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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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.

WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

110(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

110(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court of Appeal for Ontario

Date: 2018-10-23

Docket: C65229

Panel: Doherty, Trotter and Paciocco JJ.A.

In the Matter of: Kristopher Ginn

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the Appellant: Stephen F. Gehl

For the Respondent Her Majesty the Queen: John Patton

For the Person in Charge of the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London: Julie A. Zamprogna Ballès

Heard and Released Orally: October 23, 2018

On Appeal Against: The disposition of the Ontario Review Board dated January 9, 2018.

Reasons for Decision

Reasons for Decision

1Mr. Kristopher Ginn appeals a Criminal Code s. 672.54(c) detention order made by the Ontario Review Board on January 9, 2018. The reasons for that order were issued on February 7, 2018. Even though Mr. Ginn's counsel conceded during the hearing that Mr. Ginn poses a significant risk to the public, Mr. Ginn now argues that the Board erred by concluding unreasonably that he poses such risk. Mr. Ginn also argues that the Board made a Carrick error (based on this court's decision in Carrick (Re), 2015 ONCA 866) by failing to make this determination independently of his admission. We disagree.

2The court's comment in Carrick at para. 38 that a Board is required to determine on its own that the accused poses a significant threat to the safety of the public, regardless of any purported concession that he may have appeared to have made, should not be over-read. A "Board is entitled to rely on counsel's acknowledgement that the significant threat standard has been made": Kelly (Re), 2015 ONCA 95, at para. 6. A credible admission by the accused that he poses a significant threat will naturally and appropriately influence the outcome.

3Difficulties emerge if a Board relies on an admission of risk to the extent that it abdicates its responsibility to make its own determination of dangerousness. In Carrick, for example, evidence that Mr. Carrick presented a significant threat related to his mental disorder was conflicting and ambiguous. The Board made no apparent attempt to address the conflicts and ambiguities, leaving the basis for the decision unexplained.

4Here the Board did not abdicate its responsibility to determine the risk Mr. Ginn poses. The decision reflects a solid foundation for the Board's decision to accept Mr. Ginn's admission that he poses a significant threat to the safety of the public.

5Before coming to its decision the Board summarized the material evidence:

• Mr. Ginn suffers from schizophrenia, substance abuse disorder (in forced remission in a controlled setting), antisocial personality disorder, pedophilia and hemophilia and has numerous admissions to mental health care facilities;

• [This bullet point has been removed so as to comply with statutory non-publication requirements. The full text of this bullet point is available at the Registry of this court].

• He was found not criminally responsible on account of mental disorder (NCR) in 2010 after being charged with assault and assault causing bodily harm after an unprovoked assault on a fellow psychiatric patient;

• Although at the time of the disposition Mr. Ginn's psychosis was under better control than in the past, he has shown continued symptoms of schizophrenia, including command hallucinations to harm others and has been non-compliant with medication in the past;

• Mr. Ginn believed that his paraphilic and pedophilic urges, confirmed through years of testing, had decreased, leading to recent testing from 2016 that confirms earlier testing that he presents a high risk of violent and/or sexual re-offending. Despite this, Mr. Ginn expresses the wish to work with children. He clearly lacks insight into his condition;

• On June 20, 2017 on a community outing he told a woman whose shirt contained a sexual image "but I like little girls";

• Dr. Prakesh, the hospital representative, is of the opinion that Mr. Ginn continues to represent a significant threat to the safety of the public; and

• Mr. Ginn's only social supports are in the hospital.

6After reciting this evidence, the Board then accepted the assessment of the risk posed by Mr. Ginn made in the hospital report. The Board noted specifically, (1) long-term and recent assessment results, (2) Mr. Ginn's continued denial of his schizophrenia and pedophilia, and (3) his belief that he has cured himself making further programming and treatment unnecessary.

Disposition

7We would dismiss the appeal.