



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.D., 2021 ONCA 376

DATE: 20210602

DOCKET: C62532

Feldman, Tulloch and Hourigan
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.D.

Appellant

Erin Dann, for the appellant

Michael Perlin, for the respondent

Matthew Gourlay and Michelle Psutka,
    for the intervener the Criminal Lawyers Association of Ontario

Heard: December 2, 2020 by video conference

On appeal from the convictions entered
    by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury,
    on January 17, 2014, and the sentence imposed on June 5, 2015.

Feldman J.A.
:

A.

INTRODUCTION

[1]

On January 17, 2014, the appellant was convicted
    by a jury of sexual assault, sexual interference and invitation to sexual
    touching of the complainant, who was a young boy at the time of the alleged events
    between 1988 and 1993. The appellant was sentenced to three and a half years less
    six months credit for his strict bail conditions, and had various ancillary
    orders issued against him, including lifetime orders under ss. 161(1)(a) and
    (b) of the
Criminal Code
, R.S.C. 185, c. C-46, which prohibited him
    from attending public parks or public swimming areas where persons under the
    age of 16 are present or can reasonably be expected to be present, daycare
    centres, school grounds, playgrounds or community centres, and from obtaining
    employment or becoming a volunteer where he would be in a position of trust or
    authority over persons under the age of 16.

[2]

The appellant appeals both his convictions and
    his sentence. The conviction appeal is based on two grounds: (1) an alleged
    error by the trial judge in the
R. v. W.(D.)
,
[1991] 1 S.C.R.
    742, jury instruction, and (2) a request to admit fresh evidence, which supports
    the appellants partial alibi that he did not reside with the complainant for
    the entire period of the alleged offences. With respect to the sentence appeal,
    the appellant was granted leave to appeal the s. 161 orders as unconstitutional,
    although the issue was not raised at trial. Section 161 of the
Criminal Code
was enacted in 1993. The appellant submits that the retroactive application of
    ss. 161(1)(a) and (b) contravene s. 11(i) of the
Canadian Charter of Rights
    and Freedoms
and cannot be saved by s.1.

[3]

While I would dismiss the conviction appeal, I
    would allow the sentence appeal of the s. 161 orders for the reasons below.

B.

Background facts

[4]

The complainant testified that he met the
    appellant when he was 5 years old and the appellant was about 20 years old.
    They lived in the same house on Grafton Street, with the complainants family
    renting the apartment on the main floor and the appellant renting the apartment
    in the basement. The complainant and the appellant often played together in the
    appellants apartment. The complainant indicated that they stayed in touch when
    his family relocated to King Street approximately a year later.

[5]

Before Christmas in 1987, the complainants
    mother moved with him and his older sister to an apartment in Scarborough on
    Mornelle Court. The appellant helped them move and ended up staying. The
    complainant testified that he initially thought the appellant would stay for a
    few weeks, but he ended up staying for a few years. The appellant slept on the
    floor in the complainants bedroom.

[6]

The complainant claimed that the sexual contact
    began a few months after the appellant moved in. It involved mutual
    masturbation and oral sex several nights a week. The appellant told the
    complainant that what they were doing was normal, that he was his number one
    bud, and that their relationship should be kept a secret. At trial, the
    complainant recalled two specific incidents: on one occasion, the appellant
    took a picture of his penis, saying he was sending it to his girlfriend because
    she liked small penises; and on a second occasion, the appellant attempted anal
    intercourse, which the complainant resisted because he was uncomfortable. The
    appellant then simulated anal sex by thrusting his penis in and out between the
    complainants legs.

[7]

The complainant said that all sexual contact
    took place when they were alone in his bedroom with the door closed. He also
    said that his mother was not checking on him regularly because she was an
    alcoholic at the time. His mother confirmed that the appellant stayed with them
    for a couple of years, but she claimed that she checked on the complainant multiple
    times a week and insisted that his bedroom door remain open.

[8]

After the appellant left the complainants
    apartment, he moved in with another family in the same building who also had a
    young boy. The complainant testified that he was a friend of the young boy, would
    frequently sleep over there and continued to see the appellant. The complainant
    disclosed that one time, when he was sleeping over at his friends house, he
    woke up and found the appellant fondling him. He recalled telling his friend,
    but his friend did not remember the incident.

[9]

According to the complainant, after the
    appellant moved to Kingston, Ontario, they kept in touch by phone and by
    letters which the appellant sent to the complainants friend in the building to
    pass on to the complainant. In the letters, the appellant told the complainant
    that he loved him and missed him. The friend recalled some calls, but not the
    letters. The complainants older brother recalled finding a letter, as the
    complainant said, but did not remember if it was signed.

[10]

The complainant said that when the appellant
    moved back to Toronto, he would visit the appellant at his apartment. When the
    complainant was asked whether he had any further sexual contact with the
    appellant, he only reported an occasion when the appellant made a video of him playing
    with himself that he could use to attract a girl. The complainant testified
    that they later burned the video.

[11]

The appellant testified in his defence and
    described the timeline of his living arrangements during the relevant period. His
    account was that he moved out of the Grafton triplex in January 1986 (before
    the complainants family did) and lived with various friends until June 1987,
    when he moved to Edmonton to join his girlfriend, R.P. She returned to Ontario
    in September 1987, and he returned two months later. He initially moved in with
    R.P. in Barrie. He then lived with another woman in Barrie from December 1987
    until March or April 1988 when he moved back with R.P.

[12]

The appellant said that he did not help the
    complainants family move to Mornelle Court in December 1987 and did not have any
    contact with them while he was in Edmonton. However, he visited them when he
    lived in Barrie. He said that he began to live with the mother of the complainants
    friend (and the girlfriend of the appellants friend) at Mornelle Court in the
    summer of 1988 and stayed there for six to eight months, at which time he had
    daily interaction with the complainant and his family. He agreed that the
    complainant would sleep over there on occasion.

