



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.B., 2020 ONCA 512

DATE: 20200818

DOCKET: C67835

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.

Appellant

D.B., acting in person

Lynda Morgan, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: August 10, 2020 by videoconference

On appeal from the sentence imposed
    by Justice Hugh K. OConnell of the Superior Court of Justice on November 26,
    2019.

REASONS FOR DECISION

[1]

The appellant pled guilty to and was convicted of the sexual
    assault of his estranged wife and use of an imitation firearm
. He was sentenced
    to a four-year custodial sentence less pre-sentence custody of 31.5 months.

[2]

The appellant appeals from his sentence. With the able assistance of duty
    counsel, he submits the sentencing judge made the following reversible errors:

i.

The sentencing judge
erroneously considered
    premeditation of the sexual assault as an aggravating factor that materially
    impacted his sentence for that offence. The inference of premeditation of the sexual
    assault was not the only reasonable inference open to the sentencing judge on
    the agreed statement of facts.

ii.

The sentencing judge failed to give sufficient enhanced credit for pre‑sentence
    custody. The additional amount of four months allotted by the sentencing judge
    for the harsh conditions that the appellant endured while in custody prior to
    sentencing was so low that it resulted in an error of law.

[3]

The appellant himself made the submission that the three-year probationary
    period was too long and unnecessary.

[4]

We do not accept these submissions.

[5]

The agreed statement of facts amply supports the sentencing judges
    finding that the entire sequence of events resulting in the offences committed
    by the appellant was the product of deliberate planning and premeditation, trickery
    and luring.

[6]

According to the agreed statement of facts that formed the foundation of
    the appellants guilty plea, under the admitted false pretence of collecting
    winnings from a bet to share with her, the appellant lured his estranged wife
    to a motel room that he had previously reserved. To persuade her to enter the motel
    room, he told her others would be present, which the appellant also admitted
    was false. Once his estranged wife was inside the motel room, the appellant locked
    and barred the door with handcuffs that he had brought with him and a chair. He
    advised her that he was going to kill himself, showing her what appeared to be
    a firearm and bullets that he had previously placed in a drawer in the motel room,
    but that he would first sexually assault her, which he did. He told his estranged
    wife that he would not use the firearm against her but that he would become
    physical if she tried to leave or use her cell phone. Out of fear that he would
    kill himself, the appellants wife remained with him overnight and then drove
    him the next morning for food and back to his car.

[7]

In the circumstances of this case, it would have been highly artificial for
    the sentencing judge to separate out the different components of what was clearly
    planned as a sequence of events that the appellant intended to and did commit against
    his estranged wife and against her will. The sentencing judge did not stray
    beyond the agreed facts; any inferences that the sentencing judge drew followed
    clearly from what was set out in the agreed statement:
R. v. Druken
,
    2006 NLCA 67, at para. 18.

[8]

Even if the sentencing judge had erred as argued, the alleged error had
    no impact on sentence which was entirely fit and there is no basis for appellate
    intervention:
R. v. Lacasse
, [2015] 3 S.C.R. 1089, at para. 44.

[9]

First, there is no issue that the sentence is well within the appropriate
    range of 21 months to four years in cases of sexual assault involving forced
    intercourse with a spouse or former spouse, as identified by this court in
R. v. Smith
,
    [2011] O.J. No. 3832 (C.A.), at para. 87. Moreover, there were numerous other aggravating
    features of the offences that amply justified the three-year custodial sentence
    for sexual assault. These included: the appellants planning and deliberation of
    the entire scenario by reserving the motel room and bringing what appeared to
    be bullets and a firearm; his trickery and luring that breached the trust
    relationship with his estranged wife; his confinement of her and threats of physicality
    if she attempted to leave; and his sexual assault of a former domestic partner.
    The sentencing judge properly considered and applied the appropriate sentencing
    principles and reasonably balanced the aggravating and mitigating factors,
    including the appellants guilty plea.

[10]

With
    respect to the sentencing judges determination of four months of enhanced credit
    for the harsh conditions of the appellants detention, we see no error in the exercise
    of his discretion. As this court most recently reiterated in
R. v. Brown
,
    2020 ONCA 196, at para. 13, it is well-established that the amount of enhanced
    credit granted engages the sentencing judges discretion
.
It
    is not subject to any rigid formula or calculus. The sentencing judge thoroughly
    considered the relevant circumstances and his decision was reasonable and not
    demonstrably unfit.

[11]

Duty
    counsel submitted that if this court rejects this ground of appeal,
    consideration should nevertheless be given to facilitate the appellants early
    release because of the risks that the appellant runs while incarcerated during
    the COVID-19 pandemic. The appellants statutory release date is in October
    2020.

[12]

We
    cannot intervene. Whether or not the appellant should be granted early parole
    because of COVID-19 considerations is a matter strictly within the jurisdiction
    of the Parole Board. While he remains in custody, the primary responsibility
    for his welfare and safety lies with the federal government and Corrections
    Canada.

[13]

Finally,
    with respect to the probationary order, the appellant has not pointed to any
    error in the exercise of the sentencing judges discretion that would permit
    appellate intervention.

[14]

We
    find no basis to interfere with the appellants sentence.

[15]

Accordingly,
    the appeal is dismissed.

L.B. Roberts
    J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.



