Jennifer April Gibson

The Court of Appeal for Ontario allowed the Crown’s appeal from a sentencing decision that declined to impose a SOIRA order on the respondent, who had pled guilty to sexual interference with a 15-year-old.

The appellate court found that the sentencing judge erred in principle by failing to apply the statutory presumption in favour of a SOIRA order and by not properly considering all relevant factors under s. 490.012(4) of the Criminal Code.

The court set aside the exemption and imposed the SOIRA order.

The appellant, Adam West, appealed his convictions for possession of child pornography and internet luring.

The appeal focused on the mens rea requirement for these offences, specifically whether recklessness as to the complainant's age was sufficient or if actual knowledge or wilful blindness was required.

The Court of Appeal, relying on its prior decision in R. v. Fox, affirmed that recklessness suffices for internet luring.

For the possession charge, the court found that the trial judge's findings of fact clearly established wilful blindness on the part of the appellant regarding the complainant's age, which is legally equivalent to actual knowledge.

The appeal was dismissed.

The Crown sought to vary an unsealing order for an Information to Obtain (ITO) related to a search warrant execution that resulted in a fatality, requesting to seal the identity of a civilian Toronto Police Service employee or impose a five-year publication ban.

The media outlets opposed the application.

The court dismissed the Crown's application, finding that the evidence did not objectively establish a serious risk to an important public interest sufficient to dislodge the presumption of openness under the Dagenais/Mentuck test, as refined by Sherman Estate v. Donovan.

The court noted the threats were directed at the officer who shot the deceased, not the civilian employee, and the link between the employee's identity and potential harm was speculative.

The accused pleaded guilty to sexual assault and incest of his four-year-old daughter, as well as making, possessing, and distributing child pornography depicting the abuse.

The offences occurred between January 2011 and November 2015.

The accused had sole custody of the victim and exploited this position of trust to sexually abuse her repeatedly and document the abuse through photographs and videos, which he distributed online to strangers.

The court imposed a global sentence of 10 years imprisonment, reduced to 7.5 years after pre-sentence custody credit of 2.5 years.

Ancillary orders included forfeiture of the cell phone, lifetime SOIRA registration, DNA sampling, and a section 161 prohibition order restricting internet access and proximity to the victim.

The accused was sentenced for breaching two terms of an eight-year Long Term Supervision Order (LTSO): failing to reside at a designated correctional centre and entering a prohibited county.

The court imposed a six-year sentence, finding the breaches serious given the accused's extensive criminal history, pattern of non-compliance with release conditions, and the link between the breaches and risk of re-offence.

The court applied principles from R v Ipeelee, balancing public protection, rehabilitation, and deterrence while emphasizing that compliance with LTSO terms is essential for both objectives.