



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.W., 2019 ONCA 139

DATE: 20190221

DOCKET: C64345 and C65036

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.W.

Appellant

D.W., appearing in person

Amy Ohler, duty counsel

Andreea Baiasu, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered on June 10, 2015
    and the sentence imposed on June 10, 2015 by Justice J.S. Nadel of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of sexual assault over a lengthy period of
    time on his seven year old nephew. He received a custodial sentence of nine
    years imprisonment. He appeals the conviction and sentence.

[2]

On the conviction appeal, the appellant contends that the trial judge
    erred by believing the complainant and failing to recognize that the
    complainants testimony was probably coerced by his mother.

[3]

There is no basis in the record for either of these submissions. The
    trial judge saw the young complainants testimony in the two police interviews
    and believed him, which he was entitled to do.

[4]

On the sentence appeal, the appellant, through duty counsel, advances
    two arguments.

[5]

First, the appellant asserts that the trial judge did not properly apply
    the principle of parity in sentencing the appellant. We disagree. He explicitly
    cited and applied
R. v. Lacasse
, 2015 SCC 64, on the question of parity
    and carefully considered both the appropriate range and individualized
    assessment in his sentence reasons.

[6]

Second, the appellant submits that the trial judge erred by not giving
    appropriate weight to several mitigating factors  the appellants youth,
    absence of previous criminal record, and his own prior experience with sexual
    assault as a victim. In addition, the appellant says that the trial judge
    mistreated the medical evidence about the level of the appellants intellectual
    disability.

[7]

We do not accept this submission. The trial judges sentencing reasons,
    coupled with the exchange between the trial judge and counsel during closing
    submissions, establish clearly that the trial judge was very cognizant of all
    these factors. In particular, the trial judge dealt explicitly with the reports
    of the psychologist and psychiatrist and reached a conclusion that was open to
    him on this issue.

[8]

The conviction appeal is dismissed. The sentence appeal is allowed, but
    only to the extent of vacating the victim fine surcharge.


