INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.B.
Defendant
A. Simard, for the Crown
W. Wade, for the Defendant
DELIVERED: April 9, 2021
reasons for sentence
Desormeau, j.
Introduction
1On November 18, 2019, S.B. was found guilty after trial for the offences of sexual assault and assault. The matter was put over on a number of occasions principally due to Covid-19 and its corollary effect on the sentence which the offender will serve.
2A pre-sentence report was filed with the court as an exhibit at the sentencing hearing. The victim declined to provide a victim impact statement, but was present at the sentencing hearing.
3Both the Crown and defence rely on the cases found within the Crown’s book of authorities.
4The maximum sentence available for the indictable offence of sexual assault is ten years imprisonment; and five years for the indictable offence of assault.
The position of the parties
Defence
5On the facts of this case, having regard to the relevant principles of sentence and the wide range of sentences available as established by the case law, the defence submits that two years imprisonment would be appropriate, followed by twelve months of probation with counselling. While the defence does not oppose a weapons prohibition and DNA order, they ask for restraint on imposing the SOIRA, and suggests 20 years would be acceptable.
Crown
6The Crown submits that the appropriate range for an offence of this nature is from twenty-one months to four years. He submits that a global sentence of thirty months would be appropriate due to the aggravating features of the offences, of which twenty-nine months would be appropriately attributed to the sexual assault. The Crown also seeks various ancillary orders.
The circumstances of the offences
7The court will not review the facts of this case in any great detail as they are contained in my Reasons for Judgement, 2019 ONSC 6553. Essentially, the victim, N.R. and the offender were in a relationship at the time of the offences. Following a weekend of quarrelling, on June 6, 2018, S.B. invites N.R. to attend his home prior to her going to work. Inside the home, N.R. notices a strong smell of alcohol, and notes S.B. smells of alcohol. S.B. guides N.R. to the bedroom, where they engaged in sexual relations. N.R.’s evidence was that at one point, S.B. became angry.
8I found N.R. expressly communicated her lack of consent to the sexual activity. I was persuaded beyond a reasonable doubt that N.R. told the offender to “stop” at least once. She also told him “it hurts”.
9I found that the offender did not stop when told to, nor did he obtain any further consent to sexual activities from that point onward in their interactions. I found this failure to stop was a product of S.B.’s recklessness. I was not left with a reasonable doubt that the offender failed to take any reasonable stops to ascertain N.R.’s consent. I found S.B. guilty of sexually assaulting N.R.
10I also found S.B. guilty of assaulting N.R. by putting his hand over her mouth and nose while she was in bed on May 13, 2018. On the day in question, S.B. spent the day drinking. N.R. had gone to bed as S.B. was continuously bombarding her with questions. She wished to prevent an argument. S.B. thereafter went in and out of the bedroom after N.R. was in bed. At one point, S.B. got on the bed and put his hand over N.R.’s mouth, covering her mouth and nose. N.R. struggled and tried to remove S.B.’s hand from her face. She had trouble breathing. She managed to remove his hand. She was then on her knees on the side of the bed, and went to the bathroom.
11I found N.R.’s evidence regarding the assault on the bed sufficiently detailed, straightforward, credible and reliable. Additionally, it went completely unchallenged in cross examination. S.B. testified, and did not present any evidence regarding this allegation. Ultimately, I accepted N.R.’s evidence and found S.B. guilty of assaulting N.R.
The circumstances of the offender
12The pre-sentence report (“PSR”) authored by Mr. Gendron, dated January 15, 2020, describes the now forty-three year old offender as coming from a “rough” childhood. The offender is single, and resides in Morrisburg. The offender cited a difficult relationship with his mother, who he felt occasionally employed excessive physical punishment. He described his mother as someone who consumed alcohol heavily, and his poor relationship with his mother extends to the time when the PSR was written, not having had any contact with her for nearly ten years. His parents separated when he was approximately twelve years old. By the age of fifteen, he moved and went to reside with his father, with whom he has a good relationship. He moved out to be independent at nineteen years of age.
13The offender reported having been sexually abused during childhood by a teenage male neighbour over a two-year period. He has never received any formal counselling or treatment, preferring to “let it go” and move on. As stated by the author of the PSR, that strategy is rarely successful, and the offender admits that he still struggles with the emotional trauma.
