



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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.S., 2019 ONCA 894

DATE: 20191112

DOCKET: C64410

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.S.

Appellant

Jeffrey Berman, for the appellant

Adam Wheeler, for the respondent

Heard and released orally: November 6, 2019

On appeal from the sentence imposed on July 17, 2019 by
    Justice Beverly A. Brown of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, a youthful first offender, pleaded guilty to counts of
    incest; sexual assault; and making, possessing and distributing child
    pornography. The victim in the counts of incest and sexual assault, and the
    person depicted in the child pornography, was the appellants four-year-old
    daughter of whom he had sole custody.

[2]

The trial judge imposed a global sentence of ten years which she reduced
    to seven and one-half years on account of pre-sentence custody. She also made
    several ancillary orders, among them a victim surcharge.

[3]

The appellant appeals sentence. He seeks a reduction in the custodial
    portion of the sentence to a net term of four and one-half years, and asks that
    the victim surcharge be set aside under
R. v. Boudreault
, 2018 SCC 58.

[4]

In this court, the appellant advances three grounds of appeal. He says
    that the sentencing judge erred:

i.

in relying on a dissenting opinion in a prior decision of this court in
    determining a fit sentence;

ii.

in
    considering the sexual abuse of the complainant as an aggravating factor in the
    sentences imposed in the child pornography offences (a ground contained in his
    factum, but not pursued in oral argument); and

iii.

in
    imposing a demonstrably unfit sentence.

[5]

In our view, except for the victim surcharge, which should be set aside,
    this appeal fails.

[6]

In appeals from sentence, an intermediate appellate court is only
    entitled to intervene in connection with a sentence imposed at trial on the
    basis that the sentencing judge:

i.

erred in principle;

ii.

failed to consider a relevant factor; or

iii.

erroneously
    considered an aggravating or mitigating factor, and that the error had an
    impact on the sentence imposed.

R. v. Lacasse
, 2015 SCC 64, at para. 44.

[7]

Our inquiry focuses on the fundamental principle of proportionality,
    which requires that the sentence be proportionate to the gravity of the offence
    and the degree of the responsibility of the offender. A sentence is
    demonstrably unfit if, but only if, it constitutes an unreasonable departure
    from that fundamental principle:
Lacasse
, at para. 53.

[8]

We acknowledge that the sentencing judge erred in her reference to the
    dissenting judgment in
R. v. P.M
., 2012 ONCA 162, as if it were that
    of the majority of the court on the issue of a fit sentence. It was, however,
    but one of several authorities which the sentencing judge considered.

[9]

More importantly, in our view, this error had no impact on the fitness
    of the sentence the sentencing judge ultimately imposed. Tested against the
    fundamental principle of proportionality, the reference to the dissenting
    judgment in
P.M.
did not result in a sentence that was
    disproportionate to the gravity of the offences or the moral blameworthiness of
    the appellant.

[10]

Nor are we persuaded that the sentencing judge erred in considering the
    sexual abuse of the complainant as an aggravating factor in determining the
    sentence to be imposed on the child pornography counts. These offences involved
    an egregious breach of trust. They violated the physical and sexual integrity
    of a four-year-old child. The appellants conduct  that of a predator, not a
    protector  attracted the operation of the aggravating factors in ss. 718.01
    and 718.2(a)(ii.1) and (iii). We are satisfied that the sentence imposed is
    fit.

[11]

In the result, leave to appeal sentence is granted and the appeal
    allowed to the extent that the victim surcharge imposed at trial is set aside.
    The appeal from sentence is otherwise dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


