R. v. P.M.,

• Jurisdiction: Ontario
• Judge: Rosenberg, MacPherson and Epstein, JJ.A.
• Neutral Citation: 2012 ONCA 162
• Date: 07 September 2011
• Court: Court of Appeal (Ontario)

R. v. P.M. (2012), 289 O.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MR.010

Her Majesty The Queen (applicant/appellant v. P.M. (respondent)

(C52760; 2012 ONCA 162)

Indexed As: R. v. P.M.

Ontario Court of Appeal

Rosenberg, MacPherson and Epstein, JJ.A.

March 16, 2012.

Summary:

Over a period of approximately 13 months the accused had forced anal and vaginal intercourse with his daughter (complainant), who was then 13 and 14 years of age. There were approximately ten incidents. Police also found 1,837 images of child phonography on his computer, including videos and pictures of the complainant. He pleaded guilty to sexual assault, incest, sexual interference, making child pornography, possession of child pornography and careless storage of a firearm. The trial judge imposed a sentence of five years for the various sexual offences involving the accused's daughter, one year consecutive for the child pornography offences and six months concurrent for a firearms offence making a total sentence of six years. The Crown appealed the sentence, arguing that the judge erred by not viewing a disc containing images of child pornography tendered by the Crown as evidence and that the total sentence was unfit.

The Ontario Court of Appeal, Epstein, J.A., dissenting, dismissed the 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 5811

Sentencing - Sentencing procedure and rights of the accused - Evidence of circumstances of crime (incl. video) - [See Criminal Law - Topic 5817.2 ].

Criminal Law - Topic 5817.2

Sentencing - Sentencing procedure and rights of the accused - Evidence - Exclusion where prejudicial effect outweighs probative value - The accused pleaded guilty to making and possessing child pornography and to a number of sexual offences, some of which involved his young teenage daughter - The police had prepared a disc that contained a sampling of the pornography as well as the videos the accused had made while sexually assaulting his daughter - The sentencing judge refused to view the disc - The Crown appealed the six year sentence imposed, arguing that the sentencing judge erred in not viewing the disc - The Ontario Court of Appeal dismissed the appeal - The court stated that a trial judge at sentencing should exclude otherwise relevant evidence proffered by the Crown where the prejudicial effect of the evidence outweighed its probative value - There was no reason to interfere with the judge's view that the prejudicial effect of the evidence outweighed its probative value in the unusual circumstances of this case - The Crown was able to adequately present its case at the sentencing hearing - See paragraphs 22 to 37.

Criminal Law - Topic 5863

Sentence - Incest - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - Over a period of approximately 13 months the accused had forced anal and vaginal intercourse with his young teenage daughter (complainant) (approx 10 incidents) - His computer contained 1,837 images of child phonography, including videos and pictures of the complainant - He pleaded guilty to sexual assault, incest, sexual interference, making child pornography, possession of child pornography and careless storage of a firearm - 37 years old - No prior criminal record - Accused had dysfunctional family - Was not sexually abused himself - Suffered post traumatic stress disorder from military activities - Substance abuse - Family support, including support by complainant - The trial judge imposed a sentence of five years for the various sexual offences involving the complainant, one year consecutive for the child pornography offences and six months concurrent for a firearms offence making a total sentence of six years - The Crown appealed, arguing that the sentence was unfit - The Ontario Court of Appeal dismissed the appeal - See paragraphs 1 to 13 and 38 to 58.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Angelillo (G.), [2006] 2 S.C.R. 728; 355 N.R. 226; 2006 SCC 55, refd to. [paras. 26, 71].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 27].

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. [paras. 28, 117].

R. v. Hunt (W.E.) (2002), 303 A.R. 240; 273 W.A.C. 240; 166 C.C.C.(3d) 392; 2002 ABCA 155, refd to. [paras. 31, 102].

R. v. Kwok (A.), [2007] O.T.C. 291; 72 W.C.B.(2d) 533; 2007 CanLII 2942 (Sup. Ct.), refd to. [paras. 33, 67].

R. v. Woodward (T.E.C.) (2011), 284 O.A.C. 151; 107 O.R.(3d) 81; 2011 ONCA 610, refd to. [paras. 39, 121].

R. v. B. (1990), 36 O.A.C. 307 (C.A.), refd to. [para. 43].

R. v. D.D. (2002), 157 O.A.C. 323; 58 O.R.(3d) 788 (C.A.), refd to. [paras. 43, 119].

R. v. D.A.H. (2003), 168 O.A.C. 176; 171 C.C.C.(3d) 309 (C.A.), refd to. [para. 45].

R. v. Mealing (W.W.) (2006), 206 O.A.C. 342; 205 C.C.C.(3d) 410 (C.A.), refd to. [para. 45].

R. v. G.A.G. (2006), 206 O.A.C. 134 (C.A.), refd to. [para. 45].

R. v. M.G., [2007] O.A.C. Uned. 501; 2007 ONCA 837, refd to. [para. 45].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [paras. 50, 123].

R. v. D.G.F. (2010), 259 O.A.C. 364; 98 O.R.(3d) 241; 2010 ONCA 27, refd to. [paras. 51, 142].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 55].

R. v. MacDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 56].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 68].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165, refd to. [para. 74].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 79].

R. v. T.P. (2007), 228 O.A.C. 120; 223 C.C.C.(3d) 289; 2007 ONCA 585, refd to. [para. 83].

R. v. Bernardo, [1995] O.J. No. 1472 (Gen. Div.), refd to. [para. 99].

R. v. Lehman, 2007 ONCJ 18, refd to. [para. 99].

R. v. M.G., 2009 ONCJ 561, refd to. [para. 99].

R. v. J.V.H., 2010 BCPC 253, refd to. [para. 99].

R. v. Bishop, 2007 ONCJ 442, refd to. [para. 102].

R. v. L.A.C. (2005), 386 A.R. 102; 2005 ABPC 217, refd to. [para. 102].

R. v. Fisher (R.D.) (2007), 317 N.B.R.(2d) 317; 819 A.P.R. 317; 2007 NBPC 15, refd to. [para. 102].

R. v. Moen (R.) (2006), 274 Sask.R. 79; 2006 SKPC 1, refd to. [para. 102].

Newfoundland Association of Provincial Court Judges et al. v. Newfoundland (1998), 163 Nfld. & P.E.I.R. 319; 503 A.P.R. 319; 160 D.L.R.(4th) 337 (Nfld. T.D.), refd to. [para. 112].

R. v. Jeffrey (1976), 34 C.R.N.S. 283 (Ont. Prov. Ct.), refd to. [para. 113].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 250 C.C.C.(3d) 139; 2009 ONCA 915, refd to. [para. 115].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 117].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 122].

Authors and Works Noticed:

Burton's Legal Thesaurus (3rd Ed. 2001), generally [para. 111].

Counsel:

Lisa Joyal and Lisa Henderson, for the appellant;

Catriona Verner, for the respondent.

This appeal was heard on September 7, 2011, by Rosenberg, MacPherson and Epstein, JJ.A., of the Ontario Court of Appeal. On March 16, 2012, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Rosenberg, J.A. (MacPherson, J.A., concurring) - see paragraphs 1 to 58;

Epstein, J.A., dissenting - see paragraphs 59 to 149.