



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.V., 2019 ONCA 834

DATE: 20191021

DOCKET: C67360

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.V.

Appellant

Michael Dineen, for the appellant

Katie Doherty, for the respondent

Heard and released orally: October 11, 2019

On appeal from the sentence imposed on March 22, 2017 by
    Justice Robert Gee of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals the sentence of imprisonment of four years imposed
    upon him after a trial in the Ontario Court of Justice on counts of sexual
    interference and sexual assault. He was found guilty of both counts. A
    conviction was entered on the count of sexual interference, and a stay on that
    of sexual assault.

The Background Facts

[2]

The events giving rise to the conviction occurred on a Canada Day
    weekend several years ago. The appellant was then 20 years old, the complainant
    15. They were cousins. The conduct involved was a single act as a result of
    which the complainant became pregnant. The act took place on the floor of the
    shower in the mens washroom at a campground after the appellant had led the
    complainant there on the pretext of wishing to speak with her alone. Both the
    appellant and the complainant had previously consumed alcohol.

[3]

At trial, the Crown sought a penitentiary sentence of three to five
    years. Defence counsel advocated for a sentence of 15-18 months and submitted
    that the sentence should be served in the community.

[4]

The trial judge acknowledged the overarching principle of
    proportionality as fundamental to his sentencing decision. He considered the
    range of sentence identified by the Crown as correct, but appreciated that it
    was a range only.

[5]

In mitigation, the trial judge took into account that the appellant was
    a youthful first offender who had worked steadily since leaving school in Grade
    9. He had a supportive family, and a spouse with whom he had a child. The
    pre-sentence report was generally positive. He had been on judicial interim
    release for a lengthy period prior to trial without apparent incident.

[6]

The trial judge also took into account some aggravating factors. Among
    those he considered were:

i.

the
    statutory factor in s. 718.01 of the
Criminal Code
, which assigns
    primacy to the principles of denunciation and deterrence, for offences
    involving the abuse of a person under 18 years of age;

ii.

the nature
    of the relationship between the parties, akin to, but not necessarily the
    equivalent of, a trust relationship; and

iii.

the consequences
    to the complainant involving the pregnancy, its termination and the loss of
    educational opportunities and valued personal relationships.

The Grounds of Appeal

[7]

In this court, the appellant asks that we vary the sentence imposed at
    trial. He submits that the trial judge erred in two respects:

i.

that
    he misstated the appropriate range of sentence applicable in this case; and

ii.

that he
    failed to give effect to the principles that govern the length of custodial
    sentences to be imposed on youthful first offenders.

Discussion

[8]

We are not persuaded that the trial judge erred in either respect.

[9]

In our view, the range of sentence identified by the trial judge was
    apt. This case involved extremely intimate contact, akin to intercourse, with
    an underaged relative of the appellant whom he had inveigled into a place away
    from other family members, there to commit the offence of which he stands
    convicted. The offence has had significant consequences for the complainant,
    physically, emotionally, and in her familial relationships.

[10]

Nor
    are we persuaded that the judges location of the sentence within the
    identified range of sentence fails to give effect to the principles governing
    the length of custodial sentence for youthful first offenders. We also note
    that an error of this nature  the placement of a sentence within a range  does
    not constitute reversible error, absent a sentence that is demonstrably unfit.
    Quite simply, that is not this case.

[11]

In
    the result, we grant leave to appeal sentence and set aside the victim
    surcharge imposed upon the appellant, but otherwise dismiss the appeal from
    sentence.

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.