[13]

The appellant claimed that he moved to Lawrence
    Avenue sometime in 1989 until late 1990, when he moved in with the
    complainants family. He first testified that he stayed with the complainants
    family for four to six weeks. He subsequently testified that he lived with the
    complainants family from the end of 1990 until April 1991, a period of
    approximately three to four months. At that time, he did sleep on the floor in
    the complainants room, but denied any sexual contact with the complainant. He
    also said that the bedroom door was open and that at night, the complainants
    mother would check on the complainant from time to time. The appellant had to
    leave the complainants apartment around April 1991, when he was accused of
    stealing tools from the complainants uncle. That is when he moved to Kingston.
    He stayed there until around March 1992. He denied having any phone calls or
    writing any letters to the complainant during that time.

[14]

After Kingston, the appellant moved back to
    Barrie and then to Toronto, eventually returning to Mornelle Court in another apartment
    with a woman and her daughter. At that time, the complainant would come to the
    apartment and hang out. The appellant denied ever taking nude pictures or a
    video of the complainant.

[15]

R.P. testified and essentially corroborated the
    appellants version of the events, but with some discrepancies as to the dates.

C.

THE VERDICT AND SENTENCE

[16]

The same day that the trial judge delivered her
    instructions to the jury, they rendered a guilty verdict on all three counts.

[17]

On June 5, 2015, the trial judge sentenced the
    appellant to three and a half years of imprisonment less six months credit for
    strict bail conditions. In addition, she made a SOIRA order for life, a DNA
    order, a weapons prohibition order for ten years, and orders under ss. 161(1)(a)
    and (b) prohibiting the appellant for life from attending at a public park or
    swimming pool where persons under 16 are or could reasonably be expected to be
    present, or a daycare centre, school ground, playground or community centre,
    and
from seeking employment or volunteering
in any
    place that would put him in a position of trust or authority over a child under
    age 16.

D.

Issues on appeal

[18]

The appellant appeals his conviction based on
    two grounds: (1) the trial judge erred in her formulation of the
W.(D.)
jury instruction; and (2) the introduction of fresh evidence with respect to
    his alibi defence, verifying that he was not physically living with the
    complainant for the full time alleged. He also appeals his sentence on the
    basis that the ancillary orders under ss. 161(1)(a) and (b) of the
Criminal
    Code
offend s. 11(i) of the
Charter
because the provisions, which
    were enacted in 1993 after the commission of these offences, were applied
    retroactively and, consequently, represented a greater sentence than was applicable
    when he committed the offences. The appellant asserts that the retroactive
    application of ss. 161(1)(a) and (b) is not saved by s.1 of the
Charter
.

E.

Analysis

(1)

Issue 1: Did the trial judge err in her
    formulation of the
W.(D.)
jury instruction?

[19]

The trial judge provided the following
W.(D.)
instruction to the jury both orally and in writing:

H. How to assess reasonable doubt

1. The real issue here is whether the offences
    alleged by [the complainant] actually occurred. You have heard evidence that
    [the appellant] was in other places for much of the period when the offences
    were alleged to have been committed.

2. You do not decide whether something
    happened by simply comparing one version of events with another, and choosing
    between them. You have to consider all the evidence and decide whether you have
    been satisfied beyond a reasonable doubt that the events that form the basis of
    the crimes charged in fact took place.

3. The law provides guidelines to assist you
    as finders of fact to assess the evidence in coming to your decision.

4. If you believe the evidence that [the
    appellant] was elsewhere during the period of times when the offences were
    allegedly committed and you believe his evidence that he did not commit these
    offences during the discrete periods of time he admits to living at the
    [complainants friends] and [the complainants] homes, you must find [the
    appellant] not guilty.

5. If you do not believe the evidence that
    [the appellant] was elsewhere during the period of time when the offences were
    allegedly committed and you do not believe his evidence that he did not commit
    these offences during the discrete periods of time he admits to living at the
    [complainants friends] and [the complainants] homes, you must find [the appellant]
    not guilty.

6. If you do not believe the evidence that
    [the appellant] was elsewhere during the period of time when the offences were
    allegedly committed and you do not believe his evidence that he did not commit
    these offences during the discrete periods of time he admits to living at the
    [complainants friends] and the [complainants] homes, and that evidence does
    not raise a reasonable doubt in your mind that [the appellant] committed it,
    you must consider whether the rest of the evidence that you accept satisfies
    you beyond a reasonable doubt that [the appellant] committed the offence
    charged.

[20]

The trial judge erred by omitting from the second
    section of the
W.(D.)
instruction, the phrase, but that evidence
    raises a reasonable doubt in your mind. When Crown counsel brought the
    omission to her attention, the trial judge recharged the jury with the
    following
W.(D.)
instruction, which was agreed to by both counsel:

[T]he last amendment is on page 48. Its a
    more important amendment. I left out a portion of paragraph five by mistake and
    I will read it to you and Ill tell you exactly where to add the portion that I
    left out.

Paragraph five on page 48: if you do not
    believe the evidence that [the appellant] was elsewhere during the period of
    time when the offences were allegedly committed, and you do not believe his
    evidence that he did not commit these offences during the discrete periods of
    time he admits to living at the [complainants friends] and [the
    complainants] homes, but that evidence raises a reasonable doubt in your mind
    that [the appellant] committed the offences, you must find [the appellant] not
    guilty.

Let me just repeat that and it comes where I
    mentioned; he admits to living at the [complainants friends] and [the
    complainants] homes, and it comes in right after that, but that evidence
    raises a reasonable doubt in your mind that [the appellant] committed the
    offences, you must find [the appellant] not guilty.

