



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. Cooper, 2019 ONCA 953

DATE:

20191204

DOCKET: C65337

Juriansz, Pepall and Lauwers
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Cooper

Appellant



Robert Goddard, for the appellant

Caitlin Sharawy, for the respondent

Heard: March 6, 2019

On appeal from the sentence imposed on
January 27, 2017 by Justice Gisele M. Miller of the Superior Court of Justice,
sitting without a jury, with reasons reported at 2016 ONSC 6384.



REASONS FOR DECISION





[1]

The appellant was convicted of making an
arrangement to commit a sexual offence against a child contrary to s. 172.2 of
the

Criminal Code

and breach of probation. The trial judge
sentenced him to 4 years imprisonment, less 35 days in presentence custody,
plus one year concurrent for breach of probation, imposed a DNA order, a 20
year SOIRA order, and a lifetime blanket prohibition of using the Internet or
digital network pursuant to s. 161.

[2]

He seeks leave to appeal his sentence.

[3]

He submits that 4 years imprisonment is
excessive and falls outside the range for similar offences and offenders, and
should be reduced to three years. He further submits that the lifetime Internet
prohibition is overly broad and not tailored to his specific circumstances.

[4]

A sentencing judge has a broad discretion to
impose a sentence that is appropriate in all the circumstances of a particular
case. The standard of appellate review is deference. Appellate intervention is
permitted only where the sentencing judge has committed an error in principle
that impacted the sentence or otherwise imposed a sentence that is demonstrably
unfit.

[5]

We were not persuaded that the cases cited by
the appellant involve similar offenders and similar offences committed in
similar circumstances. In this case the sentencing judge carefully reviewed the
many aggravating factors. They include that the virtual victim was four years
old, there was a systemic grooming focused on building a level of trust with
the mother of the intended victim, some of the chats concern disturbingly
graphic exchanges and the making of arrangements continued over an extended
period of time. In addition the appellant expressed a desire for an ongoing
relationship of sexual encounters with the child. The acts he expressed an
intention to perpetrate on the child were invasive. His efforts to groom the
child included sending a photograph of his erect penis and repeatedly asking if
it had been shown to the child and whether she liked it. He had the intention
of carrying out the arrangement. When he met the police officer posing as the childs
mother, he had in his possession condoms and lubricant.

[6]

The sentencing judge noted the mitigating
factors included that the appellant had a good work ethic and a supportive
family. Rehabilitation was also a factor but the trial judge correctly observed
that the most important factors were denunciation and deterrence.

[7]

It is worth noting that in 2015, Parliament
enacted the

Tougher Penalties for Child Predators Act,
S.C. 2015, c. 23
, which increase the
maximum penalty for this offence from 10 years to 14 years. By doing so,
Parliament signaled to the courts that longer sentences are required in order
to deter and denounce sexual predators and better protect children.

[8]

We are not persuaded that this sentencing judge
committed any error in principle or that the custodial sentence imposed is
manifestly unfit. We would not disturb the custodial sentence.

[9]

The prohibition order imposed by the sentencing
judge prohibited him from using the Internet or other digital network. The
Crown, having regard for the Supreme Courts decision in
R. v. K.R.J.
,
2016 SCC 31 and this courts decisions in
R. v. Brar
, 2016 ONCA 724,
and
R. v. Schulz
, 2018 ONCA 598, properly concedes that the lifetime
blanket Internet prohibition imposed is overbroad. In our view, a prohibition
patterned on the one this court imposed in
Brar
would be a more
measured prohibition. Counsel for the appellant does not take issue with the
lifetime term of the prohibition in view of the ability of the appellant to
make an application to vary the term under s. 162.2(3) of the
Code
.

[10]

We would vary the Internet prohibition term as
follows:

1) Pursuant to s. 161(1)(c) of the
Criminal
Code
Mr. Cooper will not use a computer system within the meaning of s.
342.1(2) for the purpose of communicating with a person under the age of 16
years, except for his nephews with the consent of either Trivers Curry or
Christie Rivers.

2) Pursuant to s. 161(1)(d) of the
Criminal
Code
, Mr. Cooper will not use the Internet or any similar communication
service to:

a) access any
content that violates the law;

b) directly or
indirectly access any social media sites, social network, Internet discussion
forum or chat room, or maintain a personal profile on any such service (e.g.
Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).

[11]

Leave to appeal sentence is granted, and the
appeal against the Internet prohibition order is allowed. The appeal of the
custodial sentence is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

P. Lauwers J.A.






