interference, with a single complainant, with no allegation of penetration and
    a limited number of incidents.

[24]

The benefit of the agreement for the Crown
    included entry of a conviction; sparing the complainants the emotional cost of
    the testimony at a very young age; and saving judicial and court resources.

[25]

As a true joint submission, the Crown continues,
    the trial judge could only depart from it if its imposition would bring the
    administration of justice into disrepute or it was otherwise contrary to the
    public interest. The trial judge failed to apply the proper standard when she
    departed from the joint submission. She viewed the applicable standard as
    simply a matter of judicial discretion. Doubtless, discretion is involved. But
    it is a closely-confined discretion, not engaged simply by what is in an
    accuseds best interests. In addition to the failure to apply the proper
    standard when considering a departure from the joint submission, the trial
    judge also did not provide counsel with an adequate opportunity to make further
    submissions in support of their agreement about the package of ancillary orders.

[26]

The respondent rejects the appellant's claim
    that the trial judge erred in the standard she applied or the procedure she
    followed in departing from the parties agreement about ancillary orders.

[27]

The respondent says that, from the outset, the
    trial judge identified the constituents of the agreement on ancillary orders
    about which she was concerned. She explained why. As
Anthony-Cook
makes
    clear, it then fell to counsel to justify the agreement. Crown counsel failed
    to provide any meaningful answer. To rely on the joint nature of the submission
    when the submission itself is challenged falls short of what is required. The
    hearing was procedurally fair.

[28]

The respondent accepts that the trial judge's
    reasons could have been more fully expressed. However, her exchanges with
    counsel reveal a proper evaluation of the agreement put before her. As the
    respondent's counsel explained, the offence committed had nothing to do with
    public facilities. The Crown tendered no risk assessment, thus the record was
    barren of any evidence that children in public facilities would be put at risk
    by the respondent's attendance there. The respondent has a social phobia and
    had no connection with playgrounds, swimming pools or other recreational areas
    except for a community centre where he played basketball with his father.
    Orders under s. 161 and probationary terms should be evidenced-based and linked
    to public safety concerns or measures to assist in an offender's
    rehabilitation.

Analysis

[29]

As we will briefly explain, this ground of
    appeal fails. We are not persuaded that what took place here is governed by the
    principles in
Anthony-Cook
.

[30]

In
Anthony-Cook
, the appellant appeared
    for trial on an indictment charging him with manslaughter. He pleaded not
    guilty. After several days of trial, the appellant reached a resolution
    agreement with the Crown. Under the agreement, the appellant would change his
    plea to guilty of manslaughter. In doing so, he would give up his right to a
    trial and, with it, the possibility of advancing self-defence as a
    justification for having caused the death of the deceased. In return, the
    appellant would serve a sentence of a further 18 months in custody  in
    addition to the time he had already spent in pre-trial custody  without any
    period of probation thereafter.

[31]

The joint submission in
Anthony-Cook
related
    to the fundamental, principal or core element of the sentence. The length and
    nature of the custodial sentence and the absence of any post-custodial
    supervision through a probation order. In other words, this joint submission
    was not about ancillary orders. Indeed, there is nothing said about ancillary
    orders.

[32]

In addition to this factual distinction from
    this case, the Court in
Anthony-Cook
makes it clear that their reasons
    do not address sentencing flowing from plea agreements in which the parties are
    not in
full
agreement about the appropriate sentence:
Anthony-Cook
,
    at paras. 2, 50 and footnotes 1, 3. In this case, the parties were in agreement
    about the ancillary orders, but far apart on the principal component of the
    sentence  the length of the term of imprisonment.

[33]

Further, the agreement about ancillary orders
    could scarcely be characterized as the product of resolution discussions. Two
    of the orders - a DNA order and a SOIRA order  were mandatory as a result of
    the offence to which the appellant had entered his plea of guilty and of which
    he had been convicted.

[34]

In addition, that the parties may be in
    agreement about ancillary orders, some of which are mandatory, cannot, without
    more, convert submissions that are several into one that is joint.

[35]

In this case, the trial judge advised counsel of
    her concern about the proposed prohibitions under s. 161. She provided counsel
    with ample opportunity to justify the proposed orders. None was forthcoming.

[36]

The trial judge was properly concerned about
    including within the prohibition under s. 161(1) places such as swimming areas,
    daycare centres, school grounds and playgrounds. And also about the duration of
    the order  20 years. None of these locations had any connection to the
    appellant or to the offence of which he was convicted. No risk assessment was
    provided. Prohibitions that overshoot the mark serve no valid sentencing
    purpose.

[37]

Despite our rejection of this ground of appeal,
    the Crown is not without its remedies. Section 161(3) of the
Criminal Code
permits the Crown to apply to the sentencing judge or another judge of equivalent
    jurisdiction for an order varying the conditions if a variation is desirable
    because of a change in circumstances since the order was made.

Ground #2: The Unreasonableness of the Orders

[38]

The Crown advances a second ground of appeal.
    She says that the s. 161(1) prohibition and the term of the probation order
    permitting contact with the complainant and her sister under parental
    supervision are unreasonable. Each affords inadequate protection to the
    complainant (the probation order) and the underage public (the s. 161 order).

[39]

We do not agree. Our reasons are four fold.

[40]

First, the standard of review.

[41]

A prohibition under s. 161 and a probation order
    under s. 731 fall within the definition of sentence" in s. 673 of the
Criminal
    Code
. Appellate intervention in a sentence imposed at trial is limited to
    cases in which the sentencing judge has:

i.

erred in principle;

ii.

failed to consider a relevant factor; or

iii.

erroneously considered an aggravating or
    mitigating factor

and the error has had an impact on the
    sentence imposed or imposed a sentence that is manifestly unfit:
R. v.
    Lacasse
, 2015 SCC 64, at para. 44.

[42]

A submission that failure to extend the
    prohibition under s. 161(1) to swimming areas, playgrounds and schoolyards and
    to include a parental supervision exception in the non-association term of the
    probation order is unreasonable, without more, does not meet the standard
    required for appellate intervention.

[43]

We acknowledge, of course, that a sentence may
    be demonstrably unfit even if the sentencing judge made no error in imposing
    it. This too is a very high threshold, reflecting a sentence that is clearly
    excessive or inadequate" or representing a substantial and marked departure":
Lacasse
, at para. 52. The appellant's complaint falls well short of
    this threshold.

[44]

Second, the discretionary nature of the order at
    issue.

[45]

Unlike the DNA and SOIRA orders included as part
    of the sentence, whether a s. 161(1) prohibition or a probation order is
    included in a sentence is largely a matter that engages the discretion of the
    sentencing judge. Likewise, the terms of each order. The exercise of this
    discretion in both its aspects is entitled to substantial deference in this
    court.

[46]

Third, the absence of evidentiary support.

[47]

It is well settled that s. 161(1) orders are punishment
    for the purposes of s. 11(i) of the
Charter
:
R. v. J. (K.R.)
,
    2016 SCC 31. The sentencing judge was concerned that there was no nexus between
    the respondent and his offence and the breadth and time period requested for
    the order. No one suggested or offered any evidence of any such nexus. Her
    questions unanswered, the sentencing judge was entitled to conclude that the
    expansive prohibition sought was not warranted.

[48]

Finally, we reiterate the availability of review
    mechanisms that the Crown may invoke to vary the terms of both orders should
    circumstances change:
Criminal Code
, ss. 161(3) and 732.2(3).

Disposition

[49]

For these reasons, leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

Released: GRS August 14, 2020

G.R. Strathy C.J.O.

E.E. Gillese J.A.


David
    Watt J.A.


