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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20241023 Docket: COA-22-CR-0370

Judges: MacPherson, Favreau and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

V.H. Appellant

Counsel:

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

Heard: October 10, 2024

On appeal from the sentence entered on October 5, 2022, by Justice Sally A. Gomery of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of incest, criminal harassment, sexual exploitation, making child pornography, and possession of child pornography. The complainant was his half sister and the sexual activity started close to her sixteenth birthday and continued for about 18 months.

[2] The trial judge imposed a sentence of 12 years, less credit of 58 months for pre-sentence custody and COVID-19 lockdowns.

[3] The appellant appeals the sentence.

[4] At the sentence hearing, the trial judge had the benefit of a Psychiatric and Sexual Behaviours Assessment prepared by Dr. Jonathan Gray, the Clinical Director of the Brockville Forensic Treatment Unit. In his report, Dr. Gray concluded:

There are a number of factors associated with a lower relative risk in his case. He has no previous criminal convictions and, more importantly, no previous sexual offences. Those sexual offenders without male victims are also at a lower relative risk of reoffence than those with male victims. He has had a previous common-law relationship, which is also a protective factor according to the Static-99R. Finally, as he will be over 40 at the time he is released from incarceration, his more advanced age is associated with a lower risk of reoffence. I note that the number of incidents making up the index cluster was not shown to be an independent risk factor for reoffence in the development studies for the Static-99R. Thus, the fact that [Mr. H] engaged in intercourse with the index victim at least dozens of times does not put him in a higher actuarial risk category, other factors being equal, to a similar offender who only engaged in intercourse once with an index victim. For purposes of estimating risk of sexual recidivism, it is the number of sentencing dates for sexual offences that is most important. That is, the crucial factor is the response of the offender to criminal sanction and whether sanctions act as a deterrent to future sexual offending behaviour. Although it may seem counter-intuitive, the multiplicity of sexual acts [Mr. H] inflicted on his much younger half-sister does not in itself raise his overall actuarial risk of reoffence.

There are several dynamic (situational and malleable) risk factors in [Mr. H]’s case. Most of these factors are more explicitly sexual, including using sex as a coping mechanism (suggesting a tendency to rely on sexual activities in response to negative life circumstances), hypersexuality, and deviant sexual interests with a clear pattern of sexual arousal towards pre-pubescent females. Despite the multiplicity of dynamic risk factors as listed earlier in this report, his overall score on the STABLE-2007, which delineates dynamic risk factors, was not sufficiently high to push him into a higher risk category overall. Nevertheless, I note that had he scored one more point on the STABLE-2007 (with a score of 10), he would have moved into the Level III risk category with an “average”, rather than “below average” level of risk.

[5] In her reasons for sentence, the trial judge stated:

I have concerns about the basis for Dr. Gray’s general conclusion about [Mr. H]’s relatively low risk to commit further hands on sexual offences against post-pubescent females.

[6] After reviewing her concerns, the trial judge concluded:

I question whether [Mr. H] can avoid committing further hands on sexual offences, given his creation of a situation where he could abuse [the complainant] and his profound lack of insight as to the wrongness of harm caused by his actions towards her and the children in his pornography collection. I accordingly give limited weight to Dr. Gray’s conclusion about [Mr. H]’s risk to reoffend.

[7] The appellant contends that the trial judge needed to alert counsel at the sentence hearing to her potential criticism/rejection of Dr. Gray’s report. This would have given counsel, especially defence counsel, an opportunity to address those concerns before the sentence was imposed. In making this submission, the appellant draws an analogy with the jurisprudence that says that trial judges fall into error where they fail to alert counsel that they are considering “jumping” the Crown’s position on sentence: see R. v. Nahanee, 2022 SCC 37.

[8] For two reasons, we do not accept this submission.

[9] First, this is not a case where the trial judge “jumped” the Crown’s position on sentence. The Crown asked for a 12 year custodial sentence. The trial judge imposed a 12 year sentence.

[10] Second, and more importantly, this court’s recent decision in R. v. A.S., 2023 ONCA 290, provides a complete answer to the appellant’s submission. In that case, the court said, at para. 9:

The appellant’s particular argument is that the sentencing judge failed to give sufficient weight to the appellant’s treatability as explained by the forensic psychiatrist, which was supported by the evidence of a psychologist. We reject this argument for three reasons. First, the weight to be given to evidence is completely within the province of the sentencing judge to whom we must defer absent an error. Second, a judge is not required to accept an expert’s opinion in whole or in part. This too is completely within the sentencing judge’s province: see Levac v. James, 2023 ONCA 73, at para. 82. Third, the sentencing judge did accept much of the forensic psychiatrist’s testimony, and also explained why he rejected the evidence on which the appellant relies.

[11] While A.S. and Levac were both decided some months after Mr. H. was sentenced, the principles outlined in these cases are not new. We are satisfied that the appellant and his counsel were aware that the sentencing judge was entitled to accept some, all or none of Dr. Gray’s opinion, and were thus not denied a fair opportunity to make submissions about his report.

[12] In this appeal, the trial judge provided an extensive analysis of the doctor’s opinion. She accepted many parts of it but, in the end, did not agree with his “guardedly optimistic opinion about [Mr. H]’s potential to commit further direct sexual offences against women and girls.” This was a conclusion the trial judge was entitled to make.

[13] In our view, the sentence imposed by the trial judge was not too harsh. The trial judge carefully considered the Indigenous status of the appellant and the complainant. She found that there were serious aggravating factors, including the breadth, nature and duration of the appellant’s conduct. He committed “dozens and dozens” of acts of incest and sexual exploitation over a period of 18 months and possessed thousands of images and videos of child pornography. His offences against the complainant involved violent penetrative sex, during some of which she was bound, gagged and beaten. Moreover, the appellant abused a position of trust with a much younger relative, indeed a child when the sexual activity started.

[14] Against the backdrop of the length and brutality of the appellant’s sexual activity with the complainant, we cannot say that the trial judge erred in imposing the sentence sought by the Crown, namely, 12 years incarceration.

[15] The appeal is dismissed.

“J.C. MacPherson J.A.”

“L. Favreau J.A.”

“J. Dawe J.A.”