Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220117 Docket: C67766

Judges: Paciocco, Nordheimer and Sossin JJ.A.

Between: Her Majesty the Queen, Respondent and V.N., Appellant

Counsel: David Anber, for the appellant Lisa Joyal, for the respondent

Heard: January 14, 2022 by video conference

On appeal from the conviction entered by Justice Norman D. Boxall of the Ontario Court of Justice on December 3, 2018.

Reasons for Decision

[1] On December 3, 2018, Mr. N pleaded guilty to possessing and accessing child pornography, and received a sentence of 14 months’ imprisonment, followed by 2 years’ probation. He now asks this court to set aside his guilty plea and the ensuing convictions on the basis that his pleas were uninformed. Mr. N claims that at the time his pleas were entered, he was unaware of legally relevant collateral consequences that bear on sufficiently serious legal interests; specifically, he claims that upon conviction he was unaware that he would be subject to an order to comply with the Sexual Offenders Information Registry Act for life, pursuant to s. 490.013(2.1) of the Criminal Code, R.S.C. 1985, c. C-46 (“SOIRA order”), and would be ineligible to apply for a criminal record suspension, pursuant to the Criminal Records Act, R.S.C. 1985, c. C-47. He asserts that had he been aware of these collateral consequences, he would not have pleaded guilty.

[2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[3] We do not need to address the Crown’s submission that Mr. N’s plea could not be rendered uninformed as the collateral consequences he identifies do not bear on sufficiently serious legal interests: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696. Mr. N’s appeal must fail because, when the whole of the evidence is considered, he has not presented credible evidence establishing a reasonable possibility that he would not have pleaded guilty had he been aware of these collateral consequences.

[4] During cross-examination on his affidavit filed in support of this appeal, Mr. N acknowledged that his “three very big concerns” before deciding to plead related to his wish to get home to his family as soon as possible, whether any defences were available to him, and his wish to receive the lowest possible sentence. The case against Mr. N was overwhelming and left no room for defences, and he was so advised by trial counsel. His pleas of guilty addressed the remaining concerns. It is unlikely, given that his “very big concerns” were addressed including by the pleas he entered, that he would not have pleaded guilty had he been aware of the collateral consequences he now identifies.

[5] Moreover, the duration of the SOIRA order came up twice during the sentencing hearing. On both occasions it was made clear that the SOIRA order would be for life. First, the trial judge discussed the issue with counsel at the outset of sentencing submissions. At the closing of submissions, Mr. N was asked by the trial judge whether he had anything to say. He expressed his remorse but said nothing about the SOIRA order that was about to be imposed. Second, the trial judge discussed the duration of the SOIRA order with counsel when he was about to impose the order. At that time, Mr. N’s trial counsel was given the opportunity to comment on the order but declined to do so. Had the implication of the SOIRA order been material to Mr. N when he entered the pleas, he or his trial counsel would have made this known to the court.

[6] With respect to his ineligibility for a record suspension, prior to entering his pleas Mr. N signed written plea instructions that recited, “I understand that as a result of my plea I will have a criminal record”. There can be no doubt that if the possibility of a criminal record suspension was of importance to Mr. N’s decision to plead guilty, he would have raised it at that time, but he did not do so. The first mention of eligibility for a record suspension between Mr. N and his trial counsel occurred after he was sentenced, notwithstanding that Mr. N. had raised other issues with trial counsel before deciding to plead guilty. In all of the circumstances, there is no credible basis for finding a reasonable possibility that had Mr. N known he would be ineligible to apply for a record suspension, he would not have pleaded guilty.

[7] In these circumstances Mr. N has not met the onus he bears. It is for these reasons that his appeal was dismissed.

“David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “Sossin J.A.”