W A R N I N G
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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – J. P. (Appellant)
BEFORE:
FELDMAN, SIMMONS and BLAIR JJ.A.
COUNSEL:
James Foord
for the appellant
Jennifer Woollcombe
for the respondent
HEARD & ENDORSED:
April 25, 2006
On appeal from sentence imposed by Justice E. W. Stach of the Superior Court of Justice dated February 4, 2005.
A P P E A L B O O K E N D O R S E M E N T
1The appellant pled guilty to three counts of breach of recognizance and was convicted, following a trial, of sexual assault and sexual touching, the first of which was stayed following Kienapple. The appellant was sentenced to three months each consecutive on the three breaches and to three years over and above time served of three months and four days for a total sentence of four years and four days, giving one for one credit only for pre-trial custody.
2The facts of the offences for which the appellant was convicted involved touching a young boy over his clothes on the thigh. However, at the time, the appellant had been recently convicted of sexual interference with his daughter for which he received a five-month sentence and he was subject to an order prohibiting him from being alone with children. As well, the trial judge was informed of the existence of a report of a Dr. Dion which was not made an exhibit, but which apparently indicated that the appellant had been treated for paedophilia between 1994 and 1996, that he could not verbalize gaining from the treatment and there was a likelihood he would sexually abuse children in the future.
3We agree that although the facts of the offence were at the low end of gravity for this type of offence, it was appropriate for the trial judge to take all of the appellant’s circumstances into account and to impose a significant sentence for the protection of the public. However, in our view, given the nature of the particular offence together with the fact that the doctor’s report was not filed as an exhibit and the full scope of his opinion is not available for review by this court, the total sentence imposed is excessive.
4We therefore grant leave to appeal sentence and reduce the sentence on the sexual touching to two years. All other terms of the sentence are to remain the same.