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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 2019-02-04

Docket: C64636

Panel: Watt, Huscroft and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

R.S. Appellant

Counsel:

• Janani Shanmuganathan, for the appellant
• Jill Cameron, for the respondent

Heard and released orally: January 31, 2019

On appeal from: the sentence imposed on March 1, 2017 by Justice John N. Olver of the Ontario Court of Justice.

Reasons for Decision

[1] Conviction and Sentence

After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of 25 of 34 counts of sexual offences against four complainants. Six of the convictions were stayed in accordance with the principles in Kienapple.

The trial judge imposed a global sentence of 12 years by reducing what he considered to be a fit sentence – 13 years – by one year on account of the appellant's advanced age and health challenges.

The Background Facts

[3] The most serious offences involved three complainants and continued over the better part of a decade. The conduct included acts of forced sexual intercourse, fellatio and masturbation. Force was used, and more force threatened. The complainants, who were siblings, were abused from as early as 5 years of age, until as late as age 16 when they were removed from the environment in which the abuse occurred.

[4] In connection with the fourth complainant, the relevant conduct occurred two years after the other three complainants had been removed and the appellant's conduct detected. The trial judge was of the view that the fourth complainant was being groomed for what had happened to the other three in previous years.

The Reasons for Sentence

[5] The trial judge gave lengthy reasons for sentence. He identified the predominant sentencing objectives as deterrence, denunciation and separation of the offender from society. He acknowledged the significant influence of the principles of proportionality, of parity, and of totality in the determination of a fit sentence for this appellant in these circumstances.

[6] The trial judge then listed what he considered to be the aggravating and mitigating factors at work in this case. He set out the positions of the parties before explaining why he imposed the sentence that he considered fit.

The Arguments on Appeal

[7] In this court, the appellant seeks a reduction in his sentence. He says that an offender's age is a relevant consideration in determining a fit sentence. He acknowledges the trial judge did consider his age in determining the sentence that he imposed. But, he says, to mechanistically or mathematically reduce a sentence of 13 years by one year, to 12, does not give the age factor its due. An offender's advanced age must be factored into the principles of denunciation and deterrence, as well as that of totality. Denunciation and deterrence, admittedly the predominant sentencing objectives in cases like this, may be achieved in cases of elderly offenders, the appellant argues, by a sentence of shorter duration than in other cases with offenders of less advanced age.

Discussion

[8] In our view, the sentence imposed reflects no error in principle. It sits comfortably within the range of sentence appropriate for the offences committed. This case teemed with aggravating factors and was bereft of any meaningful mitigating factor. The appellant acknowledges that the trial judge considered his (the appellant's) age in determining the sentence he imposed. We are not persuaded that the weight he assigned to it reflects error, much less an error that had any impact on the sentence ultimately imposed.

[9] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"L.B. Roberts J.A."