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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.
DATE: 20060622
DOCKET: C44614
COURT OF APPEAL FOR ONTARIO
SIMMONS, MACFARLAND AND ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Delmar Doucette for the appellant
Respondent
- and -
W. Q.
Shelley Maria Hallett for the respondent
Appellant
Heard: March 30, 2006
On appeal from the sentence imposed by Justice Karen E. Johnston of the Ontario Court of Justice dated August 23, 2005.
MACFARLAND J.A.:
[1] The appellant pleaded guilty to sexual exploitation, sexual assault and criminal harassment. After giving the accused seven and a half months credit for 112 days of pre-trial custody, the trial judge sentenced him to four years imprisonment on each of the counts of sexual exploitation and sexual assault, to be served concurrently, and to 6 months imprisonment on the count of criminal harassment to be served consecutively.
[2] The offences involved the appellant’s stepdaughter. The facts admitted on the sentencing hearing indicate that the appellant began sexually abusing his stepdaughter when she was between three and four years old. Save for a period when the complainant was between 8 and 10 years old, the conduct continued for fourteen years until the complainant moved away from home.
[3] Initially, the abuse consisted primarily of fondling. Over time it progressed to fellatio, cunnilingus, digital penetration and simulated intercourse. During some periods, the abuse occurred on an almost daily basis. Although never physically coercive, the appellant manipulated and controlled the complainant through intimidation, both of her and of fellow family members.
[4] After the complainant left the family home, the appellant telephoned the complainant repeatedly both at her residence and her place of employment. He threatened her and on several occasions threatened to kill her dog if she did not talk to him or come back to visit him.
[5] The appellant raises three issues on appeal. First the appellant claims that the trial judge erred in imposing a consecutive sentence on the criminal harassment offence. In particular, the appellant submits that because of the close factual nexus between all three offences, concurrent sentences should have been imposed. Put another way, the appellant says that the appellant should not have received a consecutive sentence for his coercive and harassing behaviour just because it became ineffective during the latter part of the total period of the offences. The appellant also relies on the trial judge’s failure to provide reasons for imposing a consecutive sentence.
[6] Second, the appellant contends that the total effective sentence of 5 years 1½ months imprisonment is excessive, having regard to the appellant’s early guilty plea and demonstration of remorse and because the offences did not involve full intercourse. He suggests a total sentence of 3.5 years (4 years less pre-trial custody) would be appropriate.
[7] Third, the appellant submits that the prohibition order made under s. 161 of the Criminal Code is overbroad and that portions of subparagraph 9(a) of that order should be deleted.
- Consecutive/Concurrent Sentence
[8] The trial judge sentenced the appellant to four years on each of one count of sexual assault and one count of sexual interference to be served concurrently. On the charge of criminal harassment the sentence was six months to be served consecutively.
[9] In R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948 at paragraph 42 Sopinka J. writing for the majority stated:
In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearly stated in both Shropshire and M.(C.A.), applies equally to the decision to order concurrent or consecutive sentences. In both setting the duration and type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit.
[10] In Sentencing, Sixth Edition[^1], the authors note at paragraph 14:10:
A great deal of judicial time has been taken in assessing the rules as to whether sentences should be consecutive or concurrent in particular circumstances. The language used in Paul suggests that this task remains crucial. Logically, however, one cannot fault the use of concurrent sentences to reduce the aggregate sentence; that is quite different from the evil of an inflated “head” sentence.
We have frequently noted that the Code seems to require consecutive sentences unless there is a reasonably close nexus between the offences in time and place as part of one continuing criminal operation or transaction: R. v. Osachie, (1973), 1973 2354 (NS CA), 6 N.S.R. (2d) 524. This does not mean, however, that we should slavishly impose consecutive sentences merely because offences are, for example, committed on different days. It seems to me that we must use common sense in determining what is a “reasonably close” nexus and not fear to impose concurrent sentences if the offences have been committed as part of a continuing operation in a relatively short period of time.
[11] The authors conclude, after reviewing several examples at paragraph 14.13:
Ultimately, the tests are very flexible, and it becomes a fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences.
[12] In the agreed statement of facts which was exhibit one on the appellant’s plea of guilty, it was stated that the last time the appellant sexually assaulted the complainant was on July 1, 2000. Thereafter the complainant moved to Barrie Ontario. In September, 2000 while the complainant was living with friends, the appellant phoned so much that the complainant had the number blocked. The statement went on:
The accused would then use other people’s phones to get through to W.F. The accused called and repeatedly threatened W.F. and on several occasions threatened to kill her dog if she didn’t talk to him or come back … for a visit.
