



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Rock, 2019 ONCA 867

DATE: 20191104

DOCKET: C61730

Fairburn, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Rock

Appellant

Robert Sheppard, for the appellant

Sean Horgan, for the respondent

Heard: October 31, 2019

On appeal from the conviction entered on
    September 3, 2015 by Justice Duncan Grace of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from a conviction for one
    count of possession of child pornography.

[2]

The prosecution rested on the contents of a
    seized DVD. There is no dispute that the DVD contained child pornography or
    that the appellant was in possession of the DVD.

[3]

The sole question is whether the trial judge
    erred in his review of the information to obtain (ITO), giving rise to the
    search warrant used to seize the DVD.

[4]

Information was excised from the ITO. The
    appellant argues that the excised information had the potential to taint the
    issuing justice.

[5]

We disagree.

[6]

The information was excised in a manner consistent
    within the principles set out in the case law, including
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421 and
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d)
    421. The excisions were recommended by the trial Crown to keep the proceedings
    on track.

[7]

The question is whether, after excision, there
    remained sufficient reasonable grounds such that a warrant could issue.

[8]

We are entirely satisfied, against the factual
    backdrop of this case, that the test for issuance was met. Although the
    specific information as it related to ordering the DVD was dated, there was
    ample additional information that provided a context such that the strength of
    the grounds were not undermined.

[9]

We see no error in the reviewing judges
    analysis and defer to his conclusion.

[10]

The appeal is dismissed.

[11]

The parties agree that pp. 165 to 174 of
    the Appeal Book contain some photographs, including ones that could identify
    children. Those pages are returned to the parties to ensure that all identifying
    features are removed, after which the pages will be returned to the court file.


