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:

Section 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

Section 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.

Section 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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: 2018-11-23

Docket: M49773 (C62532)

Panel: Doherty, Rouleau and van Rensburg JJ.A.

Parties

Between

Her Majesty the Queen Respondent (Responding Party)

and

J.D. Appellant (Moving Party)

Counsel

Erin Dann, for the moving party

Elena Middelkamp, for the responding party

Heard: In writing

Reasons for Decision

[1] Conviction and Sentencing

The appellant was convicted of sexually assaulting a young child. The relevant events occurred between 1987 and 1991. The trial judge sentenced the appellant to 3 years in the penitentiary and imposed orders under s. 161(1)(a) and (b) of the Criminal Code. The former order prohibits attendance at places where persons under the age of 16 are present or can reasonably be expected to be present. The latter order prohibits seeking, obtaining or continuing employment or volunteer work which involves being in a position of trust or authority over persons under the age of 16.

[2] Grounds of Appeal

The appellant has appealed conviction and sentence. On the sentence appeal, he challenges the constitutionality of the orders made under s. 161(1)(a) and s. 161(b). He submits that the orders constitute "punishment" for the purposes of s. 11(i) of the Charter. He further contends that as s. 161(1)(a) and (b) were not in force when he committed the offences, the making of the orders under those provisions against him is contrary to s. 11(i) of the Charter: see R. v. K.R.J., 2016 SCC 31.

[3] Leave to Raise Constitutional Challenge

The constitutional challenge was not raised at trial. It can be raised for the first time on appeal only with leave of this court. The onus rests on the appellant to convince the court that it should exercise its discretion in favour of hearing an argument not raised in the court below: R. v. Reid, 2016 ONCA 524, at para. 42.

[4] Parties' Arguments

The parties have canvassed the factors relevant to the exercise of that discretion in their written arguments.

[5] Crown's Position on Evidentiary Record

The Crown makes the point that if the appellant is allowed to advance the constitutional challenge, both parties will inevitably tender evidence on the appeal relevant to the possible justification of any potential infringement of s. 11(i) under s. 1 of the Charter. Counsel submits that the evidence will be extensive and contentious. She argues, relying on R. v. Roach, 2009 ONCA 156, at paras. 8-11, that this court is neither the appropriate nor an effective forum in which to raise and resolve those evidentiary issues.

[6] Court's Assessment of Evidentiary Concerns

The Crown raises a legitimate concern. An appellate court is not the place to develop an evidentiary record. However, while the evidentiary record submitted in reference to the s. 1 issues may be extensive, we doubt it will involve the kind of evidence in respect of which assessments of credibility and reliability are required. To the extent that there may be conflicting evidence on some issues, e.g. recidivism rates, we think those questions can be adequately, if not ideally, resolved by way of affidavits and transcripts of any cross-examination on those affidavits. Case management is available to the parties to facilitate the preparation of the evidentiary record and ensure that it adequately addresses the issues to be raised on appeal.

[7] Merits of the Constitutional Argument

Whatever problems there may be with assembling an appropriate record are outweighed by the appellant's legitimate interest in advancing the constitutional issue. Counsel's failure to raise the issue at trial, either by way of a constitutional challenge, or a statutory interpretation argument, cannot be described as a tactical decision. Counsel focused on the merits of making the challenged orders.

[8] Impact of K.R.J. Decision

In light of the Supreme Court of Canada's ruling in K.R.J., released after the appellants' sentencing, it seems likely that if the appellant is allowed to raise the constitutional issue he will be able to establish that the challenged orders constitute a prima facie breach of s. 11(i) of the Charter. His appeal will turn on whether the Crown can met its onus under s. 1 of the Charter to demonstrate that the challenged provisions constitute reasonable limits on the s. 11(i) right. That argument had mixed success in K.R.J.

[9] Impact of Orders on the Appellant

In addition to the merits of the appellant's proposed argument, the impact of the orders on him must be considered. The orders impose lifetime limitations on the appellant's ability to move about in public and on his employment possibilities. Assuming the convictions survive appeal, if the appellant is not allowed to advance his constitutional claim, he will remain subject to those orders for the rest of his life, subject to a limited right to apply for a review if there are changed circumstances.

[10] Decision: Leave Granted

Having regard to the potential significant negative impact of the orders on the appellant, and the apparent merits of the constitutional argument, we think the interests of justice favour permitting the appellant to raise the argument for the first time on appeal. The appellant can advance the constitutional challenge.

[11] Case Management

Counsel should arrange a further case management conference call to discuss any matters arising out of this ruling.

"Doherty J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."