



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    the complainant or a witness shall not be published in any document or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. W.Y.,
    2015 ONCA 682

DATE: 20151009

DOCKET: C59782

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

W. Y.

Respondent

Roger Shallow, for the appellant

Michael Dineen, for the respondent

Heard: October 5, 2015

On appeal from the sentence imposed by Justice J.W. Bovard
    of the Ontario Court of Justice, dated November 27, 2014.

ENDORSEMENT

[1]

Following his plea of guilty, the respondent was sentenced to five
    years imprisonment for having committed a number of sexual offences against his
    14-year-old daughter: sexual touching (1 count); invitation to his daughter to
    touch his body with her mouth for a sexual purpose (2 counts); and sexual
    intercourse (1 count).  The offences took place between June 18, 2013 and July
    30, 2013.

[2]

The Crown seeks leave to appeal, and, if leave is granted, requests that
    a sentence of at least 8 years be imposed.

[3]

The sentencing proceeded by way of an agreed statement of facts from
    which we have extracted the following summary. After being unknown to his
    daughter, the respondent had contact with her in April 2013 for approximately a
    week when she and her mother visited him. At the end of the school year, the mother,
    who was having difficulty with her daughter, reached out to the respondent,
    hoping that a relationship with him would help the daughter improve her
    lifestyle choices. The daughter left her home in the United States to live with
    the respondent for the summer.

[4]

Within days, the respondent initiated sexual activity with his daughter.
    He told her to think of him as her boyfriend, and not her father. Over the next
    approximately six-week period, the respondent had intercourse with his daughter
    nearly daily. He also had his daughter perform oral sex on him twice and once
    took pictures of her while making her pose naked.

[5]

At the end of this period, the respondent, an alcoholic, took his
    daughter to meet her older, half-sister.  Everyone was drinking. The younger
    daughter drank too  to the point of vomiting. The respondent and his younger
    daughter stayed overnight, sleeping on the living room couch. During the night,
    the older daughter went into the living room to check on her younger
    half-sister. She saw her father performing oral sex on her half-sister and
    digitally penetrating her. She contacted the police, who arrested the
    respondent.

[6]

The Crown submits that the sentencing judge erred in principle by
    misidentifying the range of appropriate sentences for the sexual offences
    committed by the respondent and, as a result, imposed a sentence that was
    manifestly unfit. In particular, the Crown argues that the sentencing judge found
    that he was bound by the sentencing range of three to five years identified in
R.
    v. B.(J.)
(1990), 36 O.A.C. 307 (C.A.) and that he erred in doing so. The
    Crown submits that the correct range was identified by this court in
R. v.
    D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.). In that case, Moldaver J.A. held
    that adult offenders, in a position of trust, who sexually abuse innocent young
    children on a regular and persistent basis over substantial periods of time can
    expect to receive mid to upper single digit penitentiary terms.  The Crown
    relied on both decisions in its sentencing submissions.

[7]

In addition, the Crown submits that the sentencing judge failed to give
    sufficient consideration to the fact that the respondent was a repeat offender.
    He had two prior convictions for sexual offences against children: one in 1987
    for sexually assaulting a 9-year-old girl he was babysitting, on two occasions,
    and one in 1988, again for sexually assaulting a 9-year-old girl he was
    babysitting. In both cases, the respondent touched the victim's vagina.

[8]

We are not persuaded that the sentencing judge felt bound to impose a
    sentence that did not exceed five years. Thus, in our opinion he did not err in
    principle. He thanked counsel for the authorities they submitted because it
    gave him a "good idea of the range of sentences that the courts consider
    in cases such as this one." The sentencing judge described
B.(J.)
as "the most helpful case". In
B.(J.)
, the court noted that
    a number of factors will determine the appropriate length of sentence within
    the range for a sexual assault. These include the age of the victim, the
    duration and frequency of the sexual assaults, the criminal record of the
    offender, the effects on the victim and the presence or absence of collateral violence
    or remorse. The court also noted that the ordinary range will be exceeded when
    the circumstances cry out for a more severe penalty.

