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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Byers, 2017 ONCA 639

DATE: 20170804

DOCKET: C56188

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Byers

Appellant

Matthew R. Gourlay, for the appellant

Elise Nakelsky, for the respondent

Heard: June 13, 2017

On appeal from the conviction entered by Justice Guy P.
    DiTomaso of the Superior Court of Justice on August 24, 2007, with reasons
    reported at 2007 CanLII 34852, and from the sentence imposed on July 6, 2011,
    with reasons reported at 2011 ONSC 4159.

REASONS FOR DECISION

Introduction

[1]

On April 29, 2005, just before 9:00 a.m., two police officers came
    across the appellant, standing in a forest, drinking a beer. The forest was
    adjacent to an elementary school. After inquiring whether the appellant had any
    more liquor, the officers looked in his backpack. They found a car manual, a
    roll of duct tape, some wires, a garden hoe, latex gloves, some pornographic pictures,
    condoms and girls underwear. After a further search of the backpack, police
    found photographs of naked girls between the ages of about eight and ten, as
    well as handwritten notes, which discussed (among other things) the rape and
    torture of young girls.

[2]

Following further investigation at the appellants home, police
    discovered more child pornography, in both electronic and printed format;
    several knives, a pair of girls underwear and additional horrific writings.

[3]

Police also determined that, on April 21, 2005, at about 4:00 a.m., a
    close friend of the appellant had discovered him crouched down in her bathroom
    between the toilet and the bathtub. Among other things, upon being discovered,
    the appellant told his friend that he had gone to the third-floor spare bedroom
    and that there had been a bump in the bed. The friend had an eleven-year-old
    daughter. That night, the daughter was sleeping in the spare bedroom with her
    aunt, who was visiting. Further investigation revealed that the daughter was
    the subject of certain writings discovered at the appellants home, in which
    the appellant had meticulously planned her grotesque rape and murder. In
    addition, police found a basement location where the appellant had prepared to
    carry out his plans.

[4]

In relation to the April 21, 2005 incident involving his friends
    daughter, the appellant was charged with attempted kidnapping, attempted
    aggravated sexual assault, attempted murder and break and enter with intent to
    commit an indictable offence. In relation to the August 29, 2005 incident, he
    was charged with attempted kidnapping and attempted aggravated sexual assault
    of a young person. He was also charged with possession of child pornography.

[5]

Following a trial, the appellant was convicted of all charges.
    Ultimately, he was declared a dangerous offender and sentenced to an
    indeterminate sentence of imprisonment. The appellant does not contest the
    convictions relating to his friends daughter and for possession of child
    pornography. However, he appeals the convictions for attempted kidnapping and
    attempted aggravated sexual assault arising from the August 29, 2005 incident.
    He also appeals the dangerous offender designation and indeterminate sentence
    of imprisonment.

The conviction appeal

[6]

Concerning the conviction appeal, the appellant argues that his actions
    on the morning of August 29, 2005 were not sufficient in law to constitute an
    attempt to commit the offences at issue. He does not dispute that he was in a
    park adjacent to a school with implements that could have enabled him to carry
    out the offences. However, he points to the fact that there was no evidence
    that he had approached anyone. Moreover, police encountered the appellant at
    8:53 a.m., more than 20 minutes after classes had commenced at the nearby
    school.

[7]

In these circumstances, the appellant submits that the trial judge erred
    in law in finding that his actions went beyond mere preparation and were
    sufficient to constitute an attempt to commit the offences. He also argues
    that, given the time of day, it appears that he had passed up any opportunity
    to commit the offences and may have been in the process of abandoning any
    intention to do so.

[8]

The appellant relies on several authorities which he asserts support his
    position that in the absence of any evidence that he had actually approached an
    intended victim, his actions fall short of being capable in law of amounting to
    an attempt:
R. v. Geddes
(1996), 160 J.P. 697 (Eng. C.A. (Crim. Div.));
R. v. Campbell
(1991), 93 Cr. App. R. 350 (Eng. C.A. (Crim. Div.)).

[9]

We do not accept the appellants submissions. In his reasons for finding
    the appellant guilty, the trial judge found that the appellants writings were
    central and critical to the analysis of the issues in the case. They set out
    a carefully thought-out and detailed plan to kidnap, rape, torture and kill
    his friends young daughter. Further, after the appellants implementation of
    that plan was foiled by chance on April 21, 2005, the writings revealed a
    running account  in real time of his efforts on April 29, 2005 to locate
    another victim on whom he could perpetrate similar atrocities, as well as the
    possibility that he would renew his effort to kidnap his originally intended
    victim.

[10]

The
    trial judge found that the appellants writings on April 29, 2005 were similar
    to diary entries. They indicated that before arriving at the park where police
    found him, the appellant had spent three hours wandering through [another
    park] looking for a girl to rape. After noting that he had seen one girl on a
    nearby street who interested him, the appellant states in his April 29, 2005
    writings:

Im probably going to try and get [his friends daughter]
    tonight. If nothing else comes up Im going to go to the [forest where police
    found him] now. I will just grab a girl, tape her up and rape her.

