Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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; 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.

(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: 20200601 Docket: C67461

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.L.S. Appellant

Counsel: R.L.S., acting in person Erin Dann, appearing as duty counsel Hannah Freeman, for the respondent

Heard: May 20, 2020, by teleconference

On appeal from the sentence imposed on August 12, 2019 by Justice Richard T. Knott of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. S. appeals from a 9-month sentence imposed on August 12, 2019 for counseling a child to touch him for a sexual purpose, and for touching a child for a sexual purpose. He asks that this court reduce the sentence to less than six months so that the opportunity to appeal from a deportation order will not be lost.

[2] The appellant’s moral blameworthiness was elevated. The victim was his daughter. When she was between the ages of four and six years, he had her watch pornography with him that depicted daughters performing sexual acts on their fathers. During this time, he had her touch his erect penis with her hand. On another occasion he would sit with her and play an internet game depicting genitals. On yet another occasion he sat her on his lap, when his clothes were off and his penis was exposed.

[3] The accused pleaded guilty and was very remorseful. When the allegations came to light, he attempted suicide.

[4] He was a 51-year-old first offender who had otherwise led a pro-social life. He was a permanent resident originally from Tennessee. He himself had been sexually abused by other teenagers during his adolescence.

[5] At trial, the Crown sought a 12-month sentence; the defence suggested that six months less a day would be appropriate.

[6] The sentencing judge noted that the victim impact statement demonstrated that the effect on the victim was obvious and telling and that she would be dealing with the aftereffects of the appellant’s actions long after he was released from custody.

[7] The sentencing judge noted the seriousness of the offence, the obvious breach of trust, the young age of the victim, the element of grooming and the repetition of the sexual contact.

[8] The sentencing judge was aware of the immigration consequences of his decision, but he did not think that deportation to the United States amounted to the severe hardship that might result from deportation to other countries. He concluded that the immigration issue was of “lesser consideration” than in other cases.

Analysis

[9] The appellant’s moral culpability was high. If anything, the sentence was lenient in light of the principles explained in R. v. Friesen, 2020 SCC 9.

[10] While a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender. Inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14, 15.

[11] The sentencing judge was aware that the appellant had lived in Canada for approximately 20 years, had supportive friends here and was gainfully employed. Despite the serious consequences of a deportation order he concluded that a nine-month sentence was required.

[12] Here the sentence of imprisonment is not demonstrably unfit. Nor did the sentencing judge make an error in principle in arriving at the nine-month sentence. There is nothing which displaces the deference owed to the decision of the sentencing judge. In these circumstances there is no basis for this court to intervene and the appeal from the nine-month sentence of imprisonment is dismissed.

[13] The appellant also asks this court to set aside the order prohibiting him from “attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre.” In particular, he submits that the definition of “park” is so broad that he is left unable to safely assess where he can and cannot go.

[14] The appellant’s past conduct does not suggest that he constitutes a risk to persons present in parks and this condition can be tailored to target the remaining risks more narrowly. Paragraph (a) of the prohibition order will be varied to read as follows:

(a) Attending at a public swimming area or community centre where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground.

The parties agree that paragraphs (a.1) and (b) will remain as in the prohibition order.

[15] The parties also agree that paragraphs (c) and (d) should be varied to more narrowly define the prohibited conduct. Those paragraphs of the prohibition order are deleted and the following prohibitions substituted:

(c) Using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 14 years.

(d) 1. Not to access the internet or use any device capable of accessing the internet or any similar communication device while in the presence of a person under the age of sixteen;

2. Under any circumstances, not to use any telecommunication device to access the Internet or other digital network in order to:

• Access or possess child pornography or pornography depicting acts that are illegal under the Criminal Code of Canada;
• Possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner; or
• Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.

3. Not to use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet.

[16] Accordingly, the appeal is allowed only to the extent of varying the prohibition order imposed by the sentencing judge.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”