



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    that could identify the complainant or a witness shall not be published in any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. C.L., 2012 ONCA 835

DATE:  20121129

DOCKET: C54508

OConnor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Appellant

M. Dineen, for the appellant

K. Crosbie, for the respondent

Heard:  September 8, 2012

On appeal from the sentence imposed by Justice M.A. Code
    of the Superior Court of Justice, dated July 2, 2010.

ENDORSEMENT

[1]

The appellant was convicted of one count of sexual assault and one count
    of incest arising out of a single incident.  He was sentenced to 3 ½ years
    imprisonment with credit for approximately 18 months pretrial custody on a 1:1
    basis.

[2]

In reasons released on November 7, 2012, we dismissed the appellants
    appeal against conviction.

[3]

The appellant also appealed his sentence.  This endorsement addresses
    the sentence appeal.  The appellant concedes that the sentence of 3 ½ years was
    fit.  His sole ground of appeal is that the sentencing judge erred in only
    giving him credit for the pretrial custody on a 1:1 basis.

[4]

At the sentencing hearing, the appellant led evidence that he had been
    held in administrative segregation for the entire pretrial period.  Because of
    the nature of the charges against him, he would have been in physical danger if
    he had been held with the general jail population.  Thus, he spent 23 hours a
    day in his cell.  The appellants pretrial custody predated the recent
    amendments to the
Criminal Code
limiting the credit that may be given
    for pretrial custody.

[5]

At the sentencing hearing, the defence asked that the appellant be given
    2:1 credit.  The Crown submitted 1.5:1 was appropriate.

[6]

The appellant argues that in giving 1:1 credit, the sentencing judge
    failed to attach sufficient weight to the harsh conditions in which he was held
    and to the Crowns position.

[7]

We see no error.  In our view, the sentencing judge acted within his discretion. 
    He gave detailed and careful reasons for imposing the sentence of 3 ½ years. 
    As to pretrial custody, he considered the harsh administrative segregation
    conditions.  However, he also took into account other factors that weighed
    against enhanced credit.  At the time the appellant committed the present
    offences he had outstanding charges and was in breach of the terms of his
    bail.  In addition, the appellants significant criminal record, pending
    deportation order, and conviction for sexual assault made it unlikely he would
    receive early parole.

[8]

In our view, the sentencing judge considered the appropriate factors and
    was entitled to give credit on a 1:1 basis.

[9]

We grant leave to appeal the sentence, but dismiss that appeal.

D. OConnor A.C.J.O.

K.M. Weiler J.A.

Alexandra Hoy J.A.


