Court File and Parties

Court File No.: CR-19-00000005-00AP Date: 2019-08-23 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Appellant – and – Rochae Henry, Respondent

Counsel: C. Sweeny, for the Appellant F. Mirza, for the Respondent

Heard: June 20, 2019.

Reasons for Judgment

On appeal from the absolute discharge entered on December 21, 2018 by the Honourable Justice T. Breen of the Ontario Court of Justice.

SCHRECK J.:

[1] Following a trial, Rochae Henry was found guilty of a sexual assault which Crown counsel at the sentencing hearing acknowledged was “on the lower end of the spectrum”. He was youthful and had no prior criminal record. The sentencing judge accepted that he was genuinely remorseful and granted him an absolute discharge. The Crown appeals the discharge and submits that the sentencing judge committed numerous factual and legal errors. Contrary to the position taken by Crown counsel at the sentencing hearing, counsel for the appellant also submits that the sentencing judge erred by concluding that an order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) is not mandatory for an offender who had been discharged.

[2] I would dismiss the appeal. The appellant’s submissions essentially amount to a request to have this Court revisit factual findings made by the sentencing judge and give different weight to aggravating and mitigating factors than he did. That is not this Court’s role. With respect to the SOIRA order, that issue has been resolved in jurisprudence that is binding on this Court.

I. FACTS

A. The Offence

[3] The respondent, who was 22 years old at the time, and the complainant, who was 20 or 21, met on an online dating site. They first met on July 8, 2017 and spent time in a park and kissed. They met for a second time on August 6, 2017 and it was during this encounter that the offence took place. The sentencing judge’s factual findings with respect to the offence were as follows:

They took an Uber to Mr. Henry’s residence and proceeded to his bedroom where they engaged in consensual foreplay. C.S. withdrew her consent to intercourse when she learned that Mr. Henry did not have a condom. At Mr. Henry’s suggestion, the two walked to a nearby gas station, where Mr. Henry purchased condoms and rolling papers. During the walk, they crossed a bridge that spanned Cedervale Park. C.S. was unfamiliar with the area and was impressed by the park. At Mr. Henry’s suggestion they walked through the park on the way back to his residence.

While walking along a path Mr. Henry came behind C.S. and embraced her. He kissed her neck and cheek while holding her throat and touching her genitals over her clothing. Mr. Henry applied pressure to C.S.’s throat and sensed her body tense. When he tightened his grip C.S. said “stop”. Mr. Henry released her and stepped back. C.S. was frightened and upset. Mr. Henry apologized and tried to make light of the situation, but C.S. was inconsolable. She followed Mr. Henry out of the ravine then quickly walked away from him.[^1]

[4] Both the complainant and the respondent testified at trial and the trial judge found both to be credible witnesses. He explained in his Reasons for Sentence why he nonetheless found the respondent guilty:

In his evidence, Mr. Henry testified that he embraced C.S. and applied pressure to her throat because he thought it would be sexy or romantic. He had no intention of acting without her consent. Mr. Henry explained that their earlier interaction in his bedroom had been mutually aggressive or physical and that he believed that C.S. would be receptive to his advance in his park.

C.S. did not consent to the application of pressure to her throat. Although I accept that Mr. Henry did not intend to act without the consent of C.S., as explained in my reasons for judgment, his failure to take reasonable steps to secure C.S.’s prior consent, as required by s. 273(2)(b) of the Criminal Code, supplies the moral blameworthiness required for criminal liability and bars resort to the defence of mistake of fact.[^2]

B. Victim Impact

[5] The complainant struggled with anxiety issues prior to the offence. The respondent’s conduct exacerbated those issues. She prepared a victim impact statement in which she reported heightened anxiety and fear, panic attacks, social isolation and a disturbed mood.

C. The Respondent’s Background

[6] The respondent was 23 years old at the time of sentencing and had no prior criminal record. He completed high school and had attended university. He has been employed in the hospitality industry since leaving school.