[21]

Although the trial judge corrected the omission
    of the reasonable doubt component in her recharge to the jury, the appellant
    alleges that the original charge contained an additional error in the
W.(D.)
instruction. Specifically, the trial judge used the conjunctive and between
    the phrases: [i]f you do not believe the evidence that [the appellant] was
    elsewhere during the period of time when the offences were allegedly committed
and
you do not believe his evidence that he did not commit these
    offences during the discrete periods of time he admits to living at the []
    homes. In so doing, the appellant argues, the trial judge effectively
    instructed the jury that in order to acquit him, they had to have a reasonable
    doubt about both the partial alibi defence and the appellants blanket denial
    of the offences.

[22]

The Crown acknowledges that the trial judges
    formulation of the
W.(D.)
instruction was not ideal, but submits that
    there was no possibility that the alleged error could have affected the jurys
    verdict.

[23]

By treating the two elements of the appellants
    defence conjunctively, the issue for this court is whether the jury understood from
    the trial judges instruction that they must acquit if any of the defence
    evidence raised a reasonable doubt about his guilt.

[24]

I agree with the Crown that this instruction was
    not ideal because the first two prongs of the
W.(D.)
test should have
    been formulated in a way that did not separate the defences, but focused the
    jury on whether the evidence that favoured the defence raised a reasonable
    doubt about his guilt.

[25]

However, in this particular case, a reasonable
    doubt about the appellants timeline of his whereabouts, and whether he had the
    opportunity to commit the offences throughout the whole multi-year period
    alleged by the complainant would not have led to an acquittal on its own,
    because there was at least a four to six week period when the appellant
    admitted he slept in the same room as the complainant, i.e. he had the
    opportunity to commit the offences. For that period, the jury would have to
    decide if the appellants evidence or other evidence in support of his version
    of events raised a reasonable doubt. If not, they had to consider whether, based
    on all of the evidence, including the evidence of the complainant, they were satisfied
    of the appellants guilt beyond a reasonable doubt.

[26]

The appellant submits that if the jury had a
    reasonable doubt raised by the timeline of his whereabouts and his
    corresponding partial alibi, then that doubt could have undermined the credibility
    and reliability of the complainant, and therefore resulted in an acquittal. He argues
    that even though the trial judge properly instructed the jury about the third
    prong of the
W.(D.)
framework and told them to assess the evidence as
    a whole, this did not negate the error from the first two prongs in which the
    trial judge conflated the two aspects of the defence evidence and failed to provide
    the jury with a proper route to acquittal.

[27]

While it is true that the jury was told to
    assess the evidence as a whole, so they could consider the complainants
    evidence when deciding whether the appellants evidence raised a reasonable doubt,
    the
W.(D.)
instruction asked them to focus on the defence evidence,
    and if it raised a reasonable doubt, to acquit the accused. In this case, the appellants
    evidence on the timeline of his whereabouts and his partial alibi, taken on its
    own, would not lead to an acquittal because of the lack of alibi for the four
    to six week period that he admitted to staying with the complainant. However, if
    the appellants evidence of his alibi left the jury with a reasonable doubt because
    it led them to question the complainants evidence overall, they could have
    acquitted on that basis.

[28]

In my view, that possibility was made clear by
    the third prong of the trial judges
W.(D.)
instruction, where the
    jury was told that they could not convict unless they were satisfied of the
    appellants guilt beyond a reasonable doubt based on all the evidence. It was
    clear that to convict, they had to believe the complainant that what he said did
    actually occur during the time period covered by the indictment.

[29]

The Crown submits that, taken as a whole, the
    charge made it clear to the jury that they could only convict if they were
    satisfied beyond a reasonable doubt that the appellant committed the offences. This
    point was reinforced in the closing submissions of both trial counsel. Furthermore,
    the jury was instructed at the beginning of the
W.(D.)
instruction
    that they had to consider all of the evidence.

[30]

The Crown also relies on trial counsels
    agreement with the wording of the
W.(D.)
instruction as an indication
    that its meaning was clear to all the participants and would not have confused
    the jury.

[31]

I accept the submission of the Crown. It was
    clear to the jury that the alibi defence did not cover the whole period of time
    outlined in the indictment, and that the appellant admitted to living with the
    complainants family and sleeping on the floor of the complainants bedroom for
    either four to six weeks or three to four months, beginning in late 1990.

[32]

In addition, as part of the charge, the trial
    judge summarized the evidence on the different timelines, as provided by the
    appellant, his girlfriend, and other witnesses, and left the jury with the task
    of deciding what to make of the inconsistencies and the 20-year passage of time
    since the events. At the end of the section on alibi, which came immediately
    before the positions of the parties in the jury charge, the trial judge told
    the jury:

20. In the end, you have the task of deciding
    whether you are left with a reasonable doubt that [the appellant] was somewhere
    else and not at [] Mornelle Crt. at the relevant time that the offences
    alleged occurred. There is no magical formula to arrive at a decision. You must
    use your experience and common sense.

21. Crown counsel has the burden to prove
    beyond a reasonable doubt that [the appellant] was at [] Mornelle Crt. at the [complainants]
    apartment during the period set out in the indictment sometime between January
    1, 1988 and October 10, 1993, and committed the acts of sexual interference,
    invitation to sexual touching and sexual assaults against [the complainant].

[33]

The trial judges
W.(D.)
instruction would
    not have misled the jury. I would not give effect to this ground of appeal.

(2)

Issue 2: Should the appellants fresh evidence
    be admitted?

(a)

Overview

[34]

The appellant seeks to introduce fresh evidence
    on appeal that he submits meets the criteria set out in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, and if accepted, would require this court to order a new
    trial. There are two components to the fresh evidence.

[35]

The first piece of proposed fresh evidence is
    records obtained by the appellant after trial from the Alberta Works Income Support
    program and Child Intervention Services (collectively, the Edmonton records).
    These records state that the appellant received income support benefits in
    Alberta from July to November 1988, and show that his family was involved with
    Child Intervention Services in Alberta between August and October 1988. This
    evidence would corroborate that the appellant was in Edmonton, Alberta between
    July and November 1988 and could not have committed the offences then, as
    alleged by the complainant. It would, he submits, have supported his
    credibility and undermined the credibility of the complainant at trial.

