2024 ONCA 74, 2024 ONCA 74

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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (

b) on application made by the victim, the prosecutor or any such witness, make the order; and (

c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; (

b) on application of the victim or the prosecutor, make the order; and (

c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(

b) or (2.2)(b), the presiding judge or justice shall (

a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (

b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (

c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (

a) informed the witnesses and the victim who are the subject of the order of its existence; (

b) determined whether they wish to be the subject of the order; and

(4) An order made under this

section does not apply in either of the following circumstances: (

a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (

b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this

section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a

health care professional or a person in a relationship of trust with the victim or witness. 486.6

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (

a) the person knowingly failed to comply with the order; (

b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (

c) a warning to the individual is not appropriate.

(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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. E.H., 2024 ONCA 74 DATE: 20240202 DOCKET: COA-23-CR-0290 Paciocco, George and Dawe JJ.A. BETWEEN His Majesty the King Respondent and E.H.

Appellant E.H., acting in person Ariel Herscovitch, appearing as duty counsel Erica Whitford, for the respondent Heard: December 7, 2023 On appeal from the sentence entered by Justice Gilles Renaud of the Ontario Court of Justice, on March 7, 2023.

Dawe J.A.: [ 1 ] The appellant E.H. was convicted of multiple counts of sexual assault, sexual interference, and invitation to sexual touching, based on allegations that he had sexually abused his young male cousin over an approximately one-year period, when the appellant was 21 and 22 years old and his cousin was between 11 and 12 years old. [ 2 ] The appellant made a statement to the police shortly after his arrest in which he admitted to most of the sexual abuse, but disputed some of the complainant’s specific allegations.

At trial, where the appellant represented himself, the trial judge directed that pleas of not guilty be entered on the appellant’s behalf. The circumstances in which this occurred are unclear. During the trial the appellant proceeded to take the position that his confession in his police statement was the truth. The trial judge ultimately found that the appellant’s police statement and the complainant’s testimony established the appellant’s guilt of the charged sexual offences, and that the statement raised a reasonable doubt in his mind on the points where the appellant disputed the complainant’s account.

The trial judge also found the appellant not guilty of charges of unlawful confinement and criminal harassment. [ 3 ] The appellant received an effective sentence of imprisonment of eight years, which was reduced to seven and a half years after he was credited for his time in pre-sentence custody. The trial judge also made various ancillary orders, including a lifetime order that the appellant comply with the requirements of the Sex Offender Information Registration Act , S.C. 2004, c. 10 (“ SOIRA ”), and a lifetime order under s. 161(1)( a.1 ) of the Criminal Code , R.S.C. 1985, c.

C-46 , requiring the appellant to remain two kilometres away from the dwelling-house of the complainant and the complainant’s immediate family. [ 4 ] The appellant seeks leave to appeal against his sentence only, having abandoned his conviction appeal. He represented himself on his appeal, which came before us as an inmate appeal, but was very ably assisted by Mr. Herscovitch as duty counsel.

[ 5 ] At the end of the hearing, we granted leave to appeal the sentence, but reserved our decision. For the reasons that follow, I would allow the appeal and reduce the appellant’s sentence of imprisonment to five and a half years, including credit for pre-sentence custody. [ 6 ] Although I also agree with duty counsel that a lifetime SOIRA order was not legally available at the time of sentencing, and that the trial judge ought to have instead made a twenty-year order, I have concluded that Crown counsel is correct that we have no jurisdiction to correct this error as part of the appellant’s sentence appeal.

I would also not interfere with the s. 161(1) (a.1) order on the record before us. However, as I will explain, the trial court retains jurisdiction to correct the trial judge’s mistake about the length of the SOIRA order, and the appellant remains free to apply to the trial court to have the s. 161(1) ( a.1 ) order varied. A. Factual background

(1) The appellant’s background and relationship with the complainant [ 7 ] The appellant lived and worked on his family’s farm. He did much of the physical farm labour, because his father had sustained a permanent injury as a result of a farming accident. [ 8 ] Although the appellant graduated from high school, he has learning challenges. Amicus curiae explained to the trial judge that the appellant was “illiterate” and required her assistance reading documents, and described him as “an adult [who] has the mindset of a child”.

Some of the supporting letters filed on sentencing also describe the appellant as struggling with reading but as having an exceptional aptitude for repairing farm machinery. [ 9 ] The complainant and his family lived near the appellant’s family’s farm. When the complainant was a young boy, he began spending time with the appellant, who took him skiing and snowmobiling in the winter and water-skiing and jet-skiing in the summer.

The appellant also apparently took the complainant to a dentist and paid for his dental work. [ 10 ] In his police statement, the appellant explained that the demands of his farm work kept him from socializing with people his own age, and he described the complainant as his “best friend”.

The appellant’s father also told the author of the pre-sentence report that the appellant “has the maturity of a twelve-year-old”. [ 11 ] It was common ground at trial that the appellant first began engaging in sexual activity with the complainant in late 2019 or early 2020, when the complainant was around 11 or 12 years old and the appellant was 21 years old, and that this sexual activity then continued for approximately one year, until the winter of 2020. [ 12 ] However, the complainant and the appellant disagreed both about the frequency of the sexual activity during this time, and about how it progressed.

The complainant estimated that he and the appellant engaged in sexual activity approximately 250 to 300 times over this one-year period, but the appellant told the police that he thought it was more like 50 or 60 times, and less than 100 times. The complainant also claimed that the sexual activity had included both oral and anal sex from the outset, whereas the appellant told the police that it had started with mutual masturbation and had only progressed to mutual oral and anal sex later on, with the anal sex starting about “halfway through the year”.

