



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




WARNING

An order
    restricting publication in this proceeding was made under s. 517 of the
Criminal
    Code
and continues to be in effect. This section of the
Criminal Code
provides:

517(1)         If the
    prosecutor or the accused intends to show cause under section 515, he or she
    shall so state to the justice and the justice may, and shall on application by
    the accused, before or at any time during the course of the proceedings under
    that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(a)     if a preliminary
    inquiry is held, the accused in respect of whom the proceedings are held is
    discharged; or

(b)     if the accused
    in respect of whom the proceedings are held is tried or ordered to stand trial,
    the trial is ended.

Failure to comply

(2)     Everyone who
    fails without lawful excuse, the proof of which lies on him, to comply with an
    order made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3)     [Repealed, 2005,
    c. 32, s. 17]

R.S., 1985, c. C-46, s.
    517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. C.C., 2021 ONCA 600

DATE: 20210908

DOCKET: C68371

Paciocco, Nordheimer and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

C.C.

Appellant

Mindy Caterina, for the appellant

Nicolas de Montigny, for the respondent

Heard: August 30, 2021 by
    video conference

On appeal from the sentence imposed on
    December 12, 2018 by Justice Marcella Henschel of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

C.C. was convicted after trial of human
    trafficking-related charges involving two victims, one an adult and the other a
    minor. He was also convicted of assaulting the adult victim, and of child
    pornography charges relating to the child victim. The trial judge imposed a
    global sentence of 6 years in custody for the 12 charges for which C.C. was
    found guilty.

[2]

C.C. seeks leave to appeal that sentence. He
    does not claim that the sentence was unfit, or identify any errors relating to
    the trial judges identification of the global sentence. Nonetheless, he asks
    to have his sentence reduced. He argues that the trial judge erred in failing
    to mitigate his sentence because of the harsh conditions of bail he had been
    under, pursuant to the decision in
R. v. Downes
(2006), 79
    O.R. (3d) 321 (Ont. C.A.). He urges, in the alternative, that fresh evidence
    underscores his rehabilitative potential and provides an exceptional basis upon
    which this court should revisit his sentence, even if the trial judge committed
    no error. The fresh evidence C.C. relies upon includes letters of support from his
    family and community, an affidavit confirming his remorse, and proof of the
    counselling he has taken and the employment opportunities he has developed.

[3]

We are not persuaded by either submission.

[4]

First, we do not accept C.C.s contention that the
    trial judge failed to consider whether C.C.s sentence should be mitigated as a
    result of the punitive terms of bail he was under. The trial judge stated
    explicitly that she decided not to credit C.C. for those restrictive bail conditions,
    and she gave reasons for not doing so. C.C.s submission is based on the
    mistaken belief that there is a difference between a
Downes
credit and
    treating harsh conditions of bail as a mitigating factor. There is not. As this
    court explained in
R. v. Joseph
, 2020 ONCA 733, 153 O.R. (3d) 145, at
    para. 108:

Although it is not uncommon to speak of
    providing credit for stringent bail conditions, pre-trial bail is
    conceptually a mitigating factor in assessing a fit sentence:
R. v. Yue
(2007), 226 C.C.C. (3d) 349 (Ont. C.A.). Mitigation is given because stringent
    bail conditions can be punitive and therefore akin to custody:
Downes
,
    at para. 29.

[5]

Some judges choose to achieve that mitigation by
    granting a 
Downes
credit that is set off against the sentence that
    would otherwise have been imposed. Other judges choose to factor the punitive impact
    that bail conditions have had on the offender into their overall determination
    of a fit sentence.
Neither approach is in error. In
    this case, the trial judge explained why she would not grant a credit for the
    stringent bail conditions C.C. had been under. In doing so, she gave the
    requisite consideration to whether to exercise discretion to reduce C.C.s
    sentence because of those conditions.

[6]

C.C. makes a secondary argument relating to
Downes
credit. He contends that the sentencing judge erred by relying on the fact
    that she sentenced C.C. concurrently as a reason for denying
Downes
credit.
    This argument is more compelling. The factors that drove the trial judge to
    sentence C.C. concurrently, namely, the close link between the offences, and
    the fact that consecutive sentences would be too harsh and would interfere with
    C.C.s rehabilitation, have nothing to do with whether a lesser sentence should
    be imposed because the offender has already received some punishment through
    stringent bail conditions. However, the trial judge offered another correct and
    persuasive reason for not reducing C.C.s sentence. She concluded that
Downes
credit should not be given because of the totality principle. Put otherwise,
    she determined that if the global sentence fell below six years, it would not
    be a fit sentence. That was her determination to make.

[7]

Indeed, even if we were to find that the trial
    judge erred in principle by relying on the concurrent sentence she imposed as a
    basis for denying C.C.
Downes
credit, we would not have reduced C.C.s
    sentence. We agree with the Crown that the crimes he committed were grave and
    that the sentence imposed was required as a fit punishment even after
    considering all mitigating factors.

[8]

The reasoning we have just expressed is also
    fatal to C.C.s request to reduce his sentence based on the fresh evidence. The
    sentence C.C. is now seeking would not be fit, even considering the fresh
    evidence he has offered.

[9]

Moreover, the fresh evidence is relevant to
    C.C.s rehabilitative potential. The trial judge gave full recognition to
    C.C.s rehabilitative potential at the time of sentencing and imposed a fit
    sentence with that rehabilitative potential in mind. Although C.C.s subsequent
    rehabilitative efforts are commendable, they do not reflect the kind of rare post-sentencing
    change in circumstance that could impel this court to reconsider a sentence in
    the absence of judicial error.

[10]

We therefore grant C.C. leave to appeal his
    sentence but deny the appeal.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.

S.
    Coroza J.A.


