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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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: 20060214

DOCKET: C42694

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and –

D. R. (Appellant)

BEFORE:

LASKIN, ARMSTRONG AND MACFARLAND JJ.A.

COUNSEL:

Christopher R. Murphy

for the appellant

Amanda Rubaszek

for the Crown, respondent

HEARD & RELEASED ORALLY:

February 8, 2006

On appeal from the conviction by Justice Jon-Jo Douglas of the Ontario Court of Justice dated March 3, 2004 and from the sentence imposed by Justice Jon-Jo Douglas dated May 11, 2004.

E N D O R S E M E N T

[1] We are persuaded the sentencing judge made two errors in principle which this court must correct.

[2] The first error was to classify the offence in question as a hate crime. It is not.

[3] The second error was to ignore the principle of rehabilitation. There was no evidence that this offender had been diagnosed as a clinical pedophile who was incapable of being rehabilitated. The sentencing judge was obliged to consider this factor.

[4] The trial judge considered both the fact that this was, in his view, a hate crime and that the appellant was incapable of rehabilitation to be “aggravating factors”. We can only conclude that his sentence would not have been as lengthy absent these errors. Nevertheless, the crimes are of a most serious nature and, in both cases, involve an egregious breach of trust. The first victim was the daughter of friends with whom he was living, and the offences were committed while the girl was between 10 and 13 years of age; the second victim was his own four-year-old daughter.

[5] Although this was not a joint submission, submissions were made on the understanding between counsel that the Crown would propose a sentence of two years less a day and the defence one of 18 months.

[6] While such discussions between counsel are to be encouraged, we agree with the trial judge that a sentence of two years less a day in the circumstances of this case would bring the administration of justice into disrepute. This court must impose a sentence that is fit in all the circumstances and we would substitute four years for the five years imposed by the trial judge.

[7] The sentence appeal is therefore allowed in accordance with these reasons.

“John Laskin J.A.”

“Robert P. Armstrong J.A.”

“Jean MacFarland J.A.”