[36]

The second piece of proposed fresh evidence is
    records from the Ontario Ministry of Transportation (the MTO record) that
    were obtained by the police officer in charge of the original investigation as
    part of his follow-up on the fresh evidence application. Although the appellant
    testified that he did not obtain an Ontario drivers license until 1996 or 1998,
    the evidence is a drivers license history which reflects address information
    the appellant gave to police officers when he was pulled over while driving
    between 1981 and 2009. This evidence indicates that on December 14, 1989, he
    reported his address to be on Lawrence Avenue East in Scarborough; on August
    21, 1990 and again on August 20, 1992, he reported his address to be on Mornelle
    Court (specifically, the complainants apartment). In March 1992, he reported
    his address to be on Russell Street in Kingston, Ontario. In his testimony for
    the fresh evidence application, the appellant explained that he did not live
    with the complainant in 1992, but may have given the police this address when he
    was pulled over. He verified that the other entries were largely consistent
    with his memory.

[37]

The Crown opposes the admission of the fresh
    evidence and submits that it does not meet the
Palmer
criteria.

(b)

The Law and its Application to the Facts

(i)

The
Palmer
criteria

[38]

Under ss. 683(1) of the
Criminal Code
,
    an appellate court may receive fresh evidence on appeal when it is in the
    interests of justice to do so. The burden to establish admissibility is on the
    applicant. In
R. v. Abbey
, 2017 ONCA 640, 140 O.R. (3d) 40, this court
    applied the
Palmer
criteria as restated by this court in
R. v.
    Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 502, at para. 92. The three tests
    are: (1) admissibility  is the evidence admissible under the operative rules
    of evidence?; (2) cogency  would the evidence reasonably have affected the
    verdict at trial?; and (3) due diligence  what is the explanation for not
    introducing the evidence at trial and should that affect its admissibility?

[39]

As the evidence here consists of government
    records, their admissibility under the first test, i.e. the rules of evidence,
    is not disputed. The two issues are due diligence and cogency.

(ii)

Due diligence in obtaining the fresh evidence

[40]

The appellants evidence on the application is
    that before trial he wrote to the Alberta Information and Privacy Office
    seeking documents regarding his welfare status in 1988 and was told that no
    records could be found. In cross-examination, he said that, before trial, he
    also sent a second letter, he called Brampton welfare, he contacted the Canada
    Revenue Agency, he talked to police in Edmonton, and he contacted a hospital he
    attended after an overdose. After he was convicted, he again contacted the Alberta
    Information and Privacy Office, spoke to someone, gave them all the information
    he could to help find a record, and received the fresh evidence.

[41]

The Crown submits that despite the appellants
    testimony, he was not duly diligent in his efforts to obtain the fresh evidence
    to support his alibi defence. In particular, the appellant offered no
    explanation as to why he did not pursue the issue further with the Alberta
    Information and Privacy Office before trial or why he did not try to get the
    MTO record.

[42]

I agree with the Crowns submission. The
    evidence shows that the appellant did not make the necessary efforts to obtain
    the proposed fresh evidence that existed before trial. In addition, he did not provide
    an explanation for his failure to pursue this issue, given its potential
    importance for his defence.

(iii)

Cogency of the fresh evidence

[43]

The Crown also submits that had the fresh evidence
    been available at the trial, it could not reasonably be expected to have
    affected the verdict. The appellant, by contrast, argues that the proposed
    evidence would have established part of his alibi for the period between July
    and November 1988, and would have undermined the credibility of the complainant,
    who took the position that the appellant lived with his family for a number of consecutive
    years after Christmas 1987.

[44]

I again accept the Crowns position. With
    respect to the ability of the fresh evidence to have enhanced the appellants
    credibility at trial, the Crown submits that the fresh evidence would instead have
    undermined the appellants credibility, because it contradicts some of his
    trial testimony, demonstrates that his timelines are unreliable, shows that he
    is willing to lie to protect himself, and reveals that he guessed some dates
    and coordinated his evidence with that of his girlfriend, R.P.

[45]

Two examples of inconsistencies between the
    fresh evidence and the appellants trial testimony demonstrate the Crowns
    point. First, with respect to when the appellant lived at the complainants
    apartment on Mornelle Court, a very significant issue, he says the MTO record
    is correct and he was there from August to October 1990. This is inconsistent
    with his trial evidence, which indicates that he stayed with the complainants
    family for four to six weeks, or three to four months, from late 1990 onward.

[46]

Second, at trial, the appellant contradicted
    himself about when he was in Edmonton, 1987 or 1988. In his testimony on the
    fresh evidence application, the appellant acknowledged that when the
    contradiction was put to him by the trial Crown in cross-examination, he defended
    himself by denying something he knew was true.

[47]

The probative value of the MTO record is also undercut
    by the fact that it essentially consists of a series of self-reports made by
    the appellant of his current address at the specific times he was stopped by
    police while driving without a license. In other words, because its value depends
    on his credibility, it is difficult to see how it can enhance that credibility
    by providing further discrepancies. On the cross-examination on his affidavit,
    the appellant himself took the position that some of the MTO entries were
    correct and some were not.

[48]

With respect to the Edmonton records, while they
    provide some support for the assertion that the appellant was in Alberta from
    July to November 1988, they do not prove his residency in the province, or that
    he did not come and go. For example, R.P. testified that she came back to
    Ontario in September 1988, when the family investigations by the Alberta
    authorities would still have been ongoing.