II. ANALYSIS

A. Overview

[7] Section 730(1) of the Criminal Code provides that a discharge is an available disposition provided that it is in the best interests of the accused and not contrary to the public interest. The appellant submits that the sentencing judge erred with respect to both prerequisites and made numerous factual and legal errors in his analysis. Counsel for the appellant submits that the absolute discharge is unfit and that this Court should substitute a sentence of imprisonment for 30 days, followed by probation for two years. Counsel for the respondent submits that the sentencing judge made no errors and that his decision is entitled to deference.

[8] I will consider each of the errors alleged by the appellant using the approach mandated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41:

This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code; see also R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43‑46.

In this regard, Iacobucci J. explained in Shropshire that consideration of the fitness of a sentence does not justify an appellate court taking an interventionist approach on appeal:

An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [para. 46]

In Proulx [2000 SCC 5, [2000] 1 S.C.R. 61], this Court, per Lamer C.J., discussed these same principles, which continue to be relevant:

In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts: see Shropshire, supra, at paras. 46‑50; M.(C.A.), [1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500], at paras. 89‑94; McDonnell [1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948], at paras. 15‑17 (majority); R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18‑19. In M.(C.A.), at para. 90, I wrote:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [First emphasis added; second emphasis in original.]

Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second‑guess sentencing judges unless the sentence imposed is demonstrably unfit. [paras. 123 and 125]

These principles have since been reiterated in L.M. and Nasogaluak.

B. Grounds of Appeal Against the Granting of a Discharge

(i) Error in Finding Remorse

[9] The appellant submits that the sentencing judge erred in concluding that the respondent was genuinely remorseful. In support of this submission, the appellant relies on statements attributed to the respondent in the Pre-Sentence Report (“PSR”) to the effect that he did not believe that he had done anything wrong and that the victim had been exaggerating.

[10] Some context is required to evaluate the appellant’s submission. After the respondent was found guilty on August 22, 2018, a PSR was ordered and the matter returned on November 1, 2018 for sentencing submissions. During the course of those submissions, the sentencing judge inquired whether the respondent would be amenable to undertaking counselling as it was his view that the respondent would benefit from it. The complainant had also told the author of the PSR that she believed that the respondent should get counselling. The respondent indicated through his counsel that he was willing to have counselling. Submissions were then completed and the sentencing judge reserved his decision.[^3]

[11] After the sentencing submissions, the respondent attended six one-hour counselling sessions with Julie Freedman, a registered psychotherapist with 18 years of experience. Ms. Freedman prepared a report, dated December 13, 2018, which was provided to the sentencing judge. It stated that the respondent had engaged in a “critical exploration of his beliefs and behaviours” and that he and the counsellor had “explor[ed] in detail [his] thoughts and misconceptions leading up to the incident which resulted in his wrongful behaviour”. According to Ms. Freedman, the respondent “took responsibility for his actions” and “expressed strong regret and sincere victim empathy.” It was Ms. Freedman’s opinion that the respondent was unlikely to repeat the offending behaviour.

[12] Counsel for the appellant acknowledges that the sentencing judge relied on the counselling report in coming to the conclusion that the respondent was remorseful, but submits that he was wrong to do so because the respondent only went to counselling after the sentencing judge suggested it. The Crown made the same argument during the sentencing proceedings. In effect, the Crown submits that the lateness of the respondent’s counselling precludes any finding that his remorse was genuine.

[13] There is no merit to this submission. The sentencing judge was in a far better position than is this Court to determine whether the respondent’s remorse was genuine. The significant deference that appellate courts accord to sentencing decisions is precisely because of this type of advantage. It appears that with the benefit of counselling, the respondent came to accept responsibility for his actions. That is no doubt what the sentencing judge hoped would happen when he suggested counselling.

(ii) Error in Concluding That the Respondent Was of Prior Good Character

[14] The sentencing judge noted that the respondent was of “prior good character” and unlikely to reoffend. The appellant submits that this finding reflects error because there was “no evidence” of the respondent’s prior good character other than from the respondent himself.

[15] This submission is also without merit. There was no issue that the respondent had a steady employment history, a supportive family and no criminal record. The sentencing judge saw him testify and concluded that he was generally a credible witness. There was nothing in the record to suggest that he was not of prior good character. In these circumstances, it was open to the sentencing judge to conclude as he did.

