



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.A., 2021 ONCA 126

DATE: 20210301

DOCKET: C67929

Tulloch,
    Harvison Young and Jamal JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

R.A.

Appellant

Paul
    Calarco, for the appellant

Vallery
    Bayly, for the respondent

Heard:
    September 2, 2020 by audio and video conference

On appeal from the sentenced imposed by Justice Patrice F. Band of
    the Ontario Court of Justice, dated September 30, 2019, with reasons reported
    at 2019 ONCJ 684.

Tulloch J.A.:

A.

Introduction

[1]

This is an appeal of the sentence
    imposed on September 30, 2019. The appeal relates only to the length of the
    sentence, and not to any ancillary conditions imposed as part of the sentence.

[2]

The appellant pled guilty to
    sexual assault, making sexually explicit material available to a child, and two
    counts of child luring. He was sentenced to five and a half years of
    imprisonment, reduced to five years after factoring in time served.

[3]

For reasons that follow, the
    appeal is dismissed.

B.

Background Facts

(1)

M.D.

[4]

The complainant, M.D., was fifteen
    years old. The appellant met M.D. online. They chatted over Facebook for a few
    weeks and then met in person in January 2016. In July 2016, the Childrens
    Aid Society (CAS) learned that M.D. was residing with the 35-year-old
    appellant. While they lived together, M.D. slept in a spare bedroom. The
    appellant sometimes took M.D. to movies, gave him beer and food, and gifted him
    an old iPhone.

[5]

M.D.s biological parents were
    aware of the living situation. Due to concerns about M.D.s relationship with
    the appellant, the CAS apprehended him and placed him in foster care. M.D. was also
    directed to cease all contact with the appellant.

[6]

M.D. and the appellant continued
    to contact each other with inappropriate electronic messages. The CAS took
    steps to prevent further communication.

[7]

By October 2016, M.D. was moved to
    a group home after his foster parents reported finding child pornography on his
    phone.

[8]

The police subsequently found
    further online sexual communications between the appellant and M.D., which were
    sent between February and April 2016. These communications revealed that
    there had been sexual contact, and that the parties had exchanged sexually
    explicit material. The appellant and M.D. called each other pet names, had engaged
    in oral sex, and the appellant had sent the complainant sexually explicit
    images of naked males and anal penetration. A fictitious Facebook account was
    used to allow the parties to maintain contact without detection.

[9]

In September 2017, the police
    interviewed M.D. He indicated that: the parties had engaged in sexually
    explicit chats; the appellant touched M.D.s penis over his clothing while he
    was at the appellants home; there was mutual touching of this nature; they performed
    fellatio on each other; and the appellant anally penetrated M.D. on at least
    two occasions. M.D. kept these incidents secret.

(2)

Drake

[10]

Between August 2016 and March
    2017, an undercover police officer communicated with the appellant. The officer
    claimed to be a fourteen-year-old male named Drake.  When they first started
    chatting, the appellant was thirty- five.

[11]

The appellant sought to have
    sexual contact with Drake. He asked to have Drakes picture and suggested
    that they go for coffee or to a movie or hotel together. He also suggested that
    Drake could sleep at the appellants house. The appellant asked Drake to keep
    their communications secret.

C.

The Sentencing Decision

(1)

Circumstances of the Offender

[12]

After setting out the facts
    surrounding the offence, summarized above, the sentencing judge turned to the
    circumstances of the offender.

[13]

R.A. is now 38 years old. He had a
    difficult upbringing. His parents divorced at a young age. His mothers new
    partner was alcohol and drug dependent; he became abusive towards her. Beyond
    the instability in his childhood home, R.A. was sexually abused by a peer
    during high school.

[14]

Since then, the appellant has held
    steady employment. He lived with his mother and her partner until 2012, when
    his mother died unexpectedly. He is currently involved in a monogamous
    relationship with an age-appropriate partner. His partner has expressed a
    willingness to continue the relationship provided that R.A. makes changes in
    his life.

(2)

Reports of Dr. Julian Gojer

[15]

The sentencing judge next
    considered the reports of a psychiatrist, Dr. Julian Gojer, which were adduced
    by defence counsel.

[16]

Dr. Gojer diagnosed the appellant with
    homosexual hebephilia, being an attraction to pubescent males. The appellant
    was also attracted to adult males. His history demonstrated no major mental
    illness, substance abuse disorder or personality disorder. He took
    responsibility for his offending and accepted the need for counselling.

[17]

The doctors original report indicated
    that the appellant was a risk to underaged males, but the risk was in the low
    range and could be further lowered with treatment, which the appellant admitted
    that he needed. Upon request, Dr. Gojer provided two further reports that clarified
    and qualified this finding: he was careful to note that the appellants
    assessment of low risk was predicated on his participation in treatment, which
    had not yet occurred.

