



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    the complainant or a witness shall not be published in any document or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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. B.D., 2014 ONCA 621

DATE: 20140904

DOCKET: C58888

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Applicant/Appellant

Lance Beechener, for the appellant

Avene Derwa, for the respondent

Heard and released orally: August 28, 2014

On appeal from the sentence imposed on September 19, 2013
    by Justice Silja S. Seppi of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of three sexual offences committed
    against the same 12 or 13 year old complainant on a single occasion, between
    June 2002 and September 2003. After entering a stay of proceedings on one
    count, the trial judge sentenced the appellant to concurrent terms of
    imprisonment on the remaining counts. The result was a penitentiary sentence of
    three years.

[2]

The circumstances of the offence may be stated briefly.

[3]

The complainant was a friend of the appellants daughter. The appellant picked
    the complainant up at school and drove her to his home on the pretext that she
    would be meeting his daughter there. The appellant assured the complainant that
    his daughter would arrive home shortly from a medical appointment.

[4]

When the appellant and the complainant were alone in the appellants
    home, the appellant made the complainant watch him urinate, exposed her to
    pornography, and touched his genitals in front of her. She was unresponsive.

[5]

The appellant retrieved a knife from the kitchen. He sat down beside the
    complainant on the couch, knife in hand. He kissed her twice. Again, she was
    unresponsive. He asked her to kiss him and lick him as he held the knife to her
    collarbone. She refused. He led her upstairs and asked her whether she wanted
    to test the mattress in the master bedroom. She declined.

[6]

The appellant and complainant returned downstairs. There he demanded
    that she remove her clothes and dance for him. He had the knife in his hand. She
    complied. During the dancing, the appellant made some sexually-charged comments
    about her body, then cupped her breasts and complimented them. The appellant
    put $100-$200 in cash on the table. He told the complainant to take it. She
    did.

[7]

The appellant was sentenced on these offences in September 2013, when he
    was 48 years old. He had been involved in a workplace accident 24 years earlier
    and suffered from a permanent physical disability as a result. He was not
    employed at the time of the offences. Then, as now, his sole source of income
    is disability pensions.

[8]

In 2008, the appellant was convicted of several sexual offences. The
    complainants were his daughter and several of her friends. Each complainant was
    a teenager. The offences involved, among other things, repeated acts of sexual
    intercourse. Those convictions attracted a six year penitentiary sentence and
    the usual ancillary orders.

[9]

The appellant was granted day parole and transferred to a halfway house.
    He sought but was refused full parole when he was eligible. The Parole Board
    determined that he should continue on day parole because, by then, the charges
    of which he now stands convicted had been laid. On his mandatory release date,
    he moved in with his parents, who had then remained supportive of him throughout.

[10]

During
    his incarceration and thereafter on day parole, the appellant had cooperated
    with correctional authorities. He participated in sexual offender counselling. But
    when the jury found him guilty of the offences that are the subject of this
    appeal against sentence, his cooperation ceased. His statutory release was
    revoked. When sentenced on these charges, he had a
remanet
of about
    four months in connection with the 2008 sentence.

[11]

The
    appellant identifies two separate errors in the reasons of the sentencing judge
    which he says warrant a reduction of the sentence. He says the sentencing judge
    gave no effect to the principle of totality and accorded inadequate weight to
    the objective of rehabilitation.

[12]

The
    appellant is on firm ground in his submission that the reasons of the
    sentencing judge make no mention of the totality principle. That said, the
    sentencing judge was well aware of the
remanet
of the earlier sentence
    and when it expired. Her failure to direct that the current sentence be served
    consecutively to the prior sentence means that the sentence under consideration
    here will be served concurrently with the prior unexpired sentence.

[13]

The
    failure of the sentencing judge to expressly state that she had considered the
    principle of totality disentitles the sentencing judges decision to the deference
    that is normally its due. Despite the lack of deference, however, we would not
    interfere with the sentence imposed.

[14]

In
    our view, a sentence of imprisonment of three years, perhaps more accurately,
    two years and eight months, was well within the appropriate range of sentence
    for these offences.

[15]

The
    offences involved a measure of planning on the appellants part and a betrayal
    of a young persons trust. When the appellant did not get his way, he
    introduced a knife as a tool of intimidation. He degraded the complainant by
    making her dance while naked, by the comments he made about sexy women and good
    women, and further, by offering her money.

[16]

The
    paramount sentencing principles in this case, as s. 718.01 instructs us, are
    denunciation and deterrence. Both statutorily and factually, rehabilitation
    occupied a lesser place in the sentencing analysis. While the appellant, during
    sentence and while on day parole, had participated in counselling programs, his
    renunciation of them on conviction for these offences does not augur well for
    his future rehabilitative prospects. Greater emphasis on rehabilitative
    prospects was not warranted. Nor does application of the totality principle
    warrant our interference with the sentence imposed.

[17]

We
    note that trial counsel for the appellant, who must have been alive to the
    prospect that the sentencing judge might well order the three year sentence
    sought by the trial Crown to be served consecutively to the prior sentence,
    advanced no argument on the point. We do not doubt that an effective sentence of
    eight years and eight months is a long sentence. But it is not beyond the range
    of appropriate sentences for the appellants conduct. A substantial penitentiary
    sentence was warranted. The sentence imposed, in our view, reflects no error in
    principle.

[18]

While
    leave to appeal sentence is granted, the appeal from sentence is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

M.L.
    Benotto J.A.


