W A R N I N G
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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
COURT OF APPEAL FOR ONTARIO
Doherty, Rosenberg and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
and
R.W.F.
Respondent
Lisa Joyal, for the appellant
Michael Lerner, for the respondent
Heard: December 10, 2008
On appeal from the sentence imposed by Justice J.L. Getliffe of the Ontario Court of Justice on February 28, 2008.
APPEAL BOOK ENDORSEMENT
1We agree that the trial judge had no jurisdiction to exempt the respondent from the operation of “Christopher’s Law”, the provincial legislation. That order is set aside. The respondent has now voluntarily complied with the provincial legislation.
2The trial judge did not err in declining to order forfeiture of the computer. We think the application was made under s. 164.2. The trial judge was entitled to conclude a further penalty by way of forfeiture was not needed in these circumstances.
3In this court, Crown counsel argued that forfeiture may have been justified because the offensive material on the computer could not be totally removed from the hard drive. This argument was not put before the trial judge and there is no evidence that forfeiture could be justified on this basis. Clearly, if it was agreed, or if the evidence showed that the offending material could not be removed from the hard drive, this factor would support a forfeiture order.
4The circumstances in which the respondent found himself incarcerated for four days upon his arrest were such as to permit the trial judge, in the exercise of his discretion, to give the respondent some extra credit for that incarceration. We are not asked to vary the jail term.
5We are, however, satisfied that the trial judge erred in failing to make the requested DNA and SOIRA orders. Both orders were mandatory subject to the exemptions described in s. 490.012(4) (SOIRA) and s. 487.051(2) (DNA). Both exemptions are predicated on the convicted person establishing that the impact on the convicted person’s privacy, liberty or security interests will be “grossly disproportionate” to the public interest served by making the order. On the trial record, and given that the respondent has now registered under the provincial legislation, we see no basis for holding that the impact on the respondent’s privacy, security or liberty flowing from the orders would be grossly disproportionate to the public interest served by making the order.
6The appeal is allowed. The respondent shall provide the DNA sample and register as required by the SOIRA provisions. The SOIRA order shall be for ten years.