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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-02-13

Docket: C62335

Panel: Hoy A.C.J.O., Doherty and Miller JJ.A.

Parties

Between

Her Majesty the Queen Applicant (Appellant)

and

Diaa Al-Shimmary Respondent

Counsel

David Finley, for the appellant

Brian Eberdt, for the respondent

Hearing and Appeal

Heard and released orally: February 7, 2017

On appeal from: the sentence imposed on June 1, 2016 by Justice Malcolm McLeod of the Ontario Court of Justice.

Endorsement

Facts

[1] The respondent, then a 25-year old man, raped an 11-year old girl.

[2] He befriended the victim at a local park. After their initial meeting, they began to communicate on a regular basis via text messages and telephone. The victim sent personal pictures of herself to the respondent, including a nude picture. They arranged to meet at the same park where they first met. The respondent invited her to a friend's nearby house. When they arrived at the house, they proceeded to a separate room, where the respondent removed the victim's shirt and began to kiss her. She asked him to stop. He asked her to take her pants off, which she did because she was scared. He removed his own clothing and lay on top of her and continued to kiss her and also squeezed her breasts. He sat on her chest area and inserted his penis into her mouth. She tried to push him off. He removed her underwear. She told him to stop, but he got back on top of her and penetrated her vagina with his penis. She felt pain and began to cry. The respondent hit her face and told her to be quiet. Eventually, the respondent got up and the victim left the house and returned to her mother, who phoned the police.

[3] The respondent was arrested shortly thereafter and, in due course, pleaded guilty to sexual interference under s. 151 of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to 30 months' imprisonment, less 15 months credit for presentence custody.

Crown's Grounds of Appeal

[4] The Crown seeks leave to appeal sentence. It argues that the sentencing judge failed to give proper effect to the principle of deterrence, failed to consider evidence that the respondent had sought out a young girl, and failed to consider evidence that the offence had a significant impact on the victim, and that these errors had an impact on the sentence.

[5] We agree.

Sentencing Principles for Sexual Crimes Against Children

[6] In cases of sexual crimes involving children, the principles of denunciation and deterrence must take precedence over other sentencing objectives, such as rehabilitation: Criminal Code, s. 718.01; R. v. Barr, 2016 ONCA 724, at para. 16. The sentencing judge concluded that "[w]e do not deter other offenders by punishing the one at hand" and that the most effective way to punish and denounce sexual offenders is "by setting the stage for offenders to admit real responsibility, which has the additional benefit of creating a better opportunity for reform and rehabilitation." It was not open to the sentencing judge to decline to give effect to the principle of deterrence and focus on the objective of rehabilitation because he does not think that deterrent sentences are effective.

Error Regarding Targeting of Young Girl

[7] Moreover, the agreed statement of facts states that the respondent had introduced himself to the victim in a public park. The sentencing judge's conclusion that there is no evidence that the respondent sought out a young girl is a clear error.

Victim Impact as Aggravating Circumstance

[8] Finally, s. 718.2(a)(iii.1) of the Criminal Code explicitly provides that a court that imposes a sentence shall take into consideration the following principle:

(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances; …

[9] There was evidence that the offence had a significant impact on the victim. She was hospitalized, twice, for weeks at a time, for suicidal ideation and self-harm. She was required to take various drugs to protect herself from pregnancy and disease.

[10] The sentencing judge considered the impact of the offence on the victim only in his discussion of the mitigating effect of the respondent's guilty plea. He stated the following:

The principal mitigating factor is the plea of guilt, the admission of responsibility that obviated the need for a trial. The admission of responsibility that minimized the extent of the further trauma that would be suffered by the victim, because there will be further trauma. All we can do is minimize.

[11] In his analysis of the aggravating factors, the sentencing judge did not refer to the evidence of the significant impact of the offence on the victim. The sentencing judge failed to consider this separate and distinct statutorily prescribed aggravating circumstance.

Aggravating Factors

[12] In our view, these errors resulted in the imposition of a sentence that was too low. The only mitigating factor in this case is the respondent's guilty plea. The following factors require a lengthier sentence:

a) The age of the victim and the fact that the respondent sought her out;

b) The planning evident on the date of the offence – arranging to meet the victim at the original park, leading her to a friend's house nearby, and then isolating her further in a separate room;

c) The fact that the respondent ignored and overcame the victim's resistance;

d) The fact that the respondent struck the victim to silence her when she cried out in pain from being penetrated; and

e) The significant impact of the offence on the victim.

Sentence Imposed

[13] The Crown submits that a sentence of four years, less credit for the respondent's pre-trial custody, is a fit sentence. While we would have been inclined to impose a longer sentence, in light of the Crown's submission, we will not impose a sentence longer than four years.

[14] The respondent is entitled to 15 months' credit for presentence custody. Consequently, to achieve an effective sentence of four years, we impose a sentence of 33 months.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"B.W. Miller J.A."