Man charged with offences against stepdaughter spanning from 1995 to 2003
The Ontario Court of Appeal has allowed a sentence appeal for a man convicted of sexual offences based on exceptional circumstances, even though it accepted that the sentence was fit at the time.
A judge and jury tried the appellant for charges involving sexual offences against his stepdaughter from 1995 to 2003. The jury convicted him of sexual interference under s. 151 and invitation to sexual touching under s. 152 of the Criminal Code. It acquitted him of sexual assault under s. 271, based on the same evidence.
In 2016, Justice Mary Vallee of the Ontario Superior Court of Justice imposed an imprisonment sentence of two years less a day, followed by 24 months’ probation. The judge also issued a 20-year order under the Sex Offender Information Registration Act, a 10-year weapons prohibition order, a DNA order, and orders under ss. 161 and 743.21 of the Criminal Code.
The appellant appealed his convictions and sentence. He argued that his convictions were inconsistent with his sexual assault acquittal and were thus unreasonable.
In 2019, the Ontario Court of Appeal allowed his conviction appeal and directed verdicts of acquittal. The Crown took the case to the Supreme Court of Canada.
In R. v. R.V., 2021 SCC 10, the Supreme Court allowed the Crown’s appeal, restored the convictions, and remitted back the case to the appellate court to address the sentence appeal. It found that the verdicts were not inconsistent and that the convictions were not unreasonable on that basis.
The highest court held that the trial judge misdirected the jury on the sexual assault charge by:
This error was material to the acquittal but not impactful on the convictions, the Supreme Court said.
In R. v. R.V., 2022 ONCA 830, the Ontario Court of Appeal granted leave to appeal the sentence and allowed the appeal.
The appellate court set aside the imprisonment term and probation order, imposed an 18 months’ conditional sentence order, and maintained all the trial judge’s other orders. It directed the appellant to comply with the mandatory conditions in s. 742.3(1) of the Criminal Code and to abstain from directly or indirectly communicating with his stepdaughter.
The Court of Appeal found that, while the sentence was entirely fit when it was imposed, there was fresh medical evidence showing exceptional circumstances. Specifically, the appellant, with the Crown’s consent, filed evidence providing that he was diagnosed with terminal cancer.
The medical information showed a grave situation, the appellate court said. The appellant had a bleak prognosis, was in much pain, and was being cared for at home by his wife. The Crown conceded, given the circumstances, that the court should allow the appeal by substituting the imprisonment term with a conditional sentence order.