(iii) Inconsistent Findings

[16] In his Reasons for Sentence, the sentencing judge stated:

While C.S.’s lack of consent was objectively foreseeable, the resulting emotional or psychological harm was not clearly so. The remoteness of such injury does not affect Mr. Henry’s responsibility but does mitigate his moral blameworthiness.[^4]

The appellant submits that this conclusion contradicted the following portions of the sentencing judge’s Reasons for Judgment finding the respondent guilty at trial:

C.S.’s fearful reaction was reasonably foreseeable in the circumstances. She is no physical match for Mr. Henry and was in an isolated location where no one would come to her aid if needed. Mr. Henry was little more than an acquaintance and she could not know when he choked her that he meant her no harm.

Given their brief and limited history, C.S.’s vulnerability and the foreseeability of her fearful reaction, I am compelled to conclude that a reasonable person, similarly situated to Mr. Henry, would take further steps to secure C.S.’s consent before applying pressure to her throat.

While Mr. Henry meant no harm to C.S., he was completely insensitive to her vulnerability in the situation he created. His mistake had serious and foreseeable consequences for C.S.[^5]

[17] I see no contradiction in the sentencing judge’s findings. As he noted in his Reasons for Sentence, the complainant suffered from anxiety issues prior to the offence and her condition was exacerbated by the respondent’s conduct. This is the “resulting emotional or psychological harm” which the sentencing judge was referring to in his Reasons for Sentence. What he was referring to in his Reasons for Judgment was the foreseeability of the complainant’s reaction at the time of the offence, not the lasting emotional effects.

(iv) Error in Finding Moral Blameworthiness “at the Lower End of the Continuum”

[18] The sentencing judge found that the respondent’s “level of moral blameworthiness falls decidedly at the lower end of the continuum.”[^6] The appellant submits that this was an error. Relying on R. v. Tweneboah-Koduah, 2018 ONCA 570, 48 C.R. (7th) 288, at para. 33, the appellant submits that in the sexual assault context, recklessness as to the existence of consent and knowledge of a lack of consent are equally morally blameworthy.

[19] During his submissions at the sentencing hearing, Crown counsel repeatedly acknowledged that this offence was “on the lower end of the spectrum”.[^7] I do not read the sentencing judge’s reference to the “lower end of the continuum” as anything other than an agreement with the Crown’s acknowledgment.

[20] The appellant is correct that the sentencing judge considered it relevant that the respondent had believed that the complainant was consenting, that is, that the mens rea for the offence was recklessness, not actual knowledge. In my view, it was open to the sentencing judge to take this view. It is well established that it is a “fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally”: R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 36. I do not read Tweneboah-Koduah as altering this fundamental principle. That case involved the prolonged oral and vaginal penetration of an intoxicated and unconscious victim, resulting in injuries to her vagina and the contraction of a venereal disease. In my view, when the Court of Appeal stated, at para. 33, that “Whether he had knowledge of the lack of consent or was reckless about whether there was consent, he is equally morally blameworthy”, the Court was merely referring to the particular facts of that case and not intending to promulgate a principle of general application. In any event, the reasons of the sentencing judge in that case suggests that the finding with respect to mens rea was closer to wilful blindness than recklessness: R. v. Tweneboah-Koduah, 2017 ONSC 640, at para. 77.

[21] Counsel for the appellant spent considerable time during her oral submissions making the argument that the respondent was “statutorily barred” from concluding that the complainant was consenting because she had consented earlier and, as a result, that his belief that there was consent was irrelevant to his moral culpability. With respect, the appellant has confused criminal liability with moral culpability. The first involves a binary decision: a person is either criminally liable or he is not. The second is a matter of degree. The appellant is correct that the respondent could not legitimately conclude that the complainant was consenting because she had consented earlier: R. v. Goldfinch, 2019 SCC 38, at para. 44. That is why he was found guilty. However, this does not mean that his state of mind was irrelevant to his degree of moral culpability. For the reasons outlined earlier, it was open to the sentencing judge to conclude that it was.

