



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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.R., 2017 ONCA 985

DATE: 20171215

DOCKET: C62619

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. R.

Appellant

Mark Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: December 12, 2017

On appeal from the judgment of Justice Brian P. OMarra of
    the Superior Court of Justice, dated June 29, 2016, dismissing the appeal from sentence
    entered on December 4, 2014, by Justice Marvin Zuker of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

In our view, leave to appeal should be granted and the appeal allowed. 
    Like
R. v. McDonald
, [2013] O.J. No. 6336 (C.A.), this was not a case
    where the summary conviction appeal court judge should have approached the
    sentence appeal based on deference.  The conviction appeal was allowed in
    relation to two charges of assault against the appellants child, which were
    the sole focus of the sentencing submissions and the sentencing judges reasons
    in the trial court.  The sentencing judge gave no reasons in relation to the
    assault police charge for the purpose of resisting arrest.  He simply imposed
    the same global concurrent sentence he had imposed in relation to the other two
    offences.  Deference was not owed in these circumstances.  The summary
    conviction appeal court judge erred in principle in approaching sentencing on
    the basis that it was.

[2]

We accept the appellants submission that a conditional discharge is not
    contrary to the public interest and is in the appellants interest.  The
    circumstances of the appellants arrest were humiliating and the appellant
    suffered some injuries and served a couple of days in custody.  She has now
    served her entire probationary period without incident.  The police officers
    suffered no injuries and filed no victim impact statement.  We are satisfied
    that a conditional discharge with a three year probationary period had a
    sufficient denunciatory and deterrent effect in the circumstances.

[3]

As for the appellants
[1]
interest, the appellant is a 40 plus year old first offender.  Her employment
    goals are such that a conditional discharge is in her interest.

[4]

The appeal is allowed.  The suspended sentence is set aside, a
    conditional discharge substituted on the same terms as the suspended sentence,
    the probationary period
[2]
of which, as we have said, has now been served in full.





[1]

Amendment made December 14, 2017.



[2]

Amendment made December 14, 2017.


