



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.R.M., 2020 ONCA 75

DATE: 20200131

DOCKET: M51178 (C67259)

van Rensburg J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.M.

Applicant

Ricardo Golec, for the applicant

Nicolas de Montigny, for the respondent

Heard: January 23, 2020

REASONS FOR DECISION

[1]

The applicant is serving a sentence of five
    years imprisonment for incest. After serving one year, he applies for bail
    pending appeal as to sentence only. In accordance with s. 679(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46, leave to
    appeal sentence is required before bail can be granted. In this case leave to
    appeal sentence is granted on consent of the Crown.

[2]

The criteria for bail pending appeal of sentence
    alone are set out in s. 679(4). The applicant must satisfy the court that:

(a)

the appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if he were detained in
    custody;

(b)

he will surrender himself into custody in
    accordance with the terms of the order; and

(c)

his detention is not necessary in the public
    interest.

[3]

The Crown opposes bail. There is no issue with
    respect to the second criterion. Rather, the Crown opposes release on the basis
    that the applicant has not demonstrated that his appeal has sufficient merit
    such that detention in custody pending the appeal would cause unnecessary
    hardship. The Crown says that there is no unnecessary hardship in serving an
    appropriate sentence, and that here the applicants sentence was fit given the
    existence of several aggravating factors. The Crown also opposes release on
    public interest grounds based on the seriousness of the offence, the impact on the
    victim, and the very low likelihood that the applicants five-year sentence
    will be disturbed on appeal. The Crown does not assert any public safety
    concern in relation to the public interest criterion.

[4]

The issue before the court is whether the
    applicants appeal is more likely than not to succeed to the extent that he
    will have served his sentence by the time the appeal is heard. As Justice
    Trotter notes in
The Law of Bail in Canada
,
    loose-leaf (2017-Rel.2), 3d ed. (Toronto: Thomson Reuters, 2010), at pp. 10-39
    to 10-40: The applicant must demonstrate that the appeal is sufficiently
    meritorious such that, if the accused is not released from custody, he/she will
    have already served the sentence as imposed, or what would have been a fit
    sentence, prior to the hearing of the appeal. It prevents the applicant from
    serving more time in custody than what is subsequently determined to be
    appropriate.

[5]

The applicant pleaded guilty in the Superior
    Court to one charge of incest and one charge of sexual interference in relation
    to multiple incidents of sexual intercourse with his sister, T.D. There was an
    agreed statement of facts, and he was convicted of both offences. The
    sentencing judge, after considering the Crowns opposition to doing so, stayed
    the conviction for sexual interference under
Kienapple

(
R. v. Kienapple
, [1975] 1 S.C.R.
    729). Following a
Gardiner
hearing (
R.
    v. Gardiner
, [1982]
    2 S.C.R. 368)

at which both the applicant and T.D.
    testified, the sentencing judge found that the applicant and the complainant
    had sexual intercourse commencing when the complainant was 12 years old, on
    three to five occasions, including after the applicant was already involved
    with his current partner. T.D. gave birth to the applicants child when she was
    14. The complainant and the applicant did not grow up together and first met
    when the applicant came to Canada from Haiti at the age of 18, in 2011 when
    T.D. was 11. He had difficulty adjusting to life in Canada and developed a
    close relationship with T.D.

[6]

The sentencing judge dismissed the applicants
    challenge to the five-year mandatory minimum sentence under s. 155(2) of the
Criminal
    Code
(for incest when the complainant is under 16 years).
    Applying the two-step test in
R. v. Nur
, 2015
    SCC 15, [2015] 1 S.C.R. 773, he began by considering a just and proportionate
    sentence for the offence having regard to the sentencing criteria set out in s.
    718 of the
Code
.

[7]

The sentencing judge considered the fact that
    the offence was serious, and committed against a child. He looked at the
    circumstances of the offence, the offender and the effect of the offence on the
    complainant. He took into consideration the mitigating circumstances: the
    applicants relative youth and immaturity, his guilty plea, the fact that he and
    T.D. had not grown up as brother and sister, the applicants difficult
    adjustment to Canada, and the support of his mother and partner (with whom he
    had a child). The sentencing judge also addressed the aggravating
    circumstances: the number of times sexual intercourse took place, over a
    prolonged period of time, the fact that the applicant fathered a child with
    T.D., T.D.s age, the age difference, the fact that the applicant was more than
    20 years old at the time of the last incident, the devastating impact on T.D.,
    and the impact on the child, who has severe health issues and special needs. The
    sentencing judge observed that the primary sentencing objectives in such a case
    are deterrence and denunciation.

[8]

Finally, the sentencing judge referred to the
    various sentencing precedents provided by counsel for both sides. He concluded
    that, since this courts decision in
R. v. P.M.
, 2012 ONCA 162, 282 C.C.C. (3d) 450, the appropriate range would be
    4.5 to 6.5 years for incest, whether by a parent or a sibling of the victim, and
    that, after considering the mitigating and aggravating factors in this case, a
    fit sentence for the applicant would be five years.

[9]

The sentencing judge went on to consider the
    second part of the
Nur

test. The
    mandatory minimum sentence was not disproportionate to what he had determined
    to be a fit sentence for the applicant. As for whether it was grossly
    disproportionate to a reasonable hypothetical offender, the sentencing judge rejected
    the hypothetical proposed by the applicants counsel as lacking in detail and far-fetched
    (as it assumed the accused came from a place where incest was legal, without
    addressing whether incest with a minor would be legal). Instead, he considered
    a different hypothetical where the complainant and accused were close in age, and
    had not grown up together, with one incident of intercourse, and no pregnancy. The
    sentencing judge concluded that the mandatory minimum sentence of five years was
    not grossly disproportionate to a 3.5-year sentence that might be appropriate
    for such a reasonable hypothetical.

