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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-12-04

Docket: C65337

Panel: Juriansz, Pepall and Lauwers JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Scott Cooper Appellant

Counsel

Robert Goddard, for the appellant

Caitlin Sharawy, for the respondent

Hearing and Appeal

Heard: March 6, 2019

On appeal from: the sentence imposed on January 27, 2017 by Justice Gisele M. Miller of the Superior Court of Justice, sitting without a jury, with reasons reported at 2016 ONSC 6384.

Reasons for Decision

Background

1The appellant was convicted of making an arrangement to commit a sexual offence against a child contrary to s. 172.2 of the Criminal Code and breach of probation. The trial judge sentenced him to 4 years' imprisonment, less 35 days in presentence custody, plus one year concurrent for breach of probation, imposed a DNA order, a 20 year SOIRA order, and a lifetime blanket prohibition of using the Internet or digital network pursuant to s. 161.

2He seeks leave to appeal his sentence.

3He submits that 4 years' imprisonment is excessive and falls outside the range for similar offences and offenders, and should be reduced to three years. He further submits that the lifetime Internet prohibition is overly broad and not tailored to his specific circumstances.

Standard of Review

4A sentencing judge has a broad discretion to impose a sentence that is appropriate in all the circumstances of a particular case. The standard of appellate review is deference. Appellate intervention is permitted only where the sentencing judge has committed an error in principle that impacted the sentence or otherwise imposed a sentence that is demonstrably unfit.

Custodial Sentence

5We were not persuaded that the cases cited by the appellant involve similar offenders and similar offences committed in similar circumstances. In this case the sentencing judge carefully reviewed the many aggravating factors. They include that the virtual victim was four years old, there was a systemic grooming focused on building a level of trust with the mother of the intended victim, some of the chats concern disturbingly graphic exchanges and the making of arrangements continued over an extended period of time. In addition the appellant expressed a desire for an ongoing relationship of sexual encounters with the child. The acts he expressed an intention to perpetrate on the child were invasive. His efforts to groom the child included sending a photograph of his erect penis and repeatedly asking if it had been shown to the child and whether she liked it. He had the intention of carrying out the arrangement. When he met the police officer posing as the child's mother, he had in his possession condoms and lubricant.

6The sentencing judge noted the mitigating factors included that the appellant had a good work ethic and a supportive family. Rehabilitation was also a factor but the trial judge correctly observed that the most important factors were denunciation and deterrence.

7It is worth noting that in 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, which increase the maximum penalty for this offence from 10 years to 14 years. By doing so, Parliament signaled to the courts that longer sentences are required in order to deter and denounce sexual predators and better protect children.

8We are not persuaded that this sentencing judge committed any error in principle or that the custodial sentence imposed is manifestly unfit. We would not disturb the custodial sentence.

Internet Prohibition Order

9The prohibition order imposed by the sentencing judge prohibited him from using the Internet or other digital network. The Crown, having regard for the Supreme Court's decision in R. v. K.R.J., 2016 SCC 31 and this court's decisions in R. v. Brar, 2016 ONCA 724, and R. v. Schulz, 2018 ONCA 598, properly concedes that the lifetime blanket Internet prohibition imposed is overbroad. In our view, a prohibition patterned on the one this court imposed in Brar would be a more measured prohibition. Counsel for the appellant does not take issue with the lifetime term of the prohibition in view of the ability of the appellant to make an application to vary the term under s. 162.2(3) of the Code.

10We would vary the Internet prohibition term as follows:

1) Pursuant to s. 161(1)(c) of the Criminal Code Mr. Cooper will not use a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years, except for his nephews with the consent of either Trivers Curry or Christie Rivers.

2) Pursuant to s. 161(1)(d) of the Criminal Code, Mr. Cooper will not use the Internet or any similar communication service to:

a) access any content that violates the law;

b) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).

Disposition

11Leave to appeal sentence is granted, and the appeal against the Internet prohibition order is allowed. The appeal of the custodial sentence is dismissed.