WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. D.G., 2014 ONCA 75

DATE: 20140128

DOCKET: C55352

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Timothy Breen, for the appellant

Susan Magotiaux, for the respondent

Heard: January 23, 2014

On appeal from the conviction entered on January 25, 2012 by Justice Margaret F. Woolcott of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of possession of child pornography by Woolcott J. of the Ontario Court of Justice (Youth Justice Court) on January 25, 2012. He appeals from his conviction on a single ground.

[2] Section 487(1) of the Criminal Code authorizes “a justice” to issue a search warrant on the basis of “information on oath in Form 1”.

[3] Form 1 sets out the territorial jurisdiction and general structure of an Information to obtain a search warrant. It concludes with this jurat:

Sworn before me this ….……..…………. day of …………., A.D (Signature of informant) ……….. at ……….

A Justice of the Peace in and for …………

[4] Effective March 10, 2005, the WARRANT APPLICATION GUIDELINES ONTARIO COURT OF JUSTICE, KITCHENER ONLY mandated that search warrant informants should swear the Information to Obtain (ITO) before a Commissioner of Oaths (not a Justice of the Peace) and submit the ITO and draft copies of the search warrant to a Justice of the Peace. Commissioners of Oaths would be made available at each police division, the Kitchener Court, and the office of the Crown Attorney. The rationale behind the guideline was to eliminate the practice of police officers selecting the judicial officer before whom warrant applications were made. In addition, the guideline would eliminate the possibility of informants supplementing the ITO through oral representations before the Justice of the Peace.

[5] In this case, the ITO of P.C. Feizal Rhab was commissioned by Shirley Atkinson, a Commissioner of Oaths for the Waterloo Regional Police Service. The warrant was then issued by Justice of the Peace Legate Exon.

[6] The trial judge ruled that an Information to Obtain a search warrant may be sworn before a commissioner for oaths.

[7] The appellant contends that this step in the process violates s. 487 of the Criminal Code. This breach resulted in an unlawful search contrary to s. 8 of the Charter. Accordingly, the appeal should be allowed and the appellant should be acquitted.

[8] We do not accept this submission. There is nothing in the wording of s. 487(1) of the Code requiring that the information on oath must be sworn by a justice; rather s. 487(1) provides that a justice must issue the warrant.

[9] The role of a justice commissioning an oath comes into play only by virtue of the wording of Form 1. Section 32 of the Interpretation Act, R.S.C. 1985, c. I-21, provides that “[w]here a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the form used.” Section 849 of the Criminal Code permits forms in the Criminal Code to be “varied to suit the case”. That is what has happened in this case. Form 1 has been amended in the Kitchener area (as it has been amended in other regions in Ontario and elsewhere in Canada) to permit commissioners of oaths to commission ITOs. This is entirely appropriate and does not alter the essential point of s. 487(1), namely, that a justice must consider and issue the search warrant based on sworn evidence.

[10] On both of these points – the language of s. 487(1) and Form 1 – we explicitly endorse the reasoning of the trial judge in this case. We also agree with Foley J.’s similar analysis in R. v. Spencer, 2009 SKQB 341, at paras. 20-25.

[11] The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”