



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Durigon, 2021 ONCA 775

DATE: 20211102

DOCKET: C65170

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Durigon

Appellant

Anthony Marchetti, for the appellant

Stephanie A. Lewis, for the respondent

Heard: October 26, 2021 by video conference

On appeal from the sentence imposed on March 1, 2018 by
    Justice Bonnie J. Wein of the Superior Court of Justice, with reasons at 2018
    ONSC 1424.

REASONS FOR DECISION

[1]

The appellant was charged with possessing,
    accessing, and making available child pornography. The child pornography
    depicted videos of children being forced to engage in violent sexual conduct.
    Some of the children were mere toddlers. The appellant was also charged with
    possession of cocaine, to which he pleaded guilty at the outset of the trial.

[2]

After a judge alone trial, the appellant was
    convicted on all counts. The conviction for possession of child pornography was
    conditionally stayed.

[3]

This is an appeal from sentence against the
    15-year prohibition order made pursuant to s. 161(1)(d) of the
Criminal
    Code
,

R.S.C.,
    1985, c. C-46. The order prohibits the appellant from using the internet and
    other digital devices, except in accordance with a lengthy list of conditions
    that formed part of the order.

[4]

The appellant claims that the order is: (1) too
    long; (2) beyond that which is permitted by the statutory provisions; (3) too
    onerous; and (4) insufficiently tailored to the predicate offences.

[5]

The standard of review on an appeal against
    sentence is strict. Appellate intervention is only warranted if an error in
    principle impacted the sentence or if the sentence is demonstrably unfit and
    unreasonable in the circumstances. Sentencing judges exercise discretion in
    crafting s. 161(1) orders and are owed substantial deference as a result:
R.
    v. Schulz
, 2018 ONCA 598, 142 O.R. (3d) 128,

at
    para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537.

[6]

We see no error in how the sentencing judge
    arrived at her conclusion that the order should cover a period of 15 years. This
    issue was fully argued by the parties and addressed by the sentencing judge. It
    was open to the sentencing judge, on the record before her, to conclude that the
    prohibition order had to be in place for a substantial period of time to
    represent an effective risk mitigation tool. This was particularly true given
    the appellants conduct, which covered a lengthy period of time, and the fact
    that he had limited insight into the harm arising from his offending conduct.

[7]

Nor do we accept the submissions that the
    statutory provisions precluded the type of order made, or that it was too
    onerous and insufficiently tailored to the predicate offences.

[8]

Section 161(1)(d) is aimed at protecting
    children from sexual violence:
R. v. K.R.J.
, 2016
    SCC 31, [2016] 1 S.C.R. 906, at paras. 44-47, 64. As s. 161(1) orders are
    subject to the conditions or exemptions that the court directs, they can be
    carefully tailored to the circumstances of a particular offender:
K.R.J.
, at para. 47. As noted in
K.R.J.
,
    at para. 47:

The discretionary and flexible nature of s.
    161 demonstrates that it was designed to empower courts to craft tailored
    orders to address the nature and degree of risk that a sexual offender poses to
    children once released into the community.

[9]

In our view, there is a clear nexus between the
    s. 161(1)(d) order in this case and the risks posed by the appellant.

[10]

While the order is directed at online activity,
    the very location from which the appellant accessed child pornography, it is
    tailored to balance reasonable access to the internet while nonetheless keeping
    children as safe from him as possible.

[11]

By way of example, the appellant is specifically
    permitted to use the internet for employment purposes, using a device provided
    by his employer. He is also permitted to access the internet from a personally
    owned computer for both employment and personal purposes. With respect to a
    personally owned computer, however, he must comply with the conditions imposed
    by the order, including that he can only have one email address at a time and
    must provide to a designated person information about any new devices he may acquire.
    As well, the appellant is not to use or activate any software that prevents
    computers or devices from retaining and/or displaying the history of internet
    use.

[12]

We do not intend to review every clause in the
    s. 161(1) order because, in the end, we see no error in how those clauses were
    arrived upon. While detailed in nature, this was a carefully tailored order,
    one that was specifically directed at the appellants level of risk.

[13]

Seeing no legal error, we defer to the order made
    with two exceptions, both of which are conceded by Crown counsel.

[14]

We accept the Crown concession that clause 4(a),
    requiring the appellant to inform a designated person of IP addresses he is or
    may be using, should include a reference to 
any
IP addresses
that he knows

he is or may be using. As the Crown explained, internet providers
    may change IP addresses without the user being informed. We note that, in the
    event that other terms in the order become unworkable due, for example, to
    changes in technology, s. 161(3) provides a mechanism to vary the order.

[15]

We also accept the Crown concession that, to the
    extent there are inspection and monitoring requirements in the order, they were
    not sufficiently tailored in terms of their length of time. The Crown asks that
    those conditions be changed to reflect a maximum duration of two years for
    purposes of monitoring and inspection. As it has been longer than two years
    since the start of this order, we see no need to address the appellants
    submission that these requirements violated the appellants rights to privacy
    and were beyond the scope of s. 161(1). Given the Crown concession, the concern
    has become moot. Therefore, clauses 4(c) and (d) of the prohibition order are
    to be deleted and the references to monitoring and inspection in clauses 4(f),
    (g), and (i) shall be removed.

[16]

The sentencing judges original order will be
    set aside and replaced by a new order drafted in accordance with these reasons.
    The setting aside of the old order and the introduction of the new order will
    take effect when the new order is signed. The parties will confer and provide
    the draft order to this court by no later than November 15, 2021. The sentence
    remains the same in all other respects.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.JA.


