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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Moldaver, Armstrong and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J. B.
Accused/Appellant
Paul Calarco, for the accused/appellant
David Finley, for the respondent
Heard: November 10, 2010
On appeal from the conviction entered by Justice Peter B. Hockin of the Superior Court of Justice dated April 17, 2007 and the sentence imposed by Justice Hockin on August 24, 2007.
APPEAL BOOK ENDORSEMENT
1We see no merit in the appeal from conviction. The trial judge’s instructions on the approach the jury should take in assessing credibility disclosed no error. They were in accordance with the principles enunciated by the Supreme Court of Canada in R. v. W. (R.) (1992), 74 C.C.C. (3d.) 134.
2With respect to sentence, while we agree that the total sentence of fourteen and a half years, less 4 years for time spent in pre-trial custody, was severe, we are not persuaded that it was manifestly excessive. The appellant subjected his entire family to degrading and controlling behaviour on a constant and persistent basis for many years. In the course of this conduct, he sexually assaulted his two daughters and in doing so, he committed a gross breach of trust. In the case of one daughter, who was cognitively impaired, the abuse occurred on almost a daily basis between the ages of 5 and 13 and included vaginal and anal intercourse, as well as the use of instruments such as candlesticks and beer bottles. Both daughters have suffered greatly from the abuse and each has experienced severe psychological and emotional trauma. In addition, the evidence establishes that the appellant is a pedophile who refuses to recognize his illness. As such, he constitutes, at least potentially, a continuing risk to other young children.
3On top of these aggravating factors, the appellant attempted to obstruct justice by threatening his wife to change her evidence and by breaching on two occasions his undertaking not to communicate with her.
4In all of the circumstances, as indicated, a total sentence of 14 1/2 years was not, in our view, manifestly excessive. As the trial judge quite properly observed, there were no mitigating factors that might otherwise have alleviated the severity of the punishment.
5In the result, leave to appeal sentence is granted but the appeal is dismissed, save as regards the sentence imposed on count 9 of the Indictment. On that count, the trial judge imposed a concurrent sentence of 9 years. That was an illegal sentence for the offence of assault and we would accordingly vary it to one year concurrent. In all other respects, the sentence imposed shall remain the same.
