



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    that could identify the victim shall not be published in any document or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.D., 2018 ONCA 134

DATE: 20180213

DOCKET: C63923

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.D.

Appellant

Robert Carew, for the appellant

Lisa Joyal, for the respondent

Heard: February 5, 2018

On appeal from the sentence imposed on April 12, 2017 by
    Justice Robert L. Maranger of the Superior Court of Justice, sitting without a
    jury.

Brown J.A.:

[1]

The appellant, a former RCMP officer, was convicted of numerous offences
    involving horrendous abuse he inflicted on his 11-year old son. Specifically,
    the appellant was found guilty of two counts of aggravated assault, one count
    of assault with a weapon, one count of sexual assault causing bodily harm, one
    count of unlawful confinement, and one count of failing to provide the
    necessaries of life. In addition, the appellant was convicted of two counts
    relating to the improper storage of ammunition and a firearm.

[2]

The trial judge imposed a global sentence of 15 years imprisonment,
    less 22 months credit for pre-sentence custody. The appellant seeks leave to
    appeal his sentence and, if leave is granted, he seeks a reduction of five to
    ten years in his term of imprisonment.

[3]

The appellant advances three grounds of appeal.

FIRST GROUND

[4]

First, the appellant submits the trial judge erred in stating the
    appropriate range of sentence was 12 to 20 years. The appellant points to other
    cases involving the serious abuse of children in which the sentences imposed
    ranged from two to 16 years. He also argued that two cases the trial judge
    referred to which involved sentences of 18.5 and 25 years were factually
    distinguishable.

[5]

I see no merit in this ground of appeal. The trial judge correctly noted
    that the range of penalty for cases of extreme child abuse varies widely. He
    reviewed the salient cases placed before him by the Crown and the appellant. He
    observed that the conviction on the count of sexual assault causing bodily harm
    carried with it a mandatory minimum penalty of five years. The trial judge
    found that the level of child abuse here was at the furthest end of the spectrum.

[6]

That finding was fully supported by the evidence. The appellant engaged
    in a horrific course of abusing his son over a six-month period, the details of
    which are set out in the trial judges reasons for conviction: 2016 ONSC 7249. I
    see no reason to repeat the incomprehensibly cruel acts visited upon the young
    victim by his father, the extreme pain he must have endured, and the terror he
    must have experienced. As the trial judge commented at the end of his reasons
    for judgment:

This was a very difficult trial. That a parent could do the
    things that were done to AJ D. was gut-wrenching. That being said, however, the
    fact that this half-starved, burned and battered 11 year old could somehow
    summon up the strength to escape his cruel captivity and later seemingly rise
    above it, is a testament to the indomitability of the human spirit.

[7]

I see no error in the trial judges conclusion that the abuse fell at
    the furthest end of the spectrum and his resulting use of a 12 to 20-year
    range of sentence.

SECOND GROUND

[8]

As his second ground of appeal, the appellant argues the trial judge
    failed to give adequate weight to the psychiatric and psychological evidence of
    his mental health at the time of the offences as a mitigating factor and
    over-emphasized denunciation and deterrence. The trial judge considered, but
    ultimately did not accept, the appellants sentencing submission that there was
    a causal link between his mental health and the commission of the offence,
    which should operate as a factor reducing the length of his sentence.

[9]

At the trial, the appellant had advanced the position that he was not
    criminally responsible by reason of a mental disorder. The trial judge did not
    accept the evidence of the appellants expert clinical psychologist, Karim Jbeili. 
    He found that Mr. Jbeili was not impartial, had no prior experience in
    providing forensic psychological evidence, had failed to examine in a
    meaningful way all of the evidence necessary to formulate a valid independent
    opinion  including failing to review all of the videos taken by the appellant
    of him torturing his son in the basement  and vacillated in the opinion he
    gave.

[10]

Although
    the trial judge accepted that the appellant may have suffered from depression
    and post-traumatic stress disorder, he rejected the notion that a mental
    disorder had caused him to be in a state of dissociation to the extent the
    appellant was incapable of appreciating the nature and quality of his acts
    and/or knew that they were wrong when he committed the crimes against his son.

