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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-04-13 Docket: C69932

Judges: Gillese, Huscroft and George JJ.A.

Between:

His Majesty the King Respondent

and

R.W. Appellant

Counsel:

Brian Snell, duty counsel for the appellant Jeffrey Wyngaarden, for the respondent

Heard and released orally: April 5, 2023

On appeal from the sentence imposed on August 10, 2021 by Justice Robert J. Nightingale of the Superior Court of Justice.

Reasons for Decision

[1] The appellant received a global sentence of 15 years: 10.5 for three counts of sexual interference, 3.5 for making and making available child pornography, and 1 year for possessing and accessing child pornography. He argues that this sentence was outside the range and was demonstrably unfit, and that the appropriate sentence was 7-10 years.

[2] We do not agree.

[3] The appellant assaulted his two-year old daughter, filmed the assaults, and posted one of them on the internet. He possessed 969 child pornography images, over 200 of which involved his daughter. In short, the circumstances of this case are egregious and involve a massive breach of trust.

[4] It is clear from the Supreme Court’s decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 that sentences for sexual offences against children must increase. The sentencing judge took into account the relevant mitigating and aggravating factors. He properly imposed a consecutive sentence for the child pornography counts.

[5] Duty counsel stressed the totality principle in his submissions on behalf of the appellant, but we are satisfied that the sentencing judge properly considered that principle and the relevant factors. He made no error in principle, nor can it be said that the sentence he imposed is demonstrably unfit. It is entitled to deference.

[6] Leave to appeal sentence is granted but the appeal is dismissed.

"E.E. Gillese J.A."

"Grant Huscroft J.A."

"J. George J.A."