



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), (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    the complainant or a witness shall not be published in any document or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, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. R.B., 2014 ONCA 840

DATE: 20141125

DOCKET: C57757

Doherty, Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

Brian Callender, for the appellant

Michael Fawcett, for the respondent

Heard and released orally: November 18, 2014

On appeal from the sentence imposed on January 9, 2013 by
    Justice Judith C. Beaman of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his four-year penitentiary sentence imposed after
    he was convicted of four offences related to child pornography.

[2]

The offences arise out of two separate incidents, each involving a
    teenage girl.  In the first incident, the appellant made child pornography by
    hiding a video camera in a bedroom and filming his 13-year-old niece as she
    changed.  He pleaded guilty to one count of voyeurism and one count of making
    child pornography for which he received sentences of six months and 12 months
    to be served consecutively.

[3]

The second incident occurred two years later.  Over the course of three
    weeks, using the internet and a series of messages on Facebook, the appellant
    lured a 16-year-old girl to a covert meeting at his home during which he
    convinced her to pose nude as he made over 600 images of child pornography. 
    The appellant pleaded guilty to one count of making child pornography and one
    count of internet luring for which he received consecutive sentences of 18
    months and 12 months.  The global sentence for the four offences was thus four
    years.

[4]

The sentencing judge gave thorough reasons for the sentence she
    imposed.  She recognized numerous mitigating considerations.  The appellant, then
    in his mid-forties, had led an exemplary life in the military, including stints
    in Bosnia, Croatia and Afghanistan.  He had suffered from post-traumatic stress
    disorder, (though not a cause of these offences).  He has no previous criminal
    record.  And, he expressed remorse and accepted responsibility for his actions
    by his pleas of guilty and his letter of apology to the 16-year-old victim.

[5]

However, the sentencing judge also listed numerous aggravating
    considerations, which included the following: he stood in a position of trust
    toward his niece; he carefully planned all the offences; he groomed the
    16-year-old victim through a subtle, manipulative, step-by-step escalation of
    his demands; and he exploited the familys need for money.

[6]

The appellants submission is that a four-year sentence was unfit for
    two reasons.  First, the sentencing judge over-emphasized the need for
    consecutive sentences, instead of first considering whether the overall
    four-year sentence was fit.  Second, she erred in her assessment of the
    aggravating considerations by making findings that were unreasonable.

[7]

In our view, a four-year sentence was fit, having regard to the nature
    of these offences and several aggravating features of them.  We note three
    preliminary points. First, because each of the offences concerned a different
    legally protected interest, the sentencing judge had discretion to impose
    consecutive sentences, subject to ensuring that the overall sentence was fit. 
    Indeed, defence counsel accepted that the sentencing judge had this
    discretion.

[8]

Second, from reading the sentencing proceedings, we think the sentencing
    judge followed the approach endorsed by this court for sentencing for multiple
    offences  that is, first determine a global sentence and then assign sentences
    for each offence and designate each as concurrent or consecutive to fit within
    the global sentence.  Trial counsel framed their submissions in terms of a
    global sentence.  The defence argued for two to three years and the Crown for
    five to six years.  The sentencing judge appears to have come down the middle.

[9]

Third, as the Crown proceeded by indictment, by statute the appellant
    faced a minimum two-year sentence: one year on each of the making of child
    pornography offences.

[10]

Thus,
    the only real question is whether an additional two years was justified.  In
    our opinion it was.  The internet luring conviction, particularly combined with
    the making of child pornography conviction, is a serious offence especially in
    the light of the 2007
Code
amendments, which doubled the maximum
    punishment.  In
Woodward
, this court said that because of the
    amendment, even the previously suggested range of 12 months to two years for
    luring may be too low.

[11]

In
    addition, without going through each of the aggravating considerations relied
    on by the sentencing judge and challenged on appeal, we can say that the
    characterization of at least four of these considerations as aggravating was fully
    warranted on the evidence:

·

One, the appellant was in a position of trust towards his niece.

·

Two, the offences were not committed spontaneously in a fleeting
    lapse of judgment but instead were carefully planned.

·

Three, the 16-year-old victim was groomed by gradually escalating
    demands over an extended period of time.

·

And four, and related to his grooming of the victim, in the
    sentencing judges words by offering her money for the compromising images, he
    used his knowledge of her poverty and exploited her desire to assist her mother
    financially.

[12]

Thus,
    we conclude that the nature of the offences and the aggravating considerations
    associated with them supported a four-year sentence.  Although leave to appeal
    sentence is granted, the sentence appeal is dismissed.

Doherty J.A.

John Laskin J.A.

C.W. Hourigan J.A.