[11]

As
    noted by the trial judge, the appellants actions on April 29, 2005 cannot be
    viewed in isolation. Rather, they must be viewed in the context of the
    appellants recently thwarted attempt to kidnap, rape and kill his friends
    young daughter. Considered in that context, and in combination with the appellants
    diary-like writings, the appellants actions on April 29, 2005 can only be
    viewed as part of a crime in progress. The appellant had crossed the line into
    criminal conduct and taken steps beyond mere preparation to commit a crime; he
    was actively engaged in seeking out a child on whom to perpetrate the plans he
    had committed to writing. Moreover, he was carrying all the tools he intended
    to use to carry out his plans.

[12]

The
    appellants conviction appeal is dismissed.

The sentence appeal

[13]

Concerning
    the dangerous offender designation and indeterminate sentence of imprisonment,
    the appellant points out that at the time of committing these offences he had
    no prior record. Moreover, the serious personal injury offences of which he was
    convicted were all restricted to attempts: the appellant has never been
    convicted of a hands-on serious personal injury offence. The appellant
    submits that, particularly taking account of these circumstances, the trial
    judge erred in finding that he met the criteria for designation as a dangerous
    offender. In the alternative, the appellant submits the trial judge erred in
    holding that there was no reasonable possibility of eventual control in the
    community and in failing to impose a determinate sentence and long-term
    supervision order.

[14]

We
    do not accept these submissions.

[15]

The
    trial judge found that the appellant met the criteria for designation as a
    dangerous offender under all four branches of s. 753(1) of the
Criminal
    Code
. Section 753(1) reads as follows:

753(1) On application made under this Part after an
    assessment report is filed under subsection 752.1(2), the court shall find the
    offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has
    been convicted is a serious personal offence described in paragraph (a) of the
    definition of that expression in section 752 and the offender constitutes a
    threat to the life, safety or physical or mental well-being of other persons on
    the basis of the evidence establishing

(i) a pattern of repetitive
    behaviour by the offender, of which the offence for which he or she has been
    convicted forms a part, showing a failure to restrain his or her behaviour and
    a likelihood of causing death or injury to other persons, or inflicting severe
    psychological damage on other persons, through failure in the future to
    restrain his or her behaviour,

(ii) a pattern of
    persistent aggressive behaviour by the offender, of which the offence for which
    he or she has been convicted forms a part, showing a substantial degree of
    indifference on the part of the offender respecting the reasonably foreseeable
    consequences to other persons of his or her behaviour, or

(iii) any behaviour by
    the offender, associated with the offence for which he or she has been
    convicted, that is of such a brutal nature as to compel the conclusion that the
    offenders behaviour in the future is unlikely to be inhibited by normal
    standards of behavioural restraint; or

(b) that the offence for which the offender has
    been convicted is a serious personal injury offence described in paragraph (b)
    of the definition of that expression in section 752 and the offender, by his or
    her conduct in any sexual matter including that involved in the commission of
    the offence for which he or she has been convicted, has shown a failure to
    control his or her sexual impulses and a likelihood of causing injury, pain or
    other evil to other persons through failure in the future to control his or her
    sexual impulses.

[16]

In
    our view, it was open to the trial judge to designate the appellant a dangerous
    offender under all of ss. 753(1)(a)(i), 753(1)(a)(iii) and 753(1)(b).

[17]

We
    begin by noting that both the Crown psychiatrist and the defence psychiatrist
    testified that, from a psychiatric perspective, the appellant met the criteria
    for designation as a dangerous offender. The Crown psychiatrists opinion was
    that he met the criteria under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b);
    the defence psychiatrists opinion was that he met the criteria under s.
    753(1)(b).

[18]

Further,
    the trial judge accepted the Crown psychiatrists opinion that the appellant
    met the diagnostic criteria for several psychiatric disorders, some of which
    are intractable: severe substance dependence disorder involving alcohol and
    cocaine; pedophilia; sexual sadism; and anti-social personality disorder, with obsessive-compulsive
    personality traits.

[19]

Turning
    to the appellants specific arguments concerning s. 753 of the
Criminal
    Code
, he contends that the trial judge erred in finding that the two
    incidents forming the appellants index offences, that happened within eight
    days of each other, constituted a pattern of repetitive behaviour under s.
    753(1)(a)(i) of the
Criminal Code.

[20]

Although
    the appellant acknowledges that two incidents have in the past been found to constitute
    a pattern, he argues that, in this case, because the appellant was unsuccessful
    in his efforts on April 21, 2005, both incidents amounted, in effect, to an
    attempt to commit the same offence. Unlike other cases, here, the appellants
    conduct was not the last straw in a series of offences. Rather, it was part
    of a continuing effort to achieve a single objective. The appellants conduct
    cannot be viewed as a pattern of repetitive behaviour showing a failure to
    restrain his behaviour and a likelihood of causing injury to others through
    failure in the future to restrain his behaviour. Just because the appellants
    thoughts were persistent does not mean that his
actions
would have
    been.

