WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
Section 486.4 — Order Restricting Publication — Sexual Offences
(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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) MANDATORY ORDER ON APPLICATION — 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 486.6 — Offence
(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.
Court Information
Date: April 25, 2019
File Numbers:
- 1211-998-17-3841-00
- 1211-998-18-4651-00
- 1211-998-18-3628-00
Ontario Court of Justice
Her Majesty the Queen v. J.G.O.
Ruling on Application
Before: The Honourable Justice D.A. Harris Date and Location: April 25, 2019, at Burlington, Ontario Courtroom: 13
Appearances
Crown: E. O'Marra, Ms., Counsel for the Crown
Ruling on Application
HARRIS, J. (Orally):
In the matter of J.G.O.
J.G.O. pled guilty to:
(i) Indecent assault on a male, which occurred between January 1, 1981 and December 31, 1982, contrary to then Section 156 of the Criminal Code. The victim in that matter was J.B.;
(ii) Sexual interference, which occurred between January 1, 2005, and December 31, 2006. The victim, with respect to that charge was H.B.
(iii) Breach of Recognizance, which occurred on December 22, 2018. The victim in that case was T.L.
On March 18, 2019, I sentenced J.G.O. (See R. v. J.G.O. [2019] O.J. No. 1682).
After I read out my Reasons for Sentence, H.B. inquired if he could ask a question. I replied that he could, although without having heard the question I could not guarantee that I could answer it.
He then asked if he could apply to have the Order, which had been made in this case pursuant to S.486.4 set aside with respect to him. Neither Crown Counsel, nor I were able to provide a definitive answer to that question immediately. I adjourned the matter until today to allow us to determine the answer.
Today I am allowing the application and lifting the ban with respect to H.B. and J.B. My reasons are as follows.
Analysis
The order in question was made pursuant to S.486.4 and directed that any information that could identify either victim should not be published in any document or broadcast or transmitted in any way. I did not make that order with respect to either H.B. or J.B. That was done by a presiding Justice of the Peace early in the proceedings.
In R. v. Adams, [1995] 4 S.C.R. 707, the Supreme Court of Canada addressed this issue. At Paragraph 29, the Supreme Court stated that:
A court has a limited power to reconsider and vary its judgment disposing of a case as long as the court is not functus.
That paragraph goes on to describe when a judge is in fact functus. I am satisfied that in this case I was not functus. Although I had given reasons for sentence and indicated what the sentence was going to be for J.G.O., the formal process was not completed at the time that H.B. made his request to me.
The Supreme Court of Canada in Adams went on at Paragraph 30 to direct that as a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed.
At Paragraph 32, they discuss what might constitute material change and they specifically note that if both the Crown and the Complainant consent then the circumstances which make the Publication Ban mandatory are no longer present and, subject to any rights that the accused may have under Section 486.3, the trial judge can revoke the order.
I note that a similar comment was made by Justice Lalonde of the Superior Court of Justice in R. v. Radcliffe, [2010] O.J. No. 4031, at Paragraph 7.
Circumstances Present in This Case
I note the following circumstances that are present here. H.B. is now 18 years of age and is therefore legally entitled to make his own decisions. He has received independent legal advice. He not only consents to my making this order, he is the one who requested it.
J.B. has also consented after having had an opportunity to obtain independent legal advice. I note that J.B. is also an adult of an age such that he is allowed to legally provide his consent. I also note that his consent is important in this case because any information that would tend to identify H.B. would automatically identify J.B. as well. That has been made clear to him and he has made it clear to me that he does not wish to stand in the way of this order. He is in support of it.
Crown Counsel has now consented.
I am satisfied that the circumstances which made the Publication Ban mandatory are no longer present, and subject to any rights that J.G.O. might have, I can revoke the order. J.G.O., through his counsel has declined to take any position with regard to this. I am satisfied that there are no rights that he has that would prevent me from making the order.
Jurisdiction to Vary Order Made by Another Justice
The final question that I had was whether I could determine this issue with respect to an order that was made by another justice. In that regard I note the decision of Justice DelFrate of the Superior Court of Justice in R. v. Ireland, [2005] O.J. No. 5244. At Paragraph 19, he concludes that a judge other than a judge making the order would have the jurisdiction to hear such an application. He goes on to note that the circumstances in that case were very similar to those before me, and went ahead to make the order sought.
I note for the record the fact that this is not a matter of the application being brought before any judge. This was an application that was brought before the judge that heard the guilty plea, heard the submissions with respect to sentence and sentenced J.G.O. I was the justice who would be most informed of the circumstances of this case.
Decision
For the reasons I have set out above, the application is granted and the order banning the publication of the name of the victims H.B. and J.B. is hereby lifted. I will point out that this has no effect on the order regarding T.L. That was a separate matter. In fact, I was the one who made the order regarding T.L. That is not part of the application before me and the order banning publication of T.L.'s name or from providing any information that may tend to identify him remains in place.
I note also that I have continued to use initials in my reasons given this morning. I have done so because this application is for the benefit of H.B. and J.B. It is up to them to decide what steps if any they wish to take with respect to having information published that may tend to identify them. I am not being so presumptuous as to take those steps myself at this time.
Thank you all.
Administrative Information
Date Ordered: May 1, 2019
Date Completed: May 27, 2019
Ordering Party Notified: May 29, 2019
Certificate of Transcript
Form 2 — Certificate of Transcript
Subsection 5(2) — Evidence Act
I Brenda Sears, certify that this document is a true and accurate transcript of the recording made by Court Reporter Mary Thompson, of the matter of R. v. J.G.O., in the Ontario Court of Justice, at 2021 Plains Road East, Burlington, Ontario, taken from Digital Recording: 1213_13_20190425_082133__6_HARRISDAV.dcr, which has been certified in Form 1.