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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Exell, 2015 ONCA 704

DATE: 20151021

DOCKET: C60219

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Donald Michael Exell

Respondent

Gavin MacDonald, for the appellant

Paula Rochman, for the respondent

Heard and released orally: October 19, 2015

On appeal from the absolute discharge entered on February 26, 2015 by Justice Donald McLeod of the Ontario Court of Justice.

ENDORSEMENT

1In November 2010, the respondent, who is now 63 years old, was convicted of sexual interference. He was sentenced to a term of imprisonment of two years less one day to be followed by a period of probation of three years.

2In addition, an order was made under s. 161 of the Criminal Code prohibiting him from attending various places where children under 16 might be expected to be present. Among the listed places, was any school ground.

3About four years later, while the s. 161 order remained in force, the respondent attended a “spa day” with a church group of which he was a member. The “spa day” was held at a secondary school in Brampton. As it turned out, both the complainant in the predicate offence and her brother attended that school. The complainant’s brother reported the respondent’s presence to the school authorities, who notified police.

4At the school, the respondent had his hair cut and his nails trimmed by students. There is no suggestion that the respondent engaged in any sexually inappropriate behaviour with any student.

5The respondent pleaded guilty to a single count of breaching the s. 161 prohibition. Crown counsel sought a term of imprisonment of six months, followed by probation for three years. Counsel for the respondent, who is also counsel on the appeal, sought a suspended sentence and a period of probation.

6The trial judge found the respondent guilty and ordered that he be discharged absolutely. The Crown appeals.

7In our view, the sentence imposed fails to apply the applicable sentencing principles, thus constitutes an error in principle.

8The predominant sentencing principles that control the disposition in cases involving a breach of a s. 161 order are denunciation and deterrence, both specific and general. This was not a technical breach. The respondent attended a secondary school, on a school day, where he would predictably interact with students, who were to perform spa services. It would be obvious to any person, who was subject to such an order, that such was its purpose and the conduct in which he engaged breached it.

9In our view, this case called for a custodial sentence in the range proposed by Crown counsel at trial and on appeal. Those who are subject to such orders must realize that contravention comes at a price. In this case, we consider that that price shall be:

i. a sentence of imprisonment of six months; and

ii. a period of probation of three years on statutory terms with further conditions that he have no contact directly or indirectly with the complainant or any members of her family; that he not be within 200 meters of St. Roch Secondary School in Brampton; that he participate in such treatment or other programs as may be approved and directed by his probation officer; and that he sign such releases as may be necessary for the probation officer to monitor his progress in those programs.

10Leave to appeal sentence is granted, the appeal is allowed, the sentence imposed at trial set aside and in its place the respondent shall serve a custodial sentence of six months to be followed by probation for three years on the dictated terms.

11A warrant for the respondent’s arrest may issue if required. The respondent shall have 72 hours from release of this judgment to surrender into custody. Thereafter, police may execute the warrant of arrest.