[21]

We
    disagree. The trial judge found a pattern of repetitive behaviour showing a
    failure on the appellants part to restrain his behaviour in several aspects of
    the evidence, including:

·

the evidence of the strength of the appellants preoccupation
    with kidnapping his friends daughter or another child;

·

the evidence in the appellants writings that he had attempted to
    forcibly remove his friends daughter from her home on more than one occasion
    and that when he was unsuccessful in that endeavour he sought out another
    child;

·

the extent to which the appellants writings revealed he planned
    his intended crimes and also created lists of, and acquired, necessary
    supplies; and

·

the extent of the appellants other preparatory actions,
    including stealing his friends daughters underwear (which was found both in
    his backpack and at his home), putting his rape kit together and preparing the
    basement where he planned to rape torture and kill his friends daughter.

[22]

In
    concluding that the appellant met the criteria under s. 753(1)(a)(i), the trial
    judge also referred to the expert evidence relating to the appellants
    diagnoses.

[23]

In
    light of this evidence, we see nothing unreasonable about the trial judges
    conclusion that the appellants conduct demonstrated a pattern of repetitive
    behaviour showing a failure to restrain his behaviour. The evidence in his
    writings indicating he had attempted to take his friends daughter on more than
    one occasion, standing alone, demonstrated the necessary pattern. Moreover, he
    repeated the same type of behaviour when he went trolling for another child.  We
    see no error in the trial judges conclusion that the appellant met the
    criteria for designation as a dangerous offender under s. 753(1)(a)(i).

[24]

The
    appellant also argues that the trial judge erred in holding that the brutality
    criterion under s. 753(1)(a)(iii) was satisfied. He submits that entirely
    unconsummated, inchoate conduct cannot meet the threshold.

[25]

We
    do not accept this submission. The threshold set out in s. 753(1)(a)(iii) is
    met where the Crown proves beyond a reasonable doubt that the offender
    constitutes a threat to the life, safety, physical or mental well-being of
    other persons on the basis of evidence establishing  any behaviour by the
    offender, associated with the offence  that is of such a brutal nature as to
    compel the conclusion that the offenders behaviour in the future is unlikely
    to be inhibited by the normal standards of behavioural restraint.

[26]

Brutality
    under this provision has been interpreted as meaning conduct that is coarse,
    savage, and cruel and which is capable of inflicting severe psychological
    damage on the victim:
R. v. Langevin
(1984), 45 O.R. (2d) 705 (C.A.),
    at p. 718. As noted by the trial judge, the horrors to which [the appellant]
    intended to visit upon [his intended victims] fell well within the kind of
    behaviour contemplated by this section.

[27]

In
R. v. Melanson
(2001), 152 C.C.C. (3d) 375 (Ont. C.A.), leave to
    appeal refd, [2001] 3 S.C.R. viii, this court found that writings can meet the
    description of brutality set out in
Langevin
. Melanson was a security
    officer in an apartment building. He hit his victim on the head with a rock and
    began dragging her towards his office in the underground parking lot of the
    building. The victim managed to escape and suffered only a minor abrasion to
    her head, which healed within a few days. On a Crown appeal from the trial
    judges refusal to designate Melanson as a dangerous offender, this court
    ordered a new hearing. However, in the course of doing so, this court said:

[Section] 753(1)(a)(iii) permits consideration of any conduct
    associated with the offence. Certainly the writings and articles found in the
    appellants office fit within that description.
[1]
[Emphasis in original.]

Although this court considered that it might be able
    to determine whether the brutality threshold had been met, it was not in a
    position to make findings about Melansons future dangerousness based on
    conflicting psychiatric evidence. This court therefore ordered a new hearing.

[28]

Contrary
    to the appellants submissions, we are not persuaded that the fact that Melanson
    had commenced an attack on his victim is a basis for distinguishing that case
    from this one. As noted by this court at para. 37 of
Melanson
, s.
    753(1)(a)(iii) permits consideration of any behaviour by the offender,
    associated with the offence when considering the brutality threshold. In our
    view, the trial judge made no error in considering the appellants writings to conclude
    that threshold was met. See also
R. v. Leopold
, 2001 BCCA 396, 155
    C.C.C. (3d) 251, leave to appeal refd, [2002] 1 S.C.R. viii, and request for
    reconsideration of leave decision refd, 2002 CarswellBC 1616 (S.C.C.).

[29]

The
    appellant also argues that the trial judge erred in finding that the failure
    to control sexual impulses threshold under s. 753(1)(b) was satisfied.

[30]

In
    his reasons for concluding the s. 753(1)(b) criteria were satisfied, the trial
    judge said, among other things:

A review of all the findings of fact and the reasons for
    judgment and the evidence on this sentence hearing establishes that [the
    appellant] has a preference for coercive sex with children. On more than one
    occasion, he unsuccessfully attempted to realize his goal. On more than one
    occasion, he failed to control his sexual impulses. Failure of success did not
    prevent him from continuing to pursue his ultimate objective which led to
    further unsuccessful attempts.

The evidence further establishes his failure to control his
    sexual impulses while in custody. He continued to write about a pedophilic sexual
    relationship between an adult male and young girl.

[31]

The
    appellant argues that his totally unconsummated conduct on April 29, 2005 and his
    subsequent sexual writings while in custody cannot amount to a failure to
    control his sexual impulses. In neither case, did the appellant act on his
    fantasies.

