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:
Section 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
Section 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.
Section 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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: 2019-04-16
Docket: C65375
Panel: Feldman, Benotto and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
D.A. Appellant
Counsel:
- Michael Dineen, duty counsel
- Jessica Smith-Joy, for the Crown
Heard and released orally: April 10, 2019
On appeal from: the sentence imposed on November 30, 2017 by Justice J. Elliott Allen of the Ontario Court of Justice.
Appeal Book Endorsement
[1] The appellant appeals the sentence of 12 years imposed for sexual assault, sexual exploitation and breaches of court orders, under s. 161 and s. 515 of the Code, for sexual assaulting his teenaged step-granddaughter on an ongoing basis for one and a half years, including oral sex, masturbation, touching of her breasts and vagina, and digital penetration.
[2] The appellant groomed the young girl to trust and depend on him. He had a previous conviction for sexual interference with the same girl when she was 10 years old and was also convicted of sexually abusing her mother, his step-daughter back in the 1990s.
[3] We agree with the Crown that the sentencing judge made no error in imposing the sentence of 12 years, which was fit, given the circumstances of this case and within the range referred to by this court in R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 36.
[4] The appellant's letter to the court regarding his progress in the institution is to be commended, however, it does not affect the propriety of the sentence imposed.
[5] The appellant also submits that the sentencing judge erred by imposing a non-communication order after calling the parties back about one month after the original sentence was imposed. We do not agree that the judge was functus officio at that point. He explained in his reasons that it was an oversight on his part not to impose the order under s. 743.21, following the original argument on the issue. He referred to it as an administrative correction that was within his purview: see R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503, at para. 35; R. v. Malicia (2006), 82 O.R. (3d) 772 (C.A.), at para. 29.
[6] In the result, leave to appeal sentence is granted but the appeal is dismissed.