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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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
Laskin, Gillese and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
J.K.
Respondent
David Friesen, for the appellant
Julianna Greenspan and Joanna Baron, for the respondent
Heard: June 16, 2015
On appeal from the sentence imposed on September 23, 2014 by Justice Catherine Mathias McDonald of the Ontario Court of Justice.
1J.K. (the “respondent”) pleaded guilty to breaking and entering the complainant’s residence and committing the indictable offence of sexual assault, contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
2Pursuant to s. 490.012(2) of the Criminal Code, the Crown applied to the sentencing judge for an order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). The sentencing judge initially imposed the order. She later rescinded the order because, in her view, an offence under s. 348(1)(b) is not a “designated offence” for the purpose of s. 490.012(2) and, accordingly, no SOIRA order was available.
3The Crown appeals. It submits that the sentencing judge misapprehended s. 348(1) and, based on that misapprehension, improperly rescinded the SOIRA order.
4The respondent submits that no SOIRA order was available in this case. He was charged, pleaded guilty, convicted, and sentenced under s. 348(1)(b), not s. 348(1)(d). He says that while s. 348(1)(d) is a designated offence for the purposes of a SOIRA order under s. 490.012(2), s. 348(1)(b) is not. He contends that the Crown cannot benefit from his guilty plea under s. 348(1)(b) and then, post-plea, demand an order ancillary to s. 348(1)(d).
5I would accept the Crown’s submission and allow the appeal. While the sentencing judge correctly noted that s. 348(1)(b) is not on the list of designated offences in s. 490.011(1)(b), she failed to appreciate that the respondent was found guilty and sentenced under s. 348(1)(d), which is on that list. Therefore, in my view, a SOIRA order was available under s. 490.012(2).
THE RELEVANT STATUTORY PROVISIONS
6The Crown prepared a useful summary of the relevant statutory provisions, which I reproduce below.
348.(1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,
is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
490.011(1) The following definitions apply in this section and in sections 490.012 to 490.032.
“designated offence” means
(b) an offence under any of the following provisions:
(x) paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),
(xi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),
(xii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and
(xiii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence);
490.012(2) When a court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1), it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of that definition.
490.011(1) The following definitions apply in this section and in sections 490.012 to 490.032.
“designated offence” means
(a) an offence under any of the following provisions:
(xvi) section 271 (sexual assault)
490.013 (1) An order made under section 490.012 begins on the day on which it is made.
(2) An order made under subsection 490.012(1) or (2)
(c) applies for life if the maximum term of imprisonment for the offence is life.
490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the court under that subsection on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection.
ANALYSIS
Summary
7The respondent was charged under s. 348(1)(b) and found guilty and sentenced under s. 348(1)(d). Consequently, pursuant to s. 490.011(1)(b)(xi), he was sentenced for a SOIRA “designated offence”. The other requirements in s. 490.012(2) having been met, the court was obliged to make the SOIRA order.
Sections 348(1)(b) and (d)
8Sections 348(1)(a), (b) and (c) set out various ways of committing the offence of breaking and entering. Sections 348(1)(d) and (e) stipulate the offence classification and maximum available sentence. Anyone who violates s. 348(1)(a), (b) or (c) will necessarily be found guilty and sentenced under s. 348(1)(d) or (e).
9In the present case, the respondent pleaded guilty to the offence of breaking and entering a dwelling-house and committing the indictable offence of sexual assault. That is, he pleaded guilty to committing an offence under s. 348(1)(b). Because his offence was committed in relation to a dwelling-house, he was necessarily sentenced under s. 348(1)(d).
Sentenced for a “designated offence”
10Section 490.011(1) sets out the definitions that apply in s. 490.012. It defines “designated offence” to mean, among other things:
(b) an offence under any of the following provisions…
(xi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence)...
11As the respondent was sentenced under s. 348(1)(d), he was sentenced for a designated offence within the meaning of s. 490.011(1)(b).
Section 490.012(2)
12Pursuant to s. 490.012(2), when the court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition of “designated offence” in s. 490.011(1), the court “shall” make the SOIRA order provided that two other conditions are met. Those two conditions are that: (1) the prosecutor made an application for the order, and (2) the prosecutor established beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition.
13Both conditions were met in this case. And, as I have explained, the sentencing judge imposed a sentence on the respondent for a “designated offence” within the meaning of s. 490.011(1)(b). Therefore, the sentencing judge was obliged to make the SOIRA order.
DISPOSITION
14Accordingly, I would allow the appeal and make the SOIRA order.
15Through inadvertence, no order restricting publication to protect the complainant’s identity was made below. I would make such an order.
Released: June 22, 2015 (“J.L.”)
“E.E. Gillese J.A.”
“I agree. John Laskin J.A.”
“I agree. K. van Rensburg J.A.”
