



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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c.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identify the victim shall not be published in any document or broadcast or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. Lowe, 2018 ONCA 777

DATE: 20180924

DOCKET: C65244

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Lowe

Appellant

Jeff Marshman, for the appellant

Caitlin J. Sharawy, for the respondent

Heard and released orally: September 20, 2018

On appeal from the sentence
imposed on February 1, 2018 by Justice Braid of the Superior Court of Justice,
sitting with a jury.



REASONS FOR DECISION

[1]

After a two-week jury trial, the appellant was convicted of a number of offences.
The supporting facts were set out carefully by the trial judge in her
sentencing reasons, reported at [2018] O.J. No. 1162.

[2]

The trial judge noted, at paras. 1 and 2, that the jury found the
appellant guilty of 12 charges: sexual assault; assault with a weapon; simple
assault (two counts); threatening to cause death (four counts); mischief (three
counts); and criminal harassment. After the jury trial, the appellant pleaded
guilty to three additional charges: one count of breaching his recognizance and
two counts of breach of probation.

[3]

The appellant received a global sentence of nine years less four years
credit for time served. The appellant received a seven year sentence for the
sexual assault conviction, six months consecutive on one of the assault
convictions, 12 months consecutive on the criminal harassment conviction, and
six months consecutive on the breach of recognizance conviction. All the other
sentences ran concurrently.

[4]

The appellant originally challenged the sentence on two bases. The
appellant no longer relies on the ground that the trial judge punished him
twice for the same conduct in relation to the two breaches of probation. We
agree with this position.

[5]

The appellant argues that the sentence imposed by the trial judge for
sexual assault was demonstrably unfit. He submits that the global sentence of
nine years should be reduced by two years for a total sentence of seven years.

[6]

There is no dispute that the trial judge took into account the proper
sentencing principles. She noted that deterrence and denunciation are paramount
sentencing considerations in cases of domestic violence: see

R. v.
Campbell
,
170 O.A.C. 282, [2003] O.J. No. 1352 at paras. 8-9;
R. v.
S. (P.)
,

2007 ONCA 299, 223 O.A.C. 293 at

para. 50. She
noted at paras. 8283 of her reasons that she had considered the principles of
totality and the ladder principle recognizing that the appellant had not
previously been incarcerated for a sentence of more than two years. She noted
that this would be a significant jump from the sentences that he had previously
served.

[7]

The appellant asserts that the applicable sentencing range the trial
judge should have taken into account is between 20 months and four years.

[8]

The trial judge noted, at para. 72 of her reasons, that none of these
cases are on all fours with the matter before the court. She stated, at para.
73:

No two sentencing cases are the same. The violence and
manipulation displayed towards Mr. Lowes two domestic partners; the
intimidation of his surety; the numerous breaches; and other aggravating
factors articulated below make this case particularly unique.

[9]

Sentencing ranges are guidelines rooted in accumulated judicial
experience. They are not straitjackets, as the Supreme Court noted in
R. v.
Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 69, adding, at para.
67, that: a deviation from such a range or category is not an error in
principle and cannot in itself automatically justify appellate intervention
unless the sentence that is imposed departs significantly and for no reason
from the contemplated sentences.

[10]

The
trial judge observed the appellant during a two-week trial, including his
testimony, and over a three-day sentencing hearing. Her reasons demonstrate her
deep grasp of the dynamics driving the appellant.

[11]

The
critical feature here is that, as the trial judge observed at para. 81: these
offences were violent and particularly degrading towards the victims.

[12]

The
trial judge set out the factual details at length in her sentencing reasons. 
In the sexual assault incident, in particular, the appellant assaulted the
victim with a glass, and then his fists. He spat on her and grabbed her by her
hair. He forced her to perform fellatio and then raped her. He then abused her
further, broke her phone and her prescription glasses and took her change so
that she could not use a payphone to call the police. This led, as the trial
judge noted at para. 11 of her sentencing decision, to a number of convictions,
and underpinned the seven year sentence.

[13]

The
trial judge set out the mitigating factors at para. 80, and aggravating factors
at para 81. Among the serious aggravating factors, she referred to his
lengthy, related criminal record. She noted: Many of the offences are
violent and committed against domestic partners.

[14]

The
trial judge more than adequately explained the reasons for the sentence and
rooted them deeply in the facts. We see no error in her approach. The sentence is
owed deference.

[15]

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

S.E. Pepall J.A.

P. Lauwers J.A.

Fairburn J.A.


