WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. G.B., 2014 ONCA 33

DATE: 20140115

DOCKET: C57041

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. B.

Appellant

G. B., in person

Vincenzo Rondinelli, duty counsel

Michelle Campbell, for the respondent

Heard and released orally: January 13, 2014

On appeal from the sentence imposed on March 21, 2013 by Justice B. Thomas of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant seeks leave to appeal her sentence of three years for sexual assault and for a parent procuring sexual activity contrary to ss. 271(1) and 170 of the Code. She submits that the sentencing judge erred in: underemphasizing her lack of criminal record; failing to give appropriate weight to the appellant’s issues and frailties; overemphasizing her role in the procurement offence and failing to consider the evidence that the activity stopped when the complainant objected; and failing to give proper weight to the effect that a lengthy period of incarceration would have on the appellant’s husband who is now deceased.

[2] The sentencing judge considered the absence of any criminal record and the appellant’s difficult personal background. He made no error with respect to her involvement in the procurement offence. The fact that sexual activity ceased when a child objects is an irrelevant consideration in sentencing. He also noted that her husband was ill and in declining health.

[3] The crime involved sexual assault and procurement by a mother, a person in a position of trust and authority, over an extended period of time. We see no error. A sentence of three years imprisonment was fit in the circumstances.

[4] Leave to appeal sentence is granted but the appeal is dismissed.

“K. Feldman J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”