



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Hussey, 2011 ONCA 719



DATE: 20111116



DOCKET: C51369



COURT OF APPEAL FOR ONTARIO



Weiler, Watt JJ.A. and Cunningham A.C.J (
Ad Hoc
)



BETWEEN



Her Majesty the Queen



Respondent



and



Kirt Hussey



Appellant



Kirt Hussey, acting in person



Susan Chapman, acting as duty counsel



Frank Au, for the respondent



Heard: November 14, 2011



On appeal from the conviction entered on November 10, 2009 by
          Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a
          jury.



APPEAL BOOK ENDORSEMENT



[1]

The appellant appeals his conviction on two interrelated grounds.  The
    appellant submits that the trial judge failed to consider the violation of the
    his s. 10(b)
Charter
right to counsel when considering whether his s. 8
    right to be free from unreasonable search and seizure was violated when he gave
    a DNA sample.  The appellant further submits that the breach of his s. 10(b)
    right to counsel in connection with the giving of his statement tainted his
    consent to give a DNA sample.  The appellant submits that the DNA sample should
    also have been excluded.

[2]

We disagree.  Although the trial judge did not specifically consider the
    s. 10(b) violation in the context of s. 8, she did consider it when considering
    whether the DNA sample should be excluded pursuant to s. 24(2).  Implicit in
    this consideration was what the result should be on the assumption that the appellants
    s. 8 right had been violated.  We would dismiss the first ground of appeal.

[3]

In relation to the second ground of appeal, there was a close temporal
    and contextual connection to the taking of the appellants statement in
    violation of s. 10(b), but the appellants signed waiver and consent to give
    the DNA sample was obtained only after the reiteration of his right to counsel
    and the consequences of giving the sample had been made clear to him.  It broke
    the connection between the s. 10(b) non-compliance with respect to the taking
    of his statement and the giving of the DNA sample.  This case is
    indistinguishable from this courts decision in
R v. Simon
.

[4]

Accordingly, the appeal is dismissed.


