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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(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).
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.
CITATION: R. v. T.L., 2008 ONCA 766
DATE: 20081114
DOCKET: C42296
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and MacFarland JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
T.L.
Appellant
David Cameletti, for the appellant
Shelley Maria Hallett, for the respondent
Heard and released orally: October 27, 2008
On appeal from the conviction entered on May 15, 1995, and the sentence imposed on February 7, 1996, by George P. Smith of the Superior Court of Justice.
ENDORSEMENT
[1] It is accepted that the appellant is entitled to rely on the long-term offender (LTO) provisions on appeal even though those provisions came into force some sixteen months after he was declared a dangerous offender. The appellant had an appeal outstanding at the time the LTO provisions came into force and on the basis of binding authority that entitled him to raise the question of whether he should have been declared an LTO rather than a dangerous offender.
[2] It is also accepted by counsel for the crown and the appellant that based on the trial record the finding that the appellant was a dangerous offender was the appropriate order. This is confirmed by the opinion of Dr. Ben-Aron who saw the appellant at this court’s request in 2006, and prepared a lengthy report that appears in the appeal book. Dr. Ben-Aron opines that a dangerous offender order was the proper disposition at the time of sentencing even if the LTO provisions had been available. Dr. Ben-Aron however goes on to describe several changes in the attitudes and functioning of the appellant in the ten years since he was declared a dangerous offender. Dr. Ben-Aron summarizes his opinion with respect to the present status of the appellant in these words:
It is, therefore, my opinion, from a psychiatric perspective, that at this time there is reasonable possibility of eventual control of the risk Mr. Leeder might pose in the community and, therefore, he is a reasonable candidate for consideration for being redesignated to the status of long-term offender. However, I would also recommend the following [9] interventions be completed before he begins his community reintegration, which should be a gradual, structured, well-monitored, and supported process:
[3] It is important to note that Dr. Ben-Aron does not indicate that he thinks that the appellant would meet the LTO standard at this point. He suggests that several, (nine) “interventions” would be necessary before an informed assessment of whether the appellant should be a LTO could be made. The first of those “interventions” is phallometric testing. To this point the appellant has resisted any such testing.
[4] The appellant argues that his present condition as described by Dr. Ben-Aron, may not merit a finding that he is an LTO but it does merit an order directing a new dangerous offender hearing at which the possibility of an LTO order could be fully developed and canvassed.
[5] We confess to some difficulty in understanding why an appeal would be allowed when everyone agrees that even if the LTO order was available to the appellant at the time of sentencing, he was properly declared a dangerous offender at the trial. In other words, it is conceded by everyone that the dangerous offender order was the correct order. We do, however, acknowledge that on sentence appeals from time to time this court considers evidence of post sentencing events that may cause the court to vary a sentence that was fit when imposed.
[6] The appellant’s argument is based exclusively on alleged post sentence changes in the appellant which at best make him a potential candidate for an LTO designation. Dr. Ben-Aron’s opinion is guarded but hopeful. There are however many contingencies or uncertainties that would have to be fully explored before the ultimate merits of the release of the appellant into the community could be determined.
[7] From an institutional perspective, we think the parole board exercising its jurisdiction under section 761 of the Criminal Code is in a much better position than a trial court to make the necessary assessments. There would be many problems associated with a new dangerous offender hearing so many years after the relevant events, not the least of which would be the possibility of re-traumatizing all of the victims through the need to appear and testify at a new hearing.
[8] Hopefully the appellant has made the progress suggested in Dr. Ben-Aron’s report. If he has, no doubt his progress will be of assistance to him should he proceed with an application before the parole board.
[9] The appeal is dismissed.
[10] Counsel are agreed that it is appropriate that the report of Dr. Ben-Aron, which appears at tab 34 of the appeal book and is dated October 24, 2006, should be forwarded to the correctional authorities for their consideration. It is so ordered.
“Doherty J.A.”
“K. Feldman J.A.” “J. MacFarland J.A.”