CITATION: R. v. La Caille, 2025 ONSC 1919
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
L. Lubberdink for the Crown/Appellant
- and -
Dwayne La Caille
E. Daniels for the Respondent
HEARD: April 19, 2024
THE HONOURABLE JUSTICE S. ANTONIANI
REASONS FOR DECISION – summary conviction appeal
Note: These reasons were delivered orally on October 25, 2024, with the proviso that written reasons would be formalized and distributed. The parties also returned before me on January 20, 2025 to make submissions regarding the SOIRA order, and to finalize the sentence to be noted on the Respondent’s criminal record. The reasons at para. 41 and following were delivered orally on March 27, 2025. Where the oral reasons differ, these written reasons shall be the final reasons.
Overview:
1The Respondent Dwayne La Caille was found guilty of sexual assault after a two-day trial. At the sentencing hearing, the Crown had argued that a custodial sentence of four to five months was appropriate. The Respondent argued for a conditional discharge and three years’ probation, with terms of probation that mirror a conditional sentence order.
2The Respondent was sentenced to a conditional discharge with a one-year period of probation. The probation included a six-month period of house arrest/confinement to his home, with an ankle monitor. The sentence has been served in its entirety.
3The Crown appeals the sentence imposed. At the hearing of the appeal, in consideration of the fact that the Respondent has now served the entirety of his sentence, the Crown asked the court to register a conviction, and to make a SOIRA order, but no longer pursued the original position that a period of custody is necessary, since the Respondent has effectively served the equivalent of a six-month conditional sentence order.
4The Crown argues that the trial judge, on sentence:
a) Used the probationary period as a disguised conditional sentence order;
b) Erred in his consideration of the immigration consequences of a conviction;
c) Imposed a sentence that failed to achieve the objectives of general deterrence and denunciation; and
d) Minimized or ignored his own factual findings in imposing a sentence that is demonstrably unfit.
5The Respondent argues that the situation is now moot. The Respondent has served the entirety of his sentence, which included six months of home confinement, and the court should thus decline to revisit the trial judge’s order. The Respondent also argues that deference must be given to the trial judge, and that the sentence is not demonstrably unfit.
Decision:
6For the reasons that follow, the appeal is granted, and a conviction is entered. Dwayne La Caille is sentenced to a four-month conditional sentence, but there shall be a stay of execution of the sentence.
The Law:
7Trial judges are owed considerable deference on sentencing, and judges sitting on appeal must not intervene unless there has been an error in law, or in circumstances where the sentence imposed is demonstrably unfit. See R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 11 12 and 39:
11 This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing
judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.
12 ... Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range.
39 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 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010
SCC 6, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46.
Criminal Code/Sentence Range
8The offence for which the Respondent was sentenced does not attract a minimum mandatory sentence. The maximum penalty under s. 271 of the Criminal Code,R.S.C. 1985, c. C- 46, is not more than 18 months in custody where the Crown has proceeded summarily.
9Discharges are available upon a finding of guilt for offences under s.271. Section 730(1) of the Criminal Code provides:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable
by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Analysis:
Mootness
10The Respondent argues that this appeal is moot, on the basis that he has finished serving the probation order, which included the period of house arrest. The Respondent relies on a number of cases for the proposition that once a sentence is served, any appeal relating to that sentence is moot. I disagree.
11R. v. K.B., 2022 ONCA 253, arose in the context of an appeal as to conviction and to sentence. In R. v. K.B., the accused/appellant appealed his conviction on four counts of sexual assault. At the time of the appeal K.B. had already served his sentence. K.B. acknowledged that his appeal on sentence was moot, and the reason for this was that there was no remedy for K.B.’s time served were he to be successful on his sentence appeal. Those facts are distinguished from ours, where the Crown’s aim is that the court should simply enter a conviction.
