R. v. Lowe

R. v. Lowe Collection Decisions of the Court of Appeal Date 2018-09-24 Neutral citation 2018 ONCA 777 Docket numbers C65244 Judges Pepall, Sarah E.; Lauwers, Peter D.; Fairburn, J. Michal Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Lowe, 2018 ONCA 777 DATE: 20180924 DOCKET: C65244 Pepall, Lauwers and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Joshua Lowe Appellant Jeff Marshman, for the appellant Caitlin J. Sharawy, for the respondent Heard and released orally: September 20, 2018 On appeal from the sentence imposed on February 1, 2018 by Justice Braid of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] After a two-week jury trial, the appellant was convicted of a number of offences. The supporting facts were set out carefully by the trial judge in her sentencing reasons, reported at [2018] O.J. No. 1162. [2] The trial judge noted, at paras. 1 and 2, that the jury found the appellant guilty of 12 charges: sexual assault; assault with a weapon; simple assault (two counts); threatening to cause death (four counts); mischief (three counts); and criminal harassment. After the jury trial, the appellant pleaded guilty to three additional charges: one count of breaching his recognizance and two counts of breach of probation. [3] The appellant received a global sentence of nine years less four years credit for time served. The appellant received a seven year sentence for the sexual assault conviction, six months consecutive on one of the assault convictions, 12 months consecutive on the criminal harassment conviction, and six months consecutive on the breach of recognizance conviction. All the other sentences ran concurrently. [4] The appellant originally challenged the sentence on two bases. The appellant no longer relies on the ground that the trial judge punished him twice for the same conduct in relation to the two breaches of probation. We agree with this position. [5] The appellant argues that the sentence imposed by the trial judge for sexual assault was demonstrably unfit. He submits that the global sentence of nine years should be reduced by two years for a total sentence of seven years. [6] There is no dispute that the trial judge took into account the proper sentencing principles. She noted that deterrence and denunciation are paramount sentencing considerations in cases of domestic violence: see R. v. Campbell, 170 O.A.C. 282, [2003] O.J. No. 1352 at paras. 8-9; R. v. S. (P.), 2007 ONCA 299, 223 O.A.C. 293 at para. 50. She noted at paras. 82–83 of her reasons that she had considered the principles of totality and the ladder principle recognizing that the appellant had not previously been incarcerated for a sentence of more than two years. She noted that this would be a significant jump from the sentences that he had previously served. [7] The appellant asserts that the applicable sentencing range the trial judge should have taken into account is between 20 months and four years. [8] The trial judge noted, at para. 72 of her reasons, that “none of these cases are on all fours with the matter before the court.” She stated, at para. 73: No two sentencing cases are the same. The violence and manipulation displayed towards Mr. Lowe’s two domestic partners; the intimidation of his surety; the numerous breaches; and other aggravating factors articulated below make this case particularly unique. [9] Sentencing ranges are guidelines rooted in accumulated judicial experience. They are not straitjackets, as the Supreme Court noted in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 69, adding, at para. 67, that: “a deviation from such a range or category is not an error in principle and cannot in itself automatically justify appellate intervention unless the sentence that is imposed departs significantly and for no reason from the contemplated sentences.” [10] The trial judge observed the appellant during a two-week trial, including his testimony, and over a three-day sentencing hearing. Her reasons demonstrate her deep grasp of the dynamics driving the appellant. [11] The critical feature here is that, as the trial judge observed at para. 81: “these offences were violent and particularly degrading towards the victims.” [12] The trial judge set out the factual details at length in her sentencing reasons. In the sexual assault incident, in particular, the appellant assaulted the victim with a glass, and then his fists. He spat on her and grabbed her by her hair. He forced her to perform fellatio and then raped her. He then abused her further, broke her phone and her prescription glasses and took her change so that she could not use a payphone to call the police. This led, as the trial judge noted at para. 11 of her sentencing decision, to a number of convictions, and underpinned the seven year sentence. [13] The trial judge set out the mitigating factors at para. 80, and aggravating factors at para 81. Among the serious aggravating factors, she referred to his “lengthy, related criminal record.” She noted: “Many of the offences are violent and committed against domestic partners.” [14] The trial judge more than adequately explained the reasons for the sentence and rooted them deeply in the facts. We see no error in her approach. The sentence is owed deference. [15] Leave to appeal sentence is granted, but the sentence appeal is dismissed. “S.E. Pepall J.A.” “P. Lauwers J.A.” “Fairburn J.A.”