



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.
    R.L.S., 2020 ONCA 338

DATE: 20200601

DOCKET:
C67461

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.L.S.

Appellant

R.L.S., acting in person

Erin Dann, appearing
as duty counsel

Hannah Freeman
, for the respondent

Heard: May 20,
    2020, by teleconference

On appeal from the
    sentence imposed on August 12, 2019 by Justice Richard T. Knott of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

Mr. S. appeals from a 9-month sentence imposed on August 12, 2019 for
    counseling a child to touch him for a sexual purpose, and for touching a child
    for a sexual purpose. He asks that this court reduce the sentence to less than six
    months so that the opportunity to appeal from a deportation order will not be
    lost.

[2]

The appellants moral blameworthiness was elevated. The victim was his
    daughter. When she was between the ages of four and six years, he had her watch
    pornography with him that depicted daughters performing sexual acts on their
    fathers. During this time, he had her touch his erect penis with her hand. On
    another occasion he would sit with her and play an internet game depicting
    genitals. On yet another occasion he sat her on his lap, when his clothes were
    off and his penis was exposed.

[3]

The accused pleaded guilty and was very remorseful. When the allegations
    came to light, he attempted suicide.

[4]

He was a 51-year-old first offender who had otherwise led a pro-social
    life. He was a permanent resident originally from Tennessee. He himself had
    been sexually abused by other teenagers during his adolescence.

[5]

At trial, the Crown sought a 12-month sentence; the
defence
suggested that six months less a day would
    be appropriate.

[6]

The sentencing judge noted that the victim impact statement demonstrated
    that the effect on the victim was obvious and telling and that she would be
    dealing with the aftereffects of the appellants actions long after he was
    released from custody.

[7]

The sentencing judge noted the seriousness of the offence, the obvious
    breach of trust, the young age of the victim, the element of grooming and the
    repetition of the sexual contact.

[8]

The sentencing judge was aware of the immigration consequences of his
    decision, but he did not think that deportation to the United States amounted
    to the severe hardship that might result from deportation to other countries. He
    concluded that the immigration issue was of lesser consideration than in
    other cases.

Analysis

[9]

The appellants moral culpability was high. If anything, the sentence
    was lenient in light of the principles explained in
R. v. Friesen
,
2020 SCC 9.

[10]

While
    a sentencing judge may exercise his or her discretion to take collateral
    immigration consequences into account, the sentence ultimately imposed must be
    proportionate to the gravity of the offences and the degree of responsibility
    of the offender. Inappropriate and artificial sentences cannot be imposed in
    order to avoid collateral immigration consequences: see
R. v. Pham
,
2013 SCC 15, [2013] 1 S.C.R. 739, at paras.
    14, 15.

[11]

The
    sentencing judge was aware that the appellant had lived in Canada for
    approximately 20 years, had supportive friends here and was gainfully employed.
    Despite the serious consequences of a deportation order he concluded that a nine-month
    sentence was required.

[12]

Here
    the sentence of imprisonment is not demonstrably unfit. Nor did the sentencing
    judge make an error in principle in arriving at the nine-month sentence. There
    is nothing which displaces the deference owed to the decision of the sentencing
    judge. In these circumstances there is no basis for this court to intervene and
    the appeal from the nine-month sentence of imprisonment is dismissed.

[13]

The
    appellant also asks this court to set aside the order prohibiting him from
    attending a public park or public swimming area where persons under the age of
    sixteen years are present or can reasonably be expected to be present, or a
    daycare
centre
, school ground, playground or
    community
centre
. In particular, he submits
    that the definition of park is so broad that he is left unable to safely
    assess where he can and cannot go.

[14]

The
    appellants past conduct does not suggest that he constitutes a risk to persons
    present in parks and this condition can be tailored to target the remaining
    risks more narrowly. Paragraph (a) of the prohibition order will be varied to
    read as follows:

(a)   Attending at a
    public swimming area or community
centre
where
    persons under the age of sixteen years are present or can reasonably be
    expected to be present, or a daycare
centre
,
    school ground, playground.

The parties agree that paragraphs (a.1) and (b) will
    remain as in the prohibition order.

[15]

The
    parties also agree that paragraphs (c) and (d) should be varied to more
    narrowly define the prohibited conduct. Those paragraphs of the prohibition order
    are deleted and the following prohibitions substituted:

(c)   Using a computer
    system within the meaning of subsection 342.1(2) for the purpose of
    communicating with a person under the age of 14 years.

(d)   1. Not to access the
    internet or use any device capable of accessing the internet or any similar
    communication device while in the presence of a person under the age of
    sixteen;

2. Under any circumstances, not to
    use any telecommunication device to access the Internet or other digital
    network in order to:

·

Access or possess child pornography or
    pornography depicting acts that are illegal under the Criminal Code of Canada;

·

Possess or access any images of children who
    are, depicted to be or appear to be under the age of 18 years who are naked or
    who are portrayed in a sexual manner; or

·

Access or participate in chat rooms, bulletin
    boards or other social media that discuss or promote child exploitation, child
    pornography, sexualized images of children or other child exploitation
    material.

3. Not to use or
    permit to be installed on any device in your possession any program or service
    designed to allow anonymous use of the internet.

[16]

Accordingly,
    the appeal is allowed only to the extent of varying the prohibition order
    imposed by the sentencing judge.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.