12Re Maltby v. Attorney-General of Saskatchewan, (1984) 1984 CanLII 2546 (SK CA), 10 D.L.R., (4th) 745 (SK C.A.), was cited by the court in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, for the principle that “an appeal from a criminal conviction is seen as moot where the accused has fulfilled his sentence prior to an appeal”. In Re Maltby, the appellants challenged the condition of their pretrial remands in custody. By the time of the hearing of the appeal, none of the appellants were any longer in pretrial custody. As such, any court finding in their favour would have been as a theoretical declaration which might benefit future individuals in pretrial custody:
By the time this appeal came on for hearing, all of the applicants were no longer on remand. Before us, the applicants’ counsel conceded that the applicants’ dominant purpose of pursuing this appeal was not to obtain personal relief for the infringement of their rights (their removal from the remand centre has rendered the matter academic) but to obtain an order of judicial disapprobation respecting the practices to which remand inmates generally are subjected: Re Maltby, at para. 5.
13R. v. R.S., 2023 ONCA 608, largely mirrors the circumstances before this court, and supports the notion that there is merit to hearing the current appeal on sentence. R.S. was sentenced to a conditional sentence of two years less a day followed by two years’ probation, for a conviction in relation to a sexual assault. The Crown argued that the sentence was demonstrably unfit and the Court of Appeal agreed. While the court declined to allow the appeal and vary the sentence, mootness was not the reason. It was the particular unusual factual matrix of the sentence that led the court to leave the original sentence in place:
In normal circumstances, I would allow the appeal and substitute a global sentence of 3 years’ imprisonment for the sexual assault and choking offences, a sentence at the low end of the range that gives effect to the Gladue principles. However, R.S. has completed serving the conditional sentence and 90-day intermittent sentence imposed by the sentencing judge and is presently serving his probation. In these circumstances, reincarceration would not be in the interests of justice. A penitentiary sentence could be imposed, but stayed, but if this course of action were taken R.S.’s actual sentence would be reduced, as a probationary period cannot attach to a custodial sentence over two years in length. Accordingly, despite my conclusion that the sentence imposed was demonstrably unfit, I would dismiss the appeal, thus leaving the probation and related orders in place: R.S., at para. 6.
14R. v. Greville, 2002 CanLII 44901 (Ont. C.A.), also closely mirrors the circumstances before this court. In Greville, the Appellant was alleged to have breached a conditional sentence and had been required to serve the balance of her sentence in custody. She had finished serving the balance of the sentence by the time the appeal was heard. At para. 3, the court held:
Although the Crown submits that the appeal is moot, we agree with the appellant that it is not moot because the breach would remain on the appellant’s record to her detriment should she reoffend. See R.
v. Chaisson (1995), 1995 CanLII 16079 (NB CA), 102 C.C.C. (3d)
564 at 573 (N.B.C.A.). The appeal should be considered on its merits.
15In the circumstances of the Respondent, as in Greville, the fact that the conviction would form a permanent criminal record, means that the outcome is far from moot.
The Reasons for Judgment
16A review of the most salient factual findings of the trial judge is a necessary backdrop to a consideration of this sentence appeal. The following is an excerpt from the reasons for judgment:
5 On the day of the alleged assault, [the complainant] and Mr. La Caille were working on what some may call the ‘graveyard’ shift during the early morning hours. [The complainant] did not have a lot of work to do that day and so she spent much of her time chatting with Mr. La Caille in the laundry room where he would be operating the washer and dryer.
6 According to [the complainant], she was not interested in a romantic relationship with Mr. La Caille. When asked about this issue, she explained that she had a boyfriend, she thought Mr. La Caille was just a friend and that he was much older than her. Therefore, when he started doing things that were inappropriate, she either laughed them off or told him not to do so.
7 At some point, Mr. La Caille asked [the complainant] if she sent ‘nudes’ to her boyfriend. She told him that it was none of his business and took back her phone when he tried to take it to check for himself. On more than one occasion, Mr. La Caille would hug [the complainant] from behind. She told him not to, but he offered that this was just a way of showing affection in his culture. Mr. La Caille is originally from Trinidad. Although [the complainant] was ok with hugging Mr. La Caille from the front as friends, she realized that he started looking into her eyes in a way “like you know in those movies” and so she kept her mask up at that time. When Mr. La Caille asked her for a kiss, [the complainant] thought he was joking and laughed it off saying that they were just friends and declined.
