COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garrell, 2020 ONCA 127

DATE: 20200214

DOCKET: C65211

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Garrell

Appellant

Jessica Zita, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: February 10, 2020

On appeal from the conviction entered on February 16,
    2018 and the sentence imposed on May 14, 2018 by Justice Michael R. Dambrot of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

This is an appeal from conviction for one count of robbery involving a
    home invasion where one of the home occupants was shot. One of the robbers
    pleaded guilty to the offence, at which time he gave evidence of the
    appellants role in the offence. At trial, that individual testified and gave a
    more exculpatory version of events. The facts on the guilty plea were admitted
    for the truth of their contents.

[2]

The trial judge properly gave a
Vetrovec
instruction:
R. v.
    Vetrovec
, [1982] 1 S.C.R. 811. Given the exculpatory nature of the witnesss
    trial evidence and the inculpatory nature of the agreed upon facts at the guilty
    plea, the appellant says that a mixed witness
Vetrovec

instruction
    should have been given:
R. v. Murray
,
    2017 ONCA 393, 138 O.R. (3d) 500, at paras. 125, 126
.

[3]

We are satisfied that, when read as a whole, the charge adequately
    conveyed to the jury that they were to look for independent confirmatory evidence
    only in relation to the inculpatory aspects of the witnesss evidence. Although
    not a mixed witness instruction, the trial judge was clear that his
Vetrovec
instruction only applied to that evidence that supported the Crowns case. The
    absence of any defence objection at trial demonstrates the adequacy of the
    charge when read as a whole.

[4]

The appellant also objects to the absence of a
W.(D.)
instruction, specifically in relation to the exculpatory aspects of the same
Vetrovec

witness:
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
. Again, when read as a whole, the
    charge properly reflects all concerns underlying a
W.(D.)
instruction,
    and there was no objection to the charge on this basis at trial.

[5]

The appellant also seeks leave to appeal sentence. The primary complaint
    concerns the process used to reach the findings of fact that were not inherent
    in the jurys verdict, specifically the appellants knowledge relating to
    whether a firearm was to be used during the robbery.

[6]

Consistent with what had been discussed with counsel ahead of time, the
    trial judge conveyed his finding of fact on this point to counsel by email. All
    were content with this manner of proceeding given that full submissions had
    been previously made on a directed verdict application. We note that the trial
    judge properly expressed his reasons for the finding of fact disputed by the
    appellant in his reasons for sentence.

[7]

In light of all these circumstances, we do not accede to this submission
    and see no error.

[8]

Finally, the respondent concedes that the appellant should be credited
    90 days of pre-sentence custody to be removed for the custodial disposition
    imposed. We agree.

[9]

The conviction appeal is dismissed. Leave to appeal sentence is granted.
    The sentence appeal is granted only to the extent of crediting 90 days
    pre-sentence custody, reducing the appellants custodial term by 90 days.

P. Lauwers J.A.

G.T. Trotter J.A.

Fairburn J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s.
    18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

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

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

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

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

(b) a terrorism offence;

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

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

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

(4)     An applicant for an order shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the contents of an application;

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groves, 2020 ONCA 86

DATE: 20200205

DOCKET: C61515

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Groves

Appellant

Michael Davies, for the appellant

Michael Perlin, for the respondent

Heard: January 29, 2020

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

REASONS FOR DECISION

[1]

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

[2]

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

[3]

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

Grounds of Appeal

(1)

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

(2)

Did the trial judge deny the appellant procedural fairness?

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

(3)

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

[16]

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

[17]

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

(4)

Was the imposition of an indeterminate sentence unreasonable?

[18]

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

[19]

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

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hulme, 2020 ONCA 156

DATE: 20200227

DOCKET: C66831

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Scott Hulme

Appellant

C. Stephen White, for the appellant

Tanit Gilliam, for the respondent

Heard: February 26, 2020

On appeal from the conviction entered on
January 25, 2018 and the sentence imposed on March 29, 2018 by Justice Jocelyn
Speyer of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant has failed to surrender into
custody at Collins Bay Institution as required by his release order. The appeal
is dismissed as an abandoned appeal.


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.J., 2020 ONCA 138

DATE: 20200219

DOCKET: C67006

Lauwers, Trotter and Fairburn
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Jaime Mor, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally:
February 13, 2020

On appeal from the conviction entered on
June 28, 2018 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal from conviction on one count
of sexual assault. In arriving at his conclusion on the appellants guilt, the trial
judge is said to have erred in his use of transcripts from the complainants
police statement and preliminary inquiry evidence.

