R. v. J.A.B., 2012 NSSC 457

SUPREME COURT OF NOVA SCOTIA Citation: R. v. J.A.B. 2012 NSSC 457 Date: 20120608 Docket: Pic. CRA 355908 Registry: Pictou Between: Her Majesty the Queen Plaintiff v. J. A. B. Defendant Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Under

Section 486.4(1) of the Criminal Code Judge: The Honourable Justice Arthur J. LeBlanc Written Decision: January 25, 2013 (Oral decision rendered June 8, 2012, in Pictou, Nova Scotia) Counsel: Patrick Young, for the Crown J. A. B., not represented and did not appear By the Court : [ 1 ] This is a Crown appeal from a refusal by Judge Robert Stroud of the Nova Scotia Provincial Court to order the registration of the respondent under the Sex Offender Information Registration Act , S.C. 2004, c. 10.

[2] On the date of the sentencing hearing, the respondent was 70 years of age. The three offences to which he pleaded guiltyoccurred between 2002 and 2004. The respondent was between 61 and 63 years of age at the relevant time. He was married. Theoffences occurred at the residence of the complainant, where she was living with her parents. The respondent and his wife were longtimefamily friends of her parents. [3] At the sentencing hearing, the Crown relied on the following evidence as to the circumstances of the offence.

In relation tothe first count, the complainant stated that either in 2002 or 2003 the respondent and his wife were staying with her family in the familyhome. The respondent occupied a bedroom in the basement. The complainant said that she was sitting on a loveseat in the basement recroom when the respondent groped her, rubbing his hand up along the inside of her leg and rubbing her genital area. The complainantwas fully clothed. She said the groping lasted a few minutes, and the accused told her that she was his “beautiful girl”. She told him tostop.

She said that she did not like it and she left the room. [4] The complainant also described a morning during the same visit when she was sleeping on the couch in the basement, lyingon her side facing the back of the couch, covered with blankets. The respondent came downstairs and began touching her through theblanket, rubbing her breasts, thighs and trying to touch her in between her legs through the blanket. The complainant told police that shepretended to be asleep. This incident lasted a few minutes. [5] The third incident occurred in June 2004, in the complainant’s family home.

She said it occurred on a week day, because herfather was not at home, but was at work. The complainant’s mother and the accused’s wife left the home to go shopping. She wanted togo with them but felt that her mother might benefit from some time to be alone with her friend. She told police that she was apprehensiveof being alone with the respondent. [6] After the complainant’s mother left, the respondent stood behind her at the kitchen table where she sat, put his hands on hershoulders, then slid them down her skirt and touched her breast. She pushed his hands away.

She told him not to do what he was doingand he backed off. Grounds of Appeal [7] The grounds of appeal are as follows:

(1) The Learned Trial Judge erred by not granting a SOIRA Order.

(2) The Learned Trial Judge erred by failing to apply the test in

Section 490.012(4) of the Criminal Code, or not applying it correctly;and

(3) The Learned Trial Judge erred by not requiring the accused to call evidence, before deciding not to impose a SOIRA order. Law on SOIRA Appeals [8] An appeal from a SOIRA Order is pursuant to s. 490.014 of the Criminal Code. I refer to the decision of the Nova ScotiaCourt of Appeal in R. v. D.B.M., 2006 NSCA 18, where Justice Bateman stated: [5] An appeal from a SOIRA order, which is authorized under s. 490.014 of the Criminal Code, is limited to a question of law or ofmixed law and fact. On questions of law the judge must be correct.

The standard to be applied to questions of mixed law and fact wassuccinctly stated by Cromwell, J.A., for this Court, in R. v. Grouse [2004 NSCA108], (2004), 2004 NSCA 108 , 226 N.S.R. (2d)321; [2004] N.S.J. No. 346 (Q.L.), leave to appeal denied [2004] S.C.C.A. No. 495: [42] ...With respect to mixed questions of law and fact, the applicable standard of review was adopted in Buhay from Housen: thepalpable and overriding error standard should be applied” ... unless it is clear that the trial judge made some extricable error in principle

