WARNING

THIS IS AN APPEAL RELATING TO CHARGES UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable
    on summary conviction.

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. D.A., 2018 ONCA 96

DATE: 20180201

DOCKET: C62799

Doherty, LaForme and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Mark Sandler and Amanda Ross, for the appellant

Andrew Hotke, for the respondent

Heard: January 17, 2018

On appeal from the convictions entered by Justice Peter
    N. Bourque of the Ontario Court of Justice on August 4, 2016.

Paciocco J.A.:

[1]

This is an appeal by D.A. from his August 4, 2016 convictions of three historical
    sexual offence charges. His appeal is based exclusively on the judges denial
    of two s. 11(b) unreasonable delay applications D.A. brought. If either of D.A
    s. 11(b) applications should have been granted by the trial judge, D.A.s conviction
    appeal must be allowed since a successful s. 11(b) application would have
    required the charges to be stayed.

[2]

D.A.s first s. 11(b) application was brought prior to the decision in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. Its outcome therefore
    depended on the law developed in
R. v. Morin
, [1992] 1 S.C.R. 771. I
    refer to this first application as the
Morin
application.

[3]

The second application was brought after
Jordan
was decided.
    Although the factual foundation for the second application remained the same as
    the first application, D.A.s second application  his
Jordan
application
     was based on retroactive changes
Jordan
made to the law.

[4]

It is not controversial that the delay in D.A.s case is presumptively
    unreasonable applying the
Jordan
test. In spite of this, D.A. is
    correct to concede before us that the outcome of his appeal turns on whether
    the trial judge erred in deciding the
Morin
application. This is
    because there is nothing in this case that would prevent the Crown from invoking
    its reasonable reliance on the
Morin
regime to defeat D.A.s
    transitional
Jordan
application.

[5]

In my view, the trial judge did err in deciding the
Morin
application.
    He was wrong in finding the
Morin
delay to be approximately 14 months. Properly
    analysed, the total
Morin
delay was upwards of 17 months, a period of
    delay that was not reasonable in the circumstances of this case.

[6]

The trial judge arrived at 14 months of
Morin
delay by holding
    D.A. responsible for the delay between February 26, 2015 and August 10, 2015,
    the day the trial date was set, because D.A. should have been ready to set a
    trial date on February 26, 2015 or shortly thereafter. There are several
    reasons why this finding was in error.

[7]

First, at the February 26, 2015 judicial pretrial the Crown gave an
    extensive disclosure package to D.A. That disclosure package included a video
    statement given by D.A., electronic discs, and more than 120 pages of printed
    material, including multiple police notes. The pretrial judge recognized that
    the pretrial could not go ahead because of the substantial, late disclosure
    that had just been made. Defence counsel needed time to review the disclosure before
    proceeding. In the face of this last minute, material disclosure, the trial
    judges conclusion that the Crown had substantially filled the essential
    disclosure requests by February 25, 2015, to an extent which allowed the matter
    to proceed further, to judicial pre-trial and then setting a trial date was
    unreasonable.

[8]

Second, on February 26, 2015 D.A. stood charged only with youth
    offences. The adult charges that are the subject of this appeal had not yet
    even been laid. The delay in laying the adult charges arose because of a
    miscalculation by the investigator of D.A.s age during the period D.A. was
    alleged to have been carrying on a sexually exploitive relationship with the
    complainant, a neighbouring child. By February 26, 2015, that error had been
    discovered. D.A. was aware that the Crown was contemplating additional adult charges.
    The pretrial judge was also aware of this. Appropriately, the pretrial judge
    recognized that D.A. was in no position to move the case forward until the
    nature of the charges he would face was settled.

[9]

The Crown concedes this latter point but urges that since the adult
    charges were laid on March 17, 2015, D.A. should have been ready to set a trial
    date, at the latest, when the matter next returned to court on April 2, 2015.
    The Crown contends that this additional 5 weeks of delay should not change the
    outcome. There are several difficulties with the Crowns position.

[10]

First,
    April 2, 2015 was the first appearance on the adult charges. The judicial pretrial
    set for that date was scheduled in youth court, relating to the youth matters. It
    is not reasonable to expect D.A. to have set a trial date on his first
    appearance on the adult charges, without the benefit of a pretrial on those
    charges.

[11]

To
    underscore the unfairness in placing responsibility on D.A. to set a trial date
    on the adult charges on April 2, 2015, it is instructive that even on May 14,
    2015, the date that was set to accommodate a joint pretrial on the youth and
    adult matters, the Crown did not have the adult file in court. This led to yet
    a further adjournment.

