



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. L.C., 2018 ONCA 311

DATE: 20180327

DOCKET: C63387

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

L.C.

Respondent

Melissa Adams, for the appellant

Geneviève McInnes, for the respondent

Heard: March 23, 2018

On appeal from the sentence imposed on January 20, 2017
    by Justice R.N. Beaudoin of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The Crown appeals from a decision refusing to
    impose a s. 161(1)
Criminal Code
prohibition order. The appellant
    alleges that the trial judge erroneously failed to take into account public
    safety concerns when he refused to impose the order.

[2]

The respondent was found guilty by a jury of
    sexual assault and sexual interference. At the sentencing hearing, the trial
    judge found as a fact that the appellant engaged in more than twenty acts of sexual
    intercourse with his step-daughter over a 2.5 year period. She was between six
    and eight years of age at the time of these assaults.

[3]

The sexual interference count was conditionally
    stayed and a 6.5 year sentence was imposed on the sexual assault count. DNA,
    firearms and
Sex Offender Information Registration Act
, S.C. 2004, c. 10

orders were made. The s. 161 prohibition order was refused. The
    trial judges reasons for refusing to make the order are as follows:

As to the prohibition order sought pursuant to
    s. 161 of the
Code,
I agree with Daley J.
    where he held in
R. v. M.A.J.,
2012 ONSC 6415
     that this is not a proper or necessary order in the circumstances. Such an
    order represents a considerable interference with personal liberty, and it
    would be most difficult for this offender to completely avoid places accessible
    to the public for recreational use like public parks or community centres if he
    is ever allowed to renew contact with his children.

[4]

The appellant does not object to the trial judge
    considering the impact that a s. 161 prohibition order would have on the
    respondent. Rather, the objection lies in what the appellant says that the
    trial judge did not consider. It is said that the trial judge committed
    reversible error when he failed to consider the respondents threat to public
    safety. The appellant argues that had the respondents risk factors been
    properly considered, a prohibition order would have been imposed.

[5]

In
R. v. K.R.J.,
2016 SCC 31, [2016] 1 S.C.R. 906,
at
    para. 72, Karakatsanis J. reviewed the purpose of prohibition orders under s.
    161:

Prohibitions listed in s. 161(1) are to be
    imposed only when a judge is satisfied that the specific offender poses a
    continued risk to children upon his release into the community
and
that the specific terms of the order are a reasonable attempt to
    minimize the risk. [emphasis in original]

[6]

We agree that the trial judge failed to have
    regard to all of the appropriate considerations when he refused to impose a s.
    161 prohibition order. In fairness to the trial judge, he received no
    assistance from counsel on this issue. Indeed, the trial Crown did little more
    than ask for the imposition of a blanket order.

[7]

The respondent correctly points out that, in
    arriving upon his overall disposition, the trial judge carefully reviewed the
    factual record before him, including the circumstances of the offence and the
    offender. The respondent maintains that, considered in context, the trial judge
    should be taken to have considered the public safety concerns when dismissing
    the s. 161 order.

[8]

Although the trial judge recounted many of the
    facts informing the respondents ongoing risk to children, having regard to the
    reasons given, we are not satisfied that he took that risk into account when he
    refused to impose the s. 161 order.  We find that the appellant poses a
    continued risk to children.

[9]

In relation to the risk factors, we have
    particular regard to the pre-sentence report that refers to the respondents denial
    of sexually inappropriate behavior, something that increases his risk of
    re-offence. Drawing from the psychiatric opinion, the probation officer
    commented upon the respondents deviant sexual preference that will require
    programming to assist the development of self-management strategies to avoid
    future behaviours.

[10]

Dr. J. Gray, the psychiatrist who assessed the
    respondent, commented upon the diagnosis of pedophilic disorder, concluding
    that the respondent is at a moderate risk of sexual or violent reoffending. Dr.
    Gray also expressed the opinion that the respondent should not have
    unsupervised contact with females under the age of 18 years.

[11]

Moreover, this was not the respondents first
    offence. In 1989 he was convicted on two counts of break and enter with intent
    and sexual assault. He was highly intoxicated when he entered a home and went into
    a young girls bedroom. He kissed her on the cheek and attempted to remove her
    bedcovers when she pushed him away and told him to leave. He then went to the
    mothers bedroom, attempted to get into bed with her and was told to leave. He
    pled guilty and received a suspended sentence and two years probation.

[12]

Since the offending conduct occurred, the
    respondent has become involved in another relationship with a woman with whom
    he now shares a child. His wife also has a daughter who is around the same age as
    the victim, when the victim was assaulted. Following the charges being laid in
    this matter, the Childrens Aid Society became involved. Since that time, the
    respondent has been required to live away from the family.

[13]

Although we agree with the trial judge that a prohibition
    order would represent a considerable interference with the respondents
    liberty, the imposition of a s. 161 order is a necessary measure to minimize
    the risk he poses to child safety. The order can and should be tailored to
    address the liberty concerns.

[14]

The appellant asks for an order to be imposed in
    accordance with the versions of s. 161(1)(a) and (b) that were in force at the
    time that the offences were committed. Having regard to all of the
    circumstances, including the circumstances underlying the offence, the
    respondents past, and the psychiatric evidence filed, we impose a prohibition
    order as follows:

(a) The
    respondent is prohibited from attending a public park or public swimming area
    where persons under the age of 16 years are present or can reasonably be
    expected to be present, or a daycare centre, schoolground, playground or
    community centre, unless he is in the company of another adult; and

(b) The
    respondent is prohibited from seeking, obtaining or continuing any employment,
    whether or not the employment is remunerated or becoming or being a volunteer
    in a capacity that involves being in a position of trust or authority towards
    persons under the age of 16 years.

[15]

The appeal is granted, the refusal to impose a
    s. 161 order is set aside and a s. 161 order is granted in accordance with these
    reasons for a duration of 15 years from the date the respondent is released
    from imprisonment, including release on parole, mandatory supervision or
    statutory release.

Robert
    J. Sharpe J.A

G.
    Pardu J.A.

Fairburn
    J.A.


