R v RD, 2016 MBCA 88

Citation: R v RD, 2016 MBCA 88 Date: 20160913 Docket: AR15-30-08504 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron BETWEEN: ) A. J. Kavanagh andHER MAJESTY THE QUEEN ) S. M. Ehrmantraut ) for the Appellant Respondent ) ) C. T. St. Croix- and - ) for the Respondent ) R. D. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 13, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). HAMILTON JA (for the Court): [1] The accused appeals his sentence of 10 years in aggregate (4 years and 6 years consecutively with respect to hisstepdaughter and daughter) for two counts of sexual interference. [2] The offences occurred over a number of years when the victims were between the ages of 4 and 13.

The accusedrepeatedly subjected each victim to various sexual activity that constituted major sexual assaults on more than 60 occasions(approximately 10 times involving both victims together). [3] The accused entered guilty pleas acknowledging these offences in an agreed statement of facts. However, his daughter hadto testify at a Gardiner hearing (R v Gardiner, (SCC), [1982] 2 SCR 368) with respect to her allegations that the accusedhad vaginal intercourse with her and that he sometimes forced or yelled at her to co-operate.

The sentencing judge found that vaginalintercourse occurred approximately 10 times and that the accused sometimes displayed anger towards his daughter. [4] The accused asserts that the sentencing judge erred in failing to give sufficient weight to mitigating factors, whileoveremphasizing aggravating factors, and in failing to properly apply the totality principle, the result of which is that the aggregatesentence imposed is unreasonable in the circumstances and amounts to a sentence that is harsh and excessive. [5] After hearing the submissions of the accused’s counsel, we are not persuaded that these grounds of appeal are arguable, andtherefore we deny leave to appeal on these grounds. [6] However, we grant leave to appeal on a matter to which the Crown consents.

The sentencing judge ordered, pursuant tosection 161(1)(

c) of the Criminal Code, that the accused is prohibited from communicating with any person under 16 years of agewithout supervision. The accused committed the offences prior to section 161(1)(

c) coming into effect. In the recent decision of R vKRJ, 2016 SCC 31, the Supreme Court of Canada held that section 161(1)(

c) could not be applied retrospectively. Therefore, with theconsent of the Crown, we allow the accused’s appeal only in this regard, the effect of which is that the prohibition

ordered by the sentencing judge under section 161(1)(

c) is set aside. JA JA JA