14The offender has regular contact with his two children, ages nine and ten, which were the product of a prior common law relationship. He and his former partner have a good relationship and he sees his children every second weekend. S.B. also has a good relationship with his father, whom he sees regularly.
15The offender and the victim commenced their relationship in July 2016. During the time the charges were outstanding, there were conditions prohibiting contact with N.R. The offender was charged and convicted of breach of recognizance due to two telephone texts. N.R. was also bound by a recognizance prohibiting contact with the offender. She was charged and convicted of trespass by night by attending S.B.’s home. In April 2019 she was charged with domestic assault on S.B., and convicted in August 2019, resulting in eighteen months probation.
16S.B. has a grade 12 education, and the author of the PSR indicates he has a very good overall employment record. The offender has twenty-five years of experience as a general labourer in plants and factories. However, S.B. was laid off and has been unemployed, searching for work since October 2019. He subsists on Employment Insurance benefits of approximately $800.00 per two weeks.
17The offender began consuming alcohol at sixteen years of age, and by eighteen was consuming regularly. He drank heavily on and off in his thirties. During that time, S.B. began experimenting with cocaine, which resulted in an addiction requiring substance abuse intervention. He successfully completed a twenty-on-day in-house substance abuse treatment in 2015. While he has successfully abstained from cocaine since receiving treatment, S.B. continues to struggle with alcohol. He continues to consume beer after work as a relaxant, and S.B. feels he would benefit from alcohol counselling. S.B. was convicted of impaired driving in 2000.
18The author reports that the offender was cooperative during the preparation of the report.
19S.B. described being of good physical health but “not good” mental health due to the stress of these criminal charges and possible sentencing options. He did not report any past mental health diagnosis, psychiatric intervention or psychological counselling. He also states that his sexual mental health is normal, and disputes any deviancy. He further does not view himself as aggressive or violent, and does not believe he had an anger problem or is in need of anger management programming.
20N.R. advises the author of the PSR that S.B. has anger management issues when under the influence of alcohol. She also reports that S.B. has a problem with alcohol, and is in need of treatment.
21The author reports that the offender does not associate with any criminal elements, and does not belong to any clubs or organizations. He occupies his leisure time with yard work, watching television and being with his children.
22S.B. was placed on probation in July 2019 for fifteen months. The author of the PSR noted that the response to probation was satisfactory. He reports as directed, usually in the evening to accommodate his employment. The Partner Assault Response Program (“PAR”) was not completed by S.B. due to his evening employment schedule, as he is a shift worker and did not meet the program criteria for attendance. However, as offered by the author, should his recent unemployment status continue it should provide an opportunity for completion.
23The author’s assessment of S.B. was that he is of moderate risk to reoffend given that in the past, he contacted the victim despite Court orders preventing same. The offender has three convictions for failing to comply with Court orders and one conviction for breach of probation. The author is skeptical that his compliance going forward will be any better than his past lack of compliance.
24It was the author’s view that the offender needs to address his two primary issues of substance abuse and anger management. He has never addressed the source of that anger and is reluctant to begin that victimization process. Until those needs are dealt with, his suitability for community supervision will be questionable.
25It also troubled the author of the PSR that the offender continues to express feelings for the victim though the relationship is clearly toxic. According to the author, the victim is clearly not interested in reconciliation while the offender appears open to the possibility in the future. He has shown remorse for his criminal behaviour but does not accept full responsibility. The offender reported to the author that he engaged in sexual activities with the N.R. failing to provide consent by saying “yes.” The offender quipped that in the future he will ask partners to sign a consent “waiver form.”
26The author’s assessment was that should the offender be granted a community disposition, the following conditions are recommended:
a. Report to a probation officer/ conditional sentence supervisor as directed.
b. Not to contact the victim. The author added that written revocable consent should not be an option unless the offender has completed the PAR and substance abuse programming, and if so, it should be with revocable written consent.
c. Attend counselling / treatment/ programming as directed, including, but not limited to, the PAR program.
d. Abstain from drugs and alcohol.
e. Notify probation authorities of the name of any domestic partner.
Review of the relevant case law
27Both the Crown and defence rely on the book of authorities provided by the Crown, which have all been carefully reviewed by the Court.
