COURT OF APPEAL FOR ONTARIO
CITATION: R. v. A.F.R., 2007 ONCA 114
DATE: 20070221
DOCKET: C44987
RE: HER MAJESTY THE QUEEN (Appellant) – and – A.F.R. (Respondent)
BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A.
COUNSEL: Eliott Behar for the appellant
Peter Copeland for the respondent
HEARD & ENDORSED: February 16, 2007
On appeal from the sentence imposed on February 3, 2006 by Justice Terrence L. J. Patterson of the Superior Court of Justice, sitting with a jury.
A P P E A L B O O K E N D O R S E M E N T
[1] After a seven‑day trial, the respondent was convicted of sexual assault and sexual interference for on going sexual abuse of his stepdaughter, assault with a weapon for whipping her with a belt and simple assault for physical assault of his stepson. The trial judge imposed a nine‑month conditional sentence.
[2] This court has repeatedly stated that a conditional sentence should rarely be imposed in cases of sexual touching of children by adults, particularly where, as here, the sexual violation is by a person in a position of trust.
[3] The sentencing judge made no determination of exceptional circumstances that would warrant a conditional sentence and we see none. Accordingly, in our view a custodial sentence was warranted.
[4] We would grant leave to appeal the sentence imposed and allow the appeal. A twelve‑month custodial sentence is ordered with credit of nine months for the conditional sentence already served.
[5] The sentencing judge declined to order the respondent to comply with the sex offender registry. He gave no reasons for finding that such an order would be “grossly disproportionate”. In light of the lack of prior or adequate notice to defence counsel that such an application would be made and the paucity of the record on this matter, we order a new hearing on the Crown’s application for the order. The matter is referred back to the sentencing judge for a new hearing on whether an order should go requiring the respondent to comply with the Sex Offender Information Registration Act.