W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

CITATION: R. v. B.J.M., 2007 ONCA 221

DATE: 20070327

DOCKET: C42737

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – B.J.M. (Appellant)

BEFORE:

SHARPE, SIMMONS and CRONK JJ.A.

COUNSEL:

Michael S. Mandelcorn

for the appellant

Amanda Rubaszek

for the respondent

HEARD & RELEASED ORALLY:

March 23, 2007

On appeal from the sentence imposed by Justice R. Lajoie of the Ontario Court of Justice on June 21, 1999.

E N D O R S E M E N T

[1] The appellant was convicted on June 26, 1998 of five counts of sexual interference and five counts of invitation to sexual touching. On June 21, 1999, following a lengthy hearing, the sentencing judge declared the appellant a dangerous offender. Because the sentencing judge understood that no other alternative was available, he sentenced the appellant to an indeterminate sentence in the penitentiary.

[2] It is common ground that, in making this disposition, the sentencing judge did not consider whether the appellant met the criteria for a long-term offender designation. In fairness to the sentencing judge, the decision of the Supreme Court of Canada in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 post-dated the sentencing hearing in this case.

[3] Before this court, however, the Crown argues that this is one of those exceptional cases in which there is no reasonable possibility that, but for the admitted error, the sentencing judge would have imposed a different sentence. On this record, we disagree.

[4] A similar argument was advanced in Johnson in response to which the Supreme Court said at para. 50:

Where the error of law consists of the sentencing judge’s failure to consider the availability of the long-term offender provisions, it is only in the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error. The criteria set out in the long-term offender pro-visions are substantially different from the criteria set out in the dangerous offender provisions. Therefore, the evidence and arguments that are relevant under the long-term offender application are not precisely the same as the evidence and arguments that are relevant under the dangerous offender application. Absent a thorough inquiry into the suitability of the long-term offender provisions at the sentencing hearing, it will be difficult, if not impossible, for an appellate court to be satisfied that the sentencing options available pursuant to the long-term offender provisions would have been incapable of reducing the threat of harm to an acceptable level.

[5] In this case, at least one of the medical experts did not rule out the possibility that the risk posed by the appellant could be contained upon provision of proper treatment with appropriate supervisory controls and compliance commitment by the appellant.

[6] In these circumstances, a new sentencing hearing is required.

[7] Accordingly, leave to appeal sentence is granted, the appeal is allowed and a new sentencing hearing is directed.

“Robert Sharpe J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”