



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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. Harvey,
    2021 ONCA 801

DATE: 20211108

DOCKET: C69724

Tulloch, Hourigan and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse David Harvey

Appellant

Jesse David Harvey, acting in person

Michael Crystal, appearing as duty counsel

Philippe Cowle, for the respondent

Heard and released orally: November 4, 2021 by
    video conference

On appeal from the conviction entered on May 27, 2021 and
    the sentence imposed on July 13, 2021 by Justice Graeme Mew of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of numerous breaches of probation orders
    contrary to s. 733.1 of the
Criminal Code
, R.S.C. 1985, c. C-46, and
    of assault contrary to s. 266 of the
Criminal Code
. He received a
    global sentence of 3 years incarceration. The appellant abandons his
    conviction appeal but is pursuing his sentence appeal.

[2]

His primary submission is that the sentencing judge erred because he
    referred to the Crown submission that the Crown had considered commencing a
    dangerous offender application.

[3]

As this court stated in
R. v. Soriano
, 2020 ONCA 276, an
    appellate court will not vary a sentence unless it is demonstrably unfit or the
    sentencing judge made an error that affected the sentence imposed. A sentence
    that is demonstrably unfit is clearly excessive or clearly unreasonable:
Soriano
,
    at para. 7. We echo the courts comments in
Soriano.
In this case, given
    the appellants incorrigible behaviour, we cannot say that the sentence was
    clearly excessive.

[4]

There was a mention of a possible dangerous offender application in the
    reasons for sentence. However, that statement must be put in context. The
    sentencing judge made a brief reference to the submission, while identifying
    what we believe to be the key issue before him, being the appellants repeated
    failure to abide by court orders in a situation rife with domestic violence.

[5]

We reject the submission that the sentencing judge turned the case into an
    informal dangerous offender application.

[6]

The sentence was fit, and we see no error in the sentencing judges
    analysis. In the result, leave to appeal sentence is granted, but the appeal is
    dismissed.

M. Tulloch J.A.

C.W. Hourigan J.A.

Sossin J.A.