(2) The charges [ 13 ] Most of the charges against the appellant can be divided into four groups, each consisting of three counts charging the appellant with sexual assault, sexual interference, and invitation to sexual touching, contrary to ss. 271 , 151 , and 152 of the Criminal Code :

a) Counts 1 to 3 specified a time period from December 1, 2019 to January 31, 2020, which on both the complainant and the appellant’s account was when the sexual activity began;

b) Counts 4 to 6 specified a time period from September 1, 2020 to November 30, 2020, and a place that reflected the location of the complainant’s family’s cottage. The Crown’s position at trial was that these charges should be understood as capturing a specific incident that the complainant said happened when the appellant visited his family’s cottage;

c) Counts 7 to 9 specified a time period from September 1, 2020 to November 30, 2020, and a location that included the appellant’s family’s farm. The Crown’s position at trial was that these counts should be understood as capturing a specific incident that the complainant said occurred in an outbuilding on the farm property. Count 10 alleged further that the appellant had forcibly confined the complainant during this incident, but the trial judge found the appellant not guilty of this charge;

d) Counts 11 to 13 were framed identically to Counts 7 to 9, specifying the same time frame and location. However, the Crown’s position at trial was that these counts should be interpreted as capturing all of the complainant’s other allegations during this time period, which described sexual activity occurring in the appellant’s bedroom and at other locations on the farm property. [ 14 ] In addition, Count 14 charged the appellant with criminally harassing the complainant in January 2021. However, the Crown acknowledged that the evidence at trial did not support a conviction on this charge, and the appellant was acquitted on this count.

(3) The appellant’s police statement [ 15 ] The appellant was arrested on January 27, 2021. A few days later, on February 4, 2021, he made a lengthy police statement in which he admitted to engaging in repeated sexual activity with the complainant over the previous year. On his account, this sexual activity had started with mutual masturbation, but over approximately the next six months had progressed to include mutual acts of oral

and anal sex. He and the complainant continued to engage in sexual activity until around Christmas of 2020. However, the appellantadamantly denied the complainant’s allegation that during the first sexual incident, which the appellant said took place at the beginningof 2020, he had cut the complainant’s clothing off with a pocketknife.

He also disputed that they had engaged in oral or anal sex on thisoccasion, although he agreed that they did both of these things on later dates. [16] As I have already noted, the appellant also disputed the complainant’s claim that they had engaged in sexual activity onapproximately 250 to 300 different occasions over the course of a year. According to the appellant, a more realistic estimate would beapproximately 50 to 60 times.

(4) The trial judge’s factual findings. [17] The appellant’s position at trial was that his police statement was the truth, and that he was accordingly guilty of the chargedsexual offences, but not of the forcible confinement charge in Count 10 or the criminal harassment charge in Count 14.

The trial judgeagreed, finding that the appellant’s police statement raised a reasonable doubt about certain aggravating factors alleged by thecomplainant but denied by the appellant, stating in his reasons: I find as a fact that the initial sexual act that was illegal, did not involve any anal penetration or the cutting, the ripping of clothes and Ihave decided the Crown has not demonstrated beyond a reasonable doubt that the defendant resorted to additional violence, other thanthe inherent violence of any s. 271 offence, involving coercion or weapons.

Indeed, the defendant is not facing an accusation that hecommitted sexual violence with a weapon, or that he caused bodily harm. [18] The trial judge accepted the complainant’s evidence on the points where the appellant did not dispute his account.

Heaccordingly found the appellant guilty on all of the sexual offence charges. [19] As I have already noted, the Crown conceded that the evidence did not support a finding of guilt on the criminal harassmentcharge in Count 14, and the trial judge was also not satisfied that the appellant had forcibly confined the complainant during the incidentin the outbuilding, as charged in Count 10.

(5) The trial judge’s reasons for sentence [20] The trial judge stayed the sexual assault charges in Counts 1, 4, 7 and 11 pursuant to the Kienapple principle, and enteredconvictions on the remaining charges of sexual interference (Counts 2, 5, 8, and 12) and invitation to sexual touching (Counts 3, 6, 9, and13) (see Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729). He imposed a global effective sentence of eight years’imprisonment, which was reduced to seven and a half years after the appellant was credited for pre-sentence custody. [21] The trial judge chose to apportion this sentence by imposing: (

i) an effective eight year sentence on Count 8, which was reducedto seven and a half years after credit for pre-sentence custody; (ii) a concurrent seven and a half year sentence on Count 9; (iii) concurrentsix year sentences on Counts 5 and 6; and (iv) concurrent four year sentences on the remaining four charges, Counts 2, 3, 12, and 13.However, the trial judge noted that this apportionment “reflects the fact that any of these offences could easily have been visited with an8-year sentence”. B. Grounds of appeal [22] Duty counsel, Mr.

Herscovitch, argues that the trial judge’s reasons for sentence reveal errors in principle that require us tointervene and re-sentence the appellant, and he asks us to impose a lesser fit sentence. [23] The appellant, representing himself, made his own submissions at the hearing of his appeal, but they were primarily directed atthe question of how his sentence should be reduced if we were to agree that the trial judge made errors in principle that require ourintervention. [24] I agree with Mr.

Herscovitch that the trial judge erred in principle by treating the appellant’s failure to plead guilty, and hisrefusal to change his formal plea to guilty after he had conceded his guilt on the sexual offences, as factors that limited the extent towhich the appellant’s admission of responsibility and expressions of remorse could be treated as mitigating factors. It accordingly falls tous to sentence the appellant afresh.

This makes it unnecessary for me to address duty counsel’s further argument that the trial judge alsoerred in principle by failing to give proper effect to the letters of reference that had been filed on sentencing on behalf of the appellant. [25] While I do not consider the global eight year sentence imposed by the trial judge to have been outside the range of fit sentences, Ifind that in the circumstances of this case, which include the trial judge’s repeated comments that he would have imposed a shortersentence if the appellant had pleaded guilty, a fit sentence for the appellant would be an effective sentence of six years’ imprisonment.After taking into account credit for the appellant’s time in pre-sentence custody, this translates to a net sentence of five and a half years’imprisonment from the original sentencing date.

C. Analysis

(1) The quantum of sentence

(1) The trial judge’s error in principle

[26] Sentencing is a highly discretionary and fact-driven process. “[E]xcept where a sentencing judge makes an error of law or anerror in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”: R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. [27] As Laskin J.A. explained in R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 719: Error in principle is a familiar basis for reviewing the exercise of judicial discretion.