[2]

Those transcripts had been used during the
cross-examination of the complainant to confront her with alleged inconsistencies
between what she had previously said and what she testified to at trial. This
was done in an effort to impeach her credibility. In re-examination, the Crown
put other passages from the transcripts to the complainant in an effort to
neutralize the strength of the alleged prior inconsistencies by showing certain
consistencies between what the complainant had previously said and her
viva
voce
evidence.

[3]

The parties offered to assist the trial judge by
giving him copies of the transcripts of the prior police statement and
preliminary inquiry evidence. Somewhat unusually, the transcripts got marked as
numbered exhibits at trial. Despite this fact, counsel were clear that the sole
purpose for which the transcripts were being provided to the trial judge was to
assist him in recalling the portions of transcript that had been put to the
complainant during her
viva voce
evidence. This understanding was
subsequently confirmed with the trial judge in writing from counsel, when they
specifically identified for his consideration the relevant page references from
the transcript that had been put to the complainant when she testified at
trial.

[4]

The reasons for judgment make clear that, rather
than staying focused on what had been put to the complainant at trial, the
trial judge considered the entirety of the transcripts to assist in his
reasoning process. Accordingly, the respondent fairly acknowledges that the
transcripts were used for a purpose other than that for which they were filed.
Despite having used the transcripts for a different purpose than that agreed to
by counsel at trial, the respondent argues that the trial judge did not use
them for a legally improper purpose.

[5]

We do not agree.

[6]

The transcripts  in their entirety  were used by
the trial judge as an essential component of his credibility assessments. He
quoted from those transcripts at length, specifically numerous passages that
were never put to the complainant during her
viva voce
evidence. He
then observed that the three interrogations of the complainant were internally
consistent. He gave this as a reason for preferring the complainants evidence
and rejecting the evidence of the accused.

[7]

This improper use of the prior statements
rendered the trial fundamentally unfair. In these circumstances a new trial is
required.

[8]

The appeal is allowed, and a new trial is
ordered.

P. Lauwers J.A.

G.T. Trotter J.A.

Fairburn J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

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.T., 2020 ONCA 125

DATE: 20200214

DOCKET: C66683

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.T.

Respondent

Holly Loubert, for the appellant

Doug Baum, for the respondent

Heard and released orally: February 11, 2020

On appeal from the order staying proceedings entered on February
    11, 2019 by Justice Marc DAmours of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is a Crown appeal from a stay of proceedings under s. 11(b) of the
Canadian
Charter of Rights and Freedoms
, imposed on February 11, 2019.

[2]

The respondent was 12 to 13 years of age at the time of the alleged
    offences. After the application judge stayed these proceedings, the Supreme
    Court of Canada clarified the law with respect to the applicability of
R.
    v. Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631
to youth matters:
R. v. K.J.M.
, 2019 SCC 55.

[3]

It is now clear that the trial judge erred in applying a framework other
    than the
Jordan
framework in youth matters. Applying the correct
    framework now, it is clear that the 18 month ceiling set out in
Jordan

was not exceeded. There is nothing on the record to suggest that the defence
    took meaningful steps to expedite the case or that the case took markedly
    longer than it should have in the jurisdiction where it was being prosecuted.

[4]

Particularly in light of his age at the time of the alleged offences and
    his age now, the respondent asks that we maintain the stay in any event. He is
    now 18 years of age. Based upon on this record, we see no basis upon which to
    do so.

[5]

We are informed by the appellant that there are trial dates available in
    June 2020. We urge the parties and the court to move forward with this matter
    as expeditiously as possible.

[6]

The appeal is allowed, the stay of proceedings is set aside, and a new
    trial is ordered.

P.
    Lauwers J.A.

G.T.
    Trotter J.A.

Fairburn
    J.A.


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. K.V., 2020 ONCA 131

DATE: 20200218

DOCKET: M51269

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

K.V.

Moving Party

Kristin Bailey, for the moving party

Kevin Rawluk, for the responding party

Heard: February 7, 2020

REASONS FOR DECISION

[1]

K.V. is currently being tried in the Ontario Court of Justice on
    sexual offence charges relating to his young daughter, the complainant.