8 After the fact, [the complainant] would say that there were ‘red flags’ and that she should have been more forceful in voicing her discomfort with these actions, but at the time she didn’t take these things seriously and believed that Mr. La Caille would stop. As a result, she continued to come to visit him in the laundry room until events took a turn for the worse.
9 On the last visit, [the complainant] once again made the trip down to the basement where the laundry room was. While she and Mr. La Caille were talking, he shut off the light, pushed her up against the counter and tried to make out with her. She told him to stop, but he continued to kiss her as he pinned her against the counter. He then began to rub her over her clothes in the areas of her breasts and her vagina. He also tried to put his hands down her pants at which point, she kicked him a couple of times until he stopped. [The complainant] then told Mr. La Caille that whatever happened, should not have happened and that it would never happen again. She then left and did not return.
13 A week later, [the complainant] sent Mr. La Caille a text saying “Hey I’m not putting all the blame on you because I didn’t voice how uncomfortable I was properly. I don’t know how to react when I’m uncomfortable and that’s on me but I wasn’t ok with what happened on Friday and would appreciate if at this time we just didn’t talk to each other anymore”.
14 Mr. La Caille responded half an hour later saying “Hi, how are you? Are you at wrk? and then another text that he later deleted and then finally “Can you spare me 2mins of your time please?”
15 [The complainant] answered back “No I just think it’s best we don’t talk at all”. That concluded the interaction between [the complainant] and Mr. La Caille. She then decided to report what happened to the police and Mr. La Caille was charged soon thereafter.
[Emphasis Added].
17The trial judge also found, as fact, that the Respondent had on previous occasions "hugged the victim from behind" and that she had told him that it was inappropriate.
18Further, the trial judge found, as fact, that a deleted text message sent by Mr. La Caille to [the complainant] read as follows: “[complainant], you’re going to effing talk to me”. The trial judge rejected the Respondent’s evidence that he in fact texted “Is everything okay?”
The Sentencing Hearing
19At the sentencing hearing, the trial judge was presented with evidence of the Respondent’s good character, and also compelling information about the serious collateral consequences of a conviction.
20The Respondent is the single father of two young children, and the father of a third child whom he parents every second weekend. One of his children has been diagnosed with a [serious illness] and requires monitoring at the Hospital for Sick Children in Toronto. The Respondent is in Canada on a work permit, which is valid until 2025. He was also approved as a permanent resident, but, as a result of being charged, at the time of the hearing of the appeal, the permanent residency card has not been issued.
21The trial judge also received positive character references and letters of support for the Respondent.
22The Respondent has no prior convictions, although it was noted that he was previously granted a conditional discharge on a finding of guilt for impaired operation of a motor vehicle.
23In sentencing submissions after trial, counsel for the Respondent argued that a conditional discharge with three years probation, and terms of probation mirroring the terms of a conditional sentence, would meet the sentencing objectives of deterrence and denunciation, and avoid the collateral consequences faced by the Respondent who is not a permanent resident of Canada, and would become inadmissible upon a conviction being registered under s. 271 of the Criminal Code.
24At the sentencing hearing the Respondent relied on R. v. Phillippo, 2022 ONCJ 499, a case of non-consensual touching while the victim was asleep. There was some touching under the outer layer of clothing, but no touching of the complainant's vagina. There was touching near and around her bikini line. Upon a finding of guilt, a conviction was entered and the accused was sentenced to a conditional sentence of imprisonment. In relying on Phillippo, counsel for the Respondent made the following submission:
Now, I recognize this is a case on a conditional sentence however, I did want to bring up – bring Your Honour to paragraph 44 where it was noted that a conditional sentence may provide sufficient denunciation and deterrence, even in cases which restorative objects are of lesser importance. Depending on the nature of the conditions imposed, the duration of the sentence, the circumstances both the offender and community in which the conditional circumstance is to
be served. Now the reason I bring that up, Your Honour, is because my position is that his conditional discharge would follow what a conditional sentence order would look like. For the lengthiest period of time that there is possible, which is the three years. [Emphasis added.]
25The Respondent relied on other decisions, which can primarily be characterized as sexual assaults on the lower end of the spectrum - where the accused had no criminal record, was remorseful, pled guilty, and was sentenced to a conditional sentence.