[13] The calls stopped in December, 2000 when the complainant moved in with her boyfriend.
[14] The trial judge gave no reasons specifically for ordering that the sentence on the charge of criminal harassment was to run consecutively to the sentence imposed for the other changes.
[15] In my view, however, it was open to the trial judge on the facts of this case to order a consecutive sentence. In her reasons for sentence, the trial judge referred to the criminal harassment being “an ill-fated attempt on the part of the accused to try to continue his sphere of influence over the complainant in the nastiest manner.” This conduct occurred after the complainant had moved away from the appellant’s home; in some respects, it was of a different nature than the intimidating and manipulating conduct to which the appellant subjected her while they lived in the same house. Particularly in light of those factors, it was open to the trial judge to find that a consecutive sentence was, in all of the circumstances, appropriate. In effect, there was not the close factual nexus that would make a consecutive sentence inappropriate. Nor, as I will explain did it make the total sentence imposed unfit.
- Total Sentence of 5 Years 1½ Months is Excessive
[16] The appellant spent some 112 days in pre-trial custody. The trial judge credited him with 7½ months pre-sentence custody which is about a 2:1 ratio. She then sentenced him to an additional four and one half years imprisonment.
[17] The appellant’s main submission is that because the appellant’s conduct fell short of full sexual intercourse his sentence should be reduced. It is argued that in breach of trust situations, a sentence of five years or more is reserved for offences where there was sexual intercourse and a lack of remorse. The appellant suggests a sentence of 3½ years is more appropriate.
[18] As the Crown noted in her factum, this court in R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 at paragraph 42 noted:
The absence of penetration does not automatically relegate the sexual abuse of children to the “lower range” of sexual offences. There is no question that “additional force”, “collateral crimes”, and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of their victims. These offences were individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable.
[19] Apposite too are the words of Moldaver J.A. in R. v. D.(D.), 2002 44915 (ON CA), [2002] O.J. No. 1061 at paragraph 44:
To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.
[20] While the sentence imposed is at the high end of the range, I would not interfere. There were a number of aggravating factors here noted by the trial judge which made these offences particularly reprehensible. The appellant began to abuse the complainant his step-daughter when she was between only three and four years of age. The abuse continued, but for a two-year period, from then until she moved out of the house following her high school graduation. At times the abuse was a daily routine and involved a variety of sexual conduct falling only just short of full sexual intercourse. This was a particularly egregious breach of trust.
[21] The total sentence imposed was in my view not demonstrably unfit.
- Section 161 Order
Overbroad
[22] The trial judge in her reasons found fault with the report from the Centre for Addiction and Mental Health (CAMH) dated July 5, 2005. She was not prepared on the basis of that report to find that the accused was a pedophile. Despite that finding the trial judge made an order under s. 161 of the Criminal Code prohibiting the appellant for life from:
(a) attending at a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present or a daycare centre, school ground or playground or community centre or ….
[23] The objection is to those parts of the order that prohibit the appellant’s attendance at “a public park or public swimming area” or a “community centre”.
[24] It is argued that the trial judge’s refusal to find that the appellant was a pedophile together with her finding in regard to specific deterrence:
I am satisfied that, to some degree, deterring the offender may not be as relevant – with this one exception if he were to become involved in another relationship where there was a young daughter present. To some degree, given that there are not any relevant prior acts by this accused other than this one complaint, … it was situational, although taken advantage of for years
were findings inconsistent with the specified overbroad terms found in subparagraph (a) of the s. 161 order.
[25] Section 161 of the Criminal Code requires a sentencing court to consider and permits it to impose and later vary the conditions of an order of prohibition upon conviction. The section is discretionary. The trial judge did not find the accused to be a pedophile and appreciated that to a certain extent, his offence was committed in circumstances found to be situational. Nevertheless she found that a prohibition was required. It was a matter for her discretion and absent error in principle, and there was none demonstrated, I would not interfere.
[26] For these reasons while I would grant leave to appeal sentence, the appeal is dismissed.
RELEASED: June 22, 2006 “JS”
“J. MacFarland J.A.”
“I agree Janet Simmons J.A.”
“I agree Paul Rouleau J.A.”
[^1]: Clayton C. Ruby et al., Sentencing, 6th ed. (Markham: Butterworths, 2004).