[49]

More significantly, I note the trial Crown took
    the position with the jury that the case did not turn on how long the appellant
    was in Edmonton during the period of the alleged offences. In his closing address,
    he told the jury that despite evidence from an Alberta family agency indicating
    that the appellant was in Edmonton on August 29, 1988, not much turned on this
    fact because it was not clear how long he was there and because the
    complainants mother had testified about times when the appellant had disappeared
    during the period he was staying with them. In addition, defence counsel at
    trial also minimized the significance of the 1987/1988 discrepancy in the
    appellants testimony about when he was in Edmonton, when he told the jury in
    his closing address that the appellant was confused about the dates. He stated that
    such confusion was not unusual because all the witnesses, except R.P., were
    inconsistent with the timeline, and emphasized to the jury that the alleged
    offences occurred many years ago.

[50]

In my view, taking the fresh evidence at its
    highest, while it had the potential to enhance the appellants partial alibi,
    it did not undermine the critical fact that the appellant acknowledged his
    residence with the complainants family for a significant period of time. He
    therefore had the opportunity to commit the offences.

[51]

The key to the case was whether the jury was
    satisfied beyond a reasonable doubt that the sexual offences occurred when the
    opportunity existed. That turned on the credibility of the complainant and of the
    appellant. Whether the fresh evidence would have enhanced the appellants
    credibility or undermined the complainants credibility is purely speculative.
    There was already considerable testimony about the relevant dates, and the
    fresh evidence would not have added anything definitive.

(iv)

Conclusion on the Fresh Evidence Application

[52]

The fresh evidence consequently does not meet
    either the cogency or the due diligence criteria for admission on appeal. I
    would not admit the fresh evidence or order a new trial based on it.

(3)

Issue 3: Can ss. 161(1)(a) and (b) of the
Criminal
    Code
be used to impose retrospective orders for offences committed before
    1993?

(a)

The imposition of the s. 161 orders

[53]

In his sentencing submissions, the trial Crown
    sought prohibitory orders under s. 161 of the
Criminal Code
. The trial
    Crown asserted that the orders should be made for life since the appellant had
    been convicted of recurrent sexual offences against a child. The appellant
    opposed the imposition of any such order as unwarranted on the basis that no
    offences had been committed by him in the long period since 1993. Neither
    counsel raised an issue with respect to s. 11(i) of the
Charter
. That
    issue is the basis of this ground of appeal.

[54]

The trial judge accepted the Crowns position,
    and imposed lifetime bans under ss. 161(1)(a) and (b). She made no mention of
    ss. 161(1)(c) or (d). In brief reasons on the point, the trial judge supported the
    orders by reference to the appellants prolonged abuse of a vulnerable child.

(b)

The parties positions on Appeal

[55]

The appellant, with support from the intervener,
    the Criminal Lawyers Association, challenges the constitutionality of making
    s. 161 orders for offences that occurred before the relevant provisions came
    into force. He argues that the retroactive application of ss. (a) and (b)
    contravenes s. 11(i) of the
Charter
and cannot be justified under s.
    1.

[56]

The Crown concedes that the retroactive
    application of ss. 161(1)(a) and (b) amounts to an infringement of s. 11(i) of
    the
Charter
. However, the Crown asserts that the provisions can be
    saved under s. 1 of the
Charter
.

[57]

While the
Charter
issue was raised for
    the first time on appeal, the parties agree that it is appropriate for this
    court to address it. In order to meet its onus under s. 1, the Crown filed fresh
    evidence on the appeal.

(c)

The legislative and jurisprudential history of ss. 161(1)

[58]

Prior to 1993, a person who had been convicted
    of any of a number of sexual offences against children would be automatically
    guilty of the offence of vagrancy if they were found near a school, park, or
    other area where children could be. The vagrancy provision, ss. 179(1)(b), was
    struck down under s. 7 of the
Charter
as overly broad in the case of
R.
    v. Heywood
(1992), 97 C.C.C. (3d) 502 (BCCA), and subsequently confirmed
    by the Supreme Court of Canada, [1994] 3 S.C.R. 761. In order to fill the legislative
    gap and to give judges the power to impose restrictive orders protecting children
    from convicted sexual predators, in 1993, Parliament very quickly enacted ss.
    161(1) of the
Criminal Code
, which read as follows when enacted:

161. (1)  Order of prohibition

Where an offender is convicted, or is
    discharged on the conditions prescribed in a probation order under section 736,
    of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or
    section 170, 171, 271, 272 or 273, in respect of a person who is under the age
    of fourteen years, the court that sentences the offender or directs that the
    accused be discharged, as the case may be, in addition to any other punishment
    that may be imposed for that offence or any other condition prescribed in the
    order of discharge, shall consider making and may make, subject to the
    conditions or exemptions that the court directs, an order prohibiting the
    offender from

(a)
attending a public park or public swimming area where persons under
    the age of fourteen years are present or can reasonably be expected to be
    present, or a daycare centre, schoolground, playground or community centre; or

(b) 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 fourteen years.

[59]

Of significance for this analysis, Parliament
    did not make the provision apply retroactively to offences committed before it
    came into force in 1993. As a result, in a number of cases after 1993 where an
    order was sought under ss. 161(1) for an offence that had been committed before
    1993, courts declined to apply the provision. In
R. v. Hudson
, [1997]
    O.J. No. 5151 (C.A.), for example, McMurtry C.J.O. stated, at para. 1, that
    the s. 161 order was illegal as s. 161 cannot operate retroactively. See also
R. v. Jewell
;
R. v. Gramlick

(1995), 100 C.C.C. (3d)
    270 (Ont. C.A.), at p. 17;
R. v. Stuckless
, [1997] O.J. No. 6367 (Gen.
    Div.), at para. 117-120 (per Watt J. as he then was), revd on other grounds
    (1998), 41 O.R. (3d) 103;
R. v. M.E.
, 2012 ONSC 1078, at para. 77; and
R. v. Boudreau
, 2012 ONCJ 322, at para. 67.

