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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
Weiler, Blair and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
C.N.
Appellant
Michael J. Shea and Geoffrey Hadfield, for the appellant
Howard Leibovich, for the respondent
Heard and released orally: June 3, 2010
On appeal from the sentence imposed by Justice Joseph R. Henderson of the Superior Court of Justice, sitting without a jury, on January 27, 2006.
ENDORSEMENT
1The issue in this case is whether the sentencing judge erred in designating the offender as a dangerous offender rather than a long-term offender. In our opinion, the sentencing judge did not err. He gave careful thorough reasons in which he considered the requirements for each designation and the relevant evidence.
2The sentencing judge held that in the appellant’s case the evidence only showed that, ”there is no more than a chance or a hope of successful treatment” and that he, therefore, did not meet the requirement of a reasonable possibility of successful treatment to be designated as a long term offender. See R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), and R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (C.A.) at para. 47.
3Although the appellant submitted that the sentencing judge failed to adequately consider certain factors, the appellant does not suggest that the sentencing judge misapprehended the evidence or ignored certain evidence. Rather, the appellant is asking this court to reweigh the factors. That is not this court’s function and, moreover, all of the relevant factors were considered by the trial judge. They do not support the conclusion that there was a reasonable possibility the appellant’s risk could be eventually controlled in the community.
4The sentencing judge also held that there was no evidence that the appellant could be successfully treated within any specific time frame and that the medical evidence did not say how long treatment would take. In this regard, as Moldaver J.A. observed at para. 81 of R. v. D.V.B. 2010 ONCA 291:
Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant. In the case of pedophiles for whom there is no reasonable possibility of eventual control of the risk they pose in the community there is only one option – they must be segregated from society.
5We agree with the reasons the sentencing judge gave for designating the appellant a dangerous offender. Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”
