



WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

110. (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111. (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138. (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)     is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)     is guilty of an offence
    punishable on summary conviction.




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    the complainant or a witness shall not be published in any document or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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.G., 2014
    ONCA 75

DATE: 20140128

DOCKET: C55352

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Timothy Breen, for the appellant

Susan Magotiaux, for the respondent

Heard: January 23, 2014

On appeal from the conviction entered on January 25, 2012
    by Justice Margaret F. Woolcott of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of child pornography by
    Woolcott J. of the Ontario Court of Justice (Youth Justice Court) on January
    25, 2012.  He appeals from his conviction on a single ground.

[2]

Section 487(1) of the
Criminal Code
authorizes a justice to
    issue a search warrant on the basis of information on oath in Form 1.

[3]

Form 1 sets out the territorial jurisdiction and general structure of an
Information to obtain a search warrant
.  It concludes with this jurat:

Sworn before me this                     ....           day
    of ., A.D                  (Signature of informant)          .. at .

A Justice of the Peace                                                   
    in and for

[4]

Effective March 10, 2005, the WARRANT APPLICATION GUIDELINES ONTARIO COURT
    OF JUSTICE, KITCHENER ONLY mandated that search warrant informants should swear
    the Information to Obtain (ITO) before a Commissioner of Oaths (not a Justice
    of the Peace) and submit the ITO and draft copies of the search warrant to a
    Justice of the Peace.  Commissioners of Oaths would be made available at each
    police division, the Kitchener Court, and the office of the Crown Attorney. 
    The rationale behind the guideline was to eliminate the practice of police
    officers selecting the judicial officer before whom warrant applications were
    made.  In addition, the guideline would eliminate the possibility of informants
    supplementing the ITO through oral representations before the Justice of the
    Peace.

[5]

In this case, the ITO of P.C. Feizal Rhab was commissioned by Shirley
    Atkinson, a Commissioner of Oaths for the Waterloo Regional Police Service. 
    The warrant was then issued by Justice of the Peace Legate Exon.

[6]

The trial judge ruled that an Information to Obtain a search warrant may
    be sworn before a commissioner for oaths.

[7]

The appellant contends that this step in the process violates s. 487 of
    the
Criminal Code
.  This breach resulted in an unlawful search
    contrary to s. 8 of the
Charter
.  Accordingly, the appeal should be
    allowed and the appellant should be acquitted.

[8]

We do not accept this submission.  There is nothing in the wording of s.
    487(1) of the
Code
requiring that the information on oath must be
    sworn by a justice; rather s. 487(1) provides that a justice must issue the
    warrant.

[9]

The role of a justice commissioning an oath comes into play only by
    virtue of the wording of Form 1.  Section 32 of the
Interpretation Act
,
    R.S.C. 1985, c. I-21, provides that [w]here a form is prescribed, deviations
    from that form, not affecting the substance or calculated to mislead, do not
    invalidate the form used.  Section 849 of the
Criminal Code
permits
    forms in the
Criminal Code
to be varied to suit the case.  That is
    what has happened in this case.  Form 1 has been amended in the Kitchener area
    (as it has been amended in other regions in Ontario and elsewhere in Canada) to
    permit commissioners of oaths to commission ITOs.  This is entirely appropriate
    and does not alter the essential point of s. 487(1), namely, that a justice
    must consider and issue the search warrant based on sworn evidence.

[10]

On
    both of these points  the language of s. 487(1) and Form 1  we explicitly
    endorse the reasoning of the trial judge in this case.  We also agree with
    Foley J.s similar analysis in
R. v. Spencer
, 2009 SKQB 341, at paras.
    20-25.

[11]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

E.E. Gillese J.A.

C.W.
    Hourigan J.A.


