



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. S.M.C., 2017 ONCA 107

DATE: 20170208

DOCKET: C62955

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.C.

Appellant

Marc E. Schiffer, for the appellant

David Finley, for the respondent

Heard and released orally:  February 7, 2017

On appeal from the sentence imposed on October 25, 2016
    by Justice Peter Tetley of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant acknowledged that he had engaged in an act of anal
    intercourse while the complainant, his estranged spouse, was asleep and pled
    guilty to the offence of sexual assault.  The complainant was in a highly
    intoxicated state at the time of the commission of the offence.

[2]

The sentencing judge imposed a sentence of 15 months, plus two years
    probation.  The appellant seeks leave to appeal against the sentence imposed. 
    He argues that the sentencing judge erred in applying the wrong sentencing
    range, namely the range for forced intercourse with a spouse, rather than the
    range for cases involving intercourse with an unconscious complainant.  He says
    that the intercourse was not forced, because the complainant was unconscious
    and there was no will to overcome.  He submits that the range for cases where
    the offender has intercourse with an unconscious victim is between 12 to 14 months
    to three years.

[3]

He also argues that the sentence imposed was excessive and harsh.  He
    says that a sentence of six to 10 months is a fit sentence in these
    circumstances.

[4]

We reject these arguments.

[5]

An appellate court is justified in interfering with a sentence only if
    the sentencing judge imposed a sentence that is demonstrably unfit or committed
    an error of principle that had an impact on sentence:
R. v. Lacasse
,
    [2015] 3 S.C.R. 1089, at paras. 11, 44-46.  There is no basis for appellate
    intervention in this case.

[6]

The sentencing judge accepted that
R. v. Smith
, [2011] O.J. No.
    3832 (C.A.), at para. 87, identified the appropriate sentencing range.
Smith
held that sentences in the range of 21 months to four years are appropriate in
    cases of sexual assault involving forced intercourse with a spouse or former
    spouse.  He noted that the Crowns sentencing position of 18 months was below
    this range.  After considering the mitigating circumstances, including the
    appellants lengthy restriction of liberty while on bail pending sentence, he
    imposed a lesser sentence than that sought by the Crown.  The sentence that he
    imposed was within the range that the appellant says is correct.

[7]

We note that both at trial, and in this court, there was much discussion
    about different sentencing ranges for sexual assaults, depending on specific
    features of the sexual assault.  The range of sentence imposed for similar
    offences can be helpful in fixing the appropriate sentence in a given case. 
    However, it must be stressed that the ultimate question is not what range does
    or does not apply, but whether the sentence imposed is appropriate in the
    specific circumstances of the case.  This sentence was fit in these
    circumstances.

[8]

Accordingly, while we grant leave to appeal sentence, we dismiss the
    appeal against sentence.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

B.W. Miller J.A.


