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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20050218

DOCKET: M32188

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – L.W. (Applicant/Appellant)

BEFORE: FELDMAN J.A. (In Chambers)

COUNSEL: Daniel A. Stein for the applicant/appellant

Amy Alyea for the respondent

HEARD: February 10, 2005

E N D O R S E M E N T

[1] The applicant seeks bail pending appeal. He was sentenced to two years in prison plus three years probation following a guilty plea to one count each of creation and distribution of child pornography. When the applicant, who is now twenty-six, was twenty-two years old, he had a relationship with a fifteen-year-old girl. When she ended the relationship, he was upset and used some pictures he had taken of them having sex together with her name to make a collage, which he posted on the Internet.

[2] After serving several months of his sentence, the applicant was released on parole on the three conditions that are also the conditions of his probation: (1) no contact with the complainant; (2) attend for psychiatric or psychological counselling; and (3) he could not own, possess or operate a computer or device that had access to the Internet.

[3] The applicant is appealing both his conviction and his sentence, the former based on ineffective representation by counsel. The appeal is expected to be heard before the summer.

[4] The applicant wants the condition of his parole that restricts his access to computers to be suspended at this point because he wants to pursue a career in computers that he began before these charges.

[5] The Crown opposes the application on both jurisdictional and substantive grounds. The jurisdictional issue is raised by the wording of s. 679 of the Criminal Code, which allows a judge of the Court of Appeal to release an appellant from “custody” pending the determination of his or her appeal. The question is, when a person has been released on parole, is the person still in custody within the meaning of s. 679?

[6] A body of case law has developed around this question across the country. In Ontario, Quebec and British Columbia, the issue has arisen in the context of a conditional sentence. The Courts of Appeal in all three provinces have held that a conditional sentence is a sentence of imprisonment under s. 742 of the Code and a form of custody for the purpose of s. 679: R. v. Vallance, [1998] O.J. No. 1615 (C.A.); R. v. Cantin, [1999] Q.J. No. 2610 (C.A.); R. v. Hornby, [2003] B.C.J. No. 2793 (C.A.). Similarly, in Nova Scotia, the Court of Appeal considered the issue where the appellant had been released on day parole, so that he was returning to prison in the evenings. Again the court held that the person was in custody for the purpose of s. 679: R. v. Wood (1999), 1999 NSCA 124, 139 C.C.C. (3d) 468 and 475 (N.S.C.A.).

[7] The difference in this case is that the applicant is on full parole and will not return to jail unless he is guilty of a breach of conditions of release. Section 128(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, provides that while at large on parole the offender continues to serve his sentence. Subsection (2) distinguishes day parole and provides that a person on parole is “not liable to be returned to custody” unless the parole is revoked.

[8] Despite the use of the word “custody” in s. 128(2) of the Corrections and Conditional Release Act to mean actual incarceration, the term has been given a broader meaning as it is used in s. 679 of the Code. In Vallance, Abella J.A. said: “In my view, a conditional sentence is a form of custody sufficient to trigger the release provisions of the Code.” In Wood, Cromwell J.A. reasoned at pp. 472-3:

In my view, this application cannot be resolved simply by parsing the meaning of the word “custody” divorced from the particular context in which the word is used. Custody is a word capable of having a wide variety of meanings, depending on the context. A parent has custody of a child. A prisoner may be in custody while attending a medical appointment at a hospital, or while sitting in a court room. The word takes its meaning form the particular context in which it is used and so it is necessary to examine the context here.

What is at issue on this application is the jurisdiction of the Court to address the risk that an appeal may have no practical effect because of the time required to hear and determine it. For example, if all, or most, of a sentence has been served by the time an appeal is heard, the sentence cannot be undone if the appeal is successful. On the other hand, the general rule must be that court orders, including sentences imposed for crimes, are enforceable when made unless and until the orders are varied on appeal.

[9] Cromwell J.A. also pointed out that an offender is deemed to be serving his or her sentence while on day parole. Under s. 128(1) of the Corrections and Conditional Release Act, the same is true about full parole. However, I do note that Glube C.J.N.S., in upholding the decision, referred to the fact that a day parolee must return to the institution at night (1999), 1999 NSCA 134, 139 C.C.C. (3d) 475 (N.S.C.A.). Although this observation distinguishes full parole, in my view the distinction is not determinative.

[10] Read together, the relevant Criminal Code provisions plus the case law to date allow courts of appeal to grant release from all forms of sentence pending appeal, except for parole. The Code expressly gives a judge of a court of appeal the authority to release, pending appeal, an appellant who is incarcerated (s. 679), and to suspend, pending appeal, the obligation to pay a fine, an order of forfeiture or disposition of forfeited property, a restitution order, an order to pay a victim surcharge, and conditions prescribed in a probation order (s. 683(5)). The decisions already referred to have interpreted s. 679 to allow a court of appeal to release an appellant from a conditional sentence and from day parole pending appeal. In my view, a person on parole who continues to serve his sentence is in no different position, and is under a form of custody sufficient to engage the jurisdiction of the court under s. 679.

[11] The Crown also points out that the applicant is not without remedy, as he could seek a parole variation. I agree that he also has that avenue to pursue. However, that does not derogate from the jurisdiction of this court to allow release pending appeal.

[12] On the substantive issue, the Crown is concerned about the applicant’s ability to access computers and the Internet, given the nature of the offence. I note that this is not the more typical situation where an offender is using the Internet as a business or a hobby to view or distribute child pornography. This was a one time, immature and very unfortunate response to a personal life event. The applicant is now in a stable relationship and would like to be able to work with computers and possibly to study as well. The applicant has filed a letter from his parole officer recommending if bail is granted, that the computer restriction on the applicant be removed or modified to allow him to access computers for employment purposes. The parole officer also recommends that access to the Internet be limited because of the nature of the offence.

[13] The final issue is counselling which the applicant is now undergoing, and which is paid for as part of the parole regime. The Crown submits that it would be counter-productive to interrupt the counselling at this point, but the cost of $125.00 per week is not affordable for the applicant on his own.

[14] In the circumstances of this case, bail will be granted pending appeal on the following conditions: (a) the condition that the applicant have no contact with the complainant remains in effect; (b) the applicant may use computers and the Internet for employment purposes, not including self-employment, on the understanding that in employment, his Internet use will be monitored and/or supervised; and (c) the applicant is to continue the present counselling if the authorities can arrange for payment. Crown counsel suggested that this could possibly be arranged.

Signed: “K. Feldman J.A.”

CORRECTED DECISION:

Corrections made on September 20, 2021: A publication ban warning has been put at the beginning of the decision. The appellant’s name has been put into initials.