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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario
Date: 2018-02-14
Docket: C60901
Panel: MacPherson, Huscroft and Trotter JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
E.C.V.N. Appellant
Counsel
Appellant: E.C.V.N., acting in person
Respondent: Lorna Bolton
Duty Counsel: Delmar Doucette
Heard: February 7, 2018
Appeal Information
On appeal from the conviction entered on May 1, 2015 and the sentence imposed on August 10, 2015 by Justice Alexander D. Kurke of the Superior Court of Justice, sitting without a jury.
Appeal Book Endorsement
[1] The appellant abandons his conviction appeal.
[2] The appellant appeals his sentence of six years' imprisonment for sexual offences against his wife's granddaughter.
[3] The sentencing judge provided very thorough reasons for judgment. He reviewed the aggravating factors in this case, which were considerable. These include: (i) his prior and related criminal records; (ii) that he stood in a position of trust in relation to the victim; and (iii) the fact that the victim was 10-11 years old at the time.
[4] He also recognized the mitigating factors, most importantly – many physical, medical ailments.
[5] Mr. Doucette, on behalf of the appellant, argues that the sentence is outside the range, especially in relation to the lengthy gap between the appellant's last conviction and the most recent offences. He also argues that the jump principle ought to have led to a less serious sentence given that his longest previous sentence was two years less a day imprisonment.
[6] We are not persuaded that the trial judge imposed a sentence that was unfit. We defer to the trial judge's balancing of the relevant factors in this case. The appellant's lengthy record for sexual offences was a profound consideration in this case. In the context of the appellant's previous sexual offending against his own daughter and his recent offending against his step granddaughter, there is little scope for the application of the gap or jump principles in this case. The principles of denunciation and general deterrence had to be the primary factors in this case. The proper application of these objectives by the trial judge amply supported the sentence that was imposed.
[7] The sentence appeal is dismissed.