[9]

While the sentencing judge did not specifically advert to
D.(D.)
in his reasons, he imposed a sentence at the bottom of the range identified in
    that case. In
D.(D.)
, a
t
    para. 44, Moldaver J.A. (as he then was) wrote:

[W]hen adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms. When the abuse involves full intercourse, anal or vaginal,
    and it is accompanied by other acts of physical violence, threats of physical
    violence, or other forms of extortion, upper single digit to low double digit
    penitentiary terms will generally be appropriate. Finally, in cases where these
    elements are accompanied by a pattern of severe psychological, emotional and
    physical brutalization, still higher penalties will be warranted.

[10]

A
    brief outline of the facts in these two cases is of assistance in appreciating how
    they compare with the instant case. In
B.(J.)
, the accused commenced
    having sexual intercourse with his stepdaughter when she was only six years
    old. The abuse continued weekly, and sometimes more frequently, until she was
    fourteen. The victim was threatened with punishment if she did not comply and
    there was an instance of violence, apart from the sexual assaults. The
    accused's criminal record included a charge of attempted rape of an eight-year-old
    girlfriend of the victim. The accused's sexual abuse of his stepdaughter persisted
    after he had served his sentence for attempted rape. Because of this, the
    appellants counsel conceded that a sentence beyond the usual five-year range
    was required. The court upheld the sentence of eight years imposed by the sentencing
    judge.

[11]

In
D.(D.)
, the accused coerced four boys  ranging in age from 5 to 8
    years  to engage in all manner of sexual activity for periods of time ranging
    from two to seven years. The accused stood in a position of trust towards the
    boys. He employed violence, threats of violence and extortion. In one instance,
    he held a boy over his thirtieth-floor balcony and warned him that he would be
    thrown off if he complained to anyone. The court upheld a sentence of nine
    years and one month.

[12]

In
    this case, the appellants conduct was insidious. He abused his teenage
    daughter who had come to him for help. The acts also included full sexual
    intercourse, nearly daily. His final assault on his daughter in the home of his
    older daughter, after permitting her to consume alcohol to the point where she vomited,
    is particularly disturbing. Further, the abuse stopped only because his older
    daughter caught him. That said, without minimizing the appellant's conduct
    towards his troubled and vulnerable daughter, in the context of cases involving
    sexual abuse perpetrated by persons in a position of trust, these offences
    occurred over a relatively compact period of time. The undeniably major breach
    of trust is attenuated to some extent, relative to other cases of sexual abuse
    by a parent, by the fact that the respondent really had no prior relationship
    with his 14-year-old daughter before she came to live with him. The respondent
    did not employ physical violence, threats of violence or extortion. He pled guilty
    and expressed remorse and a desire for treatment. The sentencing judge was
    alive to these circumstances, as well as the fact that the respondents related
    criminal record was very dated.

[13]

In
R. v. P.M.
,
2012 ONCA
    162, 282 C.C.C. (3d) 450, Rosenberg J.A., writing for the majority, after a
    thorough analysis of the case law, recognized the upward trend in the
    sentencing of sexual offenders in a position of parental trust and adopted and
    reasserted the principles set out in
D.(D
.)
. He explained that
B.(J.)
must now be read with
D.(D.)
. At para. 46, he wrote:

[T]he court signalled in
D.(D.)
that the sexual abuse
    of a child will attract lengthy penitentiary sentences. In my view, where a
    father has committed repeated acts of incest with his daughter over many
    months, as in this case, it will be highly unusual for the court to impose a
    penitentiary sentence of less than five to six years. Such a range is more
    consistent with this court's decision in
D.(D.)
and is also more
    consistent with amendments to the
Criminal Code
since
B.(J.)
was decided.

[14]

While
    in our view, the sentence imposed was at the bottom of the range, we are not
    persuaded that the individual circumstances of the case render it manifestly
    unfit.

[15]

We
    therefore grant leave to appeal but dismiss the appeal.

Alexandra
    Hoy A.C.J.O.

K.M.
    Weiler J.A.

G.
    Pardu J.A.