[18]

Dr. Gojer recommended treatment
    for the appellant while in custody and in the community. The indications were
    that the appellant would engage in treatment. He had the capacity to benefit
    from treatment, and since the appellant was also attracted to adult males, he
    could re-direct his urges in a lawful way.

(3)

Mitigating and Aggravating Factors

[19]

The sentencing judge set out
    several mitigating and aggravating factors.

[20]

The mitigating factors listed by
    the sentencing judge included: the appellant pled guilty; he was open to
    therapeutic intervention; he expressed remorse; he had no criminal record; he
    had no drug or alcohol issues; he was currently in an age appropriate
    relationship; and he had a strong work history with support in the community.

[21]

The sentencing judge also properly
    considered the aggravating factors, which included: the young age of M.D. and
    the perceived young age of the undercover officer (Drake); the twenty year
    age gap between the appellant and M.D.; the grooming techniques employed by
    the appellant; the vulnerability of M.D.; the appellant kept in contact with
    M.D. knowing that they were not supposed to communicate with each other; the
    use of a fictitious Facebook page to conceal their contact; the progression of
    the conduct over a nine month period; and the repeated instances of fellatio
    and unprotected anal penetration with M.D.

(4)

Counsel Proposals for the Sentence
    and the Disposition

[22]

At the sentencing hearing, the
    Crown requested a global sentence of six years imprisonment. The defence
    requested two years, followed by three years of probation.

[23]

The sentencing judge imposed a
    global sentence of five-and-a-half years, reduced to five years after taking
    into account pre-sentence custody and restrictive bail conditions.

D.

Positions of the Parties

(1)

Position of the Appellant

[24]

The appellant argues that the
    sentencing judge erred by not considering the appellants rehabilitative
    prospects as mitigating. Specifically, it is submitted that the sentencing
    judge erred by considering the fact that the appellant had not engaged in
    counselling without also considering the practical availability of counselling.
    The appellant had been arrested in January 2018 and was held in pre-trial
    custody. There was no basis to believe he could receive counselling in
    provincial pre-trial facilities. He was released on very restrictive bail conditions
    in March 2018, which provided little, if any, opportunity to engage in
    counselling. The appellant argues that the sentencing judge effectively held it
    against him that he had not engaged in counselling, while not appreciating how
    difficult it was for him to actually obtain counselling. In doing so, the
    sentencing judge erred in law.

(2)

Position of the Respondent

[25]

The respondent argues that there
    is no basis for appellate intervention. The appellant has not shown that the
    sentencing judge committed any error of law or principle, nor that the sentence
    is demonstrably unfit.

[26]

The sentencing judge did not
    exercise his discretion unreasonably in weighing the relevant aggravating and
    mitigating factors. The weight that the judge assigned to each individual
    factor is owed deference.

[27]

The sentencing judge did not fail
    to consider the appellants rehabilitative prospects. When considering the
    evidence before the court in its totality, it was open to the judge to conclude
    that the appellants risk of re-offending was not so low that it comprised a
    separate mitigating factor. The judges treatment of this factor as neither
    mitigating nor aggravating was within his discretion and is owed deference on
    appeal. Furthermore, the appellants sentence is fit when measured against the
    gravity of the offence and moral culpability of the offender.

[28]

Regarding Dr. Gojers report, the respondent
    submits that the sentencing judge did not disregard Dr. Gojers expert opinion.
    Rather, he acknowledged Dr. Gojers finding that the risk of reoffending
    was in the low range. The sentencing judge declined to characterize the
    appellants risk level as mitigating because Dr. Gojer was careful to
    predicate his finding of low risk on the appellants participation in
    counselling. As of the date of the sentencing hearing, the appellant had not
    engaged in counselling or treatment. The respondent submits that this was not
    in error. The evidence indicated that there was some risk to re-offend, but
    again the risk would be lowered if the appellant made a strong commitment to
    his rehabilitation.

[29]

The respondent submits that the
    sentencing judge was not required to consider the practical availability of
    counselling under the appellants bail conditions. A finding that counselling
    was unavailable would have required speculation. There was no evidence about
    the availability of treatment while the appellant was on bail, either before or
    after the house arrest condition was considerably loosened to permit the
    appellant to pursue employment opportunities. Further, the respondent points
    out that defence counsel did not raise this issue in submissions at the
    hearing, despite affirming that the appellant had not yet engaged in treatment.

E.

Discussion

(1)

The Standard of Review

[30]

On review, appellate courts afford
    significant deference to sentencing judges in crafting a proportionate sentence.
    An appellate court may intervene only if: (i) the sentence was
    demonstrably unfit, or (ii) the sentencing judge made an error of law or error
    in principle that had an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 25-26;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41,
    44, 51.

