



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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.S., 2019 ONCA 542

DATE: 20190626

DOCKET: C61332

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Vikram Singh, for the appellant

Jill Cameron, for the respondent

Heard: June 20, 2019

On appeal from the sentence imposed by Justice R. Dan
    Cornell of the Superior Court of Justice, on July 16, 2014.

REASONS FOR DECISION

[1]

The appellant was found to be a dangerous
    offender and sentenced to an indeterminate period of incarceration. He conceded
    before the sentencing judge and accepts for the purposes of this appeal that he
    meets the criteria to be designated a dangerous offender. He argues, however,
    that the sentencing judge erred by imposing an indeterminate period of
    incarceration.

[2]

The appellant pleaded guilty in 2004 of sexually
    assaulting four children aged between seven and thirteen years old. He was
    sentenced to two years less a day imprisonment in addition to pre-sentence
    custody, plus three years probation. An order was made under s. 161 of the
Criminal
    Code
,
R.S.C. 1985,
    c. C-46,

prohibiting him for life from attending
    any area where children were known to congregate.

[3]

While on probation, the appellant re-established
    contact with his spouse and two children. Ignoring the directive of the
    Childrens Aid Society, he moved in with his spouse and children. In 2011, he
    pleaded guilty to sexual interference and sexual assault with two of his
    children. He admitted to having had anal sex with his 12-13-year-old son and
    vaginal intercourse with his 11-12-year-old daughter on several occasions. He
    also pleaded guilty to breach of the s. 161 prohibition order.

[4]

A psychiatric assessment pursuant to the
Criminal
    Code
, s. 752.1, was conducted by Dr. Woodside. He
    testified that the appellant was a pedophile with a high risk of reoffending.
    He was pessimistic about managing the appellant in the community. Dr. Fedoroff,
    the psychiatrist who testified on behalf of the appellant, agreed that the
    appellant was a pedophile with a moderate to high risk of reoffending if not
    treated. However, Dr. Fedoroff testified that he believed that pedophilia could
    be cured and that if appropriate steps were taken, including drug treatment,
    the appellant could be managed in the community. Dr. Fedoroff acknowledged,
    however, that he had concerns about the appellants motivation for treatment.

[5]

At the sentencing hearing, counsel agreed that
    the appellant met the statutory criteria for being designated as a dangerous
    offender. They both suggested a determinate sentence followed by a 10-year long-term
    supervision order. Defence counsel sought a six-year determinate sentence,
    while the Crown sought an eight-year determinate sentence.

[6]

The sentencing judge sentenced the appellant to
    an indefinite period of incarceration.

[7]

The appellant raises three grounds of appeal:

1.

Did the sentencing judge err by rejecting the joint sentencing
    submission?

2.

Would the proposed sentence be contrary to the public interest or
    otherwise bring the administration of justice into disrepute?

3.

May the crown repudiate the position taken by its counsel at the
    sentencing hearing?

Analysis

(1)

Did the sentencing judge err by rejecting the joint
    sentencing submission?

[8]

We do not accept the submission that the
    sentencing judge erred by rejecting the joint sentencing submission. The
    sentencing judge followed the approach outlined by the Supreme Court of Canada
    in
R. v. Anthony-Cook
,
    2016 SCC 43, [2016] 2 S.C.R. 204. At three points during the evidentiary phase
    of the sentencing hearing, the sentencing judge expressed his concerns about
    the adequacy of the proposed determinate sentence and of the evidence to
    support it. This was sufficient to put the appellant on notice that the
    sentencing judge was considering rejecting the joint submission. Despite that
    notice, the appellant took no steps to strike the guilty plea or to seek the
    opportunity to advance additional evidence. The sentencing judge gave clear and
    cogent reasons for departing from the joint submission, emphasizing the
    overriding consideration of the protection of the public and the mandatory
    regime set out in s. 753(4.1) of the
Criminal Code
.

(2)

Would the proposed sentence be contrary to the
    public interest or otherwise bring the administration of justice into
    disrepute?

[9]

In our view, the detailed reasons of the
    sentencing judge demonstrate that he concluded that a determinate sentence would
    be contrary to the public interest and would bring the administration of
    justice into disrepute. While the sentencing judge did not use those specific
    words, he did refer to the the overriding consideration of protection of the
    public in a dangerous offender application. He concluded that the evidence
    failed to show that the appellants risk could be managed in the community and
    that if released, the appellant posed a danger to children. He accepted Dr.
    Woodsides pessimism about the possibility of managing the appellant in the
    community. He noted that while Dr. Fedoroff was more hopeful, that hope was primarily
    based upon the appellant accepting drug therapy. The unchallenged evidence
    established that the appellant had demonstrated an unwillingness to take drug
    therapy in the past and indicated to Dr. Woodside that he did not feel he
    needed the treatment. While in the end he told Dr. Woodside that he might try
    drug therapy, the sentencing judge concluded that given the problems with
    ensuring compliance, he had no confidence that anti-androgen therapy could form
    a part of a long-term treatment plan for the appellant.

[10]

The
Criminal Code
, s. 753(4.1), required the sentencing judge to impose an
    indeterminate period of incarceration unless the judge was satisfied
that there was a reasonable expectation that a lesser measure will
    adequately protect the public against the commission by the offender of murder
    or a serious personal injury offence.

[11]

After a thorough review of the evidence, the
    trial judge concluded as follows:

There is no
    cogent, reliable evidence that R.S.s pedophilia can be managed, let alone
    cured. There is no plan that he can be rehabilitated within a certain period of
    time. The suggestion that R.S. will respond to counselling and drug therapy
    lies in the realm of speculation only. Apart from [Dr. Fedoroffs] suggestions
    that a Circle of Support be utilized, there is a total absence of evidence
    about a support plan for R.S. upon his release into the community. These
    concerns highlight the lack of an evidentiary basis to establish the reasonable
    expectation contemplated by s. 753 (4.1).

[12]

In our view, the sentencing judges conclusion
    that the appellant could not realistically be managed in the community was well-supported
    by the record, particularly in the light of the following facts:

·

the appellants serious history of sexually
    abusing children;

·

the psychiatric evidence indicating that he is a
    pedophile, and that his condition is difficult to treat and that he requires
    constant monitoring to control his risk of re-offending;

·

the appellants lack of insight into his
    condition and the harm caused by his conduct;

·

the appellants reluctance to accept treatment
    or drug therapy and the inability to order the appellant to do so;

·

the appellants lack of success with treatment
    offered while he was in custody;

·

the appellants deceitful behaviour while on
    probation;

·

the fact that the index offences were committed
    while the appellant was being supervised on a probation order; and

·

the appellants lack of community support and
    failure for many years to maintain employment.

(3)

May the Crown repudiate the position taken by
    its counsel at the sentencing hearing?

[13]

We do not accept the submission there is any
    impropriety in the position taken by the Crown on this appeal. Obviously, the
    Crown cannot resile from the fact that it took a certain position before the
    sentencing judge. However, once the sentencing judge made his decision, the
    legal landscape changed. It is entirely open to the Crown to resist the appeal
    against that decision and to argue that the sentencing judge did not err by
    rejecting the joint submission.

Disposition

[14]

Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.


