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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, 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; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
CITATION: R. v. D'Abreu, 2011 ONCA 682
DATE: 20111102
DOCKET: C51608
COURT OF APPEAL FOR ONTARIO
Doherty, Juriansz and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Applicant (Appellant)
and
Michael D’Abreu
Respondent
Roger Pinnock, for the applicant (appellant)
John McCulligh, for the respondent
Heard: October 28, 2011
On appeal from the sentence imposed by Justice Dunn of Superior Court of Justice dated January 4, 2010.
APPEAL BOOK ENDORSEMENT
[1] The SOIRA order sought by the Crown was mandatory subject to the very limited exception then available under s. 490.012(4). The defence did not oppose the order at trial and quite properly conceded the appeal.
[2] The trial judge offered no explanation for refusing to make the order. The relevant provisions were brought to his attention.
[3] The appeal is allowed and an order pursuant to s. 490.012(1) for 20 years shall issue.