[32]

While
    such fantasies can be considered as part of the psychiatric assessment of
    future dangerousness, the appellant submits they cannot be considered when
    determining whether the threshold of s. 753(1)(b) has been satisfied. That
    threshold requires that the offender, by his or her conduct in any sexual
    matter  has shown a failure to control his or her sexual impulses and a
    likelihood of causing injury  to other persons through failure in the future
    to control his or her sexual impulses.

[33]

We
    do not accept this submission. As we have said, the trial judge properly
    convicted the appellant of attempted kidnapping and attempted aggravated sexual
    assault in relation to the April 29, 2005 incident. The fact that the appellant
    may have been thwarted in his efforts to carry out his fantasies on that date does
    not operate as a bar to considering his conduct on April 29, 2005 when
    determining whether the threshold under s. 753(1)(b) has been satisfied.

[34]

In
    light of these conclusions, it is unnecessary that we consider the appellants
    arguments in relation to s. 753(1)(a)(ii).

[35]

The
    appellants final argument is that the trial judge erred in holding that there
    was no reasonable possibility of eventually managing the appellants risk in
    the community and therefore in declining to impose a determinate sentence and
    long-term supervision order. He points, in particular, to the trial judges
    statement:

I am not satisfied that [the appellant] will be willing to take
    anti-androgen medication in perpetuity, that the National Parole Board will
    compel him to take sex drive reducing medication, or that the doctor treating
    him would prescribe such medication.

[36]

The
    appellant argues that in finding that he might not be willing to take the
    medication, the trial judge relied unreasonably on a passing comment by the
    Crown psychiatrist that taking such medication was not the appellants first
    choice. He also argues that the trial judge ignored clear authority regarding
    the appropriateness of imposing a condition requiring administration of
    anti-androgen medication to reduce an offenders risk in the community.

[37]

The
    appellant also contends that the trial judge demonstrated unreasonable
    scepticism about the prospects of treatment and supervision in this case.
    Particularly having regard to the evidence concerning decreasing risk with
    advancing age and available community supervision, the trial judges conclusion
    that there was no reasonable possibility of eventual control in the community
    was unreasonable.

[38]

We
    do not accept these submissions. The trial judge gave several reasons for
    concluding there was uncertainty about the appellants willingness to take sex
    drive reducing medication, about the impact such medication could have in
    reducing the appellants risk to the community and about enforcement challenges
    that could arise in relation to anti-androgen medications. These reasons
    included the fact that there was no evidence of whether the appellant would be
    able, medically, to take the drugs, and if he is, evidence of whether the drugs
    might have potential harmful side-effects to the appellant which could affect
    his ability to take drugs of the necessary potency. There is still no such
    evidence before this court.

[39]

As
    for the prospects of treatment and adequate supervision, the trial judge found
    that the appellant suffers from life-long disorders (including pedophilia,
    sexual sadism and substance dependence disorder) for which there is no cure and
    that the evidence directed to a possibility that [the appellant] could be
    treated sufficiently to reduce his risk to an acceptable level amounts to no
    more than an expression of hope. Moreover, the trial judge fully considered
    the evidence relating to available supervision in the community and the effects
    of aging.

[40]

Having
    regard to the whole of the trial judges reasons for declining to impose a
    determinate sentence and a long-term supervision order, we see nothing unreasonable
    about the trial judges decision. The appellants sentence appeal is dismissed.

Disposition

[41]

Based
    on the foregoing reasons, the appellants appeal from conviction and sentence is
    dismissed.

Released:

GP                                                  Janet
    Simmons J.A.

AUG -4 2017                                    John
    Laskin J.A.

G.
    Pardu J.A.

[1]
Among other things
the writings authored by
Melanson
included "incident reports" describing disabling a woman
    in the parking garage, taking her to the security office, raping and torturing
    her, and killing her with a knife.


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. C.C., 2017 ONCA 656

DATE: 20170816

DOCKET: C59281

Doherty, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

Ekaterina Perchenok, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally:  August 14, 2017

On appeal from the conviction entered on June 26, 2013 by
    Justice Manjusha Pawagi of the Ontario Court of Justice, and the sentence
    imposed on October 31, 2013.

REASONS FOR DECISION

The Conviction Appeal

[1]

The appellant had sexual intercourse with his 15-year old babysitter.  He
    claimed that he believed she was 16.  The trial turned on whether the Crown had
    proved beyond a reasonable doubt that the appellant did not take all
    reasonable steps to ascertain the complainants age.  The trial judge found
    that the Crown had met its burden.  She fully summarized the evidence in her
    reasons.

[2]

There is one ground of appeal from conviction.  The appellants submits
    that he did not receive effective legal assistance at trial.  The claim rests
    on a single allegation.  The appellant submits that counsel should have taken
    custody of his spouses MicroSD card (the card) containing a message from a
    friend said to indicate that the complainant was 16.  A purported printout of
    that message had been introduced at trial.  The trial judge declined to accept
    that evidence, finding that the makeup and contents of the message rendered the
    tendered evidence unreliable.

[3]

Counsel submits that forensic testing of the card may have demonstrated
    the reliability of the tendered evidence.  According to the fresh evidence, the
    appellant offered the card to trial counsel, but trial counsel advised the
    appellant to keep the card and did not take any steps to have it analyzed.

[4]

To succeed on a claim of ineffective assistance, the appellant must show
    first, that trial counsel was incompetent and, second, that the alleged
    incompetence caused a miscarriage of justice.  The second requirement referred
    to as the prejudice component is best dealt with first.

