Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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

DATE: 20220830 DOCKET: C70233

Hoy, van Rensburg and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

L.T. Appellant

Counsel: Brandon Chung, for the appellant Baaba Forson, for the respondent

Heard and released orally: August 26, 2022

On appeal from the sentence imposed on September 29, 2021 by Justice Kelly A. Gorman of the Superior Court of Justice, with reasons reported at 2021 ONSC 6479.

Reasons for Decision

[1] At the outset of the hearing of the appeal, the appellant’s counsel confirmed that the only issue to be considered is with respect to s. 161 of the Criminal Code, and that the other grounds of appeal from sentence are abandoned.

[2] Despite the able submissions of Mr. Chung, we are not persuaded that there is a reversible error in the sentencing judge’s decision to impose a s. 161 order, or in the specific terms of the order. Orders under s. 161(1) are discretionary and entitled to substantial deference on appeal. As this court stated in R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128, leave to appeal refused, [2019] S.C.C.A. No. 537, at para. 43, “[g]iven the discretionary nature of an order made under s. 161(1), an appellate court should not interfere absent an error in principle or the imposition of a prohibition that is demonstrably unfit and unreasonable in the circumstances”. There is no such error here.

[3] Contrary to the appellant’s submissions, it is not necessary, before imposing a s. 161 order, that the offender committed the offence in one of the prescribed circumstances under that section. See: R. v. A.(R.K.), 2006 ABCA 82, 208 C.C.C. (3d) 74, at para. 32 and R. v. McCann, 2011 ONCA 49, at para. 2.

[4] Finally, the fact that no objection was taken to the order at sentencing speaks to its fitness in this particular case.

[5] Leave to appeal sentence is granted, but the appeal is dismissed.

“Alexandra Hoy J.A.”

“K. van Rensburg J.A.”

“J. George J.A.”