(v) Error in Finding That a Discharge Would Not Be Contrary to the Public Interest

[22] The appellant submits that the trial judge erred in concluding that a discharge would not be contrary to the public interest. The appellant relies on R. v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (Ont. C.A.), where the Court held that “in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge” and R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41, where the Court held that the objectives of denunciation and deterrence gain prominence in cases of “[s]erious crimes of violence, particularly sexual assaults”.

[23] I acknowledge that discharges are rare in cases of sexual assault. They are, however, an available disposition that is appropriate in some cases: R. v. Berseth, 2019 ONSC 888; R. v. J.H., 2014 ONSC 2288, aff’g 2012 ONCJ 753; R. v. Burton, 2012 ONSC 5920. In my view, in the circumstances of this case, it was open to the sentencing judge to conclude that a discharge would not be contrary to the public interest. At the sentencing hearing, Crown counsel expressly acknowledged that in the circumstances of this case, “general deterrence plays a lesser role.”[^8] This distinguishes this case from both Wood and Thurairajah. The sentencing judge’s reasons make it clear that he carefully weighed all of the relevant factors in arriving at his conclusion. His decision is entitled to deference.

(vi) Failure to Consider Aggravating Factors

[24] Finally, the appellant submits that the sentencing judge failed to consider aggravating circumstances, in particular that this was an offence against an “intimate partner”, that the offence had a significant impact on the victim and the circumstances in which the offence was committed.

[25] With respect to the complainant being an “intimate partner”, counsel for the appellant acknowledged in oral argument that s. 718.2 of the Criminal Code, which lists a number of statutorily aggravating factors, refers in sub-paragraph (ii) to an offender’s “spouse or common-law partner” and that the complainant was neither of these. While the complainant in this case may meet the definition of “intimate partner” in s. 110.1, that definition is only relevant to whether a discretionary firearms prohibition order ought to be made pursuant to s. 110. In any event, the sentencing judge was well aware of the nature of the relationship between the respondent and the complainant.

[26] With respect to the impact on the victim, the sentencing judge was clearly aware of this and referred to it in his reasons. The same can be said of the other aggravating circumstances which the appellant alleges were ignored, such as the time and location of the offence and the manner in which it was committed. The sentencing judge considered all of these circumstances. The appellant’s real complaint is that he did not give as much weight to them as the appellant would have liked. However, as observed in R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35 (and cited with approval in Lacasse, at para. 49):

To suggest that a trial judge commits an error in principle because in an appellate court's opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle.

In my view, the sentencing judge’s conclusions were reasonable and supported by the record.

C. Failure to Make a SOIRA Order

(i) Overview

[27] During the sentencing hearing, Crown counsel expressed the view that a SOIRA order could not be made if a discharge was granted. The Crown now takes a different position on appeal and submits that a SOIRA order was mandatory.

[28] The relevant section of the Criminal Code is s. 490.012(1), which provides as follows:

490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

Sexual assault is a designated offence in s. 490.011. It follows that the court was required to make a SOIRA order if it imposed a “sentence” on the respondent. The appellant submits that a discharge is a “sentence”. The respondent submits that it is not.

[29] The parties referred me to two appellate decisions: R. v. D.K., 2009 QCCA 987, 252 C.C.C. (3d) 332 and G. v. Ontario (Attorney General), 2019 ONCA 264, 145 O.R. (3d) 161. The first is clearly on point but is not binding on this Court. The second is not as clearly on point, but is binding on this Court.

(ii) R. v. D.K.