[5]

The appellant offers no basis for a finding that he was prejudiced by
    the alleged ineffective assistance.  Assuming that trial counsel should have
    had the card forensically examined, there is no evidence that the examination
    would have assisted the defence of the appellant, and no evidence of any
    attempt to have the card examined after the trial, although the appellant had
    access to it.

[6]

In addition, the trial judge made it clear that even if she had accepted
    the
bona fides
of the message received by the appellants wife
    indicating that the complainant was 16, the trial judge would still have
    concluded that, in the circumstances, the Crown had proved beyond a reasonable
    doubt that the appellant did not take all reasonable steps to determine the
    complainants age.  The trial judge gave full reasons supporting that
    conclusion.

[7]

There is no basis to hold that counsels failure to have the card
    examined had any effect on the verdict.  The appellant has not demonstrated prejudice.
    This ground of appeal fails and the conviction appeal is dismissed.

The Sentence Appeal

[8]

The appellant seeks to appeal only the s. 161(1)(c) order as it
    applies to his own children.  However, the Crown has pointed out that the
    relevant provisions in the section came into effect after the offences were
    committed.  Consequently, s. 161(1)(c), or at least the relevant
    non-communication provision does not apply to the offences:  see
R. v. K.R.J.
,
    2016 SCC 31.  The s. 161(1)(c) order is struck.  Otherwise, the sentence
    stands.

Doherty J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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.N.D., 2017 ONCA 666

DATE: 20170822

DOCKET: C63195 & C63327

Doherty, LaForme and Rouleau JJ.A.

C63195

BETWEEN

Her Majesty the Queen

Appellant

and

J.N.D.

Respondent

C63327

BETWEEN

Her Majesty the Queen

Respondent

and

J.N.D.

Appellant

Katherine Beaudoin, for Her Majesty the Queen

Michael W. Lacy and Bryan Badali, for J.N.D.

Heard: August 16, 2017

On appeal from the conviction entered on January 28, 2016
    and the sentence imposed on December 14, 2016 by Justice Patricia C. Hennessy
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

J.N.D. was convicted of historic sexual offences against his cousin when
    she was a young girl. He was sentenced to two years less a day in jail and
    three years probation.

[2]

J.N.D. appeals his conviction arguing that the trial judge engaged in an
    unbalanced approach to the evidence resulting in a reversal of the burden of
    proof and a failure to give effect to the presumption of innocence.

[3]

The Crown seeks leave to appeal J.N.D.s sentence and argues that the
    trial judge improperly applied
R. v. Gladue
, [1999] 1
    S.C.R. 688

principles and underemphasized
    deterrence and denunciation, leading to a manifestly unfit sentence.

Conviction Appeal

[4]

This was a straightforward case where the trial judge had to consider
    the testimony of the complainant, other witnesses who confirmed material
    aspects of the complainants evidence, and the denials given through the
    testimony of J.N.D. She believed the complainants accounts of the offences and
    provided clear and comprehensive reasons for doing so. She also provided
    detailed reasons for disbelieving critical portions of J.N.D.s evidence. Her
    reasons in all respects were fair and addressed the correct issues.

[5]

We disagree with J.N.D.s assertions that the trial judges approach to
    the evidence was unbalanced, or that she failed to give effect to the
    presumption of innocence. She clearly appreciated, articulated and applied the
    burden of proof to the totality of the evidence. Her conclusion that certain
    inconsistencies in the testimony of Crown witnesses did not leave her with a
    reasonable doubt, while aspects of J.N.D.s testimony led her to reject his
    evidence, does not demonstrate any error in her analysis of the totality of the
    evidence. It does not, as argued, demonstrate that she applied a different
    level of scrutiny to the Crown and defence evidence.

[6]

The conviction appeal is dismissed.

Sentence Appeal

[7]

The more difficult question for this court is the Crowns appeal against
    sentence. At the outset, the Crown must overcome the high hurdle required for
    this court to intervene. That is, absent an error in principle, failure to
    consider a relevant factor, or an overemphasis of the appropriate factors, this
    court can only intervene to vary a sentence imposed at trial if the sentence is
    demonstrably unfit.

[8]

The trial judge was aware that she was sentencing J.N.D., an Aboriginal
    man from a reserve in the region, for sexual assault and sexual touching and
    observed: These offences are serious and call for a serious response. She
    referred to and considered both aggravating and mitigating factors applicable
    to J.N.D. and these offences. Importantly, the trial judge had the advantage of
    both a pre-sentence report and a
Gladue
report
[1]
and noted correctly that the essence of the Supreme Courts decision in
Gladue
is remedial in nature.

[9]

The trial judge then reviewed the
Gladue
principles extensively
    in her reasons and applied them to J.N.D. It is obvious to us that the trial
    judge was making every effort to apply the principles mandated in
Gladue
in the face of the options available to her. Her decision, while understandably
    at odds with what the Crown believed was appropriate in the circumstances, does
    not reveal any reversible error and is entitled to deference.

