



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. J.W.H., 2015 ONCA 617

DATE: 20150915

DOCKET: C56269

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.H.

Appellant

David E. Harris, for the appellant

Tracy Kozlowski, for the respondent

Heard: September 10, 2015

On appeal from the dangerous offender designation and the
    indeterminate sentence imposed by Justice Elizabeth Quinlan of the Superior
    Court of Justice, dated August 2, 2012, with reasons reported at 2012 CanLII
    44705.

ENDORSEMENT

[1]

The appellant was sentenced to an indeterminate sentence as a dangerous
    offender. He seeks leave to appeal his sentence and to be sentenced to a
    determinate term as a long term offender. He contends that the sentencing judge
    erred in finding that there was no reasonable possibility that his risk to
    reoffend could eventually be controlled in the community and that the error was
    made because the sentencing judge failed to apply the principles from the
    Supreme Court of Canada decisions in
R. v. Gladue
, [1999] 1 S.C.R. 688,
    and
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, regarding
    sentencing aboriginal offenders.

[2]

We cannot give effect to this submission. The sentencing judges reasons
    are lengthy and detailed. It was she who ordered the
Gladue
report. She
    reviewed the appellants personal history. She also reviewed his history of
    offending, which included the following convictions: two counts of sexual
    assault from 1992; uttering threats against his spouse from 1997; sexual
    assault and forcible confinement of his spouse from 1998; and the predicate
    offence of sexual assault of his daughter over a period of three years,
    beginning when she was 15 and culminating in 2009 with a physical assault
    following an argument.

[3]

The sentencing judge reviewed the
Gladue
report as well as
    correctional records of the appellants progress during his prior
    incarcerations, which addressed his participation in a number of programs for
    sex offender treatment and alcohol treatment. The reports noted some apparent
    progress but significant relapse upon release. He was also found to be
    manipulative, seeming to co-operate in programs, then later denying the
    offences. He served two terms of federal imprisonment to warrant expiry.

[4]

She also reviewed the evidence of Dr. Pearce, an expert forensic
    psychiatrist who prepared an assessment report on the appellant. The appellant
    refused to participate in the assessment. Significantly, though Dr. Pearce
    opined that the appellants risk could be manageable in the community assuming
    he would accept medication, there was no evidence that the appellant was
    prepared to do so.

[5]

The sentencing judge also considered the appellants Aboriginal
    background, which is derived from his estranged father. She noted the
    prevalence of substance abuse issues in the Aboriginal community and the
    potential impact of systemic factors on his behaviour. In light of the
    appellants treatment history, including his participation in Aboriginal
    programming, she refused to accept that the availability of any programs
    specifically for Aboriginals would be useful for risk reduction in the
    appellants case.

[6]

In our view, the conclusion reached by the sentencing judge is fully
    supported by the evidence. She took into account the principles from
Gladue
and
Ipeelee
but could not find any evidence in the record that would
    support the conclusion that there was a reasonable possibility that the appellants
    risk to reoffend could eventually be controlled in the community. The appellant
    concedes that that is the test that must be satisfied.

[7]

While leave to appeal sentence is granted, the appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

B.W. Miller J.A.


