COURT OF APPEAL FOR ONTARIO

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. B.D., 2014 ONCA 621

DATE: 20140904

DOCKET: C58888

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Applicant/Appellant

Lance Beechener, for the appellant

Avene Derwa, for the respondent

Heard and released orally: August 28, 2014

On appeal from the sentence imposed on September 19, 2013 by Justice Silja S. Seppi of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of three sexual offences committed against the same 12 or 13 year old complainant on a single occasion, between June 2002 and September 2003. After entering a stay of proceedings on one count, the trial judge sentenced the appellant to concurrent terms of imprisonment on the remaining counts. The result was a penitentiary sentence of three years.

[2] The circumstances of the offence may be stated briefly.

[3] The complainant was a friend of the appellant’s daughter. The appellant picked the complainant up at school and drove her to his home on the pretext that she would be meeting his daughter there. The appellant assured the complainant that his daughter would arrive home shortly from a medical appointment.

[4] When the appellant and the complainant were alone in the appellant’s home, the appellant made the complainant watch him urinate, exposed her to pornography, and touched his genitals in front of her. She was unresponsive.

[5] The appellant retrieved a knife from the kitchen. He sat down beside the complainant on the couch, knife in hand. He kissed her twice. Again, she was unresponsive. He asked her to kiss him and lick him as he held the knife to her collarbone. She refused. He led her upstairs and asked her whether she wanted to test the mattress in the master bedroom. She declined.

[6] The appellant and complainant returned downstairs. There he demanded that she remove her clothes and dance for him. He had the knife in his hand. She complied. During the dancing, the appellant made some sexually-charged comments about her body, then cupped her breasts and complimented them. The appellant put $100-$200 in cash on the table. He told the complainant to take it. She did.

[7] The appellant was sentenced on these offences in September 2013, when he was 48 years old. He had been involved in a workplace accident 24 years earlier and suffered from a permanent physical disability as a result. He was not employed at the time of the offences. Then, as now, his sole source of income is disability pensions.

[8] In 2008, the appellant was convicted of several sexual offences. The complainants were his daughter and several of her friends. Each complainant was a teenager. The offences involved, among other things, repeated acts of sexual intercourse. Those convictions attracted a six year penitentiary sentence and the usual ancillary orders.

[9] The appellant was granted day parole and transferred to a halfway house. He sought but was refused full parole when he was eligible. The Parole Board determined that he should continue on day parole because, by then, the charges of which he now stands convicted had been laid. On his mandatory release date, he moved in with his parents, who had then remained supportive of him throughout.

[10] During his incarceration and thereafter on day parole, the appellant had cooperated with correctional authorities. He participated in sexual offender counselling. But when the jury found him guilty of the offences that are the subject of this appeal against sentence, his cooperation ceased. His statutory release was revoked. When sentenced on these charges, he had a remanet of about four months in connection with the 2008 sentence.

[11] The appellant identifies two separate errors in the reasons of the sentencing judge which he says warrant a reduction of the sentence. He says the sentencing judge gave no effect to the principle of totality and accorded inadequate weight to the objective of rehabilitation.

[12] The appellant is on firm ground in his submission that the reasons of the sentencing judge make no mention of the totality principle. That said, the sentencing judge was well aware of the remanet of the earlier sentence and when it expired. Her failure to direct that the current sentence be served consecutively to the prior sentence means that the sentence under consideration here will be served concurrently with the prior unexpired sentence.

[13] The failure of the sentencing judge to expressly state that she had considered the principle of totality disentitles the sentencing judge’s decision to the deference that is normally its due. Despite the lack of deference, however, we would not interfere with the sentence imposed.

[14] In our view, a sentence of imprisonment of three years, perhaps more accurately, two years and eight months, was well within the appropriate range of sentence for these offences.

[15] The offences involved a measure of planning on the appellant’s part and a betrayal of a young person’s trust. When the appellant did not get his way, he introduced a knife as a tool of intimidation. He degraded the complainant by making her dance while naked, by the comments he made about sexy women and good women, and further, by offering her money.

[16] The paramount sentencing principles in this case, as s. 718.01 instructs us, are denunciation and deterrence. Both statutorily and factually, rehabilitation occupied a lesser place in the sentencing analysis. While the appellant, during sentence and while on day parole, had participated in counselling programs, his renunciation of them on conviction for these offences does not augur well for his future rehabilitative prospects. Greater emphasis on rehabilitative prospects was not warranted. Nor does application of the totality principle warrant our interference with the sentence imposed.

[17] We note that trial counsel for the appellant, who must have been alive to the prospect that the sentencing judge might well order the three year sentence sought by the trial Crown to be served consecutively to the prior sentence, advanced no argument on the point. We do not doubt that an effective sentence of eight years and eight months is a long sentence. But it is not beyond the range of appropriate sentences for the appellant’s conduct. A substantial penitentiary sentence was warranted. The sentence imposed, in our view, reflects no error in principle.

[18] While leave to appeal sentence is granted, the appeal from sentence is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”