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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
CITATION: R. v. D.C., 2008 ONCA 475
DATE: 20080616
DOCKET: C47788
COURT OF APPEAL FOR ONTARIO
ROSENBERG, ARMSTRONG and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
D. C.
Respondent
Megan Stephens for the appellant
James D. Harbic for the respondent
Heard and released orally: June 11, 2008
On appeal from sentence imposed by Justice Lloyd Brennan of the Superior Court of Justice dated September 6, 2007.
ENDORSEMENT
[1] This was not an appropriate case for a conditional sentence given the gravity of the offences. The respondent committed a series of sexual assaults on his son’s seventeen-year-old girlfriend. In the most serious incident, he video taped his attempt to analy rape the complainant. He then threatened to provide the video tape to his son if the victim did not comply with his further demands. This pattern of conduct involved threats, extortion and sexual assault over a period of time and required a penitentiary sentence notwithstanding the respondent’s previous good character, the exceptional care he has provided to his wife and his mental disorder.
[2] While the trial judge had the advantage of hearing submissions and actually viewing the video tape, we are of the view that the sentence was manifestly inadequate and requires our intervention. We accept, of course, the submissions of respondent’s counsel as to nature of the events depicted on the tape but note that even the trial judge described the acts in this way: “On the evidence available to me, this was an abhorrent, repulsive combination of evil acts carried out by a mature person with no criminal record”.
[3] In our view, the appropriate sentence would have been five years imprisonment, however, given the lengthy pre-trial custody and that the appellant has now spent nine months on the conditional sentence, the appropriate disposition is fifteen months in custody. That represents the balance of the conditional sentence and was the disposition sought by the Crown appellant.
[4] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence varied to fifteen months imprisonment to commence on the day the respondent surrenders into custody. The three-year term of probation will remain on the conditions imposed by the trial judge.
Signature: “M. Rosenberg J.A.”
“Robert Armstrong J.A.”
“David Watt J.A.”