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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

R. v. M.J.S., 2010 ONCA 749

CITATION: R. v. M.J.S., 2010 ONCA 749

DATE: 20101105

DOCKET: C52380

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Blair JJ.A.

BETWEEN:

Her Majesty The Queen

Appellant

And

M.J.S.

Respondent

Holly Loubert, for the appellant

Robert Sheppard, for the respondent

Heard and released orally: October 29, 2010

On appeal from sentence imposed by Justice John L. Getliffe of the Ontario Court of Justice dated June 15, 2010.

ENDORSEMENT

[1] The Crown appeals from the sentencing judge's decision not to make an order requiring the respondent to register under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).

[2] The respondent pleaded guilty to sexual interference. The facts read in on the guilty plea indicated the respondent, who was 20 at the time of the offence, had unprotected intercourse with a 13 year-old girl. When asked by the police, the victim said the intercourse was consensual. However, it was also apparent that she was under the influence of drugs and alcohol at the time.

[3] In declining to make an order that the respondent register under SOIRA, the sentencing judge said: "I don't think the facts warrant it. Certainly, this would be an even more harsh judgment on this young man's foolishness getting involved in this situation ... I'm satisfied that this would be a serious impediment to him as he goes forward with his life.”

[4] We accept the Crown submission that the sentencing judge erred in failing to make a SOIRA registration order. Section 490.012(1) of the Criminal Code provides that “a court shall” make a registration order where the Crown requests it when imposing sentence for a designated offence.

[5] The only exception to this compulsory order is in s. 490.012(4) of the Criminal Code, which provides that a judge is not required to make a registration order if the person “has established that, if the order were made, the impact on them, including on 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.”

[6] In R. v. Debiden, 2008 ONCA 868, this court described the impact of registration on an offender’s privacy interests as minimal given the nature of the information required from a registrant and the circumstances in which it can be disseminated. Further, the impact of registration on an offender’s liberty interests are modest as registration does “not prohibit [the offender] from going anywhere or doing anything.”

[7] In this case, the offender presented no evidence indicating any particular impacts a registration order would have on him. The standard of grossly disproportionate is a high threshold and requires the offender to establish more than a simple imbalance of individual impact over public interest. On the facts of this case, there was simply no evidence capable of meeting what we emphasize is a high statutory threshold and the sentencing judge’s conclusion that registration “would be a serious detriment” amounted to impermissible speculation.

[8] On appeal, the respondent raises factors demonstrating the respondent’s reduced risk of recidivism as justifying refusal of a registration order. However, in R. v. Debiden at para. 70, this court made it clear that it is an error to enhance the impact on an offender or to dilute the public interest in registration on the basis of a diminished risk of recidivism.

[9] Accordingly, the appeal is allowed and a 20 year SOIRA registration order is imposed.

Signed: “D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“R. A. Blair J.A.”