26The Crown relied on cases where the accused had been sentenced to short periods of actual custody. In R. v. Vedinas, (2022), Kitchener, (Ont. Prov. Ct.), Sopinka J. sentenced Mr. Vedinas to four months custody for groping and touching a store employee over her clothing. In R. v. D.A., 2017 ONSC 1800, following an outing in which a number of coworkers were drinking together, the accused held down the victim, kissed her, fondled her breasts and vagina, and tried unsuccessfully to put his hand in her pants. He was sentenced to a period of custody, of 90 days intermittent, to be served on weekends.
Conditional sentence within a conditional discharge
27In the present case, the trial judge made it clear that he understood that he was being asked to impose a sentence that is out of the ordinary. In recognizing the challenges of making such a sentence, the trial judge addressed the Respondent’s counsel as follows:
And of course some of the cases are kind of anticipating these kinds of arguments by saying if it's a plea of guilty, the person's remorseful, they've made efforts to change et cetera, et cetera, is a minor incident, it can be looked at differently then in a situation like this. And I mean it's a tough situation, I appreciate, from where you're standing because Mr. La Caille is entitled to his day in Court, he's had a trial, he's been found guilty, maintains his innocence which he's absolutely entitled to do but that doesn’t help him because while it's not an aggravating fact that he was found guilty, he doesn’t get the mitigation that he otherwise might and some of these cases suggest might happen.
28And later, that same day, the trial judge stated,
It's just always hard to rustle deterrence within a conditional discharge but I, you know, I can understand the pathway – that part of the probation be a conditional – what would look like a conditional sentence … But instead of calling it a conditional sentence, we're calling it a conditional discharge. Appreciating that the consequences are manifestly unfair to do it the other way [sic]. [Emphasis added.]
29On delivering his sentence a week later, the trial judge stated,
It is the position of the defence that when one looks at proportionality that notwithstanding the fact that in the ordinary sense, a discharge would not be an option that I consider a plan as set out by counsel that I deal with the aspects of deterrence and denunciation combined in a discharge which, in this unique scenario is appropriate because of the particular circumstances of this case. And in doing so, that I fashion, as part of a probation order, terms that are somewhat similar to a conditional sentence. … Of course, one of the things that I have had to struggle with is the fact that the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose of the principles of sentencing and the sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. [Emphasis added.]
30The trial judge went on to grant the Respondent a conditional discharge, with one-year probation. For the first six months, the Respondent was required to observe a term of complete house arrest with no exceptions. He was to wear a GPS ankle monitor, and to attend counselling as directed by the probation officer. DNA was also ordered.
31When the trial judge indicated that he would allow some exceptions to the house arrest, he qualified it with “and they will again, be similar to a conditional sentence”.
Collateral Consequences
32The Respondent relied on R. v. Elmazini, 2019 BCSC 41, highlighting those portions of the decision that cite to R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, where the Supreme Court laid out the principles of sentencing in conjunction with the collateral consequence of immigration at paras. 14-16:
14The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
15The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.
16These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
33Once convicted, Mr. La Caille will be deemed inadmissible under s. 36(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, and will be subject to a removal order.
34It is evident in reviewing the reasons for sentence that the trial judge was motivated to avoid the significant collateral immigration consequence of deportation, not only to the Respondent, but to the three young children under Mr. La Caille’s care, who would also be affected:
It is hard for a Court to not look at the long-term consequences of that particular situation. I have not only Mr. La Caille to be concerned about, but it would be negligent for a Court not to look at that long-term consequence to three young children. One of whom is going to stay in Canada and remain with her mother and who is very young and as a result, would no doubt not be able to have a father as she grows up. If Mr. La Caille was deported, of course his newly born daughter would not see him on a regular basis as she is now doing.
I have two young children who are obviously now very much Canadian and will be faced with a situation where they are either ripped away from the parent who is taking care of them and stay with relatives in Canada, or be moved to another country that they are not familiar with at all and be asked to continue their life in a different way. Those are consequences that have to factor into a judge’s thinking.
