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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Baubie, 2009 ONCA 616

DATE: 20090818

DOCKET: C49627

COURT OF APPEAL FOR ONTARIO

Juriansz, Watt and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

John Baubie

Appellant

Alan J. Risen, for the appellant

Lisa Joyal, for the respondent

Heard and endorsed orally: June 30, 2009

On appeal from the conviction entered by Justice David Salmers of the Superior Court of Justice, dated September 17, 2008, and from the sentence imposed by Justice Salmers, dated October 17, 2008.

ENDORSEMENT

[1] On his plea of guilty, the appellant, then a 19-year-old first offender, was convicted of aggravated sexual assault on a 2-year-old child in relation to whom the appellant occupied a position of trust.

[2] Prior to sentencing, the appellant had been detained in custody for 14 months spent either in segregation or super-segregation. The trial judge credited the appellant with 28 months for this pre-sentence custody.

[3] The appellant concedes that the circumstances of this case, which involved anal penetration of a two-year-old together with myriad other injuries, warranted a penitentiary sentence. The anal penetration required emergency surgery to repair anal tearing and placed the child’s future continence at permanent risk. These injuries were serious, and as we have said, potentially permanent in their long-term effects.

[4] We agree with the appellant that this offence committed in these circumstances warrants a penitentiary sentence. The predominant sentencing principles in a case such as this are deterrence and denunciation. Despite the appellant’s age, previous conviction – free life, plea of guilty and genuine remorse, we are not persuaded that the custodial sentence imposed reflects any error in principle. Further, we see no reason to interfere with the amount of credit awarded by the sentencing judge for the appellant’s pre-sentence custody.

[5] In connection with the s. 161 order, the sentencing judge took into account the failure of the appellant to avail himself of any treatment programs whilst he was in pre-sentence custody and the likelihood that he would not do so in serving his sentence. There was no evidence about the availability or otherwise of treatment programs in the pre-sentence custody facility, thus no evidence of the appellant’s refusal to participate in them. There was evidence that the appellant posed a moderate to moderate high risk of recidivism. That said, however, we are not persuaded that the circumstances warranted a lifetime prohibition.

[6] In our view, a fit term for the s. 161 order is one of 10 years. Leave to appeal is granted and the appeal is allowed to the extent of reducing the length of the s. 161 order to 10 years. Otherwise the appeal as to sentence is dismissed.

R. G. Juriansz J.A.

David Watt J.A.

G.J. Epstein J.A.