[10]

The applicant says that the sentence appeal has
    merit. First, he argues that the sentencing judge erred in his conclusion about
    the constitutionality of the mandatory minimum sentence. The applicant asserts that
    the sentencing judge instructed himself incorrectly with respect to the
    reasonable hypothetical. He refers to para. 62 from
Nur

and asserts that a passage in the French version (Les hypoth
è
ses fantaisistes ou nayant quun faible
    rapport avec lesp
è
ce doivent
ê
tre
écarté
es), which was referred to by the sentencing judge here, has a
    different meaning in the English version (Fanciful or remote situations must
    be excluded). This gave rise to the sentencing judges error, which, according
    to the applicant, was to require the reasonable hypothetical to be related to
    the facts of the applicants case. The applicant points to the reasonable
    hypotheticals set out in the Court of Appeal of Quebec decision in
Y.P.
    c. R.
, 2019 QCCA 1506, at para. 21, as more appropriate
    and reasonable (although the court in that case considered the hypotheticals inadequate
    and refused to rule on the constitutional question where, under the first step
    in
Nur
,

the sentence was fit: see
    paras. 29, 50-54).

[11]

The Crown asserts that para. 62 of
Nur

must be considered in the context of the entire reasons,
    and disagrees that there is any difference in the formulation of the test
    between the French and English versions. Moreover, the Crown asserts that there
    was no error in the trial judges interpretation and application of the second
    step in
Nur
. According to the Crown, the
    sentencing judge simply rejected the hypothetical offered by the defence as
    fanciful, and instead used a hypothetical that was consistent with the so-called
    best offender whose conduct might be caught by this section.

[12]

The constitutionality of the five-year mandatory
    minimum sentence at issue here has not yet been considered by this court. The
    applicant could succeed on this part of his appeal if this court accepted that
    the mandatory minimum sentence was grossly disproportionate to a reasonable
    hypothetical, or using terminology from
R. v. Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130, the reasonably foreseeable
    applications of the mandatory minimum. In the circumstances I cannot say that
    the constitutional challenge is without merit.

[13]

However, even if the applicant were successful
    in persuading this court that the mandatory minimum sentence of five years is
    grossly disproportionate when applied to a reasonably foreseeable best
    offender, he would still need to demonstrate a legal error that would warrant
    interference with his sentence and then that a lesser sentence is warranted,
    before he will succeed in his appeal.

[14]

This brings us to the applicants second ground
    of appeal: that the sentencing judge erred in imposing a five-year sentence,
    and that a fit sentence in this case would be much lower (at the sentencing
    hearing defence counsel asked for a custodial sentence of less than six months
    because of the immigration consequences of the sentence; the applicants
    counsel in this court says that a fit sentence is one that the applicant will
    reasonably have served at the time his appeal is heard).

[15]

The applicant says that the error of the
    sentencing judge was in identifying 4.5 to 6.5 years as an appropriate range,
    in reliance on a number of cases that had little bearing on the facts of his
    case. He points to examples of cases where much lesser sentences were imposed,
    including
R. c. Y.G.
, 2016 QCCA 1075, where
    the Court of Appeal of Quebec, while upholding a sentence of 15 months, said in
    a short endorsement that a more appropriate sentence for a similar case would
    have been between 18 and 24 months (the case report gives very few details of
    the offence).

[16]

The Crown says that the sentencing judge
    committed no error in principle, that his determination of sentence is entitled
    to deference, and that in any event, having regard to the mitigating and
    aggravating circumstances, all of which were specifically mentioned and taken
    into consideration, the applicants sentence was fit. Moreover, the Crown says
    that, even if an error could be demonstrated, there is no reasonable prospect
    that the applicant, at the time of his appeal, will already have served any
    sentence that this court might impose.

[17]

I agree with the Crowns position. First, while
    the applicants counsel referred to some reported incest cases attracting
    sentences of less than five years, the sentencing judge here acknowledged that
    there were such cases, and explained why, in his opinion, the aggravating and
    mitigating circumstances would warrant a sentence of five years. It is not
    suggested that the sentencing judge ignored any circumstance that was relevant
    to this case, although the applicants counsel argues that the circumstances
    ought to have been weighed differently. While the failure to give effect to a
    mitigating circumstance can be a reversible error, a judges weighing of
    aggravating and mitigating factors is typically entitled to deference:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    49;
R. v. Mahmood
, 2016 ONCA 75, 343 O.A.C.
    380, at para. 18. The sentencing judge also pointed to this courts decision in
R. v. D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.),
    which signaled that the sexual abuse of a child will attract lengthy
    penitentiary sentences, and
R. v. M. (P.)
,
    2012 ONCA 162, 282 C.C.C. (3d) 450,

which cited this principle in
    sentencing for incest as recently as March 2012. In my view, the applicant has
    an uphill battle to demonstrate a reversible error in the sentencing judges
    approach to sentence or, even if there were an error, that the sentence is
    unfit.

[18]

In any event, the applicant has not persuaded me
    that it is more probable than not that a successful appeal would result in a
    significantly lower sentence than that imposed at trial. And I see no prospect
    at all that if the applicant is successful on appeal, he will already have completed
    any sentence this court might impose in substitution for the five-year
    sentence. There was no pre-sentence custody. The applicant has just now
    completed one year of his five-year sentence. It is anticipated by both counsel
    that the appeal can be perfected within weeks and the appeal will be scheduled
    for a hearing shortly thereafter. There is no undue hardship in serving a fit
    sentence, and it would not be in the public interest to release the applicant in
    these circumstances.

[19]

Accordingly, while leave to appeal sentence is
    granted, the application for bail pending appeal is dismissed.

K. van Rensburg J.A.