It connotes, at least, failing to take into account arelevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevantfactors and, more generally, it includes an error of law. [Citations omitted.] [28] In the particular circumstances of this case, I find that the trial judge erred in principle by treating the self-represented appellant’srefusal to change his plea to guilty, despite having conceded his factual guilt of most of the charged offences, as a factor that limited themitigating impact of his acceptance of responsibility for these offences and his expressions of remorse.

(2) The appellant’s conduct of the trial [29] As I have already noted, the appellant made a lengthy police statement a few days after his arrest in which he disputed some ofthe complainant’s specific allegations, but nevertheless admitted to committing all of the charged sexual offences, and repeatedlyexpressed his remorse for his actions. [30] It does not appear that the appellant, who chose to represent himself at trial, personally entered a formal plea of not guilty.

Thetranscript of the start of trial was not included in the record that was put before us, but during closing submissions amicus curiaereminded the trial judge that the appellant was “never charged to an arraignment in the first place”, and that “Your Honour entered theplea for him”, and the trial judge confirmed that he had “indicated to the Clerk to enter not guilty pleas”.

It is unclear on the recordbefore us exactly what happened, or why the trial judge decided to enter pleas on the appellant’s behalf, but it can safely be concludedthat it was the trial judge, and not the appellant, who entered the pleas.[1] [31] On November 15, 2022, after hearing submissions from Crown counsel, and before calling on the appellant to make his ownclosing submissions, the trial judge indicated that he was finding the appellant not guilty on the unlawful confinement and criminalharassment charges in Counts 10 and 14.

This left the sexual offence charges in Counts 1 to 9 and 11 to 13 as the only charges remainingbefore the court. [32] The appellant then made brief closing submissions in which he made clear that he was not contesting his guilt on any of theseremaining charges, and that he was instead urging the trial judge to accept that his confession to the police was true.

Afteracknowledging that he understood that “there’s absolutely no circumstances that someone of 12 years of age can give no consent [sic]for any sexual interactions”, the appellant concluded: All that I ask is that Your Honour, you accept my statement that I had delivered to the detective on February 4th and the truth, and myversion of events were clear. I did my best to present myself and express my remorse. I know if there – if there are any inconsistenciesbetween [the complainant’s] statements and mine, I ask you to accept my statements. I am an adult, and my memory was clear to theevents.

(3) The trial judge’s suggestion that the appellant consider entering a guilty plea [33] After hearing the appellant’s submissions, the trial judge took a recess.

When he returned to the virtual Zoom courtroomapproximately an hour and a half later, he asked the appellant if he wanted to consider changing his plea to guilty, explaining: If you’re saying with reflection having had time to consider everything, you are in fact inviting me to find you guilty of the offences asyou discussed in the statement and in effect where there’s a conflict between essentially for example 300 acts of sexual violence as to 25to 50, the language that brings it down … I’m prepared to do so. I need you to think however of this and of course you’re always in aposition to speak to a lawyer.

If you enter a guilty plea, even though it’s at the … possible point, you are demonstrating remorse. You’redemonstrating an acceptance of responsibility. I need you to understand. You’ve already demonstrated that in the way you spoke to me,in the way you conducted yourself. If you decide that you wish to plead guilty at the last minute, in terms of sentencing, it is a veryimportant consideration. [Emphasis added.] [34] The appellant initially expressed confusion and said that he needed legal advice, but then changed his mind, saying that he was“tired of lawyers” and wanted to continue.

The trial judge then told the appellant: I need you to understand. This is why I’d like you to speak to a lawyer. If you enter those guilty pleas at the last hour, when it comes tosentencing, I will be required and I will wish to take it, to give you full credit for having spared, to a certain extent, the young man theuncertainty of what happens next. [Emphasis added.] [35] The trial judge continued by stating: So, I’m simply saying to you, you need to consider your position. I would encourage you strongly to speak to a lawyer. You don’t haveto enter guilty pleas. I have prepared some of my decision.

I have to continue working on that. I’m simply saying, if after an appropriateperiod of reflection and that means you speaking to a lawyer, you wish me to, in effect, to hear a guilty plea and your further invitation –you’re saying it again, you’re inviting me to find you guilty, only as you yourself have described it to the detective, the number andnature of the acts, obviously completely different from what the young man had to say and those are decisions I have to make. [Crowncounsel] will get a chance to argue when we discuss the sentence.

The number and nature of things, but what I’m saying to you is this,there is a great benefit to you because you’re demonstrating to myself and to everyone else that you’re taking responsibility. On the other hand, there’s a great detriment. A negative side. You lose the right to appeal things. [Emphasis added.]

[36] In response, the appellant asked: “If I plea [sic], I lose the decision to appeal if I decide to plea [sic]?”. This led to a furthercolloquy, during which the trial judge told the appellant that it was “very difficult to win an appeal if you plead guilty”. However, hisensuing explanation was then cut off by a technical problem that terminated the trial judge’s Zoom connection. [37] When the trial judge returned to the Zoom courtroom after his connection was restored, the appellant asked him to explain whatit meant to plead guilty.

The trial judge tried to explain that the appellant could plead guilty without changing his position that his policestatement was true, and then added: If you plead guilty, you’re inviting me to find in fact that you have the better memory of the two, and all I’m saying to you is that, if youplead guilty, you are indicating an important step in your rehabilitation of remorse [sic] and taking responsibility [Emphasis added.] [38] The trial judge reiterated that he would give the appellant the option of seeking legal advice and considering his positionovernight, but the appellant declined this invitation, telling the trial judge: “I don’t believe it’s necessary to adjourn.

If you’d like tocontinue and make your decisions. I stand behind them”.

