



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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. Hernandez-Mejia, 2019 ONCA 16

DATE: 20190111

DOCKET: C65489

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Isabel Hernandez-Mejia

Respondent

Elise Nakelsky, for the appellant

Eva Tache-Green, for the respondent

Heard and released orally: January 9, 2019

On appeal from the sentence imposed on May 14, 2018 by
    Justice Susan G. Himel of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The respondent was convicted of four counts of sexual interference and
    four counts of sexual assault after a trial by judge alone. The trial judge
    stayed the sexual assault charges and imposed sentences totaling 2 and a half
    years on the sexual offence charges. The Crown seeks leave to appeal from the
    sentences.

[2]

The facts relating to the offences and the respondents background are
    fully and clearly set out in trial judges reasons for sentence at 2018 ONSC
    2481. The Crown argues that the sentence is manifestly unfit. She does not
    allege any error in principle. She acknowledges, correctly in our view, that the
    reasons for sentence demonstrate that the trial judge fully appreciated the
    applicable principles. Crown counsel argues, however, that a sentence of 2 and
    a half years is woefully inadequate to properly reflect those principles. She
    asks the court to impose a sentence of 5 years.

[3]

Counsel for the respondent accepts that the offences are serious and
    have had a very negative impact on the victims. She acknowledges that the
    respondent deserves to go to the penitentiary. She contends that a sentence of
    2 and a half years imposed on the 70 year old, first offender, is a
    proportionate response having regard to the offence and the offender. More to
    the point, counsel for the respondent argues that the sentence imposed is not
    so inadequate as to warrant appellate intervention.

[4]

This court must defer to the trial judges assessment of the appropriate
    sentence. When, as here, there is no argument that the trial judge erred in
    principle, this court can interfere only if the sentence imposed is manifestly
    inadequate, in that it is outside of the range of sentences which could
    reasonably be imposed for this offence and this offender.

[5]

While we agree with the Crowns submissions, to the extent that we think
    the sentence could well have been higher, we agree with counsel for the
    respondent that the sentence cannot be characterized as manifestly unfit having
    regard to the totality of the circumstances.

[6]

Leave to appeal is granted, but the appeal is dismissed.

Doherty J.A.

C.W. Hourigan J.A.

Harvison Young J.A.


