



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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




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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made
    under section 486.4, on application of the prosecutor in respect of a victim or
    a witness, or on application of a victim or a witness, a judge or justice may make
    an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the interest
    of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c.
    32, s. 15; 2015, c. 13, s. 19




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groves, 2020 ONCA 86

DATE: 20200205

DOCKET: C61515

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Groves

Appellant

Michael Davies, for the appellant

Michael Perlin, for the respondent

Heard: January 29, 2020

On appeal from the designation
    as a dangerous offender and the indeterminate sentence imposed by Justice Lynn
    D. Ratushny, of the Superior Court of Justice, dated June 8, 2015.

REASONS FOR DECISION

[1]

The appellant is a paedophile. He pled guilty to, and was convicted of,
    21 offences, including 12 counts of child internet luring, 3 counts of sexual
    touching, and 1 count of sexual interference. The offences occurred over a
    40-month period between 2008 and 2011. The victims were children between the
    ages of 11 and 16. The appellant has a criminal record for similar offences
    going back to about 2004.

[2]

The Crown brought a dangerous offender application. On June 8, 2015, the
    trial judge granted that application, declared the appellant a dangerous
    offender, and imposed an indeterminate sentence in the penitentiary. The
    appellant appeals.

[3]

The facts relevant to the appellants many offences, his history within
    the criminal justice system since about 2005 and various psychiatric assessments,
    including the assessment of Dr. Pallandi, prepared for the purposes of the
    dangerous offender hearing, are fully and accurately summarized in the trial
    judges reasons: 2015 ONSC 2590. We need not repeat them.

Grounds of Appeal

(1)

Did the trial judge err in her interpretation of the requirements of ss.
    753(1)(a)(i) and (ii)?

[4]

The appellant submits that, in deciding whether the criteria in ss.
    753(1)(a)(i) or (ii) were met, the trial judge focused exclusively on the
    appellants prior conduct and did not engage in any meaningful analysis of
    future risk. The appellant contends that, as made clear in
R. v. Boutilier
,
    2017 SCC 64, future risk is an integral part of the s. 753(1)(a)(i) and s. (ii)
    analysis.

[5]

We agree that an assessment of the threat posed to the safety of the
    public in the future by the appellants conduct is a component of the analysis
    under the relevant provisions. We disagree that the trial judge did not have
    regard to future risk assessments in considering the applicability of ss.
    753(1)(a)(i) and (ii).

[6]

The trial judge did review the appellants prior conduct at length. She
    was required to do so for the purposes of assessing future risk. On this
    evidence, the nature and duration of the appellants prior conduct provided
    powerful evidence of how the appellant would act in the future, if given the
    opportunity. The evidence of the appellants prior conduct was strongly
    suggestive of a significant future risk.

[7]

The trial judge did not stop, however, at the appellants prior conduct.
    She specifically referred to, and considered, the assessment of Dr. Pallandi.
    That assessment spoke directly to future risk.

[8]

In Dr. Pallandis assessment, he indicated that the appellant might be
    managed in the community if several steps were taken. The first required the
    appellant to agree to take long-acting intramuscular sex drive-reducing
    medication. The appellant had, however, indicated to Dr. Pallandi that he did
    not believe that the medication was necessary, both because he was getting
    older and because he had somehow developed sufficient empathy for his victims
    to render the drugs unnecessary. He was not willing to take the medication.

[9]

Dr. Pallandi made it clear that, absent the implementation of any of the
    conditions in the proposed management program, he regarded the appellant as
    posing an unacceptable risk in the community at any near point in the future.
    A willingness to take the proper medication was one of those conditions.

[10]

Reading
    the trial judges reasons as a whole, it is clear that she accepted Dr.
    Pallandis opinion. Absent a commitment to taking the required medication, the
    appellant clearly posed a future risk to the safety of the public.

(2)

Did the trial judge deny the appellant procedural fairness?

[11]

In
    their written submissions filed with the trial judge (there was no oral
    argument), counsel for the Crown and defence both referred to a requirement in
    the prior legislation. That provision required that an indeterminate sentence
    be imposed only where there was no reasonable possibility of eventual control
    of the risk in the community. In fact, the amendments proclaimed in 2008
    applied in this proceeding. Under the amendments, an indeterminate sentence was
    to be imposed unless there was a reasonable expectation that a lesser
    sentence would adequately protect the public.

[12]

In
    her reasons, the trial judge referred to counsels reliance on the prior
    legislation and went on, however, to address the evidence based on the
    applicable legislation.

[13]

The
    appellant submits that the trial judge, once she realized that counsels
    submissions were directed at the prior, rather than the applicable legislation,
    should have given counsel an opportunity to make further submissions directed
    at the applicable legislation.

[14]

We
    agree that the trial judge could have followed that course. However, we do not
    see how the appellant was prejudiced. There is no suggestion in the arguments
    before us that the evidence would have been any different. Counsel had a full
    opportunity to frame his arguments in the context of the present legislation in
    this court. It does not appear to us that the different language in the two
    versions of the legislation would, in the circumstances of this case, have made
    any difference in the evidence adduced on behalf of the appellant or the
    arguments put forward for him.

[15]

The
    trial judges reasons also offer an explanation for the trial judges failure
    to afford counsel an opportunity to make further submissions. The trial judge
    was satisfied, based on Dr. Pallandis report, that the appellant could not
    pass the reasonable possibility of eventual control test set out in the
    previous legislation. It followed from that, and the trial judge so found, that
    he must also fail the arguably more strenuous reasonable expectation test in
    the present legislation. There was, therefore, no need to request further
    submissions from counsel.

(3)

Did the trial judge erroneously place the onus on the appellant?

[16]

The trial judge, not surprisingly, given the language of s.
    753(4.1), indicated that there was a presumption in favour of an indeterminate
    sentence, unless the court was satisfied that there was a reasonable
    expectation that some lesser measure would adequately protect the public.
Boutilier
,
    decided after the trial judge released her reasons, makes it clear that there
    is no presumption:
Boutilier
, at
    para. 71.

[17]

The
    trial judges single reference to a presumption caused no substantial wrong
    or miscarriage of justice. This case did not turn on any presumption. The
    outcome turned on the trial judges detailed findings of fact and the
    application of the proper burden of proof to those findings.

(4)

Was the imposition of an indeterminate sentence unreasonable?

[18]

The
    trial judges reasons accurately set out the factual background and the
    applicable legislation. Her analytical route to an indeterminate sentence is
    crystal clear and free of any legal error. Nor is her conclusion outside of the
    range of reasonable results on this record. To the contrary, an indeterminate
    sentence seems the necessary result, given the appellants refusal to take the
    medication necessary to render the risk posed by his continued presence in the
    community acceptable.

[19]

As
    indicated at the conclusion of oral argument, the appeal is dismissed.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


