



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.H., 2021 ONCA 236

DATE: 20210415

DOCKET: C67927

Pardu, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

R.H., acting in person

Brian Snell, duty counsel

Philippe Cowle, for the respondent

Heard: April 9, 2021 by
    videoconference

On appeal from the sentence imposed on December
    17, 2019 by Justice Peter C. West of the Ontario Court of Justice, with reasons
    reported at 2019 ONCJ 892.

REASONS FOR DECISION

[1]

R.H. appeals from sentences totaling six years,
    imposed following his guilty pleas to sexual interference, making child
    pornography and accessing child pornography. He was sentenced to prison terms
    of five years, one year consecutive, and one year concurrent, respectively. The
    sentencing judge also imposed a number of ancillary orders, including a
    lifetime prohibition order under s. 161(1) which, among several other things,
    forbids the appellant from accessing the internet except in accordance with
    conditions set by the court.

[2]

The appellant submits on appeal that the
    sentences were too harsh.

[3]

The appellant sexually abused C.S. for years,
    beginning when C.S. was only ten years old. The appellant was 35 years senior
    and there was a family connection: he was a cousin of C.S.s stepfather. The
    appellant began by taking C.S. on short overnight trips where they would wake
    up in the same bed with their hands on each others intimate body parts. Oral
    and anal intercourse later began. They would meet each other every 1-3 months. A
    system of penalties was established. If the complainant did not communicate
    with the appellant every day, he would have to atone for it by performing
    sexual acts.

[4]

The appellant submits that the sentencing judge
erred
by concluding that the appellant created the penalty regime. It is of no moment
    to the sentence whether the appellant created this or merely participated in
    it. Other factual concerns raised by the appellant were also immaterial to the
    sentence imposed, which was at the lower end of the appropriate range,
    reflecting the appellants guilty pleas.

[5]

The offences came to light in 2018 when C.S.s
    girlfriend, S.L. learned of the abuse. She initially pretended to be C.S. and
    would communicate with the appellant as was expected. She offered to take
    C.S.s place and sent the appellant some unclothed pictures of her. Finally, S.L.
    went to a police station to complain that the appellant was threatening her and
    C.S. The police executed a search warrant at the appellants apartment and
    found nude pictures of both C.S. and S.L.

[6]

At the sentencing hearing, the Crown sought a nine-year
    sentence. The defence suggested 3-4 years, arguing that the appropriate range
    was 3-5 years, and that the lower range was fit because of the guilty pleas.

[7]

The sentencing judge was guided by
R. v. D.(D.)
(2002),
58 OR (3d) 788 (C.A.), holding
    that the appropriate sentence range where the offender is in a position of
    trust and sexually abuses children on a regular basis over substantial periods
    of time should be mid-to-upper-single-digit penitentiary terms.

[8]

The aggravating factors included the abuse of
    children under 18 years of age, abuse of a position of authority or trust in
    relation to C.S., grooming C.S. starting at the age of 10, the escalation of
    the nature of the sexual abuse towards C.S., the large number of incidents,
    multiple victims, the severe impact on the complainants, the control exercised
    over C.S., and the tendency of the appellant to blame C.S. for the sexual
    contact. Both complainants inflicted self-harm as a result of the abuse. C.S.
    had suicidal thoughts and on several occasions fashioned nooses in his room
    with that purpose in mind. He suffered from severe depression as a result of
    the abuse. Both S.L. and C.S. suffered damage to their relationships with
    family and friends. The sentencing judge concluded that the sexual abuse had a
    significant and serious impact on their emotional well-being and development.

[9]

The mitigating circumstances included the
    absence of any criminal record, the guilty pleas, the appellants gainful
    employment, and that he was the sole provider for his elderly mother. The
    appellant was 53 years old at the time of sentencing.

[10]

The sentencing judge concluded that anything
    less than a global six-year sentence would not properly address denunciation
    and deterrence and the need to protect the wellbeing of children.

[11]

The sentencing judges careful and detailed
    reasons reveal no error in principle in his selection of a six-year global
    sentence and the sentence imposed was fit.

[12]

As noted in
R. v. Friesen
,
2020 SCC 9, 444 D.L.R. (4th) 1, at
    para. 26:

an appellate
    court can only intervene to vary a sentence if (1) the sentence is demonstrably
    unfit or (2) the sentencing judge made an error in principle that had an impact
    on the sentence. Errors in principle include an error of law, a failure to
    consider a relevant factor, or erroneous consideration of an aggravating or
    mitigating factor. The weighing or balancing of factors can form an error in
    principle only if by emphasizing one factor or by not giving enough weight to
    another, the trial judge exercises his or her discretion unreasonably. Not
    every error in principle is material: an appellate court can only intervene if
    it is apparent from the trial judges reasons that the error had an impact on the
    sentence. If an error in principle had no impact on the sentence, that is the
    end of the error in principle analysis and appellate intervention is justified
    only if the sentence is demonstrably unfit. [Internal quotations and citations omitted.]

[13]

In
Friesen
, the Court held that an
    appellate court was wrong to decrease the six-year sentence imposed by the
    trial judge for child sexual abuse to four-and-a-half years incarceration. In
    doing so, the Court emphasized that denunciation and deterrence must be prioritized
    for offences of sexual offences against children, because of the serious harm
    caused by these crimes and the inherent vulnerability of the victims. The
    sentencing judges weighing of the factors is entitled to deference.

[14]

Duty counsel, on behalf of the appellant, points
    out that the prohibition order relating to internet use is too broad, having
    regard to this courts decision in
R. v. Brar
, 2016 ONCA 724, 134 O.R.
    (3d) 103. The prohibition imposed by the sentencing judge forbids the appellant
    from:

using the Internet
    or other digital network, unless the offender does so in accordance with the
    conditions set by the court, including but not limited to: any digital medium
    for the purpose of accessing, viewing, downloading, sharing, or otherwise any
    material that meets the definition of pornography and/or obscenity and not to
    participate in file sharing by any means.

[15]

The Crown and the appellant agree that this
    language should be deleted. They submit, and we agree, that the following
    lifetime prohibition should be substituted:

The Offender is
    prohibited from using the internet or any similar communication service to:

1.

Access any content that violates the law;

2.

Access any social media sites, social network,
    internet discussion forum or chat room, or to maintain a personal profile on
    any such service;

3.

Access, view, download, or share and material
    that meets the definition of pornography or obscenity.

[16]

It also appears that the appellant was not given
    credit for 17 days pre-sentence custody. The sentence on the making child
    pornography charge, contrary to s. 163.1(2), and the accessing child
    pornography charge, contrary to s. 163.1(4.1), are reduced by 26 days, for a
    net sentence of 339 days on those counts, to reflect this amount.

[17]

There is no basis for further appellate
    intervention and the appeal is otherwise dismissed.

G.
    Pardu J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.