28In the date-rape case of R v. Garrett, the accused was convicted of sexual assault. He failed to obtain the complainant’s consent to the sexual activity and despite the complaint telling the accused to stop, he accused did not stop. The Ontario Court of Appeal stated that when an accused does not stop when being told to do so, that, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant, and engaged the predominant sentencing principles of denunciation and deterrence: R v. Garrett, 2014 ONCA 734, at para. 19. The Court went on to state that the complainant’s initial consent to kissing does not render less serious the subsequent non-consensual intercourse: Garrett, at para. 20.
29As set out in R. v. Arcand, non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person’s dignity, equality, security of the person and sexual autonomy: R. v. Arcand, 2010 ABCA 363, at para. 272.
30Regardless if the offender had knowledge of the lack of consent to sexual activity on the part of the victim, or whether he was reckless about whether there was consent, the offender is equally morally blameworthy: R. v. Tweneboah-Kuduah, 2018 ONCA 570, at para. 33. As such, there is no reduction of sentence even if the offence is made out on the basis of recklessness.
31As expressed by the Ontario Court of Appeal in R. v. Shah: “Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini 1999 1885 (ON CA), [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83. … Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 2004 33468 (ON CA), 190 O.A.C. 354 (C.A.), at para. 2.: R. v. Shahm 2017 ONCA 872 at para. 8.
32R. v. B.M., 2008 ONCA 645 was a case where the offender engaged in anal intercourse with his developmentally delayed wife, without her consent. The Ontario Court of Appeal overturned the sentence imposed by the trial judge of nine months imprisonment followed by two years probation. The Court stated at paragraph 12 that individuals who victimize their partners within the context of the marital relationship, which in that case the victim had particular vulnerabilities, must know that serious consequences will follow. The Court’s view was that the fit sentence was two years less a day imprisonment. The Court also found it fit to increase the SOIRA order to 20 years.
33The Ontario Court of Appeal in R. v. Priest informs the Court that even if a custodial sentence was appropriate in a case, it is a well-established principle of sentencing laid down by the Ontario Court of Appeal that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: R. v. Priest, 1996 1381 (ON CA), 1996 CarswellOnt 3588, at para. 23.
34IN R. v. W.R., 2012 ONSC 3935, the offender and the victim were in an on-again/ off again romantic relationship for a number of years. The offender was found guilty of sexually assaulting the victim. The offences included an incident where the offender touched the victim’s breasts. She asked him to stop and rolled over, putting her back to him. He then put his hand between her legs, and was again asked to stop. He digitally penetrated her, and commented to the effect that this was what it was like to be raped. Despite another plea by the victim that he stop, the offender kept going. The offender also physically assaulted the victim when she got up out of bed. The offender leapt out of the bed, turned the victim around and threw her on the bed so the back of her head hit the footboard. The offender then straddled the victim, and punched her leg with a closed fist. He then slapped her face repeatedly. Photographs depicted injuries to her face such as marks and bruising on her buttocks. The offender also contacted the victim to discuss the case. The offender had no criminal record. He had consumed alcohol and/or crack cocaine on the nights of the assaults. He expressed remorse but did not take full responsibility for his actions. He was fairly steadily employed. He was ultimately sentenced to 22 months incarceration for the sexual assault, 12 months incarceration for the assault, and 2 months incarceration for the breach of recognizance, as well as three years probation.
35In R. v. Kyere, 2017 ONSC 4829, the offender and victim were in a domestic relationship. The offender was convicted of one count of sexual assault. The Court found that the accused engaged in non-consensual sexual activity as described by the victim, including digital penetration, forced fellatio and attempted intercourse. The offender was not a Canadian citizen, and risked a removal order if the sentence imposed was greater than six months. The offender was also an ordained pastor, and had established a church in Canada. His character references described him as a compassionate and caring man of great faith. He presented as pro-social, was articulate with regard to appropriate boundaries, and had an organized treatment plan. He had no criminal record. The Court found that the fit and just sentence was 20 months incarceration, followed by two years probation.
The relevant principles of sentencing
36The Criminal Code of Canada (“CCC” or “Code”) sets out a number of principles of sentencing which must be considered when determining a fit sentence.
37The fundamental purpose of sentencing is set out at s. 718 CCC. The sanctions which the court imposes must have one or more of the following objectives:
a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and
f. To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
38In this case, the predominant sentencing principles are denunciation and deterrence: R v. Garrett, 2014 ONCA 734, at para. 19; R v. Arcand, 2010 ABCA 363; also see s. 718.04 CCC.
