



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. V.L., 2020 ONCA 87

DATE: 20200204

DOCKET: C66807

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her
Majesty the Queen



Respondent

and

V.L.

Appellant



Michael Davies, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally: January 31, 2020

On
appeal from the sentence imposed by Justice M. Z. Charbonneau, of the Superior
Court of Justice, dated December 21, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault
after a trial by judge alone.

[2]

This is a sentence appeal. The issue is a narrow
one. The trial judge imposed a sentence of four years. Counsel for the
appellant submits, based on the case law, that the appropriate range of
sentence in the circumstances was three to five years. He argues that three
years is the appropriate sentence, given the absence of any physical violence
beyond the violence inherent in a forcible rape.

[3]

Counsel submits that the trial judge wrongly
treated the appellants false vilification of the victim in his testimony as an
aggravating factor on sentence. He submits that this error warrants a
re-appraisal of the sentence by this court and the imposition of a sentence of
three years.

[4]

Having regard to the totality of the sentencing
record, it is not entirely clear that the trial judge made the error alleged.
One passage from his reasons for sentence suggests that he did. Assuming he
made that error, we are satisfied it played a minor role in his determination
of the appropriate sentence. The trial judge focused on the inherent
seriousness of the assault, a rape during which the appellant overpowered the
victim, a neighbour and friend, in her own home, and did as he wished. The
trial judge also emphasized the planning that led to the assault.

[5]

In
R. v. Lacasse
, [2015] 3 S.C.R. 1089 (the
leading authority), the majority observed, at para. 44:

In our view, an error in principle, the
failure to consider a relevant factor or the erroneous consideration of an
aggravating or mitigator factor will justify appellate intervention only where
it appears from the trial judges decision that such an error had an impact on
the sentence.

[6]

In our view, the error alleged by the appellant,
assuming it was made by the trial judge, did not have an impact on the
sentence. The aggravating features in this case fully justify the four-year
sentence imposed.

[7]

The appeal is dismissed.

Doherty
J.A.

David
Watt J.A.

C.W.
Hourigan J.A.






