[10]

The offences in this case occurred in the north, which has a strong
    connection to Aboriginal communities. The trial judge, most importantly, is
    experienced in presiding over criminal trials in that region including those
    involving an accused with a connection to the Aboriginal communities. She was uniquely
    situated to determine the just and appropriate sentence balance of the societal
    interests and the moral blameworthiness of J.N.D. in all the circumstances of
    these offences. At all times the trial judge took into account the needs and
    current conditions of and in the community: see,
R. v. M. (C.A.)
, [1996]
    1 S.C.R. 500, at para. 91.

[11]

The type of assessment undertaken by the trial judge in the particular
    circumstances of this case is precisely that which attracts judicial deference.
    Leave to appeal sentence is granted, the appeal is dismissed.

Doherty J.A.

H.S. LaForme J.A.

Paul Rouleau J.A.

[1]

A
Gladue
report is a type of
    pre-sentencing report that a court can request when considering sentencing an
    offender of Aboriginal/Indigenous background under s. 718.2(e) of the
Criminal
    Code
.


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. Joseph, 2017 ONCA 661

DATE: 20170818

DOCKET: C57819

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Joseph

Appellant

Matthew R. Gourlay, for the appellant

Rachel Young, for the respondent

Heard:  August 17, 2017

On appeal from the conviction entered by Justice Seppi of
    the Superior Court of Justice, sitting with a jury, dated February 20, 2013 and,
    if leave is granted, from the sentence imposed on May 16, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We disagree with the submission that
    the evidence of the prior conviction for sexual assault should have been
    excluded.  In our view, it was properly considered as part of the package of
    similar fact evidence that included the three incidents in 2011.  Viewed in
    that context, the evidence had significant potential probative value.  It is
    true that there was a prejudicial potential from the evidence (as there almost
    always is), however, the trial judge took steps to minimize the prejudice and
    repeatedly instructed the jury against the improper use of the evidence.

[2]

We also do not accept the submission
    that none of the similar fact evidence was admissible on the issue of consent
    and that the trial judge erred in instructing the jury that the evidence was
    admissible on consent.

[3]

The similar fact evidence offered
    support for the complainants version of how it was that she ended up in the
    hotel room with the appellant.  The potential probative value of the similar
    fact evidence lay in its ability to help the jury consider the competing versions
    of the relevant events.  The appellant said he was in the hotel room at the
    complainants invitation to have sex.  The complainant said she was there to
    pursue the job offer proffered by the appellant.

[4]

Because the similar fact evidence potentially
    supported the complainants version of how it was she went to the hotel room,
    it inevitably, in the circumstances of this case, rendered her evidence that
    the sexual activity in the hotel room was not consensual, more credible.

[5]

Counsel also takes exception to the
    adequacy of the charge.  In our view, the instruction was adequate.  The trial
    judge told the jury how it could use the evidence as it related to consent
    [paras. 77-79 of the charge].  She also identified the improper uses of the
    evidence.

[6]

The trial judge could have been more
    explicit about how the evidence related to consent.  She was not asked to do so
    by either counsel.  We cannot say she erred in not giving a more detailed
    instruction.

[7]

We see no basis upon which to interfere
    with the conviction on forcible confinement.  No objection was taken to the
    charge at trial.  In any event, the conviction had no impact on the sentence.

[8]

The appeal is dismissed.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Lavergne, 2017 ONCA 642

DATE: 20170810

DOCKET: C62239

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Lavergne

Appellant

Adam Weisberg, for the appellant

Craig Harper, for the respondent

Heard: June 12, 2017

On appeal from the conviction entered by Justice Allan G.
    Letourneau of the Ontario Court of Justice on March 22, 2016, and from the
    sentence imposed on March 22, 2016.

REASONS FOR DECISION

A.

INTRODUCTION

[1]

The appellant Robert Lavergne, now in his early 70s, pleaded guilty to
    two counts of sexual assault of two young girls, one 12 years old and the other
    nine years old at the time. Lavergne pleaded guilty after plea negotiations
    conducted by his lawyer and the Crown. Following a joint submission, he was
    sentenced to two years less a day in the reformatory, together with three years
    probation and standard ancillary orders.

[2]

Lavergne appeals both his conviction and his sentence. He has filed
    fresh evidence alleging that the ineffective assistance of his counsel
    undermined both the validity of his guilty pleas and the fitness of his
    sentence. Both Lavergne and his trial counsel filed affidavits on which each
    was cross-examined. The affidavits and cross-examinations form the bulk of the
    appeal record before us.

[3]

To be valid, a guilty plea must be voluntary, unequivocal and informed.
    Initially Lavergne alleged that his guilty pleas were both involuntary and
    uninformed. However, from his answers on his cross-examination it became
    apparent that his guilty pleas were informed. He admitted that he was aware of
    the nature of the allegations against him, the meaning of the word guilty and
    the effect and consequences of his pleas.

[4]

Thus in this court Lavergnes principal submission was that his guilty
    pleas were involuntary. He contends that his trial counsel was unprepared to
    conduct his defence, and improperly pressured him to plead guilty. He also
    contends that but for his trial counsels ineffective assistance his sentence
    would have been different. He asks that we set aside his guilty pleas, or
    reduce his sentence to 12 months.

[5]

For the brief reasons that follow we dismiss both his conviction appeal
    and his sentence appeal.

B.