[60]

In 2005, the section was amended.
[1]
These amendments included the
    addition of ss. 161(1.1), which made s. 161 orders available for listed
    historical sexual offences. By making s. 161 apply to listed historical sexual
    offences, Parliament expressed its intention to apply the section retrospectively
    and to thereby rebut the presumption against retrospectivity:
R. v. K.R.J.
,
    2014 BCCA 382, 316 C.C.C. (3d) 540, at paras. 68-69, affd in part, 2016 SCC
    31, [2016] 1 S.C.R. 906, at para. 18. The presumption against retrospective
    application therefore applied to convictions before November 2005,

[2]
but not after. As a result,
    the presumption does not apply to the appellants convictions in 2014.

(d)

R. v. K.R.J.

(i)

Overview

[61]

The leading case on the constitutionality of the
    retroactive applicability of s. 161(1) is
R. v. K.R.J.
, 2016 SCC 31,
    [2016] 1 S.C.R. 906, where the Supreme Court of Canada addressed the issue but
    in respect of ss. 161(1)(c) and (d). Since
K.R.J.
is largely
    dispositive of this appeal, I will detail how the Supreme Court decided that
    case before turning to its application here.

[62]

In 2012, ss. 161(1)(c) was added to prohibit sexual
    offenders from having any contact with persons under the age of 16. At the same
    time, ss. 161(1)(d) was added to prohibit sexual offenders from using the
    Internet or other digital networks. Both subsections (the 2012 amendments) were
    seen to be part of Parliaments attempt to provide sentencing judges with an
    expanded scope for the issuance of prohibition orders against sexual offenders.
    However, since K.R.J. committed his offences before the 2012 amendments
    (2008-2011), the question brought before the Supreme Court was whether these
    subsections could be used retroactively to sentence him. The Supreme Court
    concluded that both ss. 161(1)(c) and (d) infringed upon an appellants s.
    11(i)
Charter
right. While ss. (d) could be saved by s. 1 of the
Charter
,
    ss. (c) could not. As a result, only ss. (d) could be applied retroactively to
    form part of the appellants sentence.

(ii)

Section 11(i) of the
Charter

[63]

Section 11(i) of the
Charter
states that:

Any person charged with an offence has the
    right



(i) If found guilty of the offence and if the
    punishment for the offence has been varied between the time of commission and
    the time of sentencing, to the benefit of the lesser punishment.

[64]

Karakatsanis J., writing for the majority, noted
    at para. 22 that:

Along with s. 11(g)  which protects an
    accuseds right not to be found guilty on account of any act or omission
    unless, at the time of the act or omission, it constituted an offence  s.
    11(i) constitutionally enshrine[d] the fundamental notion that criminal laws
    should generally not operate retrospectively.

[65]

This is because retroactive laws can threaten
    the rule of law by undercutting the integrity of the laws currently in effect,
    cause unfairness to accused persons who are entitled to the certainty of the law,
    and undermine public confidence in the administration of justice: at paras.
    24-25.

(iii)

Whether ss. 161(1)(c) and/or (d) infringe s.
    11(i) of the
Charter

[66]

Karakatsanis J. then turned to whether ss. (c)
    and (d) amounted to a punishment under s. 11(i). She concluded, at paras.
    50-57, that they did for three main reasons: (1) orders arising from the 2012
    amendments are a consequence of conviction forming part of the arsenal of
    sanctions to which an accused may be liable; (2) ss. 161(1)(c) and (d) orders are
    imposed to further sentencing goals, such as the protection of children by
    separating offenders from society, assisting in rehabilitation, and deterring
    sexual violence; and (3) both ss. 161(1)(c) and (d) can have a significant impact
    on the liberty and security of the offender.

[67]

The Crown in this
    appeal concedes that ss. 161(1)(a) and (b) equally meet the criteria set out by
Karakatsanis J., and consequently amount to
    punishments.

[68]

As a result, the retroactive application of ss.
    161(1)(a) and (b) contravenes s. 11(i) of the
Charter
.

(iv)

Whether ss. 161(1)(c) and/or (d) can be saved by s. 1 of the
Charter

[69]

Section 1 of the
Charter
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[70]

Based on the test from
R. v. Oakes
,
    [1986] 1 S.C.R. 103, Karakatsanis J. determined that while ss. (d) could be
    saved by s. 1, ss. (c) could not.

[71]

In her analysis, Karakatsanis J. first addressed
    whether the retroactive application of the 2012 amendments had a sufficiently
    important objective and then tested that objective in relation to the
Oakes
test: (1) whether there was a rational connection between the objective of the
    legislation and the means adopted to achieve it; (2) whether the means adopted
    were minimally impairing of the infringed right; and (3) whether there was
    proportionality between the deleterious and salutary effects of the law, balanc[ing]
    the interests of society with those of individuals and groups: see
Oakes
,
    at p. 139.

[72]

Karakatsanis J. identified the objective of the
    retrospective application of s. 161, informed by the legislative history, the
    judicial interpretation, and design of s. 161, all of which confirmed that the
    overarching goal was the protection of children from sexual violence perpetrated
    by recidivist offenders. Accordingly, the objective of applying the 2012
    amendments retroactively was to better protect children from the risks posed by
    offenders, like the appellant, who committed their offences before, but were
    sentenced after, the provisions came into force.

[73]

Karakatsanis J. acknowledged that the protection
    of children from recidivist sexual predators is clearly a critically important
    objective. She therefore went on to test that objective against the
Oakes
proportionality factors, and easily concluded that there was a rational
    connection between the provisions and the objective of the law, and that the
    law was minimally impairing of an accuseds s. 11(i)
Charter
right. The
    question ultimately came down to whether the salutary effects of the
    retrospective application of the law outweighed the deleterious effects on an
    accused.

[74]

It is important to remember that when discussing
    ss. 161(1)(c) and (d), because Karakatsanis J. was dealing with offences that
    occurred after 2005, ss. (a) and (b) were not being applied retroactively and the
    issue currently before this court was not raised. In that context, the Supreme
    Court was considering the new subsections as potential additional restrictions
    that could be imposed retroactively.