[12]

The
    second reason why the Crowns contention that D.A. should have set the trial
    date on April 2, 2015 is unfair is that, once again, just before the April 2,
    2015 pretrial began the Crown gave yet another substantial disclosure package to
    D.A., consisting of both electronic and paper disclosure exceeding 80 pages. Since
    D.A.s counsel could not possibly review this material before the scheduled
    pretrial, the Crown agreed to adjourn the pretrial to May 14, 2015.

[13]

The
    Crown suggested before us that its consent to adjourn the April 2, 2015
    pretrial because of its own last minute disclosure is unimportant in assessing
    unreasonable delay unless, by its nature, the information disclosed is shown to
    have been essential to the case. I do not agree. The accused is entitled to review
    disclosure they have received to determine its importance, before moving a case
    forward. Where, as here, that disclosure is made so late that it cannot be
    reviewed before a scheduled appearance, the Crown cannot fairly assert that the
    accused should go ahead and set a date at that scheduled appearance.

[14]

The
    final and most important reason why it was not fair to expect D.A. to set a
    trial date on April 2, 2015 is that essential disclosure was still outstanding
    on that date.

[15]

In
    particular, disclosure had not yet been made of the occurrence report and
    police officers notes relating to the initial complaint. That complaint was
    made in April of 2012 when the police attended the complainants home on an
    unrelated matter. The Crown, incorrectly, was insisting that disclosure of this
    April 2012 information required a third party records application, hence the
    delay.

[16]

The
    importance of the records relating to the initial police complaint in a sexual
    assault allegation is obvious, but those records took on added significance in
    this case. Disclosure that had been made suggested that the complainants mother
    initiated the complaint, and there were issues relating to the mothers credibility
    arising from an unsubstantiated allegation she made that D.A. had breached his
    bail conditions. The history of the complaint in this case mattered, as, of
    course, did any statements made by the complainant about what happened.

[17]

Police
    notes about this April 2012 meeting were not disclosed until April 29, 2015. The
    third party records application was not heard until May 13, 2016, at which time
    the occurrence report itself was disclosed.

[18]

This
    material proved to include statements from the complainant and her mother about
    the alleged assaults. It also included an allegation by the complainant that D.A.
    had attempted to persuade her not to go ahead with the complaint so that his
    life would not be ruined. The Crown ultimately relied upon this information at
    trial as post-offence conduct indicative of guilt.

[19]

On
    August 11, 2015, two further pages of handwritten notes from the complainant
    were disclosed.

[20]

Moreover,
    disclosure relating to statements made by D.A. to the police was still outstanding
    on April 2, 2015. While most of the information about D.A,s statements had already
    been disclosed, on March 17, 2015 defence counsel advised the Crown that an
    officer appeared to have interviewed D.A. twice. That officers notes were not
    disclosed until June 3, 2015. Despite a number of pretrial requests, audiotape
    evidence of D.A.s arrest relating to the implementation of his
Charter
rights was not disclosed until the third day of the trial. This information was
    important to the voluntariness of D.A.s statements.

[21]

Significantly,
    when the trial judge rejected D.A.s
Morin
application he
    misapprehended the nature of the disclosure being sought relating to D.A.s
    statements. He discounted claims by D.A. that non-disclosure relating to statements
    D.A. had made was material, on the mistaken basis that there are no
    confessions or admissions. In fact, at the subsequent trial the Crown led a
    statement from D.A. as containing relevant admissions that supported the
    complainants account.

[22]

On
    this record, it was not reasonable for the trial judge to find that D.A. was
    responsible for the delay after February 26, 2015 because of an unreasonable insistence
    on receiving nonessential disclosure before moving the case forward. Given the
    role played by the Crown in delaying the progress of the case and the
    outstanding material disclosure, it is not fair to blame D.A. for not moving
    the case forward on that date, on April 2, 2015, or arguably even on May 14,
    2015.

[23]

Even
    applying the trial judges underestimated period of
Morin
delay, a delay
    of almost 14 months appreciably exceeds the
Morin
guideline for
    provincial trials of 8-10 months. The trial judge nonetheless denied the
    application because he found the case to be complex, the charges serious, and
    the prejudice modest.

[24]

I
    take no issue with the proposition that a trial judge may be entitled to refuse
    to stay a proceeding under the
Morin
regime after a 14 month delay in
    a complex case involving a serious charge where the delay had a modest level
    of repercussions for the accused. That, however, is not this case. When defence
    delay is properly quantified, the total
Morin
delay is upwards of 17
    months.