[31]

The sentencing judges weighing of
    relevant factors is a matter of discretion that is owed deference:
Lacasse,
at para. 49. It can constitute an error in principle [o]nly
    if by emphasizing one factor or by not giving enough weight to another, the
    trial judge exercises his or her discretion unreasonably:
Friesen,
at para. 26. In other words, an appellate court cannot
    intervene simply because it would have weighed the relevant factors
    differently:
Lacasse,
at para. 49. Moreover, not every error in principle is
    material. Again, intervention is only justified where it is apparent from the
    judges reasons that the error impacted the sentence:
Friesen,
at para. 26.

[32]

On appeal, the court must show
    deference to the sentencing judges findings of fact and their identification
    of aggravating and mitigating factors, to the extent that they are not affected
    by an error in principle:
Friesen
, at paras. 26, 28.

(2)

The Sentencing Judge Did Not Err
    in Law or Principle

[33]

I do not see any error of law or
    principle committed by the sentencing judge. The sentencing judge properly
    considered and weighed the mitigating and aggravating factors. If the appellant
    receives counselling now, that will be to his credit. However, the fact that he
    had not obtained counselling at the time of sentencing does not appear to have
    been of any overriding importance to the sentencing judge. It was only one
    consideration and related to the risk posed by the appellant. Moreover, the
    sentencing judge cannot be faulted for failing to consider the unavailability
    of counseling when that was neither raised nor explored in the evidence.

[34]

Contrary to the appellants
    submissions, the trial judge considered significant mitigating factors bearing
    on the appellants rehabilitative potential when reaching the decision as to
    sentence: namely, his openness to therapy; his guilty plea; his expression of
    remorse; his lack of a criminal record; his strong work history; and his
    support in the community. In light of the absence of any error in law or
    principle, the sentencing decision is entitled to deference.

(3)

The Sentence Imposed Was Not
    Demonstrably Unfit

[35]

Deterrence and denunciation are of
    prime importance for offences involving a sexual assault of a child: see the
Criminal Code,
R.S.C. 1985, c. C-46,

s. 718.01;
Friesen,
at paras. 101-105. Sentences for such offences should
    be strict. Factors justifying longer sentences include conduct found to be
    grooming, as well as the degree of physical interference with the victims
    bodily integrity:
Friesen
,

at paras. 125, 138, 153.

[36]

It must be considered that the
    appellant expressed remorse, which reflects some insight into his conduct, and
    also that he was willing to seek treatment.

[37]

However, the Supreme Court of
    Canada recently emphasized the need to impose sentences that accurately reflect
    the wrongfulness and harmfulness of sexual offences against children:
Friesen,
at para. 5. Courts must take heed of the well known
    and longstanding consequences of sexual offences against children. This court
    summarized some of these consequences in
R. v. D.M
.,
    2012 ONCA 520, 111 O.R. (3d) 721, at para. 38, citing this courts earlier
    decision in
R. v. D.(D.),
[2002] 58 O.R. (3D) 788 (Ont. C.A.):

(i) children often suffer immediate physical
    and psychological harm; (ii) children who have been sexually abused may never
    be able, as an adult, to form a loving, caring relationship with another adult;
    (iii) and children who have been sexually abused are prone to become abusers
    themselves when they reach adulthood.

[38]

While the Supreme Court did not
    establish a precise range, it stressed that mid-single digit penitentiary
    terms for sexual offences against children are normal:
Friesen,
at para. 114. This court has also stated that adults
    who sexually abuse children must face the prospect of a significant
    penitentiary term:
R. v. Woodward
, 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 75. It
    has upheld sentences between four and six-and-a-half years in similar
    circumstances: see
Woodward,
at para. 75;
R. v. Saliba
, 2019 ONCA 22, at para. 28;
R. v. R.B.,
2014 ONCA 840, 327 O.A.C. 20, at paras. 7-12;
D.(D.),
at paras. 32-35, 44; and
D.M
., at paras. 36-44.

[39]

The sentence imposed on the
    appellant fell within the mid-single digit range.

[40]

The appellant preyed on a
    vulnerable young person for an extended period of time. He tried to prey on
    another young person not knowing that he was an undercover officer. While the
    appellant is remorseful, and hopefully will make efforts to obtain counseling,
    it cannot be said that the sentence imposed by the sentencing judge was
    demonstrably unfit.

F.

Disposition

[41]

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

Released: March 1, 2021 M.T.

M. Tulloch J.A.

I agree. Harvison
    Young J.A.

I agree. M. Jamal
    J.A.


