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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

CITATION: R. v. Hussey, 2011 ONCA 719

DATE: 20111116

DOCKET: C51369

COURT OF APPEAL FOR ONTARIO

Weiler, Watt JJ.A. and Cunningham A.C.J (Ad Hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Kirt Hussey

Appellant

Counsel:

Kirt Hussey, acting in person

Susan Chapman, acting as duty counsel

Frank Au, for the respondent

Heard: November 14, 2011

On appeal from the conviction entered on November 10, 2009 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals his conviction on two interrelated grounds. The appellant submits that the trial judge failed to consider the violation of the his s. 10(b) Charter right to counsel when considering whether his s. 8 right to be free from unreasonable search and seizure was violated when he gave a DNA sample. The appellant further submits that the breach of his s. 10(b) right to counsel in connection with the giving of his statement tainted his consent to give a DNA sample. The appellant submits that the DNA sample should also have been excluded.

[2] We disagree. Although the trial judge did not specifically consider the s. 10(b) violation in the context of s. 8, she did consider it when considering whether the DNA sample should be excluded pursuant to s. 24(2). Implicit in this consideration was what the result should be on the assumption that the appellant’s s. 8 right had been violated. We would dismiss the first ground of appeal.

[3] In relation to the second ground of appeal, there was a close temporal and contextual connection to the taking of the appellant’s statement in violation of s. 10(b), but the appellant’s signed waiver and consent to give the DNA sample was obtained only after the reiteration of his right to counsel and the consequences of giving the sample had been made clear to him. It broke the connection between the s. 10(b) non-compliance with respect to the taking of his statement and the giving of the DNA sample. This case is indistinguishable from this court’s decision in R v. Simon.

[4] Accordingly, the appeal is dismissed.