[25]

Moreover,
    I cannot accept the trial judges conclusion that this prosecution was complex.
    This was a standard credibility case made only marginally more difficult
    because the prosecution involved both youth and adult charges.

[26]

The
    trial judge may also have underestimated the prejudice to D.A. caused by the
    delay. The trial judge noted in his decision that a defendant who insists upon
    all elements of disclosure before setting dates runs the risk of being
    content with the pace of proceedings. Given that the trial judge mistakenly
    believed that D.A. was insisting on all elements of disclosure before setting
    dates, his sense of the prejudice the delay was causing D.A. may have been
    unfairly minimized.

[27]

In
    my view, notwithstanding that the charges against D.A. were extremely serious, the
    trial judge erred in denying D.A.s
Morin
application. Properly
    calculated, the total
Morin
delay came close to doubling the
Morin
guidelines in a non-complex case where there was some prejudice. Much of that
    delay was attributable to the Crowns errors or last-minute disclosure
    practices. The
Morin
application should have been allowed. The charges
    against D.A. should have been stayed.

[28]

I
    would therefore allow D.A.s conviction appeal, set aside the convictions, and
    stay the proceedings on the charges that are before us.

Released: February 1, 2018 (D.D.)

David M. Paciocco J.A.

I agree. Doherty J.A.

I agree. H.S. LaForme 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), (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. D.D., 2018 ONCA 134

DATE: 20180213

DOCKET: C63923

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.D.

Appellant

Robert Carew, for the appellant

Lisa Joyal, for the respondent

Heard: February 5, 2018

On appeal from the sentence imposed on April 12, 2017 by
    Justice Robert L. Maranger of the Superior Court of Justice, sitting without a
    jury.

Brown J.A.:

[1]

The appellant, a former RCMP officer, was convicted of numerous offences
    involving horrendous abuse he inflicted on his 11-year old son. Specifically,
    the appellant was found guilty of two counts of aggravated assault, one count
    of assault with a weapon, one count of sexual assault causing bodily harm, one
    count of unlawful confinement, and one count of failing to provide the
    necessaries of life. In addition, the appellant was convicted of two counts
    relating to the improper storage of ammunition and a firearm.

[2]

The trial judge imposed a global sentence of 15 years imprisonment,
    less 22 months credit for pre-sentence custody. The appellant seeks leave to
    appeal his sentence and, if leave is granted, he seeks a reduction of five to
    ten years in his term of imprisonment.

[3]

The appellant advances three grounds of appeal.

FIRST GROUND

[4]

First, the appellant submits the trial judge erred in stating the
    appropriate range of sentence was 12 to 20 years. The appellant points to other
    cases involving the serious abuse of children in which the sentences imposed
    ranged from two to 16 years. He also argued that two cases the trial judge
    referred to which involved sentences of 18.5 and 25 years were factually
    distinguishable.

[5]

I see no merit in this ground of appeal. The trial judge correctly noted
    that the range of penalty for cases of extreme child abuse varies widely. He
    reviewed the salient cases placed before him by the Crown and the appellant. He
    observed that the conviction on the count of sexual assault causing bodily harm
    carried with it a mandatory minimum penalty of five years. The trial judge
    found that the level of child abuse here was at the furthest end of the spectrum.

[6]

That finding was fully supported by the evidence. The appellant engaged
    in a horrific course of abusing his son over a six-month period, the details of
    which are set out in the trial judges reasons for conviction: 2016 ONSC 7249. I
    see no reason to repeat the incomprehensibly cruel acts visited upon the young
    victim by his father, the extreme pain he must have endured, and the terror he
    must have experienced. As the trial judge commented at the end of his reasons
    for judgment:

This was a very difficult trial. That a parent could do the
    things that were done to AJ D. was gut-wrenching. That being said, however, the
    fact that this half-starved, burned and battered 11 year old could somehow
    summon up the strength to escape his cruel captivity and later seemingly rise
    above it, is a testament to the indomitability of the human spirit.

[7]

I see no error in the trial judges conclusion that the abuse fell at
    the furthest end of the spectrum and his resulting use of a 12 to 20-year
    range of sentence.

