Publication Ban Warning

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

CITATION: R. v. M., 2008 ONCA 47

DATE: 20080124

DOCKET: C47114

COURT OF APPEAL FOR ONTARIO

WEILER, SIMMONS AND CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

And

R. T. M.

Respondent

C. Jane Arnup for the appellant, the Crown

Robert J. Reynolds for the respondent

Heard and released orally: January 10, 2008

On appeal from the sentence imposed by Justice Richard G. Byers of the Superior Court of Justice dated April 16, 2007.

ENDORSEMENT

[1] The respondent was convicted on charges of sexual exploitation, sexual interference, indecent act, gross indecency, sexual assault, and failure to comply with an undertaking. Following a preliminary inquiry, he pled guilty and was sentenced to two years imprisonment having regard to time served of 7.5 months for which he was given one year credit. In addition, the sentencing judge ordered three years probation. The Crown is appealing this sentence.

[2] In our opinion, the sentencing judge failed to appreciate the seriousness of the offences and the appropriate range of sentence for them. When the sentencing judge said, that in relation to the range of sentence suggested by the Crown, a “sentence of five to seven years in the penitentiary is overreaching a lot” for this type of offender and these offences, he was simply wrong. Moreover, even for a first-time offender convicted of this type of offence taking place over a large number of years, the sentencing principles to be accorded the greatest weight are deterrence, denunciation and the separation of the offender from society: R. v. D(D) (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) at paras. 34-35.

[3] Instead of placing the greatest weight on deterrence and denunciation, the sentencing judge emphasized rehabilitation. He stated that the overriding sentencing principle is to “give first time offenders one chance to make it right”. He referred to this 44 year old man as “still pretty young” and indicated that he was going to fashion a sentence that would give him at least one opportunity to make it in the community.

[4] The respondent was a first offender because his historical criminal conduct had not been discovered and punished before he was charged with the first set of offences. He is not a person who committed an isolated criminal act that is entitled to greater leniency.

[5] The sentencing judge also failed to properly appreciate the evidence of the psychiatrist and the extent to which the respondent was at risk to re-offend although he indicated that he was “troubled by the suggestion in the material” that the respondent did not understand how serious his offences were and that he lacked insight into the harm he had caused.

[6] Quite apart from the sentencing judge’s errors in principle, we are of the opinion that the sentence imposed is unfit. The aggravating factors in this case include:

a. the extreme youth of the victims when the abuse began, four, five and seven years old;

b. the breach of trust involved, especially regarding the “K” children, in relation to whom the respondent stood in loco parentis;

c. the lengthy period of time over which the offences took place, namely, five years in relation to three of the victims;

d. the nature of the sexual assaults, which included repeated acts of digital penetration, forcing young children to touch his penis, and with respect to at least one of the victims – simulated intercourse;

e. the magnitude of the harm caused to the child victims, including the separation of siblings from one another; and

f. the respondent’s breach of probation and the risk of recidivism posed by him.

[7] Accordingly, we would grant leave to appeal sentence, allow the appeal as to sentence and in its place substitute a global sentence of five years imprisonment less credit of one year for presentence custody.

“Karen M.Weiler J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”