R. v. N.G. et al., 2015 MBCA 81

JudgeHamilton, MacInnes and Cameron, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJune 05, 2015
JurisdictionManitoba
Citations2015 MBCA 81;(2015), 323 Man.R.(2d) 73 (CA)

R. v. N.G. (2015), 323 Man.R.(2d) 73 (CA);

      657 W.A.C. 73

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.001

Her Majesty The Queen (respondent) v. G.J.G. (young person/appellant)

(AY 14-30-08301)

Her Majesty The Queen (respondent) v. N.L.G. (young person/appellant)

(AY 14-30-08302; 2015 MBCA 81)

Indexed As: R. v. N.G. et al.

Manitoba Court of Appeal

Hamilton, MacInnes and Cameron, JJ.A.

September 3, 2015.

Summary:

The accused were 17 year old twin brothers, who engaged in the cyber bullying and sexual exploitation of a 14 year old girl. The accused pled guilty to sexual touching (s. 162 of the Criminal Code), possession of child pornography (s. 163.2(4)), distribution of child pornography (s. 163.1(3)) and transmitting sexually explicit material to a child (s. 171(1)(b)).

The Manitoba Provincial Court, in a decision reported at (2014), 311 Man.R.(2d) 286, sentenced the accused to concurrent sentences on each count of a two year custody and supervision order (16 months of secure custody, followed by eight months of community supervision) to be followed by 12 months of supervised probation. The accused sought leave to appeal from their sentences.

The Manitoba Court of Appeal granted leave to appeal and allowed the appeals, varying the sentences to concurrent sentences on each count of an 18 month custody and supervision order (12 months of secure custody and six months of community supervision) to be followed by six months of supervised probation.

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 5662.3

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Concurrent sentences - The accused were 17 year old twin brothers, who engaged in the cyber bullying and sexual exploitation of a 14 year old girl - They pled guilty to four offences: sexual touching, possession and distribution of child pornography and transmitting sexually explicit material to a child - The sentencing judge determined that concurrent sentences were appropriate - He sentenced the accused each to a combined three year concurrent sentence on each count, consisting of a two year custody and supervision order (16 months of secure custody, followed by eight months of community supervision) to be followed by 12 months of supervised probation - The Manitoba Court of Appeal allowed the accused's appeal from their sentences - Concurrent sentences were appropriate - The offences were interrelated in time and nature - However, the three year sentence was illegal as it offended s. 42(14) of the Youth Criminal Justice Act, under which no combined sentence for a single offence could exceed two years - The moral culpability of the accused was "on the high end of the spectrum" - The maximum length of custody and supervision available was appropriate - To give effect to the concurrent nature of the sentence and the two year maximum combined sentence, the court imposed concurrent sentences on each count of an 18 month custody and supervision order (12 months of secure custody and six months of community supervision) to be followed by six months of supervised probation - This reflected the sentencing judge's approach within the Act's requirements as well as properly balancing the serious circumstances of these offences with the restraint and balance required for young persons.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 8805

Young offenders - Decisions (incl. punishments) - Sentencing limitations (incl. bars to custody) - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 8806

Young offenders - Decisions (incl. punishments) - Sentencing considerations - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 8809

Young offenders - Decisions (incl. punishments) - Probation - [See Criminal Law - Topic 5662.3 ].

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order (incl. breach and review) - [See Criminal Law - Topic 5662.3 ].

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 15].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 15].

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 16].

R. v. Munilla and Santorelli (1986), 38 Man.R.(2d) 79 (C.A.), refd to. [para. 23].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 2008 MBCA 110, refd to. [para. 23].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 23].

R. v. N.W.P. (2008), 231 Man.R.(2d) 61; 437 W.A.C. 61; 2008 MBCA 101, refd to. [para. 30].

R. v. M.K. (1996), 90 O.A.C. 394 (C.A.), refd to. [para. 30].

R. v. A.H. (1991), 65 C.C.C.(3d) 116 (B.C.C.A.), refd to. [para. 30].

R. v. T.C.D., [2012] A.R. Uned. 865; 2012 ABPC 338, dist. [para. 31].

R. v. S.B., 2014 BCPC 279, dist. [para. 32].

A.B. v. Bragg Communications Inc. et al., [2012] 2 S.C.R. 567; 434 N.R. 323; 322 N.S.R(2d) 1; 1021 A.P.R. 1; 2012 SCC 46, refd to. [para. 34].

R. v. Mackie (D.T.) (2014), 588 A.R. 1; 626 W.A.C. 1; 2014 ABCA 221, refd to. [para. 35].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 42(14) [para. 5].

Counsel:

C.C. McKay, for the appellant, G.J.G.;

J.A. Skinner, for the appellant, N.L.G.;

A.Y. Kotler and C. St. Croix, for the respondent.

These applications and appeals were heard on June 5, 2015, by Hamilton, MacInnes and Cameron, JJ.A., of the Manitoba Court of Appeal. On September 3, 2015, Cameron, J.A., delivered the following judgment for the court.

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    • Canada
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    • 2 Abril 2020
    ...18; R. v. L.M., 2019 ONCA 945, 59 C.R. (7th) 410; R. v. Rayo, 2018 QCCA 824; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99; R. v. N.G., 2015 MBCA 81, 323 Man.R. (2d) 73; R. v. C. (S.), 2019 ONCA 199, 145 O.R. (3d) 711; R. v. Goldfinch, 2019 SCC 38; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. ......
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    ...media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R. v. N.G., 2015 MBCA 81, 323 Man.R. (2d) [62] The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the of......
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