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(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
COURT OF APPEAL FOR ONTARIO
Moldaver, Feldman and MacFarland JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Zachary Rowe
Respondent
Christine Tier, for the appellant
James Foord, for the respondent
Heard and released orally: January 7, 2011
On appeal from the acquittal of the respondent, Zachary Rowe, by Justice James McNamarra of the Superior Court of Justice dated January 28, 2010.
ENDORSEMENT
1In our view, this appeal must be allowed. It would appear from his reasons that the summary conviction appeal judge was unduly and improperly influenced by the fact that the complainant was four months shy of her 18th birthday. That factor is of no moment.
2One of Parliament’s clear intentions in enacting this section of the Code was the prevention of sexual exploitation of young persons under the age of 18 years. The subject poster is a plain example of sexual exploitation of this young woman. The poster in question clearly, at a minimum, depicts two partially clad individuals engaged in sexual intercourse. Whether they were in fact engaged in intercourse or whether the act is merely depicted, the offence is made out and there can be no doubt that the activity is explicit sexual activity.
3The photos were taken without the knowledge and consent of the complainant. In our view, the trial judge made no error in convicting the respondent as he did and we substantially agree with his reasons for so doing.
4While the respondent raised other grounds seeking to uphold the summary conviction appeal judge, those grounds were not pursued in oral argument and in our view had no merit.
5Leave to appeal is granted. The appeal is allowed and the order of the summary conviction appeal judge is set aside and the verdict of the trial judge is restored.
“Michael J. Moldaver J.A.”
“K. Feldman J.A.”
“J. MacFarland J.A.”