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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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: 20210415 Docket: C67927

Pardu, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.H. Appellant

Counsel: R.H., acting in person Brian Snell, duty counsel Philippe Cowle, for the respondent

Heard: April 9, 2021 by videoconference

On appeal from the sentence imposed on December 17, 2019 by Justice Peter C. West of the Ontario Court of Justice, with reasons reported at 2019 ONCJ 892.

Reasons for Decision

[1] R.H. appeals from sentences totaling six years, imposed following his guilty pleas to sexual interference, making child pornography and accessing child pornography. He was sentenced to prison terms of five years, one year consecutive, and one year concurrent, respectively. The sentencing judge also imposed a number of ancillary orders, including a lifetime prohibition order under s. 161(1) which, among several other things, forbids the appellant from accessing the internet except in accordance with conditions set by the court.

[2] The appellant submits on appeal that the sentences were too harsh.

[3] The appellant sexually abused C.S. for years, beginning when C.S. was only ten years old. The appellant was 35 years senior and there was a family connection: he was a cousin of C.S.’s stepfather. The appellant began by taking C.S. on short overnight trips where they would wake up in the same bed with their hands on each other’s intimate body parts. Oral and anal intercourse later began. They would meet each other every 1-3 months. A system of penalties was established. If the complainant did not communicate with the appellant every day, he would have to atone for it by performing sexual acts.

[4] The appellant submits that the sentencing judge erred by concluding that the appellant created the penalty regime. It is of no moment to the sentence whether the appellant created this or merely participated in it. Other factual concerns raised by the appellant were also immaterial to the sentence imposed, which was at the lower end of the appropriate range, reflecting the appellant’s guilty pleas.

[5] The offences came to light in 2018 when C.S.’s girlfriend, S.L. learned of the abuse. She initially pretended to be C.S. and would communicate with the appellant as was expected. She offered to take C.S.’s place and sent the appellant some unclothed pictures of her. Finally, S.L. went to a police station to complain that the appellant was threatening her and C.S. The police executed a search warrant at the appellant’s apartment and found nude pictures of both C.S. and S.L.

[6] At the sentencing hearing, the Crown sought a nine-year sentence. The defence suggested 3-4 years, arguing that the appropriate range was 3-5 years, and that the lower range was fit because of the guilty pleas.

[7] The sentencing judge was guided by R. v. D.(D.) (2002), 58 OR (3d) 788 (C.A.), holding that the appropriate sentence range where the offender is in a position of trust and sexually abuses children on a regular basis over substantial periods of time should be mid-to-upper-single-digit penitentiary terms.

[8] The aggravating factors included the abuse of children under 18 years of age, abuse of a position of authority or trust in relation to C.S., grooming C.S. starting at the age of 10, the escalation of the nature of the sexual abuse towards C.S., the large number of incidents, multiple victims, the severe impact on the complainants, the control exercised over C.S., and the tendency of the appellant to blame C.S. for the sexual contact. Both complainants inflicted self-harm as a result of the abuse. C.S. had suicidal thoughts and on several occasions fashioned nooses in his room with that purpose in mind. He suffered from severe depression as a result of the abuse. Both S.L. and C.S. suffered damage to their relationships with family and friends. The sentencing judge concluded that the sexual abuse had “a significant and serious impact on their emotional well-being and development.”

[9] The mitigating circumstances included the absence of any criminal record, the guilty pleas, the appellant’s gainful employment, and that he was the sole provider for his elderly mother. The appellant was 53 years old at the time of sentencing.

[10] The sentencing judge concluded that anything less than a global six-year sentence would not properly address denunciation and deterrence and the need to protect the wellbeing of children.

[11] The sentencing judge’s careful and detailed reasons reveal no error in principle in his selection of a six-year global sentence and the sentence imposed was fit.

[12] As noted in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26:

… an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence. If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [Internal quotations and citations omitted.]

[13] In Friesen, the Court held that an appellate court was wrong to decrease the six-year sentence imposed by the trial judge for child sexual abuse to four-and-a-half years incarceration. In doing so, the Court emphasized that denunciation and deterrence must be prioritized for offences of sexual offences against children, because of the serious harm caused by these crimes and the inherent vulnerability of the victims. The sentencing judge’s weighing of the factors is entitled to deference.

[14] Duty counsel, on behalf of the appellant, points out that the prohibition order relating to internet use is too broad, having regard to this court’s decision in R. v. Brar, 2016 ONCA 724, 134 O.R. (3d) 103. The prohibition imposed by the sentencing judge forbids the appellant from:

using the Internet or other digital network, unless the offender does so in accordance with the conditions set by the court, including but not limited to: any digital medium for the purpose of accessing, viewing, downloading, sharing, or otherwise any material that meets the definition of pornography and/or obscenity and not to participate in file sharing by any means.

[15] The Crown and the appellant agree that this language should be deleted. They submit, and we agree, that the following lifetime prohibition should be substituted:

The Offender is prohibited from using the internet or any similar communication service to:

1. Access any content that violates the law;
2. Access any social media sites, social network, internet discussion forum or chat room, or to maintain a personal profile on any such service;
3. Access, view, download, or share and material that meets the definition of pornography or obscenity.

[16] It also appears that the appellant was not given credit for 17 days pre-sentence custody. The sentence on the making child pornography charge, contrary to s. 163.1(2), and the accessing child pornography charge, contrary to s. 163.1(4.1), are reduced by 26 days, for a net sentence of 339 days on those counts, to reflect this amount.

[17] There is no basis for further appellate intervention and the appeal is otherwise dismissed.

“G. Pardu J.A.”

“David Brown J.A.”

“David M. Paciocco J.A.”