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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-03-27

Docket: C63387

Panel: Sharpe, Pardu and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

L.C. Respondent

Counsel

Melissa Adams, for the appellant

Geneviève McInnes, for the respondent

Hearing

Heard: March 23, 2018

On appeal from: the sentence imposed on January 20, 2017 by Justice R.N. Beaudoin of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Crown's Appeal

The Crown appeals from a decision refusing to impose a s. 161(1) Criminal Code prohibition order. The appellant alleges that the trial judge erroneously failed to take into account public safety concerns when he refused to impose the order.

[2] Conviction and Sentencing

The respondent was found guilty by a jury of sexual assault and sexual interference. At the sentencing hearing, the trial judge found as a fact that the appellant engaged in more than twenty acts of sexual intercourse with his step-daughter over a 2.5 year period. She was between six and eight years of age at the time of these assaults.

[3] Trial Judge's Decision

The sexual interference count was conditionally stayed and a 6.5 year sentence was imposed on the sexual assault count. DNA, firearms and Sex Offender Information Registration Act, S.C. 2004, c. 10 orders were made. The s. 161 prohibition order was refused. The trial judge's reasons for refusing to make the order are as follows:

As to the prohibition order sought pursuant to s. 161 of the Code, I agree with Daley J. where he held in R. v. M.A.J., 2012 ONSC 6415 … that this is not a proper or necessary order in the circumstances. Such an order represents a considerable interference with personal liberty, and it would be most difficult for this offender to completely avoid places accessible to the public for recreational use like public parks or community centres if he is ever allowed to renew contact with his children.

[4] Crown's Argument

The appellant does not object to the trial judge considering the impact that a s. 161 prohibition order would have on the respondent. Rather, the objection lies in what the appellant says that the trial judge did not consider. It is said that the trial judge committed reversible error when he failed to consider the respondent's threat to public safety. The appellant argues that had the respondent's risk factors been properly considered, a prohibition order would have been imposed.

[5] Legal Test for Section 161 Orders

In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 72, Karakatsanis J. reviewed the purpose of prohibition orders under s. 161:

Prohibitions listed in s. 161(1) are to be imposed only when a judge is satisfied that the specific offender poses a continued risk to children upon his release into the community and that the specific terms of the order are a reasonable attempt to minimize the risk. [emphasis in original]

[6] Trial Judge's Error

We agree that the trial judge failed to have regard to all of the appropriate considerations when he refused to impose a s. 161 prohibition order. In fairness to the trial judge, he received no assistance from counsel on this issue. Indeed, the trial Crown did little more than ask for the imposition of a blanket order.

[7] Respondent's Argument

The respondent correctly points out that, in arriving upon his overall disposition, the trial judge carefully reviewed the factual record before him, including the circumstances of the offence and the offender. The respondent maintains that, considered in context, the trial judge should be taken to have considered the public safety concerns when dismissing the s. 161 order.

[8] Court's Finding on Risk

Although the trial judge recounted many of the facts informing the respondent's ongoing risk to children, having regard to the reasons given, we are not satisfied that he took that risk into account when he refused to impose the s. 161 order. We find that the appellant poses a continued risk to children.

[9] Risk Factors: Denial and Deviant Sexual Preference

In relation to the risk factors, we have particular regard to the pre-sentence report that refers to the respondent's denial of sexually inappropriate behavior, something that increases his risk of re-offence. Drawing from the psychiatric opinion, the probation officer commented upon the respondent's "deviant sexual preference that will require programming to assist the development of self-management strategies to avoid future behaviours."

[10] Psychiatric Assessment

Dr. J. Gray, the psychiatrist who assessed the respondent, commented upon the diagnosis of pedophilic disorder, concluding that the respondent is at a moderate risk of sexual or violent reoffending. Dr. Gray also expressed the opinion that the respondent should not have unsupervised contact with females under the age of 18 years.

[11] Prior Offence

Moreover, this was not the respondent's first offence. In 1989 he was convicted on two counts of break and enter with intent and sexual assault. He was highly intoxicated when he entered a home and went into a young girl's bedroom. He kissed her on the cheek and attempted to remove her bedcovers when she pushed him away and told him to leave. He then went to the mother's bedroom, attempted to get into bed with her and was told to leave. He pled guilty and received a suspended sentence and two years probation.

[12] Current Family Situation

Since the offending conduct occurred, the respondent has become involved in another relationship with a woman with whom he now shares a child. His wife also has a daughter who is around the same age as the victim, when the victim was assaulted. Following the charges being laid in this matter, the Children's Aid Society became involved. Since that time, the respondent has been required to live away from the family.

[13] Imposition of Prohibition Order

Although we agree with the trial judge that a prohibition order would represent a considerable interference with the respondent's liberty, the imposition of a s. 161 order is a necessary measure to minimize the risk he poses to child safety. The order can and should be tailored to address the liberty concerns.

[14] Terms of the Prohibition Order

The appellant asks for an order to be imposed in accordance with the versions of s. 161(1)(a) and (b) that were in force at the time that the offences were committed. Having regard to all of the circumstances, including the circumstances underlying the offence, the respondent's past, and the psychiatric evidence filed, we impose a prohibition order as follows:

(a) The respondent is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, unless he is in the company of another adult; and

(b) The respondent is prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[15] Disposition

The appeal is granted, the refusal to impose a s. 161 order is set aside and a s. 161 order is granted in accordance with these reasons for a duration of 15 years from the date the respondent is released from imprisonment, including release on parole, mandatory supervision or statutory release.

"Robert J. Sharpe J.A"

"G. Pardu J.A."

"Fairburn J.A."