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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.
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
Doherty, Laskin and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
R.B.
Appellant
Brian Callender, for the appellant
Michael Fawcett, for the respondent
Heard and released orally: November 18, 2014
On appeal from the sentence imposed on January 9, 2013 by Justice Judith C. Beaman of the Ontario Court of Justice.
ENDORSEMENT
1The appellant appeals his four-year penitentiary sentence imposed after he was convicted of four offences related to child pornography.
2The offences arise out of two separate incidents, each involving a teenage girl. In the first incident, the appellant made child pornography by hiding a video camera in a bedroom and filming his 13-year-old niece as she changed. He pleaded guilty to one count of voyeurism and one count of making child pornography for which he received sentences of six months and 12 months to be served consecutively.
3The second incident occurred two years later. Over the course of three weeks, using the internet and a series of messages on Facebook, the appellant lured a 16-year-old girl to a covert meeting at his home during which he convinced her to pose nude as he made over 600 images of child pornography. The appellant pleaded guilty to one count of making child pornography and one count of internet luring for which he received consecutive sentences of 18 months and 12 months. The global sentence for the four offences was thus four years.
4The sentencing judge gave thorough reasons for the sentence she imposed. She recognized numerous mitigating considerations. The appellant, then in his mid-forties, had led an exemplary life in the military, including stints in Bosnia, Croatia and Afghanistan. He had suffered from post-traumatic stress disorder, (though not a cause of these offences). He has no previous criminal record. And, he expressed remorse and accepted responsibility for his actions by his pleas of guilty and his letter of apology to the 16-year-old victim.
5However, the sentencing judge also listed numerous aggravating considerations, which included the following: he stood in a position of trust toward his niece; he carefully planned all the offences; he groomed the 16-year-old victim through "a subtle, manipulative, step-by-step escalation of his demands"; and he exploited the family's need for money.
6The appellant's submission is that a four-year sentence was unfit for two reasons. First, the sentencing judge over-emphasized the need for consecutive sentences, instead of first considering whether the overall four-year sentence was fit. Second, she erred in her assessment of the aggravating considerations by making findings that were unreasonable.
7In our view, a four-year sentence was fit, having regard to the nature of these offences and several aggravating features of them. We note three preliminary points. First, because each of the offences concerned a different legally protected interest, the sentencing judge had discretion to impose consecutive sentences, subject to ensuring that the overall sentence was fit. Indeed, defence counsel accepted that the sentencing judge had this discretion.
8Second, from reading the sentencing proceedings, we think the sentencing judge followed the approach endorsed by this court for sentencing for multiple offences – that is, first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence. Trial counsel framed their submissions in terms of a global sentence. The defence argued for two to three years and the Crown for five to six years. The sentencing judge appears to have come down the middle.
9Third, as the Crown proceeded by indictment, by statute the appellant faced a minimum two-year sentence: one year on each of the making of child pornography offences.
10Thus, the only real question is whether an additional two years was justified. In our opinion it was. The internet luring conviction, particularly combined with the making of child pornography conviction, is a serious offence especially in the light of the 2007 Code amendments, which doubled the maximum punishment. In Woodward, this court said that because of the amendment, even the previously suggested range of 12 months to two years for luring may be too low.
11In addition, without going through each of the aggravating considerations relied on by the sentencing judge and challenged on appeal, we can say that the characterization of at least four of these considerations as aggravating was fully warranted on the evidence:
One, the appellant was in a position of trust towards his niece.
Two, the offences were not committed spontaneously in a fleeting lapse of judgment but instead were carefully planned.
Three, the 16-year-old victim was groomed by gradually escalating demands over an extended period of time.
And four, and related to his grooming of the victim, in the sentencing judge's words "by offering her money for the compromising images, he used his knowledge of her poverty and exploited her desire to assist her mother financially".
12Thus, we conclude that the nature of the offences and the aggravating considerations associated with them supported a four-year sentence. Although leave to appeal sentence is granted, the sentence appeal is dismissed.
"Doherty J.A."
"John Laskin J.A."
"C.W. Hourigan J.A."