THE SEXUAL ASSAULTS

[6]

Lavergne pleaded guilty to two incidents of sexual assault of G.H. in March
    and November 2012. She was 12 years old at the time. He also pleaded guilty to
    three incidents of sexual assault of L.P. in the summer of 2014. She was nine
    at the time. The sexual assaults included kissing and fondling, and in the case
    of G.H. oral sex. There was no intercourse.

(a)

Sexual Assault
    of G.H.

[7]

Lavergne owned a country property where he raised and trained horses.
    G.H.s grandparents lived across the road.

[8]

The first incident occurred when Lavergne asked G.H. to come over to his
    property to help him with his horses. She stayed overnight. During the night
    she awoke to find that Lavergne had pulled her pants down and was performing
    oral sex on her. She resisted, kicking him to make him stop.

[9]

The second incident took place the next day when Lavergne took G.H.
    home. He tried to put his hands into her pants. She told him to stop, but he
    didnt. Lavergne admitted that after these incidents he gave G.H. money and a
    cell phone.

[10]

Lavergne was not charged with sexually assaulting G.H. until June 2015,
    beyond the six month limitation period for proceeding summarily. He was thus
    charged by indictment. When he pleaded guilty no trial date had been set.

(b)

Sexual Assault of
    L.P.

[11]

L.P. lived with her mother and three
    siblings in a townhouse adjacent to Lavergnes home. Lavergne was a friend of
    the family, and his great granddaughter was a good friend of L.P.

[12]

The first incident occurred when L.P.
    stayed overnight at Lavergnes place, and slept in a tent with his great granddaughter.
    Lavergne spent a period of time in the tent as well. During the night he rubbed
    L.P. in her vaginal area. She told him to stop, and he did, briefly. Then he
    began touching her again, under her pyjamas. Again, she told him to stop and he
    did.

[13]

The second incident occurred later in
    the summer. Lavergne and L.P. planned to go fishing. Lavergne took her into his
    house, ostensibly to get lures. He told her to go to the bedroom in the
    basement, where he touched her breasts, pulled down her shirt and then kissed
    her breasts. She told him to stop and he did.

[14]

The third incident occurred when
    Lavergne took L.P. to look at a boat. L.P sat on a bed inside the boat.
    Lavergne started to kiss her and tried to put his tongue in her mouth. She
    asked him to stop and he did. Lavergne told her not to tell anyone as he would
    likely go to jail.

[15]

In September 2014, Lavergne was charged
    with sexually assaulting L.P. The Crown proceeded summarily. A five day trial
    was scheduled  one day in March 2016 and four days in May 2016. On March 22,
    2016, Lavergne pleaded guilty in the Ontario Court of Justice to sexually
    assaulting both girls.

C.

The conviction appeal: lavergnes
    guilty pleas were voluntary

[16]

To be voluntary a guilty plea must be a conscious choice for reasons the
    accused considers appropriate. Lavergne submits that trial counsels
    ineffective assistance rendered his pleas involuntary. A claim of ineffective
    assistance has two components: a performance component and a prejudice
    component. See
R. v. G.(D.M.)
, 2011 ONCA 343, 275 C.C.C. (3d) 295, at
    para. 100.

[17]

The performance component asks whether trial counsels representation
    fell below a standard of competence. However, the standard is reasonableness
    and carries with it a strong presumption that counsels conduct fell within a
    reasonable range of professional advice and services. The prejudice component
    asks whether counsels ineffectiveness resulted in a miscarriage of justice.
    Typically, if no prejudice has been established, it is undesirable to consider
    the performance of counsel. The burden is on Lavergne to show the involuntariness
    of his pleas and the ineffectiveness of his trial counsel.

[18]

Lavergne submits that a miscarriage of justice occurred for two reasons.
    First, trial counsels incompetent assessment of the case and of potential
    defences led him to pressure Lavergne into pleading guilty. And second, trial
    counsel failed to ensure that Lavergne did not plead guilty because of high
    potential trial costs.

[19]

In support of his submission Lavergne points out that his trial counsel
    had not conducted a criminal trial for many years. He also points to a lengthy list
    of things he alleges his trial counsel did not know, did not do but ought to
    have done or ought to have done differently.

[20]

We found it unnecessary to address the list. Most items on the list have
    no relevance or would have been unhelpful to Lavergnes defence. The others
    fell into the category of matters on which defence lawyers might reasonably differ.
    On our assessment of the record, we conclude that Lavergne received reasonably
    competent advice, no miscarriage of justice occurred and his pleas of guilty
    were voluntary. To support our conclusion, we point to the following
    considerations.

(a)

Trial counsel
    reasonably sought instructions to negotiate a plea

[21]

Lavergnes counsel advised Lavergne of the problems in his case and properly
    sought instructions to discuss a plea resolution with the Crown. Lavergne gave
    him those instructions.

(b)

Trial counsels assessment
    of the case was reasonable

[22]

After discussing this case with Lavergne and reviewing the Crowns
    disclosure, which included DVDs of nine witnesses and Lavergnes video
    statement, trial counsel reasonably concluded that the Crown had a strong case
    and that Lavergne had a weak defence.

