W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 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 section 146, 151, 153, 155, 157, 166 or 167 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), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040330

DOCKET: C40697

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – T. R. J. (Appellant)

BEFORE:

SIMMONS, ARMSTRONG JJ.A. AND LANE J. (Ad Hoc)

COUNSEL:

Thomas F. Balka

for the appellant

P. G. McDermott

for the Crown, respondent

HEARD:

March 25, 2004

RELEASED ORALLY:

March 25, 2004

On appeal from the sentence imposed by Justice L.E. Chester of the Ontario Court of Justice dated September 5, 2003.

E N D O R S E M E N T

[1] We reject the appellant’s submission that the trial judge failed to take account of relevant evidence relating to the appellant’s personal circumstances and that he failed to properly balance the appropriate factors relevant to whether a conditional sentence should be imposed.

[2] In our view, the trial judge identified the most significant mitigating factors favouring the appellant including steps the appellant had taken relating to his alcohol abuse and his plea of guilty. Despite those factors, the trial judge concluded that a conditional sentence was not appropriate based on factors that included the appellant’s failure to take responsibility for his offence and lack of sincere remorse. We see no error in his conclusion.

[3] Further, the offences in issue involved sexual touching of the appellant's teenage stepdaughters. Given the nature of the offences, the number of incidents involving the oldest girl, and the period during which those incidents occurred, we do not consider that the trial judge mischaracterized the seriousness of the offences, overemphasized denunciation and deterrence or that the total sentence was outside the appropriate range.

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

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“D. Lane J. ad hoc”