



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.C.J., 2020 ONCA 228

DATE: 20200319

DOCKET: C65314

Juriansz, Brown and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.J.

Appellant

Jessica Zita, for the appellant, via
    teleconference

Michael Fawcett, for the respondent,
    via teleconference

Heard: March 16, 2020

On appeal from the conviction entered on
    July 20, 2017 and the sentence imposed on November 7, 2017 by Justice Alissa K.
    Mitchell of the Superior Court of Justice.

REASONS FOR DECISION


[1]

The appellant appeals his convictions for sexual
    assault and incest. At trial he admitted sexual intercourse with his
    18-year-old biological daughter. He testified he was mentally not present at
    the time and had no recollection of the events of the night between the time he
    fell in the basement and ending after the admitted sexual intercourse with his
    daughter. He asked the court to conclude he must have intended to engage in
    sexual activity with his wife and not his daughter.

[2]

The only ground of appeal advanced is the
    ineffective assistance of counsel. While recognizing the seriousness of the
    offences, counsel asserts that the appellant was entitled to transparency and
    diligence from his counsel. She submits that trial counsel was ineffective in
    two ways.

[3]

First, counsel submits that trial counsel failed
    to properly prepare a planned s. 11(b) application in accordance with practice
    directions, and then abandoned the application without obtaining instructions
    from the appellant. On appeal, the appellant has failed to establish the allegation
    of unreasonable delay had any merit. Moreover, he has not alleged that he
    wanted to bring a s. 11(b) application in the first place, and that he
    instructed counsel to do. We are not persuaded the appellant suffered any
    prejudice when his trial counsel, without instructions, abandoned what must be
    regarded as a meritless application.

[4]

Second, counsel submits that trial counsel
    failed to prepare the appellant and his wife to testify at trial. She asserts
    an accuseds entitlement to a fair trial includes the right to be properly
    prepared to testify in his own defence. Again, the appellant has not shown the
    requisite prejudice. He has not suggested how his and his wifes testimony
    would have been different, or in what way the conduct of the defence at trial might
    have proceeded differently, had they been fully prepared to give evidence. The
    appellant was faced with evidence of his saliva on his daughters breasts and
    his semen in her vagina. His position was simple  he had no recollection of
    the event. We would not give effect to this ground of appeal.

[5]

The appeal against conviction is dismissed.

[6]

The appellant appeals his sentence of five years
    for incest, and three years, concurrent, for sexual assault.  He submits that
    it is unduly harsh and seeks a sentence of four years.

[7]

Counsel submits the trial judge erred by
    basing her sentence using the mandatory minimum under s. 155(2) as a guiding
    principle, by failing to give mitigating effect to his familys support and
    character letters, by considering the way the defence conducted the trial as an
    aggravating factor, and by imposing an order under s. 161 when the complainant
    was over the age of 18.

[8]

The trial judge was well aware that s. 155(2)
    did not apply in this case and said so repeatedly. She referred to s. 155(2) as
    a useful guide considering the complainant was a teenager just over 18, and
    entirely dependent on the appellant and exceptionally vulnerable. The
    complainant had recently come to reside with her biological father out of
    foster care. The trial judge did not err in referring to s. 155(2).

[9]

The defence position on sentencing provides
    useful context for considering the trial judges treatment of the appellants
    familys support and character letters. These were used to validate the
    defences request for a sentence of 90 days to be served intermittently. The
    trial judge, at para. 31, did recognize the continued support of [the
    appellants] spouse and other family members as a mitigating factor. However,
    in rejecting the defence position that the mitigating factors supported a 90
    day sentence, the trial judge was entitled to characterize the family support
    as misguided and misinformed.

[10]

The trial judge did review the way the defence
    conducted the trial. She did so in considering the absence of mitigating
    factors that might preclude the reduction of an otherwise appropriate
    sentence. It would have been better had the trial judge limited herself to
    noting that the appellant had not pled guilty. She reviewed the defence conduct
    of the trial in some detail and with a critical tone. The review was
    irrelevant, and despite the trial judges preface, might be taken to signal
    that defence conduct played a role in sentencing. That said, the appellant
    accepts the sentence imposed is within the range and we are not persuaded there
    is any reason to interfere.

[11]

The Crown concedes that the s. 161 order should
    be set aside, as that section applies in respect of a person who is under the
    age of 16 years.

[12]

Leave is granted to appeal sentence, and the
    sentence appeal is allowed. The order made under s. 161 of the
Code
is
    set aside. The sentence appeal is otherwise dismissed.

R.G. Juriansz J.A.

David M. Brown J.A.

Gary Trotter J.A.