[23]

In trial counsels opinion both G.H. and L.P. seemed credible, had no
    animus toward Lavergne and would make good witnesses. The Crown could likely
    bring a successful similar fact application, either to make out the
actus
    reus
of the offences or to rebut any defence of innocent association.
    Lavergne, on the other hand, would likely make a poor witness. Although he
    denied committing the sexual assaults, he admitted having the opportunity to do
    so and was evasive about why he spent time with G.H. and L.P. His admission
    that he gave G.H. money and a cell phone was especially problematic.

(c)

Trial counsel
    took reasonable steps to ensure Lavergne understood the plea agreement

[24]

After the Crown and trial counsel agreed to the details of the plea
    agreement, Lavergne went to his trial counsels office and signed an Acknowledgment
    and Direction, setting out the terms of the agreement. Lavergne claimed he was
    illiterate. However, trial counsel dictated the direction in Lavergnes presence
    (to a secretary over the intercom) and told Lavergne to stop him if he did not
    understand anything. Lavergne did not stop him. After the document was typed,
    trial counsel read it to Lavergne and explained it to him in laymans terms. In
    his cross-examination, Lavergne agreed he understood and could not dispute what
    had been read and explained to him.

(d)

Lavergnes evidence
    on his cross-examination was implausible

[25]

Lavergne never gave his trial counsel an alternative narrative for what
    happened with G.H. and L.P. He claimed that he had a poor memory. In his
    affidavit in support of his fresh evidence application, he maintained a blank denial.
    Yet, on his cross-examination, he set out in great detail his version of what
    had occurred with G.H. and L.P. That version simply lacks credibility.

(e)

The absence of
    an affidavit from Lavergnes wife undermines his claim

[26]

Lavergne claimed his wife wanted to be present during his discussions
    with trial counsel to make sure he understood the discussions and any documents
    he signed. Yet, when Lavergne signed the Acknowledgment and Direction, his wife
    remained in the outer room with trial counsels secretary. According to trial
    counsel Lavergne made it abundantly clear he did not want his wife in the room.
    His wifes silence lends support to trial counsels evidence.

[27]

Also, Lavergne signed the Acknowledgment and Direction three weeks
    before he pleaded guilty. His wife apparently did nothing during those three
    weeks after being told her husband was going to plead guilty. And she has
    offered no evidence to explain her silence.

(f)

Lavergne
    has not established that his trial counsel pressured him financially to plead
    guilty

[28]

The evidence of Lavergne and his trial counsel diverge on their
    financial arrangements. Lavergnes evidence was that his trial counsel told him
    each trial would cost $60,000 and he should sell his house to pay his legal
    fees. Trial counsel denies he told Lavergne anything of the sort. He denies
    telling him to plead guilty to avoid further legal costs or telling him he
    should sell his house. Trial counsels evidence was that just before the pleas,
    Lavergne said he was running short of money, to which trial counsel replied something
    to the effect of [l]ets see how it goes, dont worry about it for now. Again
    the absence of an affidavit from Lavergnes wife is telling. Her silence on whether
    her husband was being financially pressured supports trial counsels evidence.

[29]

For these reasons we dismiss the conviction appeal.

D.

the sentence appeal: the sentence was fit

[30]

The sentence of two years less a day for each sexual assault, to be
    served concurrently, was the product of a joint submission. Lavergne submits
    that the sentence for the sexual assault of L.P. was illegal, that the overall
    sentence was too high and that he agreed to it only because trial counsel told
    him he was facing four to five years in custody after a trial and would likely
    die in prison. Lavergne adds that he is Indigenous, which was not considered by
    the sentencing judge. He contends that in the light of his age and lack of a
    criminal record, a global sentence of 12 to 18 months would have been fit.

[31]

We accept that the sentence of two years less a day for the sexual assault
    of L.P. was illegal. As the Crown proceeded summarily, the maximum sentence was
    18 months, a fact missed not only by trial counsel but apparently as well by
    the Crown and the sentencing judge. We also accept that the Crown likely
    proceeded by indictment on the sexual assault of G.H. because it missed the six
    month limitation period for proceeding summarily.

[32]

Nonetheless, in our view, an overall sentence of two years less a day
    was entirely reasonable, was not contrary to the public interest and indeed was
    justified by the multiple incidents of sexual assault of two young girls.
    Although the sentence for the sexual assault of L.P. was illegal, consecutive
    sentences were available as these were two separate sexual assaults. Also
    important, the sentencing judge told both the Crown and trial counsel he would
    not go below two years less a day, even on a joint submission.

[33]

Finally, although Lavergne is Indigenous, the record does not disclose
    anything else beyond his statement of his Indigenous heritage. There is no
    evidence of any systemic or background factors which may have played a part in
    bringing this accused before the court.  A bare assertion of Indigenous
    heritage, without more, would not have had any impact on the sentence imposed. (See
R. v. Ipeelee
2012 SCC 13.) We therefore dismiss Lavergnes sentence
    appeal.

E.

conclusion

[34]

Lavergnes guilty pleas were voluntary. Thus, his conviction appeal is
    dismissed. A sentence of two years less a day plus three years probation was
    fit and not contrary to the public interest. Leave to appeal sentence is
    granted but the sentence appeal, too, is dismissed.

John Laskin J.A.

Janet Simmons J.A.

G. Pardu J.A.