39In sentencing an offender, s. 718.1 CCC provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
40Section 718.2 CCC identifies additional principles of sentencing including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.
41The principle of parity is reflected in s. 718.2(b) CCC, which directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” R. v. Armstrong, 2019 ONSC 4059, at para. 11.
42Section 718.2(e) CCC also codifies the principle of restraint: R. v. Armstrong, 2019 ONSC 4059, at para. 12.
Victim Impact Statement
43The victim declined to provide a written victim impact statement, and declined the opportunity provide a verbal statement. However, the manner in which the victim testified, peppered with tears and anguish, leads me to believe that there has been an emotional impact on N.R.
Conviction after trial
44Before I turn to the mitigating and aggravating features in this case, I note that the offender was convicted after trial. While this is not an aggravating factor, it does not entitle S.B. to the mitigation afforded to those who plead guilty, thereby accepting responsibility for their actions and saving the victim from having to testify and have her evidence challenged.
The mitigating factors
45The offender comes from a rough childhood. He had a difficult relationship with his Mother. He was sexually abused by a teenage male neighbour.
46He started consuming alcohol at the age of sixteen. He previously experienced an addiction to cocaine but completed a twenty-one day in-house substance abuse program in 2015 leading him to successfully abstain from its the consumption. He recognizes that he would benefit from alcohol counselling.
47He has pro-social values, and a very good employment record, but for a lay-off in October 2019. He has a good relationship with the mother of his children, and sees his children every second weekend.
48The offender has the support of his Father, with whom he has a good relationship.
49S.B. has a limited criminal record, which at the time of the offence consisted of an impaired conviction from 2000.
50According to the pre-sentence report, S.B. has shown remorse but he does not accept full responsibility for his actions. The offender was however cooperative during the preparation of the PSR.
The aggravating factors
51Based on the evidence led at trial, I find that the offender and the victim were intimate partners as described in s. 718.2(a)(ii) CCC, which is an aggravating factor on sentence.
52The sexual assault was forced intercourse, and on the facts as I have found them, I am persuaded that the sexual assault was violent and intrusive.
53I have found that the impact of the offences to N.R. has been emotionally significant.
54Though it is denied by the offender, I find that he has issues with anger management, in particular when consuming alcohol.
The range of sentence
55As stated in R v. Lacasse, 2015 SCC 64, sentencing ranges adopted by appellant courts are mainly to implement the parity principle. Sentencing ranges also reflect the principles and objectives of sentencing. They are nothing more than summaries of the minimum and maximum sentences imposed in the past. These ranges serve as a guide for the application of all the relevant principles and objectives. However, the sentencing judge must still exercise his or her discretion in each case.
56Both the Crown and defence rely upon R. v. Smith, for setting out the sentencing range of offences involving sexual assault. The Ontario Court of Appeal stated that in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years: R. v. Smith, 2011 ONCA 564, at para. 87; also see R. v. R.(B.S.) (2006), 2006 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.
57In R v. H.E., the Ontario Court of Appeal elaborated that the cases at the lower end of the range set out in Smith involve single events: R v. H.E., 2015 ONCA 531.
Analysis
58In determining a just sentence, I have considered the sentencing purposes and principles set out in s.718, 718.1 and 718.2 of the Code, the aggravating and mitigating factors, all of the circumstances of this case, and that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
59The sexual assault was of a very serious nature. S.B. forced N.R. to have non-consensual intercourse. N.R. asked S.B. to stop, and he did not comply. Sexual violence perpetrated within intimate relationships must be denounced. A message must be sent to S.B. and other like-minded individuals that crimes of this nature will carry significant consequences.
60As set out in R. v. R. (B.S.), 2006 CarswellOnt 5120 (Ont. C.A.), offences of this nature require a denunciatory sentence that also meets the requirement of specific and general deterrence: R. v. R. (B.S.), at para. 84.
61Ultimately, each case is to be decided on its own facts.
62I have considered that the offender has been convicted of further offences, namely breaches, since committing those at issue here. This is only relevant when assessing the offenders’ prospects for rehabilitation: R. v. B.S., 2019 ONCA 72, at para. 13. The author of the pre-sentence report expressed concern with S.B.’s past compliance with court orders. I am concerned about the offender’s expressed desire to reconcile with the victim despite the clearly toxic nature of their relationship.