SECOND GROUND

[8]

As his second ground of appeal, the appellant argues the trial judge
    failed to give adequate weight to the psychiatric and psychological evidence of
    his mental health at the time of the offences as a mitigating factor and
    over-emphasized denunciation and deterrence. The trial judge considered, but
    ultimately did not accept, the appellants sentencing submission that there was
    a causal link between his mental health and the commission of the offence,
    which should operate as a factor reducing the length of his sentence.

[9]

At the trial, the appellant had advanced the position that he was not
    criminally responsible by reason of a mental disorder. The trial judge did not
    accept the evidence of the appellants expert clinical psychologist, Karim Jbeili.
    He found that Mr. Jbeili was not impartial, had no prior experience in
    providing forensic psychological evidence, had failed to examine in a
    meaningful way all of the evidence necessary to formulate a valid independent
    opinion  including failing to review all of the videos taken by the appellant
    of him torturing his son in the basement  and vacillated in the opinion he
    gave.

[10]

Although
    the trial judge accepted that the appellant may have suffered from depression
    and post-traumatic stress disorder, he rejected the notion that a mental
    disorder had caused him to be in a state of dissociation to the extent the
    appellant was incapable of appreciating the nature and quality of his acts
    and/or knew that they were wrong when he committed the crimes against his son.

[11]

Two
    expert psychiatrists testified at the sentencing hearing. Dr. Helen Ward opined
    that during the period of the offence, the appellant was suffering from
    post-traumatic stress disorder and a depressive episode, but he was not
    delusional. Despite his mental condition at the time of the offences, Dr. Ward
    testified that the appellant was aware of the physical nature and quality of
    his acts. As well, the appellants PTSD would not have affected him, through
    cognitive distortions and re-experiencing of trauma, to the point where he
    would have been unable to know that the acts in question were morally or
    legally wrong. However, Dr. Ward opined that the appellants PTSD and
    depression contributed substantially to the commission of the offences.

[12]

Dr.
    Bradley Booth stated the appellant likely had significant depression, anxiety
    and PTSD, but concluded that the appellant somewhat over-reported his
    difficulties. Both the PTSD and the depression were described as being of mild
    to moderate severity around the time of the offences.

[13]

In
    his sentencing reasons, the trial judge considered the psychiatric evidence. He
    concluded Dr. Booths testimony, that the PTSD at the time of the offences was
    of mild to moderate severity, seemed to correspond to the evidence heard at
    trial, especially the evidence about how the appellant acted on the three
    videos that showed him torturing his son in the basement. The trial judge
    stated:

The offender in that video, far more reflects someone with an
    obsessive-compulsive narcissistic personality disorder than someone suffering
    from post-traumatic stress disorder. [The videos] depict a calm, cool, cruel
    interrogator certainly unafraid of [his son] and seemingly obsessed with his
    own sense of right and wrong.

[14]

After
    reviewing the evidence, the trial judge expressed the view that the appellants
    mental health provided some explanation for his behaviour, but was not the
    cause of it. As a result, he was not inclined to make rehabilitation the focus
    of crafting the appellants sentence instead of denunciation and deterrence:
R.
    v. Shahnawaz
(2000), 51 O.R. (3d) 29 (C.A.), at paras. 30 to 32;
R. v.
    Prioriello
, 2012 ONCA 63, at para. 11.

[15]

The
    appellant submits the trial judge failed to properly consider the psychiatric
    evidence when he failed to conclude a causal link existed between the
    appellants mental health and the commission of the offences. I do not accept
    this submission. In his sentencing reasons, the trial judge reviewed the
    psychiatric evidence at some length. The appellant has not pointed to any
    misapprehension of that evidence by the trial judge. The trial judge assessed
    and weighed the expert evidence together with the other evidence, including the
    videos taken by the appellant in the basement, as he was permitted to do. I see
    no error in his factual analysis concerning the role played by the appellants
    mental health in his commission of the offences. Nor would I interfere with his
    conclusion that denunciation and deterrence were the primary considerations in
    his sentencing. Accordingly, I would give no effect to this ground of appeal.

THIRD GROUND

[16]

Finally,
    the appellant contends the trial judge erred in his consideration of
    aggravating and mitigating factors. I see no merit in this submission. The
    trial judges finding that the appellants conduct amounted to a breach of the
    highest position of trust was unimpeachable. As to the appellants submission
    that the trial judge should have given greater weight to some mitigating
    factors, the trial judges conclusion that the appellants mental health was
    the single most important issue for consideration as a mitigating factor was
    reasonable in the circumstances. As for his submission that the trial judge
    failed to take into account other mitigating factors, I do not accept these submissions.
    For instance, the suggestion that the child made a quick physical recovery
    does not accord with the medical records and the damage done to the childs
    body. Moreover, given the months of punishing psychological and physical abuse
    endured by this child in the basement of his family home, the suggestion that
    the appellant was otherwise a good parent, is without any substance. Given the
    horrific nature of the abuse the appellant inflicted on his son, other
    mitigating factors would play little practical role in the sentencing process.