(4) The trial judge’s reasons for conviction and sentence [39] The trial judge delivered his reasons on the trial proper the next morning. As I have already noted, he accepted the appellant’sposition, essentially finding that the appellant committed the criminal offences he admitted to in his police statement, in the manner hedescribed in that statement, and that the appellant’s statement left him with a reasonable doubt about whether any of the complainant’sallegations that the appellant had not admitted to the police had been proved.

He accordingly found the appellant guilty of the twelvecharged sexual offences based on the appellant’s own admissions and the undisputed parts of the complainant’s evidence, having alreadydismissed the two other charges on the Information, Counts 10 and 14. [40] The trial was then adjourned several months for sentencing submissions.

On February 1, 2023, Crown counsel made hissubmissions seeking a global sentence of eight to ten years’ imprisonment, after which the trial judge adjourned the proceedings for amonth to give the appellant more time to prepare his own responding submissions on sentence. [41] When the case returned before the trial judge on March 7, 2023, amicus curiae advised, referring to R. v.

Friesen, 2020 SCC 9,[2020] 1 S.C.R. 424: [A]fter my careful review of the caselaw and sentencing ranges for this type of offence and the findings that were made by this court, it’smy position that the appropriate sentencing range after trial, if we – if this was a – you know – a different type of trial, but it was a trial,is 8 to 10 years and I take that sentencing range out of Friesen and the supporting caselaw. [42] She urged the trial judge to consider imposing an effective sentence of eight years’ imprisonment.

However, when the trial judgepressed her to provide a “palm tree justice number” based on what she personally thought would be a fair sentence, she replied five toseven years. [43] The trial judge then asked the appellant if he had any submissions to make. Amicus curiae responded: Perhaps I can provide some insight, Your Honour. [The appellant] truly believes that he has a strong affinity for Your Honour and he, inmy discussions with [the appellant], truly believes that Your Honour has his best interest at heart.

I don’t believe that, from my extensivecommunications with [the appellant], that he truly believes what submissions are. [44] The trial judge accordingly reserved his decision over lunch without hearing sentencing submissions from the appellant. [45] As I have already noted, the trial judge ultimately imposed an effective global sentence of eight years’ imprisonment. However,his reasons for sentence make clear that he would have imposed a lower sentence if the appellant had entered formal guilty pleas.

Hestated: At the end of the day, it's important I point out that the conduct of the defence does not bring about any greater punishment, or penalty;however, it is appropriate to say that if there is an early guilty plea, if there is an acceptance of responsibility, the result will be a muchmore significantly reduced. The challenge is always to try to identify what is the sentence without a guilty plea. What is the sentencewith a guilty plea.

All that I can say is if I apply the instructions of the Supreme Court of Canada in Friesen … the sentence would havebeen different, and would have been less significant, but it’s difficult to know to what extent it would be tremendously different.[Emphasis added.]

(5) Analysis [46] There are several reasons why a guilty plea is mitigating. As this court explained in R. v. Faulds (1994), (ONCA), 20 O.R. (3d) 13 (C.A.), at p. 17: The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty pleais a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of theinevitable. ….

Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide adegree of finality from the perspective of the victims which would not exist without the plea. [47] In my view, in the unusual circumstances of the case at bar, it was an error in principle for the trial judge not to recognize that theself-represented appellant had conducted his trial in way that achieved most of the benefits that would have resulted from his enteringformal guilty pleas.

I reach this conclusion for four main reasons. [48] First, the appellant did not contest his factual guilt on the sexual offence charges. While he did not enter formal guilty pleas to

these charges, he did not personally enter formal pleas of not guilty either. As I have explained, his pleas of not guilty appear to havebeen entered for him by the trial judge. He cannot be sentenced fairly as someone who had denied the guilt he was found to carry. [49] Moreover, the appellant’s position at trial was that his detailed and emotional post-arrest confession, in which he admitted tosexually abusing the complainant and repeatedly expressed his remorse for his actions, was the truth.

He fully and entirelyacknowledged the acts for which he was found guilty. [50] In this context, little of substance would have been added had he formalized his admissions of guilt by entering guilty pleas,particularly if he had taken up the trial judge’s suggestion that he do this at the end of the trial.

Guilty pleas by the appellant, particularlypleas entered late in the process, would not have meaningfully increased the sincerity of his expressed remorse, as demonstrated by hisadmission of guilt and acceptance of responsibility, or done anything to increase his rehabilitative prospects. [51] Indeed, the sincerity of the appellant’s remorse, already expressed in his confession and in its reaffirmation during trial, wasreinforced by his conduct during the sentencing hearing.

Amicus curiae provided the court with reference letters from the appellant’srelatives and community members but explained that she was doing so against the appellant’s wishes, and that “he wishes to put nodocuments before the court”. As I have already noted, the appellant then declined to make any sentencing submissions himself.

Heeffectively threw himself on the mercy of the court, without making any effort to secure a more lenient punishment. [52] Second, while the appellant’s conduct of his trial may not have “save[d] valuable judicial resources” or spared the complainantfrom having to testify, this can also be seen as a consequence of the Crown’s decision to try, ultimately unsuccessfully, to prove theaggravating circumstances that the complainant alleged but which the appellant denied.

The Crown could have spared the complainantfrom having to testify by simply inviting the trial judge to enter convictions on the sexual offence charges based on the appellant’s ownconfession to the police. While the Crown was entitled to proceed as it did, for most practical purposes, the trial proceeded in a way thatwas little different from how it would have unfolded if the appellant had pleaded guilty to the sexual offence charges at the outset, andthe Crown had then embarked on a contested Gardiner hearing to try to prove the alleged aggravating facts that the appellant wasdisputing (see R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368). [53] The fact that the Crown ultimately failed to prove these aggravating factors in my view distinguishes this case from R. v.Carreira, 2015 ONCA 639, 337 O.A.C. 396, and R. v.

F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, where this court found that it wasnot an error to reduce the weight given to the accused’s guilty pleas as a mitigating factor, once the Crown successfully proved at aGardiner hearing that they had misconducted themselves to a greater extent than they had been prepared to admit. [54] In contrast, the appellant’s insistence that the Crown meet its burden of proving aggravating facts ultimately inured to his benefit,because the trial judge was not satisfied that any of the aggravating facts that the appellant disputed had been proved on the criminalstandard.

