



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. J.D., 2018 ONCA 947

DATE: 20181123

DOCKET: M49773 (C62532)

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

J.D.

Appellant (Moving Party)

Erin Dann, for the moving party

Elena Middelkamp, for the responding party

Heard: In writing

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting a young child. The relevant
    events occurred between 1987 and 1991. The trial judge sentenced the appellant
    to 3 years in the penitentiary and imposed orders under s. 161(1)(a) and (b) of
    the
Criminal Code
. The former order prohibits attendance at places where
    persons under the age of 16 are present or can reasonably be expected to be
    present. The latter order prohibits seeking, obtaining or continuing employment
    or volunteer work which involves being in a position of trust or authority over
    persons under the age of 16.

[2]

The appellant has appealed conviction and sentence. On the sentence
    appeal, he challenges the constitutionality of the orders made under s.
    161(1)(a) and s.161(b). He submits that the orders constitute punishment for
    the purposes of s. 11(i) of the
Charter
. He further contends that as
    s. 161(1)(a) and (b) were not in force when he committed the offences, the
    making of the orders under those provisions against him is contrary to s. 11(i)
    of the
Charter
: see
R. v. K.R.J.
,
[2016] 1 S.C.R. 906.

[3]

The constitutional challenge was not raised at trial. It can be raised
    for the first time on appeal only with leave of this court. The onus rests on
    the appellant to convince the court that it should exercise its discretion in
    favour of hearing an argument not raised in the court below:
R. v. Reid
,
    2016 ONCA 524, at para. 42.

[4]

The parties have canvassed the factors relevant to the exercise of that
    discretion in their written arguments.

[5]

The Crown makes the point that if the appellant is allowed to advance
    the constitutional challenge, both parties will inevitably tender evidence on
    the appeal relevant to the possible justification of any potential infringement
    of s. 11(i) under s. 1 of the
Charter
. Counsel submits that the evidence
    will be extensive and contentious. She argues, relying on
R. v. Roach
,
    2009 ONCA 156, at paras. 8-11, that this court is neither the appropriate nor an
    effective forum in which to raise and resolve those evidentiary issues.

[6]

The Crown raises a legitimate concern. An appellate court is not the
    place to develop an evidentiary record. However, while the evidentiary record
    submitted in reference to the s. 1 issues may be extensive, we doubt it will
    involve the kind of evidence in respect of which assessments of credibility and
    reliability are required. To the extent that there may be conflicting evidence
    on some issues, e.g. recidivism rates, we think those questions can be adequately,
    if not ideally, resolved by way of affidavits and transcripts of any cross-examination
    on those affidavits. Case management is available to the parties to facilitate
    the preparation of the evidentiary record and ensure that it adequately
    addresses the issues to be raised on appeal.

[7]

Whatever problems there may be with assembling an appropriate record are
    outweighed by the appellants legitimate interest in advancing the constitutional
    issue. Counsels failure to raise the issue at trial, either by way of a constitutional
    challenge, or a statutory interpretation argument, cannot be described as a
    tactical decision. Counsel focused on the merits of making the challenged
    orders.

[8]

In light of the Supreme Court of Canadas ruling in
K.R.J.
, released
    after the appellants sentencing, it seems likely that if the appellant is
    allowed to raise the constitutional issue he will be able to establish that the
    challenged orders constitute a
prima facie
breach of s. 11(i) of the
Charter
.
    His appeal will turn on whether the Crown can met its onus under s. 1 of the
Charter
to demonstrate that the challenged provisions constitute reasonable limits on
    the s. 11(i) right. That argument had mixed success in
K.R.J.

[9]

In addition to the merits of the appellants proposed argument, the
    impact of the orders on him must be considered. The orders impose lifetime
    limitations on the appellants ability to move about in public and on his
    employment possibilities. Assuming the convictions survive appeal, if the appellant
    is not allowed to advance his constitutional claim, he will remain subject to
    those orders for the rest of his life, subject to a limited right to apply for
    a review if there are changed circumstances.

[10]

Having
    regard to the potential significant negative impact of the orders on the
    appellant, and the apparent merits of the constitutional argument, we think the
    interests of justice favour permitting the appellant to raise the argument for
    the first time on appeal. The appellant can advance the constitutional
    challenge.

[11]

Counsel
    should arrange a further case management conference call to discuss any matters
    arising out of this ruling.

Doherty J.A.

Paul Rouleau J.A.

K. van Rensburg J.A.


