R. v. L.V.R., (2016) 383 B.C.A.C. 201 (CA)

• Judge: Saunders, D. Smith and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 12, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 383 B.C.A.C. 201 (CA);2016 BCCA 86

R. v. L.V.R. (2016), 383 B.C.A.C. 201 (CA);

    661 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. FE.051

Regina (respondent) v. L.V.R. (appellant)

(CA39981; 2016 BCCA 86)

Indexed As: R. v. L.V.R.

British Columbia Court of Appeal

Saunders, D. Smith and Fitch, JJ.A.

February 24, 2016.

Summary:

The accused was convicted of the following Criminal Code offences respecting his stepdaughter M.H.: sexual interference of a person under age 14, contrary to s. 151 (count 1); sexual exploitation, contrary to s. 153(1)(a) (count 2); sexual assault, contrary to s. 271 (count 3); making child pornography, contrary to s. 163.1(2) (count 11); and possession of child pornography, contrary to s. 163.1(4) (count 12). He was also convicted of the following offences respecting D.O. (M.H.'s friend): sexual interference of a person under age 16, contrary to s. 151 (count 4); and sexual assault, contrary to s. 271 (count 6). He was further convicted of uttering a threat to S.H. (M.H.'s mother and his former common law spouse) to cause bodily harm against T.C. (S.H.'s fiancé), contrary to s. 264.1(1) (count 7). The trial judge conditionally stayed the convictions for sexual assault (count 3) and possession of child pornography (count 12) respecting M.H., and for the sexual assault of D.O. (count 6) in accordance with R. v. Kienapple. See [2011] B.C.T.C. Uned. 1152. The accused appealed and sought an order for the appointment of counsel to assist him with his appeal under s. 684 of the Criminal Code.

The British Columbia Court of Appeal, per Hinkson, J.A., allowed the application for the appointment of counsel. See 336 B.C.A.C. 220; 574 W.A.C. 220.

The British Columbia Court of Appeal, in a decision reported at 361 B.C.A.C. 94; 619 W.A.C. 94, dismissed the appeal. The accused sought leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada, in a decision reported at [2014] S.C.C.A. No. 485, refused leave to appeal.

The British Columbia Supreme Court sentenced the accused as follows: (i) count 1 (sexual interference of M.H.) - six years; (ii) count 2 (sexual exploitation of M.H.), six years, concurrent to count 1; (iii) count 4 (sexual interference of D.O.), 90 days' imprisonment, consecutive to counts 1 and 2; (iv) count 7 (uttering threats to S.H.), seven days' imprisonment, consecutive to count 4; and (v) count 11 (making child pornography of M.H.), one year imprisonment, consecutive to count 7. The court also imposed ancillary orders including a 10 year weapons prohibition, an order that the accused provide a DNA sample, and a lifetime Sex Offender Information Registration Act (SOIRA) order. The SOIRA order was made under ss. 490.012(1) and 490.013(2.1) of the Code. The accused sought leave to appeal sentence and, if leave was granted, appealed his sentence.

The British Columbia Court of Appeal granted leave to appeal sentence. The Crown conceded that the accused should have received double credit for his pre-sentence custody in accordance with the existing jurisprudence at the time he was charged. Accordingly, the court deducted 30 days from the accused's mandatory one year sentence for the making of child pornography (count 11), reducing it to 11 months. The appeal was otherwise dismissed. The court held that the sentencing judge did not err in making the one year mandatory minimum sentence for making child pornography consecutive to counts 1 and 2. The gravamen of that offence was distinct from the accused's other sexual offending against M.H. Further, the law in its current form did not provide for a right to appeal from a lifetime SOIRA order under s. 490.012(1) where the conditions precedent to the vesting of that right, including conviction and sentencing, had not yet materialized. Here, the accused's right to appeal had not yet accrued at the time of the 2011 amendments as he had yet to be convicted and sentenced. Therefore, his right to appeal was not "pending" or "vested" when the legislative changes were implemented and any potential appeal, if and when the conditions precedent were fulfilled, would be subject to those changes, which no longer provided him with a right of appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3090.8

Special powers - Sex offender registration legislation - Registration - Appeals - See paragraphs 27 to 42.

Criminal Law - Topic 5662.1

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Consecutive sentences - See paragraphs 21 to 26.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - See paragraph 21.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - See paragraphs 21 to 26.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - See paragraphs 21 to 26.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 4].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 21].

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77; 450 W.A.C. 77; 2009 BCCA 85, refd to. [para. 21].

R. v. B.C.M. (2008), 259 B.C.A.C. 222; 436 W.A.C. 222; 2008 BCCA 365, refd to. [para. 22].

Thow v. British Columbia Securities Commission (2009), 266 B.C.A.C. 140; 449 W.A.C. 140; 2009 BCCA 46, refd to. [para. 27].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, consd. [para. 27].

R. v. Clarke (C.), [2014] 1 S.C.R. 612; 456 N.R. 43; 316 O.A.C. 384; 2014 SCC 28, refd to. [para. 27].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 28].

British Columbia Hydro and Power Authority v. Environmental Appeal Board (B.C.) (2003), 185 B.C.A.C. 94; 303 W.A.C. 94; 229 D.L.R.(4th) 1; 2003 BCCA 436, refd to. [para. 28].

R. v. Hooyer (D.R.) (2016), 345 O.A.C. 90; 2016 ONCA 44, refd to. [para. 28].

R. v. Puskas (J.F.); R. v. Chatwell (D.R.), [1998] 1 S.C.R. 1207; 227 N.R. 1; 110 O.A.C. 374, refd to. [para. 32].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 34].

R. v. Allen (W.R.) (2012), 327 B.C.A.C. 236; 556 W.A.C. 236; 2012 BCCA 377, dist. [para. 36].

Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718 (C.A.), refd to. [para. 36].

R. v. Chisholm (C.J.) (2012), 393 N.B.R.(2d) 198; 1017 A.P.R. 198; 2012 NBCA 79, refd to. [para. 37].

R. v. J.J.W. (2012), 321 N.S.R.(2d) 298; 1018 A.P.R. 298; 2012 NSCA 96, refd to. [para. 37].

R. v. T.C.F. (2013), 326 N.S.R.(2d) 255; 1033 A.P.R. 255; 2013 NSCA 13, refd to. [para. 37].

R. v. Whiting (S.C.) (2013), 427 Sask.R. 52; 591 W.A.C. 52; 2013 SKCA 127, refd to. [para. 37].

Statutes Noticed:

Sex Offender Information Registration Act, S.C. 2004, c. 10, sect. 490.012(1), sect. 490.012(3) [para. 10]; sect. 490.013(2.1) [para. 11]; sect. 490.014 [para. 12].

Counsel:

E. Purtzki, for the appellant;

M. Street, for the respondent.

This application for leave to appeal sentence and sentence appeal were heard at Vancouver, B.C., on February 12, 2016, by Saunders, D. Smith and Fitch, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following reasons for decision for the court on February 24, 2016.