The appellant cannot properly be faulted for refusing to admit aggravating facts that the Crown could not prove beyond areasonable doubt, nor can this be treated as undercutting the sincerity of his expressions of remorse for his admitted criminal conduct. [55] Third, I think it is important to bear in mind that the appellant was self represented at trial, and that he was further hampered byhis struggles with reading and writing.

It is apparent from the transcript that he had difficulty understanding the implications of the trialjudge’s suggestion at the end of trial that the appellant should consider changing his formal pleas on the charges that still remained, noneof which he was contesting, to guilty. [56] In this regard, I am particularly concerned by the trial judge’s well-meaning but misleading suggestion that if the appellant wereto plead guilty to these charges he would “lose the right to appeal things”, or that it would at least make it “very difficult to win anappeal”.

This was true insofar as the appellant’s ability to appeal his convictions was concerned. However, entering guilty pleas wouldnot have barred the appellant from appealing against his sentence, or made it more difficult for him to succeed on a sentence appeal. [57] I appreciate that the appellant has not sought to file fresh evidence establishing what he would have done if he had fullyunderstood the consequences of entering a guilty plea. I also accept that the appellant must take some responsibility for his refusal tofollow the trial judge’s repeated suggestion that he seek legal advice about his options.

Nevertheless, I see the appellant’s self-represented status as a relevant and important factor when assessing whether his decision not to enter formal guilty pleas trulyundermined the mitigating force of his admissions of culpability and his expressions of remorse. [58] Fourth, I do not agree with the trial judge’s suggestion in his November 15, 2022, colloquy with the appellant that “guilty pleasat the last hour” would be a mitigating factor on sentence on the basis that they would spare, to a certain extent, the complainant “theuncertainty of what happens next”.

At this point in the trial, there was no real uncertainty remaining. It was a foregone conclusion thatthe appellant would be found guilty as charged of the remaining counts, and it was also obvious that he had little realistic prospect ofever appealing his convictions, whether or not he formally changed his pleas to guilty.

In these circumstances, I think that the practicalbenefit the complainant would have received from the appellant formally changing his pleas would have been minimal. [59] Therefore, I am satisfied that the trial judge erred in principle by overemphasizing the significance of the appellant’s decision notto formally plead guilty to the offences on which he was plainly admitting his guilt, and by then failing to give sufficient weight to theappellant’s full acknowledgement of his criminal conduct, his responsibility for it, and his expressions of remorse.

In my view, in theunusual context of this case, the appellant’s failure to enter formal guilty pleas did not meaningfully reduce the mitigating force of theseimportant sentencing factors, and the trial judge erred in principle in concluding otherwise. [60] I am also satisfied that this error in principle had an impact on the sentence that the appellant ultimately received. During hisNovember 15, 2022, colloquy with the appellant, the trial judge suggested that the appellant would receive “a great benefit” onsentencing if he changed his formal pleas to guilty.

The clear implication of his comments was that if the appellant did not formallyplead guilty, the sentence he would receive would necessarily have to be higher. The trial judge then said much the same thing in hisMarch 7, 2023, reasons for sentence, stating that “if there is an early guilty plea, if there is an acceptance of responsibility, the result willbe a much more significantly reduced [sentence]”, and that “[t]he challenge is always to try to identify what is the sentence without aguilty plea”.

He later stated that if the appellant had formally pleaded guilty, the sentence he received “would have been different, andwould have been less significant”. Although the trial judge then qualified this last comment by adding that it was “difficult to know to

what extent it would be tremendously different”, the clear implication of his comments, in my view, is that he would have imposed a shorter sentence if the appellant had initially pleaded guilty or had formally changed his pleas to guilty. [ 61 ] As I have explained, the appellant’s confession and readiness to accept punishment for his admitted crimes had the same practical effect as an early guilty plea, particularly after the Crown failed to prove the alleged aggravating facts that the appellant had not admitted.

It was an error for the trial judge to impose sentence on the basis that because the appellant had not formally pleaded guilty, there had not been “an acceptance of responsibility”.

(2) Imposing a sentence [ 62 ] When an appellate court concludes that a sentencing judge has committed an error in principle, “the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit”: Rezaie , at p. 719. It accordingly falls to this court to sentence the appellant afresh, by reviewing the record and imposing what we regard to be an appropriate sentence in all the circumstances.

While I must still defer to the trial judge’s findings of fact, I need not defer to his discretionary balancing of the relevant sentencing factors, nor do I have to conclude that the sentence he imposed was demonstrably unfit. [ 63 ] In Friesen , the Supreme Court of Canada held, at para. 114: [T]hat mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. [ 64 ] On behalf of the appellant, Mr.

Herscovitch argues that an appropriate range of sentence in this case would be a penitentiary sentence of between five and seven years. He relies on two recent post- Friesen decisions where this court either imposed or upheld five- year sentences: R. v. A.B., 2023 ONCA 254 ; R. v. G.H., 2023 ONCA 89 . Mr. Herscovitch also provided us with a third case, R. v.

R.K., 2023 ONCA 653 , where this court upheld the eight-year sentence that had been imposed at trial, and argues that the conduct in that case was more aggravating than in the case at bar, and that the mitigating circumstances likewise were much less compelling. [ 65 ] In response, Ms. Whitford argues for the Crown that the effective eight-year sentence imposed at trial should be maintained. She relies on two decisions of this court where sentences of nine years’ imprisonment were upheld on appeal ( R. v. D.W., 2019 ONCA 139 ; R. v.

L.M., 2014 ONCA 640 , 122 O.R. (3d) 257 ), as well as a third decision where this court imposed an effective seven-year sentence on a Crown sentence appeal ( R. v. B.M., 2023 ONCA 224 , 166 O.R. (3d) 721 ). [ 66 ] I agree with Mr. Herscovitch that Friesen does not mandate upper-single digit or double-digit penitentiary sentences in every case involving sexual offences against children.