[2]

After evidence in the trial was completed on May 29, 2019, K.V.
    launched an abuse of process application before the trial judge. K.V. claims
    that an abuse of process occurred during the trial when, in violation of a
    court order, and contrary to the Rules of Professional Conduct of the Law
    Society of Ontario, the investigating officer, who had already testified as a
    witness in the proceeding, was directed by the prosecuting Crown counsel to
    question the complainant about her testimony while the complainant was still
    under cross-examination.

[3]

The abuse of process hearing was scheduled to be heard on August 16,
    2019. On that day, it was adjourned because neither the prosecuting Crown
    counsel nor the investigating officer were present; defence counsel had
    anticipated they would be present. The trial judge refused an invitation from
    the Crown to resolve the motion on the paper record, commenting that more
    context could be acquired from oral evidence, and the hearing was adjourned.

[4]

On October 4, 2019, K.V. obtained and served a subpoena on the
    prosecuting Crown counsel to give evidence at the re-scheduled abuse of process
    hearing, set to be heard on December 2, 2019. On November 19, 2019, prosecuting
    Crown counsel succeeded in having that subpoena quashed by a Superior Court
    judge.

[5]

K.V. quickly applied for legal aid to facilitate an appeal of that
    order. The legal aid application was delayed but finally approved on January
    24, 2020. K.V. is now ready to file his notice of appeal and has applied before
    me for an extension of the time to file the notice of appeal.

[6]

The Crown concedes that K.V. had a bona fide intention to appeal during
    the requisite period and has explained the delay in not filing the appeal.
    However, the Crown contends that K.V. has not established that the extension is
    in the interests of justice because his appeal lacks merit and is delaying the
    completion of a sexual offence trial involving a minor.

[7]

I do not agree with the Crown that the appeal is frivolous. I accept
    that context and statements made by the prosecuting Crown attorney on the
    record support a strong inference that the Crown acted as he did in order to determine
    whether to maintain his objection under s. 276 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to a line of questioning defence
    counsel was pursuing. However, this alone does not render the appeal meritless.

[8]

First, the Superior Court judge exercised his discretion to quash the
    subpoena, in part, on the basis that Crown discretion must be protected. K.V.s
    contention that this was erroneous because the Crown was not exercising
    protected discretion when acting illegally and contrary to a court order is not
    without merit.

[9]

Second, the Superior Court judge concluded that the subpoena was a
    fishing expedition, bereft of a reasonable likelihood that the prosecuting
    Crown attorney would have relevant evidence to give. However, K.V.s contention
    that the seriousness of the apparent breaches that occurred will be relevant to
    the outcome of the abuse of process application is not without merit, and as
    the trial judge had recognized, the prosecuting Crown attorney is likely to
    give relevant evidence. That evidence could include testimony about what
    consideration, if any, he gave to the trial judges ruling and to his ethical
    obligations before instructing the investigating officer. These things could
    affect the seriousness of any breaches that may have occurred.

[10]

Finally,
    the Superior Court judge did not find there to be extraordinary circumstances
    warranting the subpoenaing of a prosecuting Crown attorney. There may be merit
    in K.V.s contention that this extraordinary circumstance standard was either
    met, or does not apply where there is a manifest breach of a court order and a
    rule of professional conduct by a prosecuting Crown attorney.

[11]

I
    do appreciate the Crowns concerns about delay in the prosecution of a sexual
    assault trial involving a minor. And it may be that defence counsel aggravated
    the delay by taking inadequate steps to attempt to ensure the timely attendance
    of the prosecuting Crown attorney at the scheduled abuse of process hearings.
    However, I make two points.

[12]

First,
    K.V. has a right of appeal from the Superior Court judges decision. He is
    therefore entitled to delay the trial to exercise his right of appeal even
    though it is a serious sexual assault prosecution involving a minor. The
    primary focus on this application should be on the delay caused in filing the
    notice of appeal and that delay has been explained.

[13]

Second,
    the delay that is occurring, including the delay in having the abuse of process
    hearing conducted, has not delayed the testimony of the young complainant. Her
    evidence is completed.

[14]

I
    appreciate the heightened public interest in completing charges of this kind;
    however, I am satisfied that it is in the interests of justice for K.V. to be
    given an extension of time to file the notice of appeal.

[15]

I
    understand that the notice of appeal is ready to go, and that K.V. can file the
    notice of appeal on short notice. I would order that the notice of appeal be
    filed within 3 business days of the release of this decision, and that he
    perfect his appeal within 30 days of the filing of the notice of appeal.

[16]

I
    will not order the Crown to file its response materials in an expedited manner
    but would encourage that to occur.

David
    M. Paciocco J.A.