[11]

Two
    expert psychiatrists testified at the sentencing hearing. Dr. Helen Ward opined
    that during the period of the offence, the appellant was suffering from
    post-traumatic stress disorder and a depressive episode, but he was not
    delusional. Despite his mental condition at the time of the offences, Dr. Ward
    testified that the appellant was aware of the physical nature and quality of
    his acts. As well, the appellants PTSD would not have affected him, through
    cognitive distortions and re-experiencing of trauma, to the point where he
    would have been unable to know that the acts in question were morally or
    legally wrong. However, Dr. Ward opined that the appellants PTSD and
    depression contributed substantially to the commission of the offences.

[12]

Dr.
    Bradley Booth stated the appellant likely had significant depression, anxiety
    and PTSD, but concluded that the appellant somewhat over-reported his
    difficulties. Both the PTSD and the depression were described as being of mild
    to moderate severity around the time of the offences.

[13]

In
    his sentencing reasons, the trial judge considered the psychiatric evidence. He
    concluded Dr. Booths testimony, that the PTSD at the time of the offences was
    of mild to moderate severity, seemed to correspond to the evidence heard at
    trial, especially the evidence about how the appellant acted on the three
    videos that showed him torturing his son in the basement. The trial judge
    stated:

The offender in that video, far more reflects someone with an
    obsessive-compulsive narcissistic personality disorder than someone suffering
    from post-traumatic stress disorder. [The videos] depict a calm, cool, cruel
    interrogator certainly unafraid of [his son] and seemingly obsessed with his
    own sense of right and wrong.

[14]

After
    reviewing the evidence, the trial judge expressed the view that the appellants
    mental health provided some explanation for his behaviour, but was not the
    cause of it. As a result, he was not inclined to make rehabilitation the focus
    of crafting the appellants sentence instead of denunciation and deterrence:
R.
    v. Shahnawaz
(2000), 51 O.R. (3d) 29 (C.A.), at paras. 30 to 32;
R. v.
    Prioriello
, 2012 ONCA 63, at para. 11.

[15]

The
    appellant submits the trial judge failed to properly consider the psychiatric
    evidence when he failed to conclude a causal link existed between the
    appellants mental health and the commission of the offences. I do not accept
    this submission. In his sentencing reasons, the trial judge reviewed the
    psychiatric evidence at some length. The appellant has not pointed to any
    misapprehension of that evidence by the trial judge. The trial judge assessed
    and weighed the expert evidence together with the other evidence, including the
    videos taken by the appellant in the basement, as he was permitted to do. I see
    no error in his factual analysis concerning the role played by the appellants
    mental health in his commission of the offences. Nor would I interfere with his
    conclusion that denunciation and deterrence were the primary considerations in
    his sentencing. Accordingly, I would give no effect to this ground of appeal.

THIRD GROUND

[16]

Finally,
    the appellant contends the trial judge erred in his consideration of
    aggravating and mitigating factors. I see no merit in this submission. The
    trial judges finding that the appellants conduct amounted to a breach of the
    highest position of trust was unimpeachable. As to the appellants submission
    that the trial judge should have given greater weight to some mitigating
    factors, the trial judges conclusion that the appellants mental health was
    the single most important issue for consideration as a mitigating factor was
    reasonable in the circumstances. As for his submission that the trial judge
    failed to take into account other mitigating factors, I do not accept these submissions.
    For instance, the suggestion that the child made a quick physical recovery
    does not accord with the medical records and the damage done to the childs
    body. Moreover, given the months of punishing psychological and physical abuse
    endured by this child in the basement of his family home, the suggestion that
    the appellant was otherwise a good parent, is without any substance. Given the
    horrific nature of the abuse the appellant inflicted on his son, other
    mitigating factors would play little practical role in the sentencing process.

DISPOSITION

[17]

Accordingly,
    I would grant leave to the appellant to appeal his sentence, but I would
    dismiss his appeal.

Released: KF Feb 13 2018

David Brown J.A.
I agree. K. Feldman J.A.
I agree. Fairburn J.A.


