



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 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;
    2005, c. 43, s. 8(3)(b).

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.






CITATION:
R. v. E.T., 2011 ONCA
          86



DATE: 20110131



DOCKET: C51113



COURT OF APPEAL FOR ONTARIO



Feldman, Rouleau and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



E. T.



Appellant



Anthony De Marco, for the appellant



Tracy Kozlowski, for the respondent



Heard: January 21, 2011



On appeal from the conviction entered on May 9, 2009 and the
          sentence imposed on October 14, 2009 by Justice L. Ricchetti of the Superior
          Court of Justice.



APPEAL BOOK ENDORSEMENT



[1]

The appellant was convicted of sexual assault, gross indecency and
    sexual exploitation of a young girl who was the child of his spouses cousin.   The
    acts began with kissing at age 8 and progressed over the years to sexual
    touching and oral sex at age 17 and 18.

[2]

The appellant appeals his conviction and sentence of three years.  The
    appellant submits that the trial judge erred with respect to the bases he
    described for rejecting the appellants evidence and in relying on the evidence
    of the cousins as corroborative of the complainant.

[3]

In our view, the trial judge was entitled to assess the evidence of the
    appellant and to make his findings of credibility based on that evidence.  He
    was entitled to make the interpretations that he did.  He was also entitled to
    accept the evidence of the two women cousins although it was denied by the
    appellant.

[4]

We see no error in the approach of the trial judge.  The appeal against
    conviction is dismissed.

[5]

The appellant seeks leave to appeal the sentence and appeals the
    sentence of three years.  He sought a conditional sentence at trial and renews
    that submission here.

[6]

The trial judge rejected a conditional sentence as unavailable.  He
    referred to the case law that puts the range for this type of sexual offence
    against a child by an adult in a position of trust where there was no
    penetration as a minimum of three years.

[7]

The trial judge referred to the aggravating and mitigating factors, the
    latter of which included the appellants age (then 68), no criminal record,
    strong community ties, an operating business, a new wife and young daughter,
    and some deficiency as a result of an earlier head injury.  The trial judge
    considered that these factors caused him to give a sentence at the lower end of
    the range of three years.

[8]

As the trial judge adverted to all the mitigating factors and made no
    error as to the appropriate range of sentence in these circumstances, we see no
    basis to interfere with the sentence imposed.  We also see no basis to
    interfere with the corollary orders that were imposed by the trial judge.

[9]

Leave to appeal sentence is granted but the appeal is dismissed.


