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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
CITATION: R. v. T.G., 2011 ONCA 317
DATE: 20110421
DOCKET: C48474
COURT OF APPEAL FOR ONTARIO
Rosenberg, Juriansz and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T. G.
Appellant
Mary Jane Kingston, for the appellant
Christine Tier, for the respondent
Heard: April 7, 2011
On appeal from the judgment of Justice William J. Babe of the Superior Court of Justice dated October 30, 1997.
ENDORSEMENT
[1] The index offence committed by the appellant occurred in 1995 while he was on his way to his probation appointment. It involved a 9-year-old girl who was riding her bike to her friend’s house. The appellant pushed her to the ground, repeatedly told her not to scream, pulled off her shorts and underwear and began fondling her genital area. She screamed and managed to kick him in the groin and break free.
[2] On October 30, 1997, the appellant was found to be a dangerous offender. However, amendments to the Criminal Code allowing for long-term offender designation came into force during the appellant’s sentencing hearing. The hearing judge, as well as counsel, understood that the amendments did not apply and that the appellant was to be sentenced under the old provisions. They were in error and this is conceded by the Crown.
[3] In essence, the hearing judge was required, as R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 subsequently made clear, to consider whether the less restrictive long-term offender designation would suffice before making a dangerous offender designation. Nevertheless, in spite of this error and the able submissions of Ms. Kingston, we find this to be one of the rare circumstances, also described in Johnson, where the appeal should be dismissed.
[4] On this record there is no reasonable possibility that the dangerous offender designation would have been different had the error of law not been made. This result follows for three reasons.
[5] First, the history of the appellant and his experiences with professionals, both medical and custodial, indicate clearly that he is not a candidate for control in the community. Over the years he has failed to complete or refused to participate in some of the programming offered to him and was at times aggressive and violent.
[6] The appellant has been certified under the Mental Health Act and diagnosed with heterosexual paedophila, sexual sadism, substance abuse disorder (alcoholism) and antisocial personality disorder. During testing, he self-reported to having sexual contact, including oral sex and intercourse with girls aged 12 and under between 21 and 50 times.
[7] A medical professional rated the appellant as a 100% risk to reoffend within seven years, and that he had an arousal preference for coercion, or non-consensual sexual scenarios with girls. The conclusion was that the appellant presents a high risk to young females. Regarding control in the community on the drug, Lupron, the medical opinion was: “That he would require a great deal of persuasion indeed to co-operate with such treatment and even then I don’t think compliance over the long run can be assured.”
[8] Second, the hearing judge, in a fashion, considered whether the appellant could be controlled in the community. He noted in his reasons that he had the discretion to impose an indeterminate sentence. Thus, in this context he turned his mind to whether the appellant could be controlled in the community.
[9] Third, and significantly, there is no fresh evidence to support a claim that the appellant might be a suitable candidate for a long-term offender designation. Indeed, the only fresh evidence filed was in proceedings in 2008, which indicated that in the 11 years since the dangerous offender designation, there had been no change.
[10] For these reasons the appeal is dismissed.
“M. Rosenberg J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”