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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Kissner, 2020 ONCA 685

DATE: 20201027

DOCKET: C67438

Rouleau, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Kissner

Appellant

Wesley Dutcher-Walls, for the appellant

Nicole Rivers, for the respondent

Heard and released orally: October 23, 2020 by video conference

On appeal from the sentence imposed on August 22, 2019 by Justice Pamela L. Hebner of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant abandoned his conviction appeal and seeks leave to appeal his sentence. He argues that the trial judge erred by considering his abuse of authority as an aggravating factor in sentencing because it is an element of the offence. This, it is suggested, caused double counting.

[2] We do not agree.

[3] The essential elements of an offence do not become irrelevant in sentencing. There are a variety of ways that abuse of authority can occur. Here, young men who were interested in a career in firefighting were groomed and abused by the appellant. He was the fire chief in charge of hiring. He acted as mentor to the victims. These are not irrelevant factors in sentencing and the trial judge was entitled to consider these factors as she did.

[4] Under the circumstances, the sentence is fit. The appellant was sentenced to 60 months for sexual offences involving three youths and one adult. While not involving penetration, his actions reflected a continuing course of conduct over a number of years and caused serious consequences to the victims. The sentences were within the appropriate range and fit.

[5] The appellant also raised a Kienapple issue. Given that we view the sentence as reasonable and fit, we do not need to consider this issue.

[6] In conclusion, leave to appeal sentence is granted, but the appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

‘B.W. Miller J.A.”