



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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 76

DATE: 20190204

DOCKET: C64636

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Janani Shanmuganathan, for the appellant

Jill Cameron, for the respondent

Heard and released orally: January 31, 2019

On appeal from the sentence imposed on March 1, 2017 by
    Justice John N. Olver of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice, the
    appellant was convicted of 25 of 34 counts of sexual offences against four
    complainants. Six of the convictions were stayed in accordance with the
    principles in
Kienapple
.

[2]

The trial judge imposed a global sentence of 12 years by reducing what
    he considered to be a fit sentence  13 years  by one year on account of the
    appellants advanced age and health challenges.

The Background Facts

[3]

The most serious offences involved three complainants and continued over
    the better part of a decade. The conduct included acts of forced sexual
    intercourse,
fellatio
and masturbation. Force was used, and more force
    threatened. The complainants, who were siblings, were abused from as early as 5
    years of age, until as late as age 16 when they were removed from the
    environment in which the abuse occurred.

[4]

In connection with the fourth complainant, the relevant conduct occurred
    two years after the other three complainants had been removed and the
    appellants conduct detected. The trial judge was of the view that the fourth
    complainant was being groomed for what had happened to the other three in previous
    years.

The Reasons for Sentence

[5]

The trial judge gave lengthy reasons for sentence. He identified the
    predominant sentencing objectives as deterrence, denunciation and separation of
    the offender from society. He acknowledged the significant influence of the
    principles of proportionality, of parity, and of totality in the determination
    of a fit sentence for this appellant in these circumstances.

[6]

The trial judge then listed what he considered to be the aggravating and
    mitigating factors at work in this case. He set out the positions of the
    parties before explaining why he imposed the sentence that he considered fit.

The Arguments on Appeal

[7]

In this court, the appellant seeks a reduction in his sentence. He says
    that an offenders age is a relevant consideration in determining a fit
    sentence. He acknowledges the trial judge did consider his age in determining
    the sentence that he imposed. But, he says, to mechanistically or
    mathematically reduce a sentence of 13 years by one year, to 12, does not give
    the age factor its due. An offenders advanced age must be factored into the
    principles of denunciation and deterrence, as well as that of totality.
    Denunciation and deterrence, admittedly the predominant sentencing objectives
    in cases like this, may be achieved in cases of elderly offenders, the
    appellant argues, by a sentence of shorter duration than in other cases with
    offenders of less advanced age.

Discussion

[8]

In our view, the sentence imposed reflects no error in principle. It
    sits comfortably within the range of sentence appropriate for the offences
    committed. This case teemed with aggravating factors and was bereft of any
    meaningful mitigating factor. The appellant acknowledges that the trial judge
    considered his (the appellants) age in determining the sentence he imposed. We
    are not persuaded that the weight he assigned to it reflects error, much less
    an error that had any impact on the sentence ultimately imposed.

[9]

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

David Watt J.A.

Grant Huscroft J.A.

L.B. Roberts J.A.


