



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. A.G., 2017 ONCA 474

DATE: 20170608

DOCKET: C63367

Tulloch, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.G.

Appellant

Yoni S. Rahamim, for the appellant

Andrew J. Hotke, for the respondent

Heard and released orally: June 5, 2017

On appeal from the conviction entered by Justice Irving
    W. André of the Superior Court of Justice on February 26, 2016, with reasons
    reported at 2016 ONSC 1406, and the sentence imposed on December 15, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals his conviction for sexual interference and seeks
    leave to appeal his sentence of 22 months, less credit for pre-sentence
    custody.

[2]

On his conviction appeal, the appellant raises an issue concerning the
    DNA testing of the complaints underwear. He states the reasons of the trial judge
    record two different officers describing different coloured underwear. However,
    we see no suggestion in the reasons that the DNA testing was performed on the
    wrong set of underwear.

[3]

The appellant also submits the trial judge erred in not accepting his evidence
    that he was at his auto shop at the time the complainant alleged she was
    assaulted. He argues the trial judge should have believed him. We do not accept
    this submission. The trial judge gave detailed reasons why he did not accept
    the appellants evidence. We see no reversible error.

[4]

We dismiss the appeal from conviction.

[5]

The appellant was not represented by counsel at his sentencing hearing.
    Duty counsel, on behalf of the appellant, submits the sentencing judge made two
    related errors: (i) he treated lack of remorse as an aggravating factor; and,
    (ii) he improperly used information from the pre-sentence report in his
    analysis as evidence of extreme lack of remorse. In this regard, duty counsel
    specifically points to the statement in the sentencing reasons: [The
    appellant] manifested a great deal of hostility to women during the course of
    his interview with the probation officer. It is unclear whether the pre-sentence
    report was marked as an exhibit.

[6]

We agree the sentencing judge erred in principle by treating the absence
    of remorse by the appellant as an aggravating factor. However, we are not
    persuaded that error had an impact on the sentence such as to justify the
    imposition of a lesser sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089,

at para. 44. The sentence of 22 months imprisonment
    imposed by the sentencing judge was justified in light of the young age of the
    victim, the appellants breach of trust toward the victim, the serious impact
    of the offence on the victim, and the appellants prior criminal record.

[7]

We would grant the appellant leave to appeal his sentence, but we would
    not interfere with the sentence imposed on the appellant. His appeal from
    sentence is dismissed.

M. Tulloch J.A.

P. Lauwers J.A.

David Brown J.A.


