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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-10-11

Docket: C67360

Panel: Watt, Lauwers and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

R.V. Appellant

Counsel

Michael Dineen, for the appellant

Katie Doherty, for the respondent

Hearing

Heard and released orally: October 11, 2019

On appeal from: the sentence imposed on March 22, 2017 by Justice Robert Gee of the Ontario Court of Justice.

Reasons for Decision

[1] Introduction

The appellant appeals the sentence of imprisonment of four years imposed upon him after a trial in the Ontario Court of Justice on counts of sexual interference and sexual assault. He was found guilty of both counts. A conviction was entered on the count of sexual interference, and a stay on that of sexual assault.

The Background Facts

[2] The Incident

The events giving rise to the conviction occurred on a Canada Day weekend several years ago. The appellant was then 20 years old, the complainant 15. They were cousins. The conduct involved was a single act as a result of which the complainant became pregnant. The act took place on the floor of the shower in the men's washroom at a campground after the appellant had led the complainant there on the pretext of wishing to speak with her alone. Both the appellant and the complainant had previously consumed alcohol.

[3] Crown and Defence Positions

At trial, the Crown sought a penitentiary sentence of three to five years. Defence counsel advocated for a sentence of 15-18 months and submitted that the sentence should be served in the community.

[4] Trial Judge's Approach

The trial judge acknowledged the overarching principle of proportionality as fundamental to his sentencing decision. He considered the range of sentence identified by the Crown as correct, but appreciated that it was a range only.

[5] Mitigating Factors

In mitigation, the trial judge took into account that the appellant was a youthful first offender who had worked steadily since leaving school in Grade 9. He had a supportive family, and a spouse with whom he had a child. The pre-sentence report was generally positive. He had been on judicial interim release for a lengthy period prior to trial without apparent incident.

[6] Aggravating Factors

The trial judge also took into account some aggravating factors. Among those he considered were:

i. the statutory factor in s. 718.01 of the Criminal Code, which assigns primacy to the principles of denunciation and deterrence, for offences involving the abuse of a person under 18 years of age;

ii. the nature of the relationship between the parties, akin to, but not necessarily the equivalent of, a trust relationship; and

iii. the consequences to the complainant involving the pregnancy, its termination and the loss of educational opportunities and valued personal relationships.

The Grounds of Appeal

[7] Appellant's Arguments

In this court, the appellant asks that we vary the sentence imposed at trial. He submits that the trial judge erred in two respects:

i. that he misstated the appropriate range of sentence applicable in this case; and

ii. that he failed to give effect to the principles that govern the length of custodial sentences to be imposed on youthful first offenders.

Discussion

[8] Standard of Review

We are not persuaded that the trial judge erred in either respect.

[9] Appropriateness of Sentencing Range

In our view, the range of sentence identified by the trial judge was apt. This case involved extremely intimate contact, akin to intercourse, with an underaged relative of the appellant whom he had inveigled into a place away from other family members, there to commit the offence of which he stands convicted. The offence has had significant consequences for the complainant, physically, emotionally, and in her familial relationships.

[10] Placement Within Range

Nor are we persuaded that the judge's location of the sentence within the identified range of sentence fails to give effect to the principles governing the length of custodial sentence for youthful first offenders. We also note that an error of this nature – the placement of a sentence within a range – does not constitute reversible error, absent a sentence that is demonstrably unfit. Quite simply, that is not this case.

[11] Disposition

In the result, we grant leave to appeal sentence and set aside the victim surcharge imposed upon the appellant, but otherwise dismiss the appeal from sentence.

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.