R. v. Ladouceur

R. v. Ladouceur Collection Decisions of the Court of Appeal Date 2024-02-23 Neutral citation 2024 ONCA 134 Docket numbers C68346 Judges Fairburn, J. Michal; Doherty, David H.; Benotto, Mary Lou Subject Criminal Decision Content 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. (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. (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. 486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate. (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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ladouceur, 2024 ONCA 134 DATE: 20240223 DOCKET: C68346 Fairburn A.C.J.O., Doherty and Benotto JJ.A. BETWEEN His Majesty the King Respondent and Cory Eddy Fernand Ladouceur Appellant Howard L. Krongold, for the appellant Luke Schwalm, for the respondent Heard: in-writing On appeal from the conviction entered by Justice Robert Selkirk of the Ontario Court of Justice, dated May 23, 2019, and the sentence imposed on October 31, 2019. REASONS FOR DECISION [1] On consent, the appeal from conviction is allowed in part and the conviction for permitting the transmission of sexually explicit material to a person under 16 years (s. 171.1(1)(b)) is quashed. [2] On consent, leave to appeal sentence is granted and the sentence is varied as follows: 1. The prohibition order made by Justice Selkirk at the Ontario Court of Justice on October 31, 2019 under s. 161(1)(c) is struck, and an order under the former version of s. 161(1)(c), in force at the time of the appellant’s offence, is made in its place on the following terms: For a period of 10 years, following release from custody, the appellant will not use a computer system within the meaning of s. 342.1(2), for the purpose of communicating with a person under the age of 16 years, except for immediate family members. 2. The prohibition order made by Justice Selkirk at the Ontario Court of Justice on October 31, 2019, under s. 161(1)(d) is varied as follows: For a period of 10 years, following release from custody, the appellant may access the internet in accordance with the following conditions: (i) The appellant shall not use any telecommunication device to access the internet or other digital network in order to possess or access content that violates the law; (ii) The appellant shall not use any telecommunication device to access the internet or other digital network in order to contact or communicate in any way, either directly or indirectly, with (K.L.); (iii) The appellant shall not use any encryption software or security program designed to prevent access to the contents of his internet capable devices, or take independent action to encrypt any digital storage devices in his possession. The appellant shall not install or permit to be installed on his internet capable device any software or service designed to defeat forensic analysis of the internet capable device; (iv) The appellant shall not use or permit to be installed on any device in his possession any program or service designed to allow anonymous use of the internet (e.g. Tor browser); (v) The appellant shall not use or permit to be installed on any device in his possession any scrubbing software of software that saves files in an encrypted fashion; and (vi) The appellant shall not directly or indirectly access any Pier2Pier file sharing networks (including, but not limited to “Kick”, “Discord”, “Pinterest”, “Skype”, “Motherless”, “Lime Wire”, “Gnutella”, or “BearShare”. 3. The Sexual Offender Information Registration Act (“SOIRA”) order made by Justice Selkirk, at the Ontario Court of Justice on October 31, 2019 is varied as follows: (i) The duration of the order is changed from life to a period of 20 years, commencing on the day the order was made (October 31, 2019); and (ii) The reference to the conviction for permitting the transmission of sexually explicit material, pursuant to s. 171.7(1)(b), is deleted. “Fairburn A.C.J.O.” “Doherty J.A.” “M.L. Benotto J.A.”