DISPOSITION

[17]

Accordingly,
    I would grant leave to the appellant to appeal his sentence, but I would
    dismiss his appeal.

Released: KF Feb 13 2018

David Brown J.A.
I agree. K. Feldman J.A.
I agree. Fairburn 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(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No adverse inference may be drawn from the fact
    that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Diaz, 2018 ONCA 191

DATE: 20180226

DOCKET: C63402

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Diaz

Appellant

Cate Martell, for the appellant

Jill Witkin, for the respondent

Heard and released orally: February 21, 2018

On appeal from the conviction entered on January 17, 2017
    by Justice Irving W. André of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant raises a single ground of appeal
    against his conviction for sexual assault following a jury trial. The appellant
    submits that the trial judge erred by refusing to instruct the jury on the
    defence of honest but mistaken belief in consent. The charge related to a
    single act of anal penetration that followed consensual oral and vaginal
    intercourse.

[2]

The complainant testified that while she agreed
    to the oral and vaginal sex, she repeatedly and unequivocally told the
    appellant to stop his attempt to penetrate her anally and she squirmed and
    attempted to get away from him as he continued. She only stopped resisting when
    he continued and she thought it would be less painful to relax.

[3]

The appellant gave a very different version. He
    testified that after he had partially inserted his penis, he asked her if the
    anal sex was okay and she said yes.

[4]

We are not persuaded that the trial judge erred in ruling there was no air of reality to the defence of mistaken belief in consent. There were two conflicting accounts that did not lend themselves to being spliced in a manner capable of sustaining that defence. The appellant's account was that this was a case of actual consent. The trial judge was correct in finding that there was no air of reality to the defence of mistaken belief in consent.

[5]

Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

S.E. Pepall J.A.

Fairburn J.A.


WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)          If the prosecutor or the accused
    intends to show cause under section 515, he or she shall so state to the
    justice and the justice may, and shall on application by the accused, before or
    at any time during the course of the proceedings under that section, make an
    order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

Failure to comply

(2)     Everyone who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dosanjh, 2018 ONCA 193

DATE: 20180227

DOCKET: M48810 (M48718)

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raja Dosanjh

Applicant

Heard: February 21, 2018

In this bail review pursuant to s. 680(1) of the
Criminal
    Code
, the Panel upheld the decision of the Superior Court Judge denying
    judicial interim release to an accused charged with first-degree murder.

A s. 517
Criminal Code
non-publication order was imposed
    by Lemon J. That order precludes the publication, broadcast or transmission of
    any evidence taken, information given, representations made and reasons given
    by Lemon J.

The decision in
R. v. Dosanjh
, 2018 ONCA 193 contains
    information covered by that order.

Accordingly, the decision will be available on the Court of
    Appeal for Ontarios website once the non-publication order ceases to be in
    effect.

In the interim, a copy of the full decision is available at the
    Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duivenvoorde, 2018 ONCA 158

DATE: 20180215

DOCKET: C64442

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Duivenvoorde

Appellant

Ronald Duivenvoorde, in person

Erika Chozik, duty counsel

Hannah Freeman, for the respondent

Heard: February 5, 2018

On appeal from the sentence imposed on September 12, 2017
    by Justice N. Dwyer of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from his sentence of 12 months following
    convictions for failure to comply with a probation order and failure to comply
    with a recognizance.  The offences involved breaching orders prohibiting him
    from possessing any device capable of accessing the Internet without prior
    permission of his probation officer and from possessing or using computers or
    devices with access to the Internet or a digital network.  The orders were made
    following the appellants second conviction for possession of child
    pornography.

[2]

The appellant submits that the sentence is outside the proper range
    given that it is first breach and he is not a long term offender.  He notes
    that he did not download illegal material.

[3]

In our view, the offences were flagrant  planned and deliberate, and
    they occurred not long after his release.  The trial judge described them as
    serious and persistent, and the appellants actions as outrageous.  We agree.

[4]

There is no basis to interfere with the trial judges exercise of
    sentencing discretion.  He made no errors in law or principle, and the sentence
    imposed is not demonstrably unfit.

[5]

The appeal is dismissed.