Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 2023-07-20 Docket: C70601

Fairburn A.C.J.O., Simmons and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

J. P. K.-M. Appellant

Counsel: Ian Kasper, for the appellant Erica Whitford, for the respondent

Heard and released orally: July 6, 2023

On appeal from the convictions entered by Justice Larry B. O’Brien of the Ontario Court of Justice on February 26, 2021, and from the sentence imposed on January 5, 2023.

Reasons for Decision

[1] The appellant was convicted of child luring (x2), invitation to sexual touching, possession of child pornography, accessing child pornography, and weapons dangerous. He received a global sentence of 34 months, less 17 and a half months credit for presentence custody, and another 4 and a half months of Duncan credit.

[2] The appellant argues that this is a demonstrably unfit sentence for a first offender, who was very youthful at the time of the offences and having regard to other factors in mitigation. He argues that this sentence would only have been justified, if at all, had multiple aggravating factors been engaged. The trial judge is said to have erred by failing to resolve those aggravating factors, many of which were very much in dispute at the sentencing proceeding.

[3] The respondent argues that, considering the reasons as a whole, it is possible to glean the basis upon which the trial judge arrived at the 34-month sentence.

[4] We are not satisfied this is the case. The disputed aggravating factors were never resolved, such that the sentence imposed cannot be supported. The appellant’s crime was undoubtedly serious but took place over a limited period of time. On the record before us, having regard to the offending conduct, but also the appellant’s youth and the absence of any prior criminal record, the objectives of sentencing are met by a penitentiary sentence of 28 months. Therefore, we substitute a sentence of time served, which is the equivalent of a 28-month penitentiary sentence after credit for time served is taken into account.

[5] The s. 161 order has also been appealed. The appellant asks us to vacate two terms of that order, which are said to be overly broad. To use the internet now, he must be the sole owner and user of an internet capable device, and the internet service must be in his name or be provided by his employer or an educational institution. This is the effect of paragraph 1 of the order.

[6] We accept the submission that, in light of the appellant’s life circumstances, these terms will likely deprive him of internet access altogether. Therefore, we will amend paragraph 1 of the order. The parties shall do their best to work out a consent amendment that permits access to the internet, while at the same time ensuring the public safety concerns that underly the s. 161 order itself are met. Should the parties achieve consent, they will forward their proposal to the court for consideration, failing which the court will amend the order after two weeks.

“Fairburn A.C.J.O.”

“Janet Simmons J.A.”

“G.T. Trotter J.A.”