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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
CITATION: R. v. R.L., 2007 ONCA 347
DATE: 20070508
DOCKET: C44572
COURT OF APPEAL FOR ONTARIO
WEILER, FELDMAN and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
R.L.
Respondent
Tracy Stapleton for the Appellant
Louis P. Strezos for the Respondent
Heard: May 3, 2007
On appeal from the refusal to grant an order under sections 487.051(1) and 490.012(1) of the Criminal Code by Justice Bourke Smith of the Superior Court of Justice, dated November 16, 2005.
ENDORSEMENT
[1] The respondent was convicted of sexual assault for performing oral sex on his two year old daughter. The trial judge sentenced the respondent to a one year conditional sentence. Although the Crown gave notice that it would also be seeking a DNA databank order under s. 487.051(1) of the Criminal Code and an order under s. 490.012(1) that the offender register with the sex offender registry, and the respondent’s counsel made no submissions in this regard on sentencing, the trial judge did not make the orders. The Crown appeals and asks us to make these orders or, alternatively, to remit the matters to the trial judge for submissions with this court’s guidance.
[2] The only reason given by the trial judge for refusing to make the orders was “because I have determined that [the respondent] does not present an ongoing risk to the community.”
[3] The provisions of the Criminal Code that provide for the DNA and sex offender registry orders make such orders presumptive unless the court is satisfied the person has established that the impact of the orders on the offender’s interests would be “grossly disproportionate” to the public interest in the protection of society.
[4] Insofar as the DNA order is concerned, the respondent concedes, based on the broader purposes of the legislation outlined in R. v. Briggs (2001), 157 C.C.C. (3d) 38 and R. v. Hendry (2002), 161 C.C.C. (3d) 275, that the trial judge erred by focusing on the respondent’s risk of re-offending.
[5] Insofar as registration in the sex offender registry is concerned, the respondent submits that a trial judge must consider is how effective the individual’s registration would be in serving the public interest. The Criminal Code points the trial judge to the goal of protection of society through the investigation of crimes using information in the registry. If recidivism is unlikely, the respondent submits that registration serves little public purpose and the respondent should be granted an exemption. Accordingly, he submits that, having regard to the fact the offender has no prior criminal record, has lived his entire life in the Guelph area, has a steady job and good character references, the trial judge’s decision is not unreasonable and must be afforded deference.
[6] In our opinion, the respondent’s submission misconstrues the wording of the section requiring registration in the sex offender registry. Section 490.012(4) provides:
The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
[7] The only circumstance in which the court would not make an order under this section is if the impact on the offender’s privacy and liberty interests is grossly disproportionate to the public interest. No evidence was given by the offender to the effect that that his privacy and liberty interests would be affected more than the normal inconvenience he would incur in complying with the requirements of registration. Accordingly, there was no evidence to displace the public interest in registration. This is not the case, nor is it necessary for our purposes, to attempt to define all of the factors that make up the public interest.
[8] Because the section requires that the effect on the offender must be “grossly disproportionate” to the public interest to allow the judge to decline to make the order, the public interest in registration is deemed to be significant. The trial judge erred by minimizing the public interest in registration in all the circumstances of this case. More importantly, the trial judge did not undertake the balancing exercise he was required to perform.
[9] Insofar as the question of whether we ought to make the orders sought or remit the matters to the trial judge is concerned, we agree with the appellant that the orders should issue. The Crown sought both orders. The respondent’s counsel made no submissions about either order. The trial judge erred in principle in not making the orders. There is no reason to remit the matters back to the trial judge.
[10] In the result, the Crown appeal is allowed, the orders of the trial judge refusing to make a DNA databank order and a sex registry order are set aside and the orders sought under the Code are substituted.
“K.M. Weiler J.A.”
“K. Feldman J.A.”
“S.E. Lang J.A.”