While the Supreme Court of Canada held that such sentences should “be neither unusual nor reserved for rare or exceptional circumstances”, the court also said that “mid-single digit penitentiary terms … are normal”: Friesen , at para. 114 . Indeed, in G.H. , at para. 44 , this court noted that the five-year sentence imposed at trial in that case “falls within the range of sentence for this kind of offence laid down in R. v. Friesen ” (citation omitted). [ 67 ] I also agree with Mr.

Herscovitch that some of the facts of the six cases relied on by both counsel can be seen as more aggravating, on at least some metrics. [ 68 ] First, unlike the appellant, the defendants in five of those cases appear to have contested their guilt at trial, and were accordingly not entitled to have their expressions of remorse and acceptance of responsibility taken into consideration as a mitigating factor on sentencing. [ 69 ] Second, the offences at issue in these six cases were committed over longer periods of time than the offences in the case at bar, in some cases over materially longer periods of time.

Whereas the appellant’s sexual abuse of the complainant continued for approximately a year, the offences in the other cases to which counsel referred us were committed over periods of between one and a half and seven years. [ 70 ] Third, the offences in five of the six cases were committed, or at least commenced, when the complainants were between six and ten years old.

Only B.M. involved complainants who were comparable in age to the complainant in the case at bar, who was 11 or 12 years old when the appellant’s sexual abuse began. [ 71 ] Fourth, while the appellant can properly be characterized as having been in a position of trust in relation to the complainant, who was his cousin, the defendants in four of the six cases occupied positions that were higher on the spectrum of trust relationships, i.e., a parent or step-parent ( R.K, A.B. , and G.H. ) or an adult who lived with the complainants’ family ( B.M. ). [ 72 ] Fifth, the defendants in A.B. and G.H. do not appear to have been particularly youthful, while the accused in R.K. was in his mid- forties, and the defendant in L.M. was in his late fifties.

The accused in G.H. also had a “prior, albeit dated, conviction for sexually assaulting a 16-year old female”: G.H. , at para. 44 . Only D.W. and B.M. involved youthful first offenders. [ 73 ] I appreciate that both A.B. and G.H., where five-year sentences were either imposed or upheld by this court, seem to have involved somewhat less intrusive forms of sexual touching that did not include vaginal or anal penetration. However, when I balance the competing factors, all of the decisions can be distinguished. [ 74 ] In

summary, the appellant’s offences, including the penetrative sexual misconduct he subjected the complainant to, were very serious and plainly call for a significant penitentiary sentence. They involved a significant breach of trust, even if it was not at the very highest point on the breach of trust spectrum.

Although the trial judge was not satisfied that the appellant “resorted to additional violence, other than the inherent violence of any [sexual] offence, involving coercion or weapons”, it is clear from the complainant’s victim impact statement that he nevertheless experienced significant and ongoing psychological trauma. The trial judge also found that “there was an element of grooming” in this case, although he noted that:

It wasn’t as significant as is typically the case, and that in part are the reasons why I find that [the appellant’s] degree of moral blame is less than what otherwise would appear to be the case. [ 75 ] I agree with Ms. Whitford that in these circumstances denunciation and deterrence must be treated as the paramount sentencing objectives. [ 76 ] At the same time, the appellant is a youthful first offender, who the trial judge plainly viewed as having excellent rehabilitative potential.

To give proper effect to the principle of restraint, the appellant must receive the shortest possible sentence that will adequately achieve the paramount objectives of denunciation and deterrence.

As I have already explained, I also consider the appellant’s acceptance of responsibility for his offences and his expressions of remorse to both be important mitigating factors that affect his rehabilitative prospects, even though they were not expressed through formal guilty pleas. [ 77 ] Moreover, the trial judge made clear that if he had not made the error in principle that I have identified, he would have imposed a shorter sentence. If we uphold the eight-year sentence, we would in effect be imposing a longer sentence than the trial judge would have imposed if he had not made the error.

This would be unfair. [ 78 ] Considering all these factors together, I find that the shortest possible fit sentence for the appellant would be a single digit penitentiary sentence of six years’ imprisonment. This is the sentence I would impose. After credit for pre sentence custody, this translates to a sentence of five and a half years’ imprisonment, calculated from the date of sentence on March 7, 2023. [ 79 ] I would accordingly allow the sentence appeal and reduce the appellant’s concurrent sentences on counts 5, 6, 8, and 9 to five and a half years’ imprisonment.

I would not disturb the concurrent four-year sentences that the appellant received on counts 2, 3, 12, and 13. For clarity, I would have the sentences on all of these counts continue to run concurrently to one another, so that the appellant’s global sentence of imprisonment is five and a half years. D. Ancillary orders [ 80 ] Mr. Herscovitch also made two arguments with respect to the ancillary orders the trial judge made. [ 81 ] First, Mr.

Herscovitch argues, and Crown counsel agrees, that the trial judge erred in law by imposing a lifetime SOIRA order on the appellant, even though the statutory provision authorizing such an order had previously been struck down as unconstitutional by the Supreme Court of Canada. I agree. However, for the reasons I develop below, I also agree with Crown counsel that this court’s previous decision in R. v. R.P., 2018 ONCA 473 , bars us from intervening to correct this error and substituting the 20-year SOIRA order that the trial judge should have made.

As I will explain, R.P. holds that the appellant must instead seek this remedy from the trial judge, who maintains jurisdiction to correct the error. [ 82 ] Second, Mr. Herscovitch seeks, on the appellant’s behalf, to have us vary the s. 161(1) (a.1) Criminal Code prohibition order that the trial judge made, which prohibits the appellant for life from being within two kilometres of the dwelling-house of the complainant and his immediate family. As I will explain, I am not satisfied on the record before us that we should interfere with this order.

The appellant remains free to apply to the trial court under s. 161(3) to have it varied.

