



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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.
    McLellan, 2016 ONCA 215

DATE: 20160316

DOCKET: C61167

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael McLellan

Appellant

Paul Calarco, for the appellant

Jessica Smithjoy, for the respondent

Heard:  March 14, 2016

On appeal from the sentence imposed by Justice Campling
    of the Ontario Court of Justice on February 5, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The Crown and defence at trial advanced a joint submission of 7 years (6
    years and 17 days having regard to pre-sentence custody).  The trial judge,
    following the correct procedure, advised counsel that he had some difficulty
    with the proposed sentence and invited further submissions.  After hearing
    further submissions, he imposed an effective sentence of 10 years.

[2]

This court has made it clear that joint submissions must be carefully
    considered and should be followed absent an articulable basis upon which the
    trial judge concludes that the proposed sentence would bring the administration
    of justice into disrepute:  see
R. v. Cerasuolo
(2001), 151 C.C.C.
    (3d) 445 (Ont. C.A.).  While the appellants terrible record and the distinct
    possibility, if not probability, that he will reoffend justified a substantial
    sentence, we do not agree that those concerns were not adequately reflected in
    the 7-year joint submission.  The trial judge should, have followed the joint
    submission which was clearly the product of a careful consideration by counsel of
    the relevant circumstances, including the appellants guilty pleas and the
    Crowns prospects for conviction absent guilty pleas.

[3]

We are also satisfied that the sentence imposed was demonstrably unfit. 
    The appellants criminal record required a long sentence, however, the nature
    of the offence for which the appellant was being sentenced also had to be taken
    into account in arriving at a proportionate sentence.  With respect, the trial
    judge ignored completely the facts of the offence in favour of a sentence which
    would incarcerate the appellant for the maximum time available.  In doing so,
    he imposed an unfit sentence.

[4]

We would allow the appeal.  In accordance with the joint submission, we
    would impose a total sentence of 6 years and 17 days (7 years having regard to
    pre-sentence custody).  The specific sentences are varied as follows:

·

Sexual interference  6 years and 17 days

·

Breach of probation  1 year and 17 days concurrent; and

·

Breach of prohibition  1 year and 17 days concurrent.


