



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

486.6(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.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. V.N., 2022 ONCA 31

DATE: 20220117

DOCKET: C67766

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.N.

Appellant

David Anber, for the appellant

Lisa Joyal, for the respondent

Heard: January 14, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Norman D. Boxall of the Ontario Court of Justice on December 3, 2018.

REASONS FOR DECISION

[1]

On December 3, 2018, Mr. N pleaded guilty to possessing
    and accessing child pornography, and received a sentence of 14 months
    imprisonment, followed by 2 years probation. He now asks this court to set
    aside his guilty plea and the ensuing convictions on the basis that his pleas
    were uninformed. Mr. N claims that at the time his pleas were entered, he was
    unaware of legally relevant collateral consequences that bear on sufficiently
    serious legal interests; specifically, he claims that upon conviction he was
    unaware that he would be subject to an order to comply with the
Sexual
    Offenders Information Registry Act
for life, pursuant to s. 490.013(2.1)
    of the
Criminal Code
, R.S.C. 1985, c. C-46 (SOIRA order), and would be
    ineligible to apply for a criminal record suspension, pursuant to the
Criminal
    Records Act
, R.S.C. 1985, c. C-47. He asserts that had he been aware of
    these collateral consequences, he would not have pleaded guilty.

[2]

At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow. We now provide our reasons.

[3]

We do not need to address the Crowns submission
    that Mr. Ns plea could not be rendered uninformed as the collateral
    consequences he identifies do not bear on sufficiently serious legal interests:
R. v. Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696. Mr. Ns appeal must
    fail because, when the whole of the evidence is considered, he has not presented
    credible evidence establishing a reasonable possibility that he would not have
    pleaded guilty had he been aware of these collateral consequences.

[4]

During cross-examination on his affidavit filed
    in support of this appeal, Mr. N acknowledged that his three very big
    concerns before deciding to plead related to his wish to get home to his
    family as soon as possible, whether any defences were available to him, and his
    wish to receive the lowest possible sentence. The case against Mr. N was
    overwhelming and left no room for defences, and he was so advised by trial
    counsel. His pleas of guilty addressed the remaining concerns. It is unlikely, given
    that his very big concerns were addressed including by the pleas he entered,
    that he would not have pleaded guilty had he been aware of the collateral
    consequences he now identifies.

[5]

Moreover, the duration of the
SOIRA
order came up twice during the sentencing hearing. On both occasions it was
    made clear that the
SOIRA
order would be for life. First, the trial
    judge discussed the issue with counsel at the outset of sentencing submissions.
    At the closing of submissions, Mr. N was asked by the trial judge whether he
    had anything to say. He expressed his remorse but said nothing about the
SOIRA
order that was about to be imposed. Second, the trial judge discussed the
    duration of the
SOIRA
order with counsel when he was about to impose
    the order. At that time, Mr. Ns trial counsel was given the opportunity to
    comment on the order but declined to do so. Had the implication of the
SOIRA
order been material to Mr. N when he entered the pleas, he or his trial counsel
    would have made this known to the court.

[6]

With respect to his ineligibility for a record
    suspension, prior to entering his pleas Mr. N signed written plea instructions
    that recited, I understand that as a result of my plea I will have a criminal
    record. There can be no doubt that if the possibility of a criminal record suspension
    was of importance to Mr. Ns decision to plead guilty, he would have raised it
    at that time, but he did not do so. The first mention of eligibility for a
    record suspension between Mr. N and his trial counsel occurred after he was sentenced,
    notwithstanding that Mr. N. had raised other issues with trial counsel before
    deciding to plead guilty. In all of the circumstances, there is no credible
    basis for finding a reasonable possibility that had Mr. N known he would be
    ineligible to apply for a record suspension, he would not have pleaded guilty.

[7]

In these circumstances Mr. N has not met the
    onus he bears. It is for these reasons that his appeal was dismissed.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

Sossin J.A.


