



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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
(9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
486.4, on application of the prosecutor, a victim or a witness, a judge or
justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is satisfied that the order is
necessary for the proper administration of justice.

(2)     On application of a justice system
participant who is involved in proceedings in respect of an offence referred to
in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
justice may make an order directing that any information that could identify
the justice system participant shall not be published in any document or
broadcast or transmitted in any way if the judge or justice is satisfied that
the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
apply in respect of the disclosure of information in the course of the
administration of justice if it is not the purpose of the disclosure to make
the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
justice or, if the judge or justice has not been determined, to a judge of a
superior court of criminal jurisdiction in the judicial district where the
proceedings will take place; and

(b) provide notice of the application to the
prosecutor, the accused and any other person affected by the order that the
judge or justice specifies.

(5)     An applicant for an order shall set out the
grounds on which the applicant relies to establish that the order is necessary
for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
that the victim, witness or justice system participant would suffer significant
harm if their identity were disclosed;

(c) whether the victim, witness or justice system
participant needs the order for their security or to protect them from
intimidation or retaliation;

(d) societys interest in encouraging the
reporting of offences and the participation of victims, witnesses and justice
system participants in the criminal justice process;

(e) whether effective alternatives are available
to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
proposed order;

(g) the impact of the proposed order on the
freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
considers relevant.

(8)     An order may be subject to any conditions
that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
an order, no person shall publish in any document or broadcast or transmit in
any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
made at a hearing under subsection (6); or

(c) any other information that could identify the
person to whom the application relates as a victim, witness or justice system
participant in the proceedings.  2005, c. 32, s. 15.

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. 205, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N. F.,
2015 ONCA 51

DATE: 20150127

DOCKET: C57468

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N. F.

Appellant

Adetayo G. Akinyemi, for the appellant

Amy Rose, for the respondent

Heard: January 21, 2015

On appeal from the sentence imposed on July 29, 2013 by
Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT



[1]

A jury found the appellant guilty of aggravated assault and assault
with a weapon in connection with second degree burns she inflicted on her ten
year old son by pressing a hot iron against both his arms. The trial judge
entered a conviction on the count of aggravated assault and a
Kienapple
stay on the count of assault with a weapon.

[2]

The appellant, who has been on bail pending appeal for about 16 months,
seeks to have the 20 month carceral portion of the sentence imposed upon her
reduced to a term of imprisonment of five months. She does not contest the
period of probation and the several ancillary orders imposed by the trial
judge. She also seeks leave to introduce fresh evidence in support of her claim
for a reduction in her sentence.

[3]

The appellants complaints, reduced to their essence, are that the trial
judge:


i.

overemphasized the sentencing objectives of denunciation and deterrence;


ii.

misapprehended the relevant range of sentence and thus failed to give
effect to the principle of parity; and


iii.

failed to appreciate and give proper effect to the potential immigration
consequences of the sentence to be imposed.

[4]

The circumstances of the offence revealed conduct that extends well
beyond excessive discipline as the appellant would characterize it.

[5]

When the appellant returned home from work one day, the victims older
brother told her that the victim, contrary to the appellants edict, had taken
some food out of the refrigerator and had eaten it. The victim denied it. The
appellant instructed her older son to get her iron and to plug it in. She then
embarked on a lengthy interrogation of the victim in an effort to obtain a
confession from him. No admission was forthcoming. The appellant burned the
victim on one of his arms with the hot iron. Still no confession. The appellant
burned her son on his other arm.

[6]

The appellant, who worked as nurse, did not provide or seek any medical
assistance for the victims burns. His injuries, second degree burns, were
noticed by a gym teacher at school. Police were called.

[7]

Childrens Aid authorities apprehended all three of the appellants
children and placed them in foster care.

[8]

The appellant is a permanent resident of Canada having emigrated here
from Nigeria in 2006. She has no prior convictions. She was gainfully employed
and is a person of strong religious convictions. A psychiatric report prepared
for sentencing describes her as suffering from a personality disorder of
substantial degree involving easy prevarication, substantial moral indifference
and a striking lack of capacity for self-doubt.

[9]

We would not interfere with the sentence imposed. The carceral portion
of the sentence was within the range of sentence for this offence and offender.
The predominant sentencing objectives, recognized and applied by the sentencing
judge, were denunciation and deterrence. This offence involved an egregious
breach of trust, consisting not only of the abuse of a child of ten years, but
also of the recruitment of his older brother to bring the tools of that abuse
to his mother, the abuser. Remorse was not evident before the sentencing judge.
The appellant rejects any suggestion of fault and appears unamenable to
treatment.

[10]

We
accept that no one told the trial judge about the specific immigration
consequences of a carceral term of six months or more. Crown counsel did point
out to the trial judge the appellants immigration status (which the appellant
confirmed) and reminded the judge of the need to consider immigration
consequences in determining the sentence to be imposed. The sentencing reasons
do not reflect, however, any express consideration of the precise issue raised here.

[11]

The
failure to consider the specific immigration consequences of a carceral
sentence of six months or more was an error in principle disentitling the sentencing
judges decision to the deference usually accorded to such decisions in this
court. Left to consider the fitness of the sentence, as is our mandate under s.
687 of the
Criminal Code
, we are satisfied, however, that in this case
and despite those consequences, the sentence imposed reflects no error.

[12]

The
term of imprisonment sought by the appellant to preserve a right of appeal
against a removal order for a person who is and will remain inadmissible in
Canada by virtue of her conviction would accord a collateral consequence a
significance well beyond its due. The result would be, in this case, the
imposition of a sentence outside the range of sentence appropriate for this
offence and the offender who committed it as well as one that would fail to
apply the relevant sentencing objectives of deterrence and denunciation and the
fundamental principle of proportionality.

[13]

Although
leave to appeal sentence is granted, the appeal against sentence is dismissed.



K.M. Weiler J.A.

David Watt J.A.

Gloria Epstein J.A.


