Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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

Date: 2021-11-02 Docket: C65170

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Sean Durigon Appellant

Counsel: Anthony Marchetti, for the appellant Stephanie A. Lewis, for the respondent

Heard: October 26, 2021 by video conference

On appeal from the sentence imposed on March 1, 2018 by Justice Bonnie J. Wein of the Superior Court of Justice, with reasons at 2018 ONSC 1424.

Reasons for Decision

[1] The appellant was charged with possessing, accessing, and making available child pornography. The child pornography depicted videos of children being forced to engage in violent sexual conduct. Some of the children were mere toddlers. The appellant was also charged with possession of cocaine, to which he pleaded guilty at the outset of the trial.

[2] After a judge alone trial, the appellant was convicted on all counts. The conviction for possession of child pornography was conditionally stayed.

[3] This is an appeal from sentence against the 15-year prohibition order made pursuant to s. 161(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46. The order prohibits the appellant from using the internet and other digital devices, except in accordance with a lengthy list of conditions that formed part of the order.

[4] The appellant claims that the order is: (1) too long; (2) beyond that which is permitted by the statutory provisions; (3) too onerous; and (4) insufficiently tailored to the predicate offences.

[5] The standard of review on an appeal against sentence is strict. Appellate intervention is only warranted if an error in principle impacted the sentence or if the sentence is demonstrably unfit and unreasonable in the circumstances. Sentencing judges exercise discretion in crafting s. 161(1) orders and are owed substantial deference as a result: R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537.

[6] We see no error in how the sentencing judge arrived at her conclusion that the order should cover a period of 15 years. This issue was fully argued by the parties and addressed by the sentencing judge. It was open to the sentencing judge, on the record before her, to conclude that the prohibition order had to be in place for a substantial period of time to represent an effective risk mitigation tool. This was particularly true given the appellant’s conduct, which covered a lengthy period of time, and the fact that he had limited insight into the harm arising from his offending conduct.

[7] Nor do we accept the submissions that the statutory provisions precluded the type of order made, or that it was too onerous and insufficiently tailored to the predicate offences.

[8] Section 161(1)(d) is aimed at protecting children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 44-47, 64. As s. 161(1) orders are “subject to the conditions or exemptions that the court directs”, they can be “carefully tailored to the circumstances of a particular offender”: K.R.J., at para. 47. As noted in K.R.J., at para. 47:

The discretionary and flexible nature of s. 161 demonstrates that it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community.

[9] In our view, there is a clear nexus between the s. 161(1)(d) order in this case and the risks posed by the appellant.

[10] While the order is directed at online activity, the very location from which the appellant accessed child pornography, it is tailored to balance reasonable access to the internet while nonetheless keeping children as safe from him as possible.

[11] By way of example, the appellant is specifically permitted to use the internet for employment purposes, using a device provided by his employer. He is also permitted to access the internet from a personally owned computer for both employment and personal purposes. With respect to a personally owned computer, however, he must comply with the conditions imposed by the order, including that he can only have one email address at a time and must provide to a designated person information about any new devices he may acquire. As well, the appellant is not to use or activate any software that prevents computers or devices from retaining and/or displaying the history of internet use.

[12] We do not intend to review every clause in the s. 161(1) order because, in the end, we see no error in how those clauses were arrived upon. While detailed in nature, this was a carefully tailored order, one that was specifically directed at the appellant’s level of risk.

[13] Seeing no legal error, we defer to the order made with two exceptions, both of which are conceded by Crown counsel.

[14] We accept the Crown concession that clause 4(a), requiring the appellant to inform a designated person of IP addresses he is or may be using, should include a reference to “any IP addresses that he knows he is or may be using”. As the Crown explained, internet providers may change IP addresses without the user being informed. We note that, in the event that other terms in the order become unworkable due, for example, to changes in technology, s. 161(3) provides a mechanism to vary the order.

[15] We also accept the Crown concession that, to the extent there are inspection and monitoring requirements in the order, they were not sufficiently tailored in terms of their length of time. The Crown asks that those conditions be changed to reflect a maximum duration of two years for purposes of monitoring and inspection. As it has been longer than two years since the start of this order, we see no need to address the appellant’s submission that these requirements violated the appellant’s rights to privacy and were beyond the scope of s. 161(1). Given the Crown concession, the concern has become moot. Therefore, clauses 4(c) and (d) of the prohibition order are to be deleted and the references to monitoring and inspection in clauses 4(f), (g), and (i) shall be removed.

[16] The sentencing judge’s original order will be set aside and replaced by a new order drafted in accordance with these reasons. The setting aside of the old order and the introduction of the new order will take effect when the new order is signed. The parties will confer and provide the draft order to this court by no later than November 15, 2021. The sentence remains the same in all other respects.

Fairburn A.C.J.O. Paul Rouleau J.A. Grant Huscroft J.A.