(1) The duration of the SOIRA order [ 83 ] In October 2022, several months before the appellant was sentenced, the Supreme Court of Canada declared s. 490.013(2.1) of the Criminal Code to be unconstitutional and of no force or effect, effective immediately: R. v. Ndhlovu , 2022 SCC 38 , 419 C.C.C. (3d) 285 . This subsection had required that persons convicted of committing more than one designated sexual offence receive mandatory lifetime SOIRA reporting orders.

As the majority explained at para. 142, the consequence of striking down s. 490.013(2.1) is that “those convicted of an offence with a maximum term of imprisonment of 10 to 14 years would receive a 20-year registration order (s. 490.013(2))”. [ 84 ] Since the appellant was convicted of multiple offences that all carry a maximum sentence of 14 years’ imprisonment, it is common ground that after Ndhlovu he should have received a 20-year SOIRA registration order.

Unfortunately, the trial judge mistakenly concluded that he was obliged to impose a lifetime order, stating in his reasons for sentence: The question of SOIRA is extremely complicated. I try to gather as much information from colleagues who have dealt with

interpretation of the recent Supreme Court of Canada decision. In my view, my only choice is to make a lifetime order. [ 85 ] The Crown on appeal agrees that the trial judge erred by instead imposing a lifetime SOIRA registration order. However, Ms. Whitford questions whether we have jurisdiction to rectify this mistake. [ 86 ] Her concern is well taken, since in R.P. , referred to above, this court adopted the reasoning and analysis of the New Brunswick Court of Appeal in R. v.

Chisholm, 2012 NBCA 79 , 393 N.B.R. (2d) 198 , and held that trial courts’ decisions to impose or not impose a SOIRA registration order cannot be appealed by either the defence or the Crown under the sentence appeal provisions in

Part XXI of the Criminal Code , on the grounds that SOIRA registration orders do not form part of an offender’s “sentence”. [ 87 ] R.P ., like the case at bar, also involved an appeal from a lifetime SOIRA registration order that had been made at trial without proper statutory authority, in factual circumstances where the offender ought to have only received a 20-year order. Although the lifetime registration orders made in R.P . and in the appellant’s case were unlawful for somewhat different reasons, [2] I agree with Ms. Whitford that this is not a meaningful juristic difference between the two cases.

If the unlawful SOIRA order imposed on the offender in R.P. could not be appealed by him as a sentence appeal because the order was not part of his “sentence”, the same must be true of the order made in

this case. [ 88 ] That said, I note that this court has not consistently followed R.P. In the past year, there have been at least three other sentence appeal decisions where this court has set aside lifetime SOIRA registration orders and substituted 20-year registration orders, on the Crown’s consent and without any issue being raised about whether there was jurisdiction to do so in the context of a sentence appeal: see R. v. Menard, 2023 ONCA 210 ; R. v. R.S., 2023 ONCA 626 ; and R. v.

G.S., 2023 ONCA 712 . [ 89 ] The appellant’s case is different from R.P. in that it comes before us after Ndhlovu, which not only struck down s. 490.013(2.1) , but also held that imposing mandatory SOIRA registration orders on offenders, based solely on their having committed multiple designated sexual offences without an intervening conviction, infringes their rights under s. 7 of the Canadian Charter of Rights and Freedoms . The appellant is accordingly entitled to seek to have his lifetime SOIRA registration order varied as a personal Charter remedy, rather than as an appeal from an unlawful sentence.

Indeed, there is a second line of recent cases where this court has reduced lifetime SOIRA registration orders to 20-year orders and characterized this relief as a s. 24(1) Charter remedy: see R. v. Rule, 2023 ONCA 31 . This court seems to have also taken this approach in R. v. G.H. , 2023 ONCA 89 , citing Rule as authority for granting the appellant in that case a similar reduction. [ 90 ] However, in Rule the court noted, at para. 11, that the provincial Crown was waiving the statutory requirement under s. 109 of the Courts of Justice Act, R.S.O. 1990, c.

C.43 (the “ CJA ”), that the appellant serve a Notice of Constitutional Question, and that “[t]he federal Crown has indicated that they are content that this court deal with the remedy here and has no intention of intervening”. In contrast, in the case at bar nobody seems to have contacted the federal Crown, and Ms.

Whitford did not suggest that we could waive the statutory requirement that the appellant serve a Notice of Constitutional Question as a precondition for obtaining a s. 24(1) Charter remedy. [ 91 ] It may also be arguable that Chisholm and the cases that have followed it, including R.P. , have been implicitly overturned by Ndhlovu, to the extent that the majority decision can be read as implying that SOIRA orders “likely constitute punishment”: see Ndhlovu , at paras. 167-68 , per Brown J. (dissenting in part).

If so, this may arguably imply that such orders must now also be viewed as forming part of an offender’s “sentence”, making them appealable under

Part XXI of the Criminal Code . However, the Ndhlovu majority expressly declined to address the question of whether SOIRA registration orders were “punishment”, at para. 58, and we heard no argument on this point, or on the issue of whether imposing punishment on an offender necessarily forms part of that offender’s sentence for appeal purposes. [ 92 ] Finally, Chisholm and R.P . have also now been overtaken by recent statutory amendments to s. 490.014 of the Criminal Code that broaden the statutory right of appeal from decisions made or refused under ss. 490.012 and 490.013 .

Before these amendments, an appeal under s. 490.014 could only be taken in a narrow class of cases that excluded the appellant’s situation.

If an unlawful SOIRA registration order were imposed on an offender now, that person would be able to appeal the order under the version of s. 490.014 that is now in force. [ 93 ] However, we did not hear any argument about whether the new rights of appeal in the amended s. 490.014 apply retroactively, such that they can properly be invoked by persons like the appellant who seek to appeal orders that were made before the amendments took effect in October 2023. [ 94 ] I have reluctantly concluded that we remain bound by R.P. , and that in the absence of a proper Charter application, or full argument on the question of whether R.P. has been overtaken by Ndhlovu or the recent statutory amendments, we are powerless to intervene to correct what everyone agrees is a legally defective SOIRA registration order.

