Decisions of the Court of Appeal

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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b)       two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application made by the complainant, the prosecutor or any such witness, 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).

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.

[1]              The appellant, Paul Stockton, appeals from his conviction by Gilmore J. of the Superior Court of Justice on April 6, 2009 for two counts of sexual assault, two counts of sexual intercourse, and one count of luring a child using a computer. The offences related to the 12-year-old complainant. 

[2]              The appellant contends that the trial judge did not properly address the inconsistencies in the complainant’s evidence. We disagree. In her comprehensive reasons, she recognized and discussed several inconsistencies in an appropriate fashion.  Moreover, there was overwhelming confirmatory evidence in the appellant’s e-mails and letters to the complainant to support the trial judge’s conclusions.

[3]              The appellant submits that the facts of this case do not support the luring a child using a computer offence.

[4]              We disagree.  The facts of this case easily fit within the definition of the offence in s. 172.1(1)(c) of the Code.

[5]              Finally, the global sentence of 21 months for these offences is a fit sentence.  Although the trial judge stated, incorrectly, that the absence of a guilty plea was an aggravating factor, we conclude that the global sentence she imposed was nevertheless fit.

[6]              The appeal is dismissed.