



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), (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    the complainant or a witness shall not be published in any document or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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 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.

(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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. J.K., 2015 ONCA 458

DATE: 20150622

DOCKET: C59478

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.K.

Respondent

David Friesen, for the appellant

Julianna Greenspan and Joanna Baron, for the respondent

Heard: June 16, 2015

On appeal from the sentence imposed on September 23, 2014
    by Justice Catherine Mathias McDonald of the Ontario Court of Justice.

Gillese J.A.:

[1]

J.K. (the respondent) pleaded guilty to breaking and entering the
    complainants residence and committing the indictable offence of sexual
    assault, contrary to s. 348(1)(b) of the
Criminal Code
, R.S.C. 1985,
    c. C-46.

[2]

Pursuant to s. 490.012(2) of the
Criminal Code
, the Crown applied
    to the sentencing judge for an order under the
Sex Offender Information
    Registration Act
, S.C. 2004, c. 10 (
SOIRA
).  The sentencing judge
    initially imposed the order.  She later rescinded the order because, in her
    view, an offence under s. 348(1)(b) is not a designated offence for the
    purpose of s. 490.012(2) and, accordingly, no
SOIRA
order was available.

[3]

The Crown appeals.  It submits that the sentencing judge misapprehended
    s. 348(1) and, based on that misapprehension, improperly rescinded the
SOIRA
order.

[4]

The respondent submits that no
SOIRA
order was available in this
    case.  He was charged, pleaded guilty, convicted, and sentenced under s.
    348(1)(b), not s. 348(1)(d).  He says that while s. 348(1)(d) is a designated
    offence for the purposes of a
SOIRA
order under s. 490.012(2), s. 348(1)(b)
    is not.  He contends that the Crown cannot benefit from his guilty plea under
    s. 348(1)(b) and then, post-plea, demand an order ancillary to s. 348(1)(d).

[5]

I would accept the Crowns submission and allow the appeal.  While the
    sentencing judge correctly noted that s. 348(1)(b) is not on the list of
    designated offences in s. 490.011(1)(b), she failed to appreciate that the
    respondent was found guilty and sentenced under s. 348(1)(d), which is on that list.
     Therefore, in my view, a
SOIRA
order was available under s. 490.012(2).

THE RELEVANT STATUTORY PROVISIONS

[6]

The Crown prepared a useful summary of the relevant statutory provisions,
    which I reproduce below.



348.
(1) Every one who

(a) breaks and enters a place with intent to commit
          an indictable offence therein,

(b)
breaks and enters a place and commits an
          indictable offence therein
, or

(c) breaks out of a place after

(i)   committing an
          indictable offence therein, or

(ii) entering the place with intent to commit an
          indictable offence therein,

is guilty

(d)
if the offence is committed in relation to a dwelling-house,
          of an indictable offence and liable to imprisonment for life
, and

(e) if the offence is committed in relation to a
          place other than a dwelling-house, of an indictable offence and liable to
          imprisonment for a term not exceeding ten years or of an offence punishable
          on summary conviction.

490.011
(1) The following definitions apply in this section
          and in sections 490.012 to 490.032.

[]

designated offence means

[]

(b) an offence under any of the following
          provisions:

[]

(x) paragraph 348(1)(d) (breaking and entering a
          dwelling house with intent to commit an indictable offence),

(xi) paragraph 348(1)(d) (breaking and entering a
          dwelling house and committing an indictable offence)
,

(xii) paragraph 348(1)(e)
          (breaking and entering a place other than a dwelling house with intent to
          commit an indictable offence), and

(xiii) paragraph 348(1)(e) (breaking and entering a
          place other than a dwelling house and committing an indictable offence);

490.012
(2) When a court imposes a sentence on a person for
          an offence referred to in
paragraph (b)
or (f) of the definition
          designated offence in subsection 490.011(1), it shall, on application of
          the prosecutor, 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 if the prosecutor establishes beyond a reasonable doubt that the
          person committed the offence with the intent to commit an offence referred to
          in
paragraph (a)
, (c), (c.1), (d), (d.1) or (e) of that definition.

490.011
(1) The following definitions apply in this section
          and in sections 490.012 to 490.032.

[]

designated offence means

[]

(a)
an offence under any of the following
          provisions
:

[]

(xvi)
section 271 (sexual assault)

490.013
(1) An order made under section 490.012 begins on
          the day on which it is made.

(2) An order made under subsection 490.012(1) or (2)

[]

(c)
applies for life if the maximum term of
          imprisonment for the offence is life
.

490.014
The prosecutor, or a person who is subject to an
          order under subsection 490.012(2), may appeal from a decision of the court
          under that subsection on any ground of appeal that raises a question of law
          or of mixed law and fact. The appeal court may dismiss the appeal, or allow
          it and order a new hearing, quash the order or make an order that may be made
          under that subsection.



ANALYSIS

Summary

[7]

The respondent was charged under s. 348(1)(b) and found guilty and sentenced
    under s. 348(1)(d).  Consequently, pursuant to s. 490.011(1)(b)(xi), he was
    sentenced for a
SOIRA
designated offence.  The other requirements in
    s. 490.012(2) having been met, the court was obliged to make the
SOIRA
order.

Sections 348(1)(b) and (d)

[8]

Sections 348(1)(a), (b) and (c) set out various ways of committing the
    offence of breaking and entering.  Sections 348(1)(d) and (e) stipulate the
    offence classification and maximum available sentence. Anyone who violates s. 348(1)(a),
    (b) or (c) will necessarily be found guilty and sentenced under s. 348(1)(d) or
    (e).

[9]

In the present case, the respondent pleaded guilty to the offence of
    breaking and entering a dwelling-house and committing the indictable offence of
    sexual assault.  That is, he pleaded guilty to committing an offence under s. 348(1)(b). 
    Because his offence was committed in relation to a dwelling-house, he was
    necessarily sentenced under s. 348(1)(d).

Sentenced for a designated offence

[10]

Section
    490.011(1) sets out the definitions that apply in s. 490.012.  It defines
    designated offence to mean, among other things:

(b) an offence under any of the following provisions

(xi)     paragraph 348(1)(d) (breaking and
    entering a dwelling house and committing an indictable offence)...

[11]

As
    the respondent was sentenced under s. 348(1)(d), he was sentenced for a
    designated offence within the meaning of s. 490.011(1)(b).

Section 490.012(2)

[12]

Pursuant
    to s. 490.012(2), when the court imposes a sentence on a person for an offence
    referred to in paragraph (b) or (f) of the definition of designated offence
    in s. 490.011(1), the court shall make the
SOIRA
order provided that
    two other conditions are met.  Those two conditions are that: (1) the
    prosecutor made an application for the order, and (2) the prosecutor established
    beyond a reasonable doubt that the person committed the offence with the intent
    to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or
    (e) of the definition.

[13]

Both
    conditions were met in this case.  And, as I have explained, the sentencing
    judge imposed a sentence on the respondent for a designated offence within
    the meaning of s. 490.011(1)(b).  Therefore, the sentencing judge was obliged
    to make the
SOIRA

order.

DISPOSITION

[14]

Accordingly,
    I would allow the appeal and make the
SOIRA
order.

[15]

Through
    inadvertence, no order restricting publication to protect the complainants
    identity was made below.  I would make such an order.

Released: June 22, 2015 (J.L.)

E.E. Gillese J.A.

I
    agree. John Laskin J.A.

I
    agree. K. van Rensburg J.A.