[75]

Subsection 161(1)(c), if imposed as part of a
    sentence, would prohibit a sexual offender from having any contact with a
    person under 16 years old. Karakatsanis J. recognized this as a substantial
    intrusion on the liberty and security of an offender. She found that the retroactive
    application of ss. 161(1)(c) would have a significant deleterious effect on the
    offender, and lead to broader societal harms by punishing people without prior
    notice, undermin[ing] fairness in criminal proceedings and compromise[ing] the
    rule of law, all of which are core tenets of our justice system: at para.
    82.

[76]

The Crown sought to justify the retroactive
    application of ss. 161(1)(c) on the basis that more children would be protected
    from recidivist offenders, and led evidence of the rates of recidivism among
    sexual offenders against children. However, the Crowns evidence did not
    demonstrate how the added prohibition in ss. 161(1)(c) would actually enhance
    the protection provided by orders under ss. (a) and (b). As Karakatsanis J. wrote,
    at para. 89, [i]t was therefore unclear what effect the retrospective
    operation of ss. 161(1)(c) would have on the recidivism rates identified by the
    Crown.

[77]

Most important to the Supreme Court was the fact
    that there was no temporal justification for the enactment of ss. (c). When ss.
    161(1)(c) was enacted, Parliament was not responding to an emerging threat or
    to an evolving social context: at para. 83. In terms of sexual offences
    resulting from physical proximity, nothing had changed in 2012 with respect to
    the nature or degree of risk faced by children since the last time ss. 161(1)
    was amended. Karakatsanis J. found, at para. 83, that:

The dearth of a compelling temporal
    justification for imposing s. 161(1)(c) retrospectively enhances the damage the
    provision does to fairness and the rule of law, and thus undermines public
    confidence in the criminal justice system.

[78]

As an example, Karakatsanis J. pointed to the Crowns
    record, which suggested that many sexual assaults against children are
    perpetrated by family members or acquaintances, and responded, at para. 92,
    that surely this reality did not just recently come to Parliaments
    attention. Karakatsanis J. concluded that the Crown had not presented a
    temporal justification for the retrospective limitation on an offenders
    rights and liberties.

[79]

At para. 93, Karakatsanis J. set out the
    rationale for rejecting the retrospective operation of ss. (c) on the basis
    that its deleterious effects outweighed the beneficial ones, even in the
    context of the need to protect children:

Temporal considerations are relevant in this
    context because, at its root, s. 11(i) is about the
timing
of changes to
    penal laws. In this case, it is not Parliaments decision to increase
    punishment for sexual offenders that has, by itself, triggered
Charter
scrutiny  rather, it is Parliaments decision to reach back in time to impose
    these enhanced prohibitions on offenders who had no notice of them that offends
    s. 11(i). Thus, temporal factors that may help explain Parliaments rationale
    for circumventing a basic tenet of our criminal law are relevant to the s.
    11(i) inquiry. When it comes to s. 11(i), timing can be everything. [Emphasis
    in original.]

[80]

Karakatsanis J. then turned to ss. 161(1)(d),
    and found that, similar to ss.161(1)(c), there are significant deleterious
    effects associated with the retrospective application of a complete ban on Internet
    use, especially in comparison to the previous prohibition in former s. 161(c), which
    was on Internet communication with children. This constituted a significant deprivation
    of an offenders liberty, given the ubiquitous presence of the Internet in our
    everyday personal, social and economic life. As with ss. 161(1)(c), the
    imposition of such a punishment without prior notice compromised the fairness
    of the criminal proceedings and challenged the rule of law, going to the core
    of the purpose of s. 11(i).

[81]

However, unlike for ss. (c), Karakatsanis J. found,
    at para. 101, that the record presented by the Crown demonstrated a temporal
    justification for the need to apply ss. 161(1)(d) retrospectively, because:

[Subsection] 161(1)(d) is directed at grave,
    emerging harms precipitated by a rapidly evolving social and technological
    context. This evolving context has changed both the
degree
and
nature
of the risk of sexual violence facing young persons. As a result, the previous
    iteration of s. 161 became insufficient to respond to the modern risks children
    face. By closing this legislative gap and mitigating these new risks, the
    benefits of the retrospective operation of s. 161(1)(d) are significant and
    fairly concrete. [Emphasis in original.]

[82]

Karakatsanis J. focused on evidence of the proliferation
    of social media and its use by sexual predators to communicate with children
    and to publish photographs, creating [n]ew and qualitatively different
    opportunities to harm young people: at para. 107.

[83]

By specifically addressing the acceleration of advances
    in Internet technology and consequent behaviours, Karakatsanis J. concluded, at
    para. 110, that Parliament was filling a legislative gap that both enhanced
    the salutary effects of the section and also mitigated its deleterious effects:

From the perspective of public confidence in
    the criminal justice system, the retrospective operation of a law that was
    enacted to respond to a swiftly changing social context and emerging threats
    seems less unfair and less inconsistent with the rule of law than the
    retrospective operation of a law that was not enacted for a compelling temporal
    reason.

[84]

Following this analysis, Karakatsanis J. held that
    Parliament had a compelling temporal justification for giving ss. 161(1)(d)
    retrospective effect.

[85]

Karakatsanis J. subsequently weighed the
    deleterious effects of retrospectivity against other factors that tipped in
    favour of finding that the provision was saved by s. 1: the harms at stake (i.e.
    sexual offending against young people) are powerful; the statutory regime for
    imposing s. 161 orders is highly tailored and discretionary; an Internet
    prohibition, while invasive, is not among the most onerous of punishments; and new
    risks from the rapidly evolving Internet technology make the salutary effects
    of ss. 161(1)(d) more concrete and mitigate the adverse impact of the law on
    fairness.

(e)

Application of the
K.R.J.
principles

[86]

As mentioned above, the Crown in this case agrees
    that ss. 161(1)(a) and (b) constitute a punishment and contravene s. 11(i) of
    the
Charter
. The sole question for this court is whether the Crown has
    met its burden that the
Charter
infringement is justified under s. 1,
    applying the analysis undertaken by Karakatsanis J. in
K.R.J.