[30] In D.K., the Court of Appeal of Québec considered the question of whether a discharge was a “sentence” and concluded that it was (at para. 41):

Does an absolute or conditional discharge constitute a sentence? In my view, it does. First, section 730 is in Part XXIII of the Criminal Code, entitled “Sentencing”. In addition, section 673 Cr. C., which provides definitions applicable to appeals from indictable offences, includes “discharge” in the definition of “sentence”. Similarly, the case law has recognized a discharge as constituting a sentence, describing it as [TRANSLATION] “the lightest sentence under the Criminal Code” [Montreal Urban Community (Police Service) v. Commission des droits de la personne et des droits de la jeunesse, 2006 QCCA 612, [2006] R.J.Q. 1307 at para. 73]. Finally, scholarly commentary has described a discharge as a [TRANSLATION] “sentence without penal consequences” [François Dadour, De la détermination de la peine: principes et applications (Markham, Ont.: LexisNexis Canada, 2007) at 107], a [TRANSLATION] “lenient sentence” [Gilles Renaud, Principes de la détermination de la peine (Cowansville: Yvon Blais, 2004) at 8], a “lesser penalty” [Clayton C. Ruby, Sentencing, 6th ed. (Markham: LexisNexis Canada, 2004), No. 9.26 at 355], and “a sentence viewed as a warning” [Gary R. Clewley & Paul G. McDermott, Sentencing: The Practitioner’s Guide (Aurora, Ont.: Canada Law Book, November 2008) No. 1.20 at 1-2].

[31] It should be noted that at the time D.K. was decided, s. 490.012(4) of the Code gave a sentencing court the discretion not to make a SOIRA order if the impact of doing so was grossly disproportionate to the public interest in protecting society. That subsection has since been repealed and a sentencing court no longer has the discretion to decline to make a SOIRA order.[^9] The Court of Appeal of Québec has recently granted leave to appeal on the issue of whether the conclusion in D.K. should be revisited in light of that amendment: Dubé c. R., 2019 QCCA 1223.

(iii) G. v. Ontario (Attorney General)

[32] G. v. Ontario did not expressly consider whether a discharge was a “sentence”. The issue in that case was whether SOIRA and Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, violate the equality rights protected by s. 15(1) of the Charter of persons found not criminally responsible due to mental disorder (“NCRMD”). The Court found there were ways that a person found guilty of an offence could avoid having to comply with SOIRA while persons found NCRMD could not. One of the ways in which a person found guilty could avoid a SOIRA order which a person found NCRMD could not avail herself of was the discharge provision in s. 730 of the Code. In arriving at this conclusion, Doherty J.A., writing for the Court, stated (at para. 106):

Section 730 allows a court, upon a finding of guilt, to decline to enter a conviction if satisfied that it is in the accused's best interests and not contrary to the public interest. Persons who receive a discharge under s. 730 are deemed by s. 730(3) not to have been convicted of any offence. Because persons who receive a discharge are not convicted, they are not required to register under Christopher’s Law or SOIRA. [Emphasis added.]

Later in his reasons, Doherty J.A. stated (at paras. 110-111):

Section 730 of the Criminal Code and s. 4 of the Criminal Records Act, when read with the sex offender registry legislation, provide persons found guilty of designated offences with two “exit ramps” leading away from the obligation to comply with the sex offender registries.

The s. 730 “exit ramp” operates at the time of sentencing and can result in the person who committed a designated offence never being placed on the sex offender registries.

The Court concluded that this difference in treatment violates s. 15(1) of the Charter.

[33] Counsel for the appellant submits that I should follow D.K. She submits that I should not follow G. v. Ontario for two reasons. The first is that the portion of G. v. Ontario in which the Court concluded that SOIRA does not apply to discharges was non-binding obiter dicta. The second is that the Court of Appeal “missed the issue” and “didn’t turn their minds to it.”

(iv) Is G. v. Ontario (Attorney General) Binding on This Court?

(a) Obiter Dicta

[34] The classic definition of an obiter dictum is a comment made during a judicial opinion that is unnecessary to the decision in the case: Apotex Inc. v. Schering Corporation, 2018 ONCA 890, 143 O.R. (3d) 321, at para. 29; R. v. Webber (2004), 13 M.V.R. (5th) 136 (Ont. S.C.), at para. 18. In G. v. Ontario, the conclusion that SOIRA violated s. 15 of the Charter was based on the Court’s conclusion that persons found guilty of designated offences could avoid SOIRA orders by being granted a discharge while those found NCRMD could not. The conclusion respecting the applicability of SOIRA to discharges was not unnecessary to the decision in the case but, rather, an integral part of it. As a result, I cannot disregard G. v. Ontario as non-binding obiter.

