



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




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    that could identify the complainant or a witness shall not be published in any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. M.R., 2014 ONCA 484

DATE: 20140623

DOCKET: C57724

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.

(A Young Person)

Appellant

Sam Goldstein, for the appellant

Michael Fawcett, for the respondent

Heard: June 18, 2014

On appeal from the sentence imposed on September 11, 2013
    by Justice Michael S. Block of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant, a young offender, was convicted of sexually assaulting
    his friend.  He was 16 years old at the time, she 15.  The sentencing judge
    imposed a custodial sentence of 300 days (200 in secure custody and 100 days of
    community service) followed by 14 months probation.

[2]

The appellant seeks to set aside that sentence on two grounds.  First,
    he argues that the sentencing judge erred by treating the appellants testimony
    at trial as an aggravating factor.  Secondly, he contends that the sentence
    imposed was excessive.  In addition, he makes a fresh evidence application in
    which his social worker describes him as posing a low risk of re-offending
    sexually.

[3]

The sexual assault was serious.  The appellant was invited by his friend
    and classmate to her house to talk about his relationship problems and his
    recent breakup with another girl.  They began kissing (the complainant agrees
    this was consensual).  But then the appellant became more aggressive and
    increasingly physical.  The complainant resisted.  When she refused to perform
    oral sex on him, he forced her pants down and forced her to have anal sex.  She
    said no again. The appellant did not respond but proceeded to penetrate her
    anus.

[4]

Later that evening, the appellant aggravated the seriousness of the offence,
    in an exchange of text messages where he acknowledged the assault but applied
    pressure in an attempt to persuade the complainant not to disclose it to
    anyone.

[5]

We do not agree that the sentence imposed was excessive in the
    circumstances.

[6]

The sentencing judge applied all the appropriate principles of
    sentencing relating to young offenders and concluded that a period of probation
    alone or a deferred custody arrangement would not properly address the needs of
    rehabilitation, reintegration, specific deterrence and denunciation.  He took
    into account the considerable mitigating factors favouring the appellant (his
    intellect, good family background, community involvement and the lack of any
    prior record).  There were countervailing aggravating factors, however.  These
    included what the sentencing judge described as the egregious and degrading
    nature of the act of non-consensual anal intercourse, compounded by the
    appellants profound lack of empathy as disclosed in the subsequent exchange of
    text messages.  In this exchange, the appellant first tried to paint the
    conduct as consensual; he then attempted to slander the complainant into
    silence; finally he implied that she might be bribed into silence.

[7]

As a result, the sentencing judge concluded that a stern sanction was
    needed to communicate to the appellant the consequences of the very serious
    nature of what he had done and to address his lack of empathy.

[8]

We see no error in principle in the sentence he imposed.  The sentence
    was a fit sentence in the circumstances.

[9]

Nor do we accept the argument that the sentencing judge improperly used
    the manner in which the appellant testified as an aggravating factor in
    sentencing.  His observation that the appellants profound lack of empathy
    was a significant aggravating factor requiring a powerful just sanction was
    not based upon the appellants testimony at trial.  It was based upon the
    exchange of text messages that revealed the appellants failure to appreciate
    the seriousness of his conduct and his willingness to go to some lengths to
    cover it up.

[10]

It
    is permissible for a sentencing judge to take into account lack of remorse,
    together with an offenders lack of understanding of his or her involvement in
    the offence, as factors demonstrating that the young person has not accepted
    responsibility for his actions:
R. v. J.F.
, 2011 ONCA 220, per Rosenberg
    J.A., at para. 86.  Here, the sentencing judge concluded that the appellants
    lack of remorse and his conduct displayed in the exchange of text messages were
    important factors in crafting the appropriate youth sentence in order to give
    effect to s. 38(2)(e)(iii) of the
Youth Criminal Justice Act
, S.C. 2002,
    c.1, which requires that a sentence imposed on a young person must  promote a
    sense of responsibility in the young person, and an acknowledgment of the harm
    done to victims and the community.  These were proper considerations on
    sentencing.

[11]

Finally,
    nothing in the proposed fresh evidence alters this result, in our view.

[12]

The
    appeal is therefore dismissed.

John
    Laskin J.A.

E.A.
    Cronk J.A.

R.A.
    Blair J.A.