with respect to the characterization of the standard or its application, in which case the error may amount to an error of law”: Housen atpara. 37 as adopted in Buhay at para. 45. [9] The relevant provision that the Provincial Court Judge was required to apply at the time of the application for registrationwas: 490.012(4) The court is not required to make an order under this

section if it is satisfied that the person has established that, if the orderwere made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest inprotecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of informationrelating to sex offenders under the Sex Offender Information Registration Act. [10] In the matter before me, the Crown claims that the application for registration under the Act was refused on the basis that therespondent was not a paedophile and the registration of his name on the database would unnecessarily clog up the database. [11] At the sentencing hearing, the respondent assumed that the Crown application would be granted.

The Provincial Court Judgedetermined that an order should not be issued, and, in refusing to grant the order for registration, stated: The SOIRA Order...I have real difficulty with. There’s case law tells me, and from a practical point of view, I believe SOIRA Ordersare for people who are at risk to commit, you know, to be out there trolling for victims type of thing. That’s putting it briefly and morespecific than I intend to, but I did a decision on it at one time. I think it was Hamilton in Schubenacadie.

I kind of half expected theCrown to appeal it so we’d get a better reading on [it] but my research told me that if you put too many people on that Registry, thenyou’re going to be knocking on Mr. B.’s door every time there’s a sexual assault in the community to make sure where he was when ithappened and so on, and I think that’s inappropriate and it has a tendency to clog the Registry up, and then there’s ... if everybody goeson there, then it interferes with the investigative purpose of the Act of the legislation.

So, I don’t think this is an appropriate case for theSOIRA Order so I’m not going to grant it ... [12] The Crown maintains that s. 271 of the Criminal Code is a designated offence pursuant to s. 490.011(1) of the Criminal Code,and that the court sentencing the offender must therefore impose an order requiring the offender to comply with the Sex OffenderRegistration Act unless the accused can demonstrate that the impact of the order would be “...grossly disproportionate to the publicinterest in protecting society through the effective investigation of crimes of the sexual nature, to be achieved by the registration ofinformation relating to sex offenders....” [13] The Crown relies on the decision of R. v.

R.J., 2006 MBCA 22, where the accused had not led any evidence to support hisargument that the Order should not be made. At para. 6 Freedman, J.A., wrote for the court: 6 The accused led no evidence in support of his position that the order should not be made. There was nothing put before the judge(or us) relating to the impact of an order on the accused or relating to anything else that would justify a decision not to make the order.

The accused had clearly not met the onus upon him, and the judge was required to make the order. [14] In D.B.M., supra, the Nova Scotia Court of Appeal denied the Crown appeal from a decision of Moir J., who declined to grantan order. Bateman J.A. wrote that she found similarities between the SOIRA legislation and the DNA provision under s. 487.051(2) ofthe Criminal Code. She stated as follows: [9] In view of the similarities in the two pieces of legislation one finds guidance in this Court’s decision in R. v. Jordan [2002 NSCA 11],(2002) [200] N.S.R. (2d) 371; 2002 NSCA 11 , [2002] N.S.J.

No. 20 (Q.L) (C.A.), where Cromwell, J.A., writing for the Court,thoroughly canvassed the principles applicable to the granting of DNA orders. Indeed, the Supreme Court of Canada in the recentdecision, R. v. R.C., 2005 SCC 61 , [2005] S.C.J. No. 62 (Q.L), generally endorses this Court’s approach in Jordan. In thisregard I refer specifically to the following excerpts from the majority judgment in R.C., per Fish, J.: ​ 29 The court must consider the impact of a DNA order on each of these interests to determine whether privacy and security of theperson are affected in a grossly disproportionate manner.

This inquiry is highly contextual, taking into account not only that the offenceis a primary designated office, but also the particular circumstances of the offence and the character and profile of the offender. ​ 30 Some of the factors that may be relevant to this inquiry are set out in s. 487.051(3): the criminal record of the offender, the nature ofthe offence and the circumstances surrounding its commission, and the impact such an order would have on the offender’s privacy and

security of the person ( Jordan , at para. 62 ). ​ 31 This is by no means an exhaustive list. The inquiry is necessarily individualized and the trial judge must consider all the circumstances of the case. What is required is that the offender show that the public interest is clearly and substantially outweighed by the individual ’s privacy and security interests. (Emphasis added) and, Fish, J. referred to Jordan again in R.C. as follows: ​ 65 Gass J. instructed herself impeccably in law on several occasions.