35In the result, the trial judge attempted to combine the custodial conditional sentence regime with the probation regime. Conditional sentences are sentences of imprisonment, capable of providing significant denunciation and deterrence. The court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, was careful to point out that conditional sentences are only appropriate for offenders who would otherwise go to jail. A conditional sentence is a sentence of jail, served in the community. The conditional sentence is defined in the Code as a sentence of imprisonment… Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.”: see Proulx, at para. 29.
36A conditional sentence should only be imposed in circumstances where the sentencing judge has rejected other less punitive options, such as a conditional discharge, a suspended sentence, probation, or a fine: see R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 25.
37In my view, it is incompatible for an offence which requires the denunciation afforded by a term of custody, to also be an offence wherein it would not be contrary to the public interest to grant the offender a discharge. The facts found by the trial judge required the deterrence and denunciation of a conviction and prison sentence. On sentencing, the trial judge recognized this, but attempted to craft a way around these key principles of sentencing, by affording the collateral consequences more weight than appropriate. His focus on crafting a sentence that would avoid those consequences led to an erroneous application of the use of the conditional sentence regime, and to a sentence which is demonstrably unfit.
38At sentencing, after learning of the collateral consequences of a conviction, the trial judge minimized his own findings of fact, and mischaracterized the sexual assault, by referring to it as a “mistake”:
This was a situation that arose because of an affection that was developing between two people that Mr. La Caille misread. And as a result, initiated the next step in a more forceful way than should have been done, and made the mistake… But I accept in these circumstances that this was something that Mr. La Caille simply
took a chance and did not stop when he should have right away, but it was of short duration, it was moments, and it was something I would find was done an impulsive basis as opposed to a planned basis. And so, it was a mistake that was made in the heat of the moment. [Emphasis added.]
39I have considered the deference to be afforded to the trial judge. However, on a reading of the entire record, it is evident that the trial judge effectively agreed that a fit sentence would not include a discharge, but rather would involve a period of custody, whether conditional or in a custodial facility. I find that the trial judge gave undue emphasis to the collateral consequences that were presented to him, and that the weight he placed on those collateral consequences led him to impose a sentence that was not lawful, as it was intended as a term of imprisonment – a conditional sentence – but was disguised as a probation order. A custodial disposition was appropriate in all of the circumstances. As such, I find that the sentence is demonstrably unfit.
40In considering s. 718.2 of the Criminal Code, all of the aggravating and mitigating circumstances, and on a review of the case law and taking into account the serious collateral consequences that will flow from a conviction, I find that a fit sentence is one in the range proposed by the Crown. I find that in all of the circumstances of the Respondent and of the offence, a four- month conditional sentence is appropriate. However, taking into account that the Respondent has already served his sentence in its entirety, and that it included a six-month period of house arrest which mirrored a conditional sentence, I find that it would not be in the interest of justice to require him to serve the sentence. I note also that the Crown concurs that he need not be required to serve this sentence.
SOIRA
41The Crown asks that I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. La Caille comply with the Sex Offender Information Registration Act,S.C. 2004, c. 10 (“SOIRA”) for a period of 10 years.
42Section 490.012 of the Criminal Code sets out the circumstances under which courts must make a SOIRA order. I have considered the exceptions for making SOIRA orders as enumerated in
s. 490.012(3) of the Criminal Code and I have considered all of the factors pursuant to s. 490.012(4). I should make an order unless I am satisfied that the Respondent has established that:
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
And,
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
43The trial judge’s findings put the Respondent’s actions at the lower end of the spectrum of sexual offences. The victim and the Respondent had an established relationship as work colleagues. The victim is much younger than the Respondent, but she was an adult at the time of the offence, and the Respondent was not in a position of trust in relation to her. The Respondent is the father of three children and until this offence was steadily employed and supporting his family. The Respondent had no criminal record prior to this offence, and the information before me suggests that he has lived a productive life.
44I take into account that the making of a SOIRA order is not mandatory in the circumstances of the Respondent and that none of the three factors under s. 490.012(1) of the Criminal Code are present.