(b) Per Incuriam

[35] Counsel’s submission that the Court of Appeal “missed the issue” and “didn’t turn their minds to it” is in effect a submission that G. v. Ontario was decided per incuriam. While the doctrine of stare decisis requires that lower courts follow the decisions of higher courts, decisions made per incuriam (literally, “through lack of care”) are an exception to this rule. A decision will be per incuriam if it was made “without regard to a statutory provision or earlier binding authority” and if the case would have been decided differently if the earlier authority had been considered: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), at para. 111; Royal Bank of Canada v. Trang, 2014 ONCA 883, 123 O.R. (3d) 401, at paras. 38-39; R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, at para. 35, aff’d 2014 SCC 69, [2014] 3 S.C.R. 490.

[36] There are two reasons why I am unable to conclude that G. v. Ontario was decided per incuriam. First, there is no statute or binding authority that the Court of Appeal for Ontario failed to follow with respect to the issue of whether a discharge is a “sentence”. As counsel for the appellant acknowledged in her submissions, D.K. is not binding on courts in Ontario.

[37] Second, I do not accept that the members of the panel that decided G. v. Ontario did not turn their minds to the issue. I draw this conclusion for several reasons.

[38] First, D.K. was decided 10 years earlier. It was reported in both the Canadian Criminal Cases and the Criminal Reports and is mentioned in the annotation to s. 490.012(1) in Tremeear’s Criminal Code. I cannot accept that the Court of Appeal was not aware of it.

[39] Second, as noted above, the applicability of the SOIRA provisions to an offender who has been discharged was central to the conclusion that s. 15(1) of the Charter had been infringed. The Court would not have simply assumed that such an “exit ramp” exists before relying on it to find legislation to be unconstitutional.

[40] Finally, notwithstanding D.K., the few Ontario cases which consider the issue suggest that the law in this province is that s. 490.012(1) does not apply to discharges: R. v. Jayswal, 2011 ONCJ 33, 266 C.C.C. (3d) 388, at paras. 11-37; R. v. Rai, 2018 ONCJ 949, at paras. 34-41; R. v. Senthamilselvan, 2018 ONCJ 356, at paras. 52, 59; R. v. Mwamba, 2006 ONCJ 374, at para. 18. Courts in British Columbia have also declined to follow D.K.: R. v. Reyes-Borgwardt, 2010 BCSC 1594, at para. 44; R. v. Hartman, 2018 BCPC 240, at para. 67; R. v. T.J.H., 2012 BCPC 115, at paras. 24-36; R. v. J.L.B., 2017 BCPC 24, at para. 44.

[41] For these reasons, I conclude that G. v. Ontario was not decided per incuriam. I am therefore bound by that decision.

D. Failure to Make a Section 110 Order

[42] The Crown also submits that the sentencing judge erred in not making a firearms prohibition order pursuant to s. 110 of the Code. The making of such an order is entirely discretionary. No weapon was involved in the commission of the offence. There is no basis for interfering with the exercise of the sentencing judge’s discretion.

III. DISPOSITION

[43] The appeal is dismissed.

Justice P.A. Schreck

Released: August 23, 2019.

Court File No.: CR-19-00000005-00AP Date: 2019-08-23 Ontario Superior Court of Justice

Her Majesty the Queen – and – Rochae Henry

Reasons for Judgment P.A. Schreck J.

Released: August 23, 2019.

[^1]: Reasons for Sentence, at paras. 4-5. [^2]: Reason for Sentence, at paras. 7-8. [^3]: The transcript indicates that the matter was adjourned to November 23, 2018, but the Information states that it was adjourned to December 21, 2018, the date on which the sentencing judge delivered his reasons. [^4]: Reasons for Sentence, at para. 18. [^5]: Reasons for Judgment, at paras. 48-50. [^6]: Reasons for Sentence, at para. 17. [^7]: Submissions, Transcript – November 1, 2018, at pp. 8, 11. [^8]: Submissions, Transcript – November 1, 2018, p. 11. [^9]: Protecting Victims From Sex Offenders Act, S.C. 2010, c. 17, s. 5.