



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. D.A., 2019 ONCA 310

DATE: 20190416

DOCKET: C65375

Feldman, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Michael Dineen, duty counsel

Jessica Smith-Joy, for the Crown

Heard and released orally: April 10, 2019

On appeal from the sentence imposed on November 30, 2017
    by Justice J. Elliott Allen of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the sentence of 12 years imposed for sexual
    assault, sexual exploitation and breaches of court orders, under s. 161 and s.
    515 of the
Code
, for sexual assaulting his teenaged step-granddaughter
    on an ongoing basis for one and a half years, including oral sex, masturbation,
    touching of her breasts and vagina, and digital penetration.

[2]

The appellant groomed the young girl to trust and depend on him. He had
    a previous conviction for sexual interference with the same girl when she was
    10 years old and was also convicted of sexually abusing her mother, his
    step-daughter back in the 1990s.

[3]

We agree with the Crown that the sentencing judge made no error in
    imposing the sentence of 12 years, which was fit, given the circumstances of
    this case and within the range referred to by this court in
R. v. D.M.
2012 ONCA 520, 111 O.R. (3d) 721, at para. 36.

[4]

The appellants letter to the court regarding his progress in the
    institution is to be commended, however, it does not affect the propriety of
    the sentence imposed.

[5]

The appellant also submits that the sentencing judge erred by imposing a
    non-communication order after calling the parties back about one month after
    the original sentence was imposed. We do not agree that the judge was
functus
    officio
at that point. He explained in his reasons that it was an
    oversight on his part not to impose the order under s. 743.21, following the
    original argument on the issue. He referred to it as an administrative
    correction that was within his purview: see
R. v. Hasiu
, 2018 ONCA 24,
    358 C.C.C. (3d) 503, at para.
35;
R. v. Malicia
(2006),
    82 O.R. (3d) 772 (C.A.), at para.
29.

[6]

In the result, leave to appeal sentence is granted but the appeal is
    dismissed.


