



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Deiaco, 2019 ONCA 12

DATE: 20190114

DOCKET: C64370

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Deiaco

Appellant

David Gildiner, for the appellant

Avene Derwa, for the respondent

Heard: January 10, 2019

On appeal from the sentence imposed on June 5, 2017 by
    Justice Jane E. Kelly of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Matthew Deiaco, a young man with a long and serious criminal record, was
    convicted after pleading guilty to five offences related to the human
    trafficking of a drug-addicted woman whose vulnerability he exploited for
    financial and sexual gain. When his victim escaped after five days of turning
    tricks in exchange for drugs and money that did not fully materialize, Mr.
    Deiaco tracked her down and broke into her hotel room. He participated in the
    serious assault of her boyfriend before showing her what appeared to be a
    firearm, and then abducted her by placing her in the trunk of a car, conveying
    her to another hotel room, and erasing the contacts on her phone. Fortunately,
    the police managed to track that phone, liberating the victim from her ordeal.

[2]

Mr. Deiaco now seeks leave to appeal his global sentence of eight years,
    less credit for time spent in pre-sentence custody. He urges that the sentencing
    judge erred by:

(1)

failing to grant him
    any credit pursuant to
R. v. Duncan
, 2016 ONCA 754

(qualitative
    credit) for the 59 days of triple bunking he experienced, and the 224 days of
    lockdown at the institutions where he served approximately two and one-half
    years of pre-sentence custody;

(2)

admitting into
    evidence and misusing voluntary, videotaped jail-house interviews Mr. Deiaco
    gave to journalists about his career and business as a manager in the
    prostitution business; and

(3)

imposing a sentence
    that was harsh and excessive.

[3]

We dismiss each of these grounds of appeal.

[4]

The sentencing judge did not err in denying Mr. Deiaco qualitative
    credit relating to the conditions of his pre-sentence incarceration.
    Specifically, she did not, as Mr. Deiaco contends, (1) fail to consider whether
    to give qualitative credit, or (2) act as though she did not have legal
    authority to give qualitative credit without subjective evidence of hardship to
    Mr. Deiaco, or (3) find that Mr. Deiaco did not suffer any adverse effects from
    the lockdowns or triple bunking. Instead, she considered whether to give such
    credit but exercised her discretion not to do so because she was not persuaded
    on the record before her that Mr. Deiaco experienced sufficient hardship to
    warrant a reduction in all of the circumstances. She was left unsure how
    frequently lockdowns materially affected Mr. Deiaco because he spent so much
    time in segregation, he made material progress in programming within the
    institution notwithstanding the lockdowns, and he chose to put himself at risk
    of further hardship during his incarceration through his unenviable misconduct
    record. These were proper matters for her to consider. We would not interfere
    with the sentencing judges highly discretionary determination not to give the
    additional credit for pre-sentence custody sought by Mr. Deiaco.

[5]

Nor did the sentencing judge err in admitting or relying on the
    voluntary, videotaped interviews Mr. Deiaco gave about his work in the sex
    trade business. She considered and applied properly the factors identified by
    Rosenberg J.A. in
R. v. Edwards
(2001), 54 O.R. (3d) 737 (C.A.), at
    para. 64, for admitting and using uncharged offences when sentencing offenders.
    The sentencing judge cautioned herself not to punish Mr. Deiaco for the uncharged
    conduct, properly confining her use of Mr. Deiacos voluntary admissions to proof
    of his background and character as information relevant to the objectives of
    sentencing. Specifically, she used Mr. Deiacos uncontested boastful admissions
    as demonstrating that he has no insight into his behaviour or its impact, a
    consideration that may reduce the impetus for imposing a rehabilitative
    sentence. We would not interfere with the sentencing judges discretionary
    decision to admit this evidence and to use it as she did.

[6]

Finally, the sentence is not unfit. The sentencing judge turned her mind
    to the proper considerations, and the sentence she imposed was warranted given
    the gravity of Mr. Deiacos offences, and the degree of his responsibility.

[7]

The appeal is dismissed.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.