[87]

Turning to s. 1 and the
Oakes
factors, the
    retroactive application of ss. (a) and (b) is rationally connected to the
    purpose of the section, i.e. to protect children from recidivist sexual
    offenders, and minimally impairs the rights of offenders. The latter conclusion
    on minimal impairment has two bases, as in
K.R.J.
,
at para. 76: (1) the orders allowed
    under s. 161 are discretionary and tailored to the offender, and (2) a
    prospective-only application of the provisions would compromise the full
    objective of Parliament to protect children from recidivist offenders. In that
    regard, I note that the offences perpetrated by such offenders can go
    undetected for many years, as occurred with the appellant in this case.

[88]

The crux of the appeal therefore turns, as it
    did in
K.R.J.
, on the proportionality analysis.

[89]

First, I would not give effect to the Crowns
    argument that the deleterious effects of retroactively applying ss. (a) and (b)
    are mitigated by the fact that when the appellant committed the offences in
    question, the vagrancy law (ss. 179(1)(b)) was in effect and gave him notice,
    at least of the restrictions related to ss. (a), i.e. attending at places where
    children could be, such as parks, school playgrounds and swimming pools. That
    law was declared unconstitutional. An unconstitutional law is invalid. No cases
    were cited in support of the proposition that an invalid law can provide an
    accused with notice of a potential sentence to be handed down after its
    declaration of invalidity. In addition, the vagrancy law did not prohibit the
    conduct covered in ss. (b) regarding employment and volunteer activities that
    involve children.

[90]

As a result, the deleterious effects of ss. (a)
    and (b) are similar to those described by the Supreme Court in respect of ss.
    (c) and (d). The retroactive application of the provisions compromises fairness
    in criminal proceedings and the rule of law. In other words, they undermine the
    core purpose of s. 11(i) of the
Charter
.

[91]

The salutary effect of ss. (a) and (b) is the
    protection of children from recidivist sexual predators by limiting the
    opportunities for such offenders to have physical access to children both in
    public places and in private employment and volunteer settings. The common-sense
    proposition that limiting the opportunity to have contact with children will
    limit the opportunity to offend is supported by the evidence of Dr. Ramshaw,
    which was filed by the Crown on appeal. The salutary effect is clearly
    significant.

[92]

The fact that as recently as 2018, there were 41
    convictions in the Ontario Court of Justice for pre-1993 sexual offences, in 13
    of which s. 161 orders were made, and 24 such convictions in the Superior Court
    (with no available information on the number of s. 161 orders), demonstrates
    that even 28 years later, there is still a purpose for the retroactive
    application of the law.
[3]


[93]

From the legislative record provided by the Crown, there is no
    explanation for why Parliament did not make these provisions retroactive when it
    enacted s. 161 in 1993, after the vagrancy law was struck down. One could
    speculate that it was an oversight, given that all offences committed before 1993
    and the offenders who committed them would not be subject to this important law
    enacted with urgency. However, if it was an oversight, it was not addressed by
    Parliament until 2003 and was only corrected with the enactment of the
    revisions to s. 161 in 2005.

[94]

The Supreme Courts direction from
K.R.J.
is that for the salutary
    effects of the retrospective application of a sentencing law that contravenes
    s. 11(i) to outweigh its deleterious effects, there must be a temporal
    justification for its enactment at the time it was made retroactive, and
    Parliament must be filling a legislative gap created by a development in
    society or in the application of the law as it existed, which Parliament could
    not have anticipated before that time.

[95]

Although not necessary to decide, for the purpose of the analysis, I
    would suggest that had Parliament made s. 161 retroactive on enactment in 1993,
    it would have been filling a legislative gap that it could not have anticipated,
    that was created when the vagrancy law was struck down, and that would have
    constituted the required temporal justification for making the law apply
    retrospectively.

[96]

However, Parliament allowed 12 years to go by before addressing the
    situation, during which time, as discussed above, a number of courts that were
    asked to apply the section retroactively refused to do so. Further, the record
    provided by the Crown on this appeal that includes the Hansard references to
    the introduction, discussion and ultimate approval of the revisions in 2005,
    does not disclose any temporal justification for making the provisions
    retroactive at that time. Adopting Karakatsanis J.s comment in
K.R.J.
,
    the fact that sexual predators of children have a high rate of recidivism is
    not new information. Addressing that very issue was the purpose of the former
    vagrancy provision and of s. 161.

[97]

I have to conclude that the retroactive application of ss. 161(1)(a)
    and (b), enacted in 2005, cannot meet the temporal justification criterion
    because it did not fill a legislative gap at that time that Parliament could
    not have anticipated in 1993. Without the temporal justification, the salutary
    effects of retroactive application to pre-1993 offences and offenders, although
    very important, cannot outweigh the deleterious effects on those offenders,
    including the appellant. As a result, the retrospective application of ss.
    161(1)(a) and (b) to offences committed before their enactment in 1993, is not
    saved by s. 1 of the Charter.

[98]

I would therefore allow the sentence appeal and set aside the
    lifetime prohibition orders made under ss. 161(1)(a) and (b).

F.

Conclusion

[99]

I would dismiss the conviction appeal and the application to admit
    the fresh evidence, allow the sentence appeal and set aside the s. 161 orders.

Released: June 2, 2021 K.F.

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. C.W. Hourigan J.A.





[1]

Bill C-2,
An Act to Amend the Criminal Code (protection
    of children and other vulnerable persons
)
and the Canada Evidence Act
,
    1st sess., 38th Parl., 2005 (assented to 20 July 2005).



[2]

Section 161(1.1) came into force on November 1, 2005.



[3]

This information was provided by the Crown. Presumably s. 161
    orders were made retroactively without any challenge under s. 11(i).


