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:

An order restricting publication in this proceeding under ss. 486.4(1), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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.

R. v. Cerda, 2008 ONCA 438

DATE: 20080603

DOCKET: C47881 & C47884

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SIMMONS and ROULEAU JJ.A.

BETWEEN: C47881

HER MAJESTY THE QUEEN

Respondent

and

HARRY CERDA

Appellant

BETWEEN: C47884

HER MAJESTY THE QUEEN

Appellant

and

HARRY CERDA

Respondent

Daniel Guttman for the Crown

Harry Cerda for himself on the conviction appeal

Philip Downes appeared as Duty Counsel

Lydia Riva for Harry Cerda on the sentence appeal

Heard and endorsed: June 2, 2008

Mr. Cerda appeals from conviction entered by Justice Andromache Karakatsanis, of the Superior Court of Justice, dated April 11, 2007; The Crown appeals from sentence imposed by Justice Karakatsanis dated September 28, 2007.

APPEAL BOOK ENDORSEMENT

[1] Mr. Cerda was convicted after a trial by judge alone on three counts of invitation to sexual touching and two counts of sexual interference. The offences involved three young male complainants between the ages of ten and twelve and they occurred over a period of one to one-and-a-half years. Mr. Cerda groomed the young complainants and then engaged in fellatio with two of them; the third complainant resisted his attempts. Mr. Cerda was age 18 and 19 at the time of the offences. He was 23 at the time of trial.

[2] The trial judge sentenced Mr. Cerda to a conditional sentence of eighteen months, followed by eighteen months probation. Mr. Cerda appeals from conviction; the Crown appeals from sentence.

Conviction Appeal

[3] With respect to conviction, we are satisfied that the trial judge gave appropriate reasons for rejecting the evidence of Mr. Cerda. In short, she found that he was attempting to minimize his involvement with the complainants and that he did not give a full and frank account of his dealings with them. Read in the context of the whole of her reasons, we are satisfied that the trial judge was entitled to make the assessment she did and we would not interfere with her findings or her conclusion. Accordingly, the appeal from conviction is dismissed.

Sentence Appeal

[4] With respect to the Crown appeal from sentence, we think it was open to the trial judge, having regard to the circumstances of the offences and the offender, to conclude that a sentence of two years less one day in the reformatory was appropriate. We also take no issue with her reduction of that sentence to eighteen months on account of time spent in pretrial custody and the lengthy period of strict house arrest bail.

[5] That said, we are respectfully of the view that the trial judge erred in imposing a conditional sentence.

[6] The trial judge properly recognized that “when an adult, even a young adult, invites a young boy to engage in sexual touching and persuades a young boy to receive fellatio and to perform fellatio on him; where the offences involved three victims over a period of at least a year to a year-and-a-half, it should, absent exceptional circumstances, attract incarceration in jail.” She then went on to find that there were exceptional circumstances in this case, namely: (1) the personal circumstances of Mr. Cerda; (2) the strict house arrest terms he had complied with; and (3) his willingness to take counselling.

[7] With respect, we are not persuaded that these factors, taken individually or cumulatively, amount to exceptional circumstances justifying a conditional sentence for these offences.

[8] To date, Mr. Cerda has failed to take any responsibility for his crimes; nor has he shown any indication that he appreciates the gravity of the harm he has inflicted on these innocent young children. In that context, Mr. Cerda’s willingness to take counselling (for what one might ask) does not, of itself, constitute an exceptional circumstance. As for Mr. Cerda’s age and his compliance with the strict house arrest bail terms, while we agree that these were factors the trial judge could take into account in concluding that a reformatory term was appropriate, in our view, more was required to find exceptional circumstances, such as would justify the imposition of a conditional sentence for these offences.

[9] Taking as our starting point the eighteen month custodial sentence that the trial judge otherwise felt would be just and reducing it by four months for the time Mr. Cerda has served under the conditional sentence, we would allow the appeal and vary the sentence to fourteen months imprisonment. The sentence of fourteen months will commence on the day Mr. Cerda surrenders. He is to surrender on June 4, 2008, failing which, a warrant shall issue for his arrest.

[10] In all other respects, the sentence imposed at trial will remain the same.