Warning Regarding Publication Restrictions

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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240417 Docket: COA-22-CR-0282

Judges: Benotto, Coroza and Dawe JJ.A.

Between: His Majesty the King, Respondent and Deja Denique Clarke, Appellant

Counsel: Deja Denique Clarke, acting in person Ariel Herscovitch, appearing as duty counsel Nicholas Hay, for the respondent

Heard: April 9, 2024

On appeal from the conviction entered on November 12, 2021 and the sentence imposed on September 27, 2022 by Justice R. John Harper of the Superior Court of Justice.

Reasons for Decision

[1] Ms. Clarke was convicted of offences in connection with trafficking two girls under 18 years of age, identity theft and possession of property obtained by crime.

[2] She requested an adjournment of this appeal so she could find a lawyer. We denied the adjournment for the following reasons:

1. It is time for the appeal to be heard. The offence took place in 2018, the conviction was in 2021 and there have been multiple opportunities to find counsel.
2. On January 12, 2024 this court ordered the appeal to be heard today on a peremptory basis to Ms. Clarke.
3. Ms. Clarke did not provide us with any reason to expect that a lawyer could be located now.

[3] Mr. Herscovitch addressed the duration of the lifetime SOIRA order. Ms. Clarke was sentenced on September 27, 2022, at which time the trial judge imposed a mandatory lifetime order pursuant to s. 490.013(2.1) of the Criminal Code. A month later, on October 28, 2022, the Supreme Court of Canada struck down this provision as unconstitutional in R. v. Ndhlovu, 2022 SCC 38. As the majority explained, at para. 142:

[O]ffenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.

[4] We agree that Ndhlovu entitles Ms. Clarke to apply to the trial court for a s. 24(1) Charter remedy reducing the length of her SOIRA order from life to 20 years. However, in the absence of a proper Charter application, we are not satisfied that we can grant her that remedy now: see R. v. E.H., 2024 ONCA 74, at paras. 89-90.

[5] Mr. Herscovitch suggests that we have jurisdiction to vary Ms. Clarke’s SOIRA order pursuant to the expanded statutory appeal provision in s. 490.014 of the Criminal Code, which came into force on October 26, 2023. In the absence of full argument, we are not persuaded that we can properly interpret this provision as applying retrospectively to persons like Ms. Clarke who were sentenced before they came into force: see R. v. E.H., at para. 93; R. v. S.W., 2024 ONCA 173, at para. 59. We accordingly decline to address the request to reduce the duration of Ms. Clarke’s SOIRA order, without prejudice to her ability to seek a variation from the trial court pursuant to Ndhlovu.

[6] Ms. Clarke did not address the conviction appeal save to say she did not know the ages of the girls. The trial judge found that she was aware that both complainants were under the age of 18.

[7] The appeal is dismissed. Leave is granted to appeal the sentence. The sentence appeal is dismissed.

"M.L. Benotto J.A."

"S. Coroza J.A."

"J. Dawe J.A."