She noted that the young person had been found guilty of a primary designated offence and that a DNA order could therefore be refused only if the conditions of s. 487.051(2) were met by R.W.C. The Nova Scotia Court of Appeal in Jordan , she noted, had held that “cases where an order that is properly sought under [s. 487.051(1) (a)] may be refused will be very rare indeed ” (para.5), and that “the young person ... bears the burden of persuading the court that he falls within that exception.

That has to be established by evidence on the record ” (para 21). [emphasis added] [ 15 ] Stroud J. had the benefit of a pre-sentence report and submissions from counsel.

In particular, counsel on behalf of the respondent in advancing his argument for a conditional discharge, suggested to the sentencing Judge the making of a SOIRA Order. [ 16 ] In D.B.M. , supra , the Crown argued that there was no evidence specific to the respondent establishing that the impact of an Order on the accused ’ s privacy and security of the person would be grossly disproportionate to the pubic interest in the protection of society and the proper administration of justice. However, Bateman J.A. wrote that evidence of specific impact of the order on the offender before the Court is not required.

She noted that Moir J. considered the circumstances of the offence and the nature of the order sought and concluded that an order would be highly intrusive and burdensome, and was satisfied on the record before him that the respondent had met the test. [ 17 ] In the matter before me, the Crown concedes that the accused does not have to call specific evidence as such. However, it is important to recall, as mentioned earlier, that the accused, when he was before the sentencing judge, did not oppose the granting of the SOIRA Order.

In fact he expected it to be granted. [ 18 ] Unlike the situation in D.B.M. , Stroud J. limited his observations to the fact that if there were too many registrations, the police would be knocking on the door of the accused every time there was a sexual assault in the community and, secondly, the effect of the registration would be to clog up the database.

It is my respectful view that this reasoning does not take into account the factors set out in s. 490.012(4) . [ 19 ] It must be remembered that the test for whether to grant an order is whether there is evidence that the accused ’ s privacy and liberty interests would be affected so that the Order ought not be granted and that the registration of the Order would be a great and undue hardship on him. [ 20 ] I refer to the case of R. v.

Irvine , 2008 MBCA 34 , where the Manitoba Court of Appeal set aside the decision of the Provincial Court judge who granted an exception from registration, holding that the sentencing judge had looked entirely to the factors that went to the accused ’ s likelihood of being a repeat offender. Similarly, Stroud J. had this in mind when he said that Mr. B. was at low risk of reoffending. [ 21 ] An additional reason advanced by Stroud J. was that the effect of granting a SOIRA Order would be to clog up the database. In my view, this is not an appropriate factor to consider.

[ 22 ] In the case of R. v. Redhead , 2006 ABCA 84 , the Court stated that Parliament had determined the public interest in registering all offenders, and therefore, the focus of the inquiry is not whether there is a public interest in having the offender registered, but rather whether the impact on the offender would be grossly disproportionate to the public interest. [ 23 ] In the case of R. v.

Debidin , 2006 ONCA 868, the Court wrote that the legislation does not distinguish between recidivists and first-time offenders. [ 24 ] Unlike the results in D.B.M. , supra , where the accused argued against the granting of an Order, it appears that provisions of the Criminal Code and authorities are clear that an Order must be granted unless the accused argues for and establishes an exception. [ 25 ] Secondly, Moir J. in D.B.M. determined that the impact of the Order was “ highly intrusive and burdensome ” while in this case the impact of the Order on the accused was not mentioned by the trial judge, other than the possibility that it would subject him to frequent police visits if there was any allegation of sexual assault in the community where he resided. [ 26 ] Pursuant to the provisions of s. 834(1)(

b) of the Criminal Code I set aside the decision of Stroud J. and granted the Order under s. 490.012. I order the registration of the respondent under the Act for a period of 10 years from the date of my decision. LeBlanc, J.