



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), (2.1), (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 in respect of a victim or
    a witness, or on application of 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    witness shall not be published in any document or broadcast or transmitted in any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 of the opinion that the order is in the interest
    of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, 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    participant shall not be published in any document or broadcast or transmitted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 in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(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 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; 2015, c. 13, s. 19

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. France, 2018 ONCA 1052

DATE: 20181219

DOCKET: C64020

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joel France

Appellant

Joel France, in person

Nathan Gorham, for the appellant

Benita Wassenaar, for the respondent

Heard and released orally: December 10, 2018

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal the sentence of nine years imposed
    by the trial judge, following a guilty plea to unlawful act manslaughter based
    on failing to seek medical attention for a distressed child. The plea was based
    on an agreed statement of facts. It was agreed that the failure to seek medical
    attention was the significant cause of the two year old childs death. The
    trial judge conducted a
Gardiner
Hearing to make findings regarding:
    (1) whether the appellant assaulted the mother; (2) whether he repeatedly
    assaulted the child; and, (3) whether he inflicted the blow that caused the
    fatal injury. The trial judge answered yes to the first two but could not make
    a determination with respect to the third factor.

[2]

The appellant submits that in sentencing him the trial judge made
    palpable and overriding errors not grounded in the evidence which she used as
    aggravating factors. She found that the appellant had decided not to take the
    child to the hospital to protect himself from blame for the multiple injuries
    to the child and that he had inflicted most of the wounds on the child. He also
    argues that the sentence imposed was disproportionate to the six year sentence
    that the mother received.

[3]

We do not accept these submissions. The trial judge held a lengthy
Gardiner
Hearing and wrote careful, detailed reasons for her findings on that hearing
    and for her sentence. The findings she made were open to her on the evidence.
    The Crown submits that the overriding consideration for the trial judge was
    that the appellant moved in with the mother, dominated her and the child, and
    within a short time, the child who had been healthy and fine became horribly
    injured and abused and died of sepsis because his injuries were neglected.

[4]

The
Criminal Code
aggravating factors based on the childs
    young age, the breach of trust and assaults on the mother, were also very
    important to the trial judge.

[5]

With respect to the disparity in the sentence received by the mother, we
    note that her sentence was based on a joint submission and she was also being
    deported. Also based on the trial judges findings of the appellants role in
    dominating the mother and the child, the disparity in the two sentences does
    not amount to an error. Parity does not require the imposition of equal
    sentences, see
R. v. Flowers
, 2010 ONCA 129.

[6]

In the result, while leave to appeal is granted, the appeal is
    dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

I.V.B.
    Nordheimer J.A.


