



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    complainant or a witness shall not be published in any document or broadcast or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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01,
    279.02, 279.03, 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; 2005, c. 43, s. 8(3
)(
b).

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.





CITATION:
R. v. T.G., 2011
          ONCA 317



DATE: 20110421



DOCKET: C48474



COURT OF APPEAL FOR ONTARIO



Rosenberg, Juriansz and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



T. G.



Appellant



Mary Jane Kingston, for the appellant



Christine Tier, for the respondent



Heard: April 7, 2011



On appeal from the judgment of Justice William J. Babe of the Superior
          Court of Justice dated October 30, 1997.



ENDORSEMENT



[1]

The index offence committed by the appellant occurred
    in 1995 while he was on his way to his probation appointment.  It involved a 9-year-old girl who was riding
    her bike to her friends house.  The
    appellant pushed her to the ground, repeatedly told her not to scream, pulled
    off her shorts and underwear and began fondling her genital area.  She screamed and managed to kick him in the
    groin and break free.

[2]

On October 30, 1997, the appellant was found to
    be a dangerous offender.  However,
    amendments to the
Criminal Code
allowing for long-term offender
    designation came into force during the appellants sentencing hearing.  The hearing judge, as well as counsel,
    understood that the amendments did not apply and that the appellant was to be
    sentenced under the old provisions.  They
    were in error and this is conceded by the Crown.

[3]

In
    essence, the hearing judge was required, as
R. v. Johnson,
(2003),
    [2003] 2 S.C.R. 357  subsequently made clear, to consider whether the
    less restrictive long-term offender designation would suffice before making a
    dangerous offender designation.   Nevertheless, in spite of this error and the
    able submissions of Ms. Kingston, we find this to be one of the rare circumstances,
    also described in
Johnson
, where the appeal should be dismissed.

[4]

On this record there is no reasonable
    possibility that the dangerous offender designation would have been different
    had the error of law not been made.  This
    result follows for three reasons.

[5]

First, the history of the appellant and his
    experiences with professionals, both medical and custodial, indicate clearly
    that he is not a candidate for control in the community.  Over the years he has failed to complete or
    refused to participate in some of the programming offered to him and was at
    times aggressive and violent.

[6]

The appellant has been certified under the
Mental
    Health Act
and diagnosed with heterosexual paedophila, sexual sadism,
    substance abuse disorder (alcoholism) and antisocial personality disorder.  During testing, he self-reported to having
    sexual contact, including oral sex and intercourse with girls aged 12 and under
    between 21 and 50 times.

[7]

A medical professional rated the appellant as a
    100% risk to reoffend within seven years, and that he had an arousal preference
    for coercion, or non-consensual sexual scenarios with girls.  The conclusion was that the appellant
    presents a high risk to young females.  Regarding control in the community on the drug, Lupron, the medical
    opinion was: That he would require a great deal of persuasion indeed to co-operate
    with such treatment and even then I dont think compliance over the long run
    can be assured.

[8]

Second, the hearing judge, in a fashion, considered
    whether the appellant could be controlled in the community.  He noted in his reasons that he had the
    discretion to impose an indeterminate sentence.  Thus, in this context he turned his mind to
    whether the appellant could be controlled in the community.

[9]

Third,
    and significantly, there is no fresh evidence
to support a claim that
    the appellant might be a suitable candidate for a long-term offender
    designation.  Indeed, the only
fresh evidence filed was in
    proceedings in 2008, which indicated that in the 11 years since the dangerous
    offender designation, there had been no change.

[10]

For
    these reasons the appeal is dismissed.

M.
    Rosenberg J.A.


R.G. Juriansz J.A.

H.S.
    LaForme J.A.