63S.B. has shown some remorse for his actions but does not accept full responsibility. The convictions arise from incidents during an intimate relationship.
64I am troubled by the offender’s substance abuse issues and anger management. I am aware that the offender now recognizes that he has a problem with alcohol and is amendable to attending counselling. However, despite the offences occurring in 2018, I have no evidence of steps taken to address either of these issues.
65I am mindful that the offender had a very a limited criminal record at the time of the offence.
66I am alive to the first custodial sentence principle.
67I am equally cognizant of the violent nature of the offences.
68The case law provided has a range of sentences. I have not been provided a case exactly like the one at hand, however, both R. v. W.R., supra, and R. v. Kyere, supra, had many similar facets and therefore are of assistance. Similar to W.R., these were isolated events in the course of the intimate relationship.
69I find that the dominant sentencing principles to be considered in this case are those of deterrence and denunciation. Rehabilitation is always an important sentencing principle to be considered, but given the circumstances of the offence these are to a lesser extent than denunciation and deterrence. The sentence I will impose will deter others and reflect the seriousness of the offences.
70I also find that the sentence of this Court must promote a sense of responsibility in the offender and an acknowledgement of the harm done to the victim and to the community.
71The defence submits that two years imprisonment, followed by twelve months probation would be appropriate to address the moral blameworthiness of this offender, and meet the objective of denunciation, deterrence and rehabilitation. They also suggest that three types of counselling would be beneficial to the offender: (1) domestic relationship and/or the PARS program, (2) substance abuse counselling with an emphasis on alcohol abuse, and (3) counselling for victims of childhood sexual assault. The defence does not challenge the Crown’s request for a weapon’s prohibition and DNA order. They suggest however that twenty years for the SOIRA order is appropriate. While the defence admits the period of incarceration suggested is at the low end based on the appropriate range, it is ultimately a longer sentence due to the probation.
72The Crown submits that due to the violence used and the offences in question, a global sentence of thirty months would be appropriate, twenty-nine months of which to be appropriately attributed to the sexual assault. The Crown also seeks the following ancillary orders: mandatory weapons prohibition for the sexual assault; DNA order based on the primary designated offence, and SOIRA order for 20 years.
73In applying the governing sentencing principles and objectives, and taking into consideration the relevant aggravating and mitigating factors, I find that the least restrictive sentence which can be imposed in the circumstances is a global sentence of 24 months in jail.
Conclusion
74The sentence will be apportioned as follows: S.B. will serve 23 months incarceration for the sexual assault, and 1 month incarceration for the assault. The offences did not arise out of the same event, though they were on the same victim. Given the lack of nexus between events, the sentence for the assault shall be consecutive to that of the sexual assault. S.B. will also be subject to 12 months probation on the sexual assault.
75In addition, I make the following ancillary orders:
a. DNA.
b. You will be prohibited from possessing any weapons as provided for in the Criminal Code of Canada, under section 109 for a period of 10 years.
c. You will be registered in the Sex Offender Registry for a period of 20 years.
d. Pursuant to s. 743.21, non-communication with victim while serving his sentence.
e. VFS - $200.00.
76For probation conditions, I find the following are appropriate:
a. 12 months probation.
b. Report to probation within 2 days of release; and after that as directed.
c. Attend and actively participate in counselling for substance abuse, PARS and any other counselling as directed by your probation officer, to the satisfaction of the probation officer. You shall provide proof of your attendance and completion of any counselling or rehabilitative programs as directed.
d. You are not to contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with N.R.,
i. Except – with the prior written consent, filed in advance by N.R., with the probation intake or with the assigned probation officer. This may be cancelled by N.R. in any manner at any time.
e. You are not to be within 50 meters of any place where you know N.R. to live, work, go to school, frequent or any place you know her to be except for required court attendances, except with the prior written consent, filed in advance by N.R., with the probation intake or with the assigned probation officer. This may be cancelled by N.R. in any manner at any time.
f. You are not to possess any weapons, as defined by the Criminal code.
Madam Justice Hélène C. Desormeau
Released: April 9, 2021
COURT FILE NO.: 19-03
DATE: 20210409
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.B.
REASONS FOR SENTENCE
Madam Justice Hélène C. Desormeau
Released: April 9, 2021
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:
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, 212, 212, 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
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
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.
