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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

Court of Appeal for Ontario

Date: 2019-02-21

Docket: C63558

Panel: MacPherson, Sharpe and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

R.G. Appellant

Counsel

• R.G., appearing in person
• Amy Ohler, duty counsel
• Jessica Smith Joy, for the respondent

Heard: February 14, 2019

On appeal from: the conviction entered on January 11, 2017 and the sentence imposed on March 14, 2017 by Justice Martin James of the Superior Court of Justice.

Appeal Book Endorsement

[1] The appellant was convicted of several counts of sexual interference. He received a global sentence of 36 months' imprisonment. He appeals the convictions and sentence.

[2] On the conviction appeal, the appellant contends that the trial judge erred by not concluding that his trial violated s. 11(b) of the Charter.

[3] We do not accept this submission. We explicitly agree with and adopt the trial judge's summary of his reasons on this issue at paragraph 13 of his ruling.

[4] The appellant submits that the trial judge erred by concluding that he was a person in authority with respect to the complainants and in his conclusion that there was a sexual purpose for the massages the appellant performed on the complainants. He also says that the trial judge should have found that there was improper collusion among the complainants about their testimony.

[5] We do not agree with these points. The trial judge carefully dealt with all the relevant evidence and was entitled to conclude that "[t]here is sufficient credible and reliable evidence to satisfy me beyond a reasonable doubt that there was a sexual purpose on the part of Mr. G. to the touching that occurred during both the massages and the Teddy bears."

[6] On the sentence appeal, the custodial sentence of 36 months' imprisonment was a fit sentence.

[7] The lifetime SOIRA order is appropriate.

[8] The Crown properly concedes that the ten year weapons prohibition cannot stand given the trial judge's express finding that "[t]he abuse did not involve violence, threats or aggression."

[9] The victim fine surcharge ($1,700) is vacated.

[10] The conviction appeal is dismissed. The sentence appeal is allowed, but only to the extent of setting aside the weapons prohibition and victim surcharge.