45In R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, Karakatsanis and Martin JJ. make the following statement at para. 11:
The blanket and blunt requirement that all designated sex offenders must be registered, and those convicted of more than one offence must be registered for life, restricts the liberty of offenders who are not at an increased risk of reoffending without any evidence that doing so enhances the ability of police to prevent and investigate sex crimes. While the Crown has asserted that it believes it is necessary to include all offenders for the registry to be as effective as the Crown wants it to be, any such avowal is insufficient to meet its burden of proof under which it is required to justify, not merely explain, the infringement on liberty. Critically, the Crown has adduced no evidence that demonstrates how these provisions are effective in helping police prevent and investigate sex crimes.
46And later, commenting on the extent to which SOIRA registration interfered with the freedom and rights of individuals, the court in Ndhlovu makes the following statements from paras. 5 and 45:
As a result, like all other such offenders, he would be required to report to a police station and forced to supply extensive personal information which would be placed on Canada’s national sex offender registry. SOIRA also imposes ongoing reporting requirements which are numerous, invasive and extensive; including that offenders must keep their information up to date, report their plans for any travel lasting seven or more consecutive days and report any change to their home or employment address. He would have to report annually to the police and be subject to random police checks. Non-compliance with any of the reporting obligations associated with registration carries the threat of prosecution, a maximum of two years’ imprisonment, a fine, or both (Criminal Code, s. 490.031(1)). His presence in the database would mean he would be among the list of persons police may consider to be of interest in their investigations, which may generate further interactions with the police. The impact on Mr. Ndhlovu and anyone subject to these provisions is considerable. The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the
state, and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada.
[T]he impact on anyone subject to SOIRA’s reporting requirements is considerable. The requirements impact privacy and liberty, personal interests that are fundamental to society: liberty of movement and choice, mobility, and freedom from state monitoring or intrusion in our personal lives.
47I have also reviewed the decision of Molloy J in R. v. Addo-Binney, 2023 ONSC 547, and in particular at para. 20 in her reference to a decision of Duncan J.:
I also note that the offence in this case was not an assault on a stranger, but rather was within an established relationship. Registration of this kind of offender is of limited utility to the police in investigating sex offences, as his identity is already known to the complainant. As was noted by Duncan, J. in R. v. Have 2005 ONCJ 27, 194 C.C.C. (3d) 151 at paras. 15-16:
This information may be useful in the investigation of future sex related crimes by identifying individuals who, by reason of past convictions, may be considered suspect in such crimes. The model is the predatory stranger offender who “hunts” from areas close to his home or work. Registration is particularly valuable to enable quick response in cases of child abduction by a stranger, where time is of the essence to prevent murder.
In summary, the assumption underlying the scheme is that a person who has committed this type of offence in the past may have a propensity to commit a similar offence in the future. Registration of such persons is valuable in cases of offences committed locally by strangers to the victim. The value of a registry to investigation of other types of sex related offences is less apparent.
48As in the cases referenced above, the Respondent and the victim in this case were not strangers to one another. Also similar to those cases, although it appears on all the information before me that the Respondent here is unlikely to re-offend, if he did, in the same manner as with
the present offence, the registry information would not be relevant to any investigation of that offence.
49I received and reviewed a letter of apology from the Respondent. I have considered it as evidence on the application for a SOIRA order only, as it has no bearing on the appeal itself. In the letter the Respondent indicates that he continues to participate in counselling, and he demonstrates an awareness of the seriousness of the present situation. He is continuing in his education. He and his children have moved into a new home, and he is participating in a rent to own program.
50I have considered of all of the facts before me, and the factors listed under s. 490.012 of the Criminal Code. The Respondent has established that there would be no connection between the making of the order and the purpose of that order, and I find that the impact of the order on the Respondent, including on his privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under SOIRA.
Order:
51As a result of the above, I decline to make an order under s. 490.012 of the Criminal Code.
52The appeal is granted. A conviction shall be entered, and the Respondent is sentenced to a conditional sentence order of four months custody, to be served in the community. However, in consideration of the completion of his prior sentence, I order a stay of execution of this sentence.
Released: March 27, 2025
CITATION: R. v. La Caille, 2025 ONSC 1919
COURT FILE NO.: CR-23-00101629-00AP
DATE: 2025-03-27
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Appellant
- and –
Dwayne La Caille
Respondent
REASONS FOR JUDGMENT
S. Antoniani, J.
Released: March 27, 2025