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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
COURT OF APPEAL FOR ONTARIO
Feldman, Rouleau and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
E. T.
Appellant
Anthony De Marco, for the appellant
Tracy Kozlowski, for the respondent
Heard: January 21, 2011
On appeal from the conviction entered on May 9, 2009 and the sentence imposed on October 14, 2009 by Justice L. Ricchetti of the Superior Court of Justice.
APPEAL BOOK ENDORSEMENT
Appeal Book Endorsement
1The appellant was convicted of sexual assault, gross indecency and sexual exploitation of a young girl who was the child of his spouse’s cousin. The acts began with kissing at age 8 and progressed over the years to sexual touching and oral sex at age 17 and 18.
2The appellant appeals his conviction and sentence of three years. The appellant submits that the trial judge erred with respect to the bases he described for rejecting the appellant’s evidence and in relying on the evidence of the cousins as corroborative of the complainant.
3In our view, the trial judge was entitled to assess the evidence of the appellant and to make his findings of credibility based on that evidence. He was entitled to make the interpretations that he did. He was also entitled to accept the evidence of the two women cousins although it was denied by the appellant.
4We see no error in the approach of the trial judge. The appeal against conviction is dismissed.
Sentence Appeal
5The appellant seeks leave to appeal the sentence and appeals the sentence of three years. He sought a conditional sentence at trial and renews that submission here.
6The trial judge rejected a conditional sentence as unavailable. He referred to the case law that puts the range for this type of sexual offence against a child by an adult in a position of trust where there was no penetration as a minimum of three years.
7The trial judge referred to the aggravating and mitigating factors, the latter of which included the appellant’s age (then 68), no criminal record, strong community ties, an operating business, a new wife and young daughter, and some deficiency as a result of an earlier head injury. The trial judge considered that these factors caused him to give a sentence at the lower end of the range of three years.
8As the trial judge adverted to all the mitigating factors and made no error as to the appropriate range of sentence in these circumstances, we see no basis to interfere with the sentence imposed. We also see no basis to interfere with the corollary orders that were imposed by the trial judge.
9Leave to appeal sentence is granted but the appeal is dismissed.