While we would have jurisdiction to grant the appellant a s. 24(1) Charter remedy, as this court did in Rule , the appellant has not given notice under s. 109 of the CJA of his intention to seek a Charter remedy, and neither the federal nor provincial Crowns have waived this notice requirement, as they both did in Rule . [ 95 ] However, this does not leave the appellant without any remedy. While this court’s decision in R.P. holds that we cannot vary SOIRA registration orders as part of our

Part XXI Criminal Code sentence appeal jurisdiction, this court also adopted Goldstein J.’s analysis in R. v. Alvarenga-Alas , 2014 ONSC 4725 , and concluded that a trial judge who makes a legally unsupportable SOIRA registration order retains jurisdiction to correct the error: see R.P. , at para. 21 .

The appellant can accordingly seek a corrective order from the trial judge, or, if he is unavailable, another judge of the Ontario Court of Justice pursuant to s. 669.2 of the Criminal Code . [ 96 ] To be clear, I am not suggesting that the appellant must now seek a s. 24(1) Charter remedy in a lower court, which would require him to comply with the s. 109 CJA constitutional notice requirements. He would have had to follow this more cumbersome procedural route if he had been sentenced before the Supreme Court of Canada struck down s. 490.013(2.1) : see Ndhlovu , at para. 142 .

However, because the appellant was sentenced after s. 490.013(2.1) had already been declared to be of no force or effect by the Supreme Court, the lifetime SOIRA registration order that was imposed on him not only infringes his s. 7 Charter rights, but was also unsupported by any lawful statutory authority at the time the order was made. Pursuant to R.P. , the appellant is entitled to seek a corrective order from the trial judge.

Although he could also obtain this same relief by applying for a s. 24(1) Charter remedy, in the circumstances here he is not obliged to do so. [ 97 ] I would also note that while R.P. expressly permits the appellant to apply to the trial judge to have the erroneous SOIRA registration order corrected, nothing in the court’s judgment limits the Crown’s ability to make this application itself.

I would urge the Crown to consider doing so in the interests of justice, having regard to the appellant’s self-represented status and personal challenges, and the fact that the trial record suggests that the trial judge would have made a shorter duration order if he had not erroneously concluded that a lifetime order was mandatory, in part because this conclusion was suggested to him by Crown counsel at trial (not Ms. Whitford).

(2) The s. 161 order [ 98 ] Section161(1) (a.1) of the Criminal Code authorizes sentencing judges to make orders prohibiting persons convicted of sexual offences from:

… being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order. [ 99 ] In the case at bar, the trial judge made a lifetime order under this subsection that prohibits the appellant from “being within two kilometres of the dwelling-house where [the complainant] and his immediate family … normally resides”. [ 100 ] Amicus curiae raised concerns with the trial judge about the breadth of this order, pointing out that: Two kilometres in farm talk or farm measurements is not a whole lot of distance and so [the appellant] had a 500 metre radius when he was on bail and he went out of his way to go in a different direction.

We’re worried that … with the strict

interpretations of the law that … [the appellant] could find himself at the 1.8 kilometre mark just by being in transit on the way to a grocery store or you know on a piece of farm equipment or something like that. [ 101 ] The trial judge expressed his willingness to revisit the scope of the s. 161(1)(a.1) order if the Crown, the complainant, and the complainant’s family consented, but advised that he did not have time to do so that day and cautioned that he “may be functus by the time you come to a position”. There is no evidence in the material before us that the order was ever varied.

The copy of the order that has been included in the appeal book includes a lifetime ban on the appellant being within two kilometres of the complainant and his immediate family’s dwelling-house, although I would note that this copy is not signed by the trial judge. [ 102 ] O n appeal, Mr. Herscovitch renews amicus curiae’ s concern about the geographical ambit of the s. 161(1) (a.1) order. He raises the further concern that there may be parts of the appellant’s family’s farm property that are less than two kilometres from the complainant’s family’s dwelling-house. [ 103 ] For the Crown, Ms.

Whitford argues that we should not vary the s. 161(1)(a.1) order without better evidence about whether the existing order will in fact cause any practical problems for the appellant once he is released from custody and returns to working on his family’s farm. [ 104 ] I share Mr. Herscovitch’s concerns about the geographical scope of the order, particularly since the appellant seems to have been under pre-sentence bail conditions that only prohibited him from being within 500 metres of the complainant’s residence, apparently without incident.

On the record before us, it is not apparent why the trial judge decided that a two-kilometre order was justified. I also have concerns about the lack of explanation in the trial judge’s reasons for why he considered it necessary to make this order last for the appellant’s lifetime, rather than for some shorter period. [ 105 ] However, I agree with the Crown that it would not be appropriate for us to interfere with the trial judge’s discretionary decision to make the order that he did without better evidence that the order will, in fact, cause practical difficulties for the appellant after his release.

I would also note that s. 161(3) of the Criminal Code allows the appellant to apply to the Ontario Court of Justice at any time and seek to have the conditions of the s. 161(1)(a.1) order varied. E. Disposition [ 106 ] In the result, leave to appeal sentence having previously been granted at the hearing, I would allow the appellant’s sentence appeal and reduce his custodial sentence from seven and a half years to five and a half years.

This is an effective six-year sentence, less credit for the appellant’s time in pre-sentence custody. [ 107 ] While I agree that the trial judge erred in law by imposing a lifetime SOIRA registration order, I am not satisfied that we have jurisdiction to correct this error, since the appellant has not formally sought a Charter remedy from us.

However, as I have explained, the trial judge can, and should, correct the error himself at the request of either the appellant or the Crown. [ 108 ] Finally, on the record before us, I would decline to vary the s. 161(1)(a.1) order made by the trial judge, without prejudice to the appellant’s right to apply to the trial court for a variation pursuant to s. 161(3) of the Criminal Code . Released : February 2, 2024 “D.M.P.” “J. Dawe J.A.” “I agree. David M. Paciocco J.A.” “I agree. J. George J.A.”