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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Simmons, Rouleau and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
I.F.
Respondent
Dena Bonnet, for the appellant
R. J. Reynolds, for the respondent
Heard and released orally: March 11, 2011
On appeal from the sentence imposed by Justice Geoffrey Griffin of the Ontario Court of Justice, dated July 12, 2010.
ENDORSEMENT
1This is a Crown appeal against sentence.
2The respondent sexually abused his three step-granddaughters over an eight-year period, from 2001 to 2009, when the sisters were under the care of the respondent while visiting their grandparents on occasional weekends. With each victim, the sexual abuse began with touching over clothes and progressed to more intrusive sexual assaults. At the time of the abuse, the girls were between the ages of 10 to 12, 7 to 14 and 9 to 14 years, respectively. The respondent’s acts included touching and fondling their breast and vaginal areas; performing oral sex on one victim; having two of the victims watch pornographic movies or magazines while he masturbated; and having one of the victims masturbate him.
3The sentencing judge sentenced the respondent to eight months imprisonment consecutive on each count for a total sentence of two years imprisonment, to be followed by three years probation. The Crown submits that he erred in principle and that the sentence was manifestly unfit.
4The sentencing judge acknowledged that the principles of deterrence and denunciation were paramount when a step-grandfather abuses his position of trust. He stated that a sentence of two years less a day would not adequately reflect the principle of denunciation. He considered that the appropriate sentence was three years, plus three years probation. However, he imposed the sentence of two years imprisonment so that he could also impose a period of probation with terms.
5In R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 44, Moldaver J.A. stated 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.”
6While the sentencing judge cited these principles, the sentence he imposed failed to adequately reflect the principles of deterrence and denunciation, represents a marked departure from the case law, and was manifestly unfit in this context of multiple victims.
7Taking all the circumstances of this case, including the trial judge’s acceptance of the significance of the respondent’s early plea and acceptance of responsibility, we allow the appeal and substitute a global sentence of four years imprisonment. Apart from the probation order, the other orders of the judge remain in force.
“Janet Simmons J.A.”
“Paul Rouleau J.A.”
“Karakatsanis J.A.”
