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    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access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    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.K., 2021 ONCA 619

DATE: 20210916

DOCKET: C66374

Pardu, Paciocco and Nordheimer
    JJ
.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.K.

Appellant

Laura Remigio, for the appellant

Justin Reid, for the respondent

Heard: September 1, 2021 by
    video conference

On appeal
    from the sentence imposed on March 24, 2017 by Justice Lucia Favret of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal from sentences imposed for offences
    related to four home invasion robberies. The offences were committed over a
    period of approximately two months when the appellant was 17 and 18 years old.
    He was sentenced to a total term of imprisonment of nine years broken down as
    follows:

·

Adult sentences

·

Three counts of robbery, and one count of forcible entry,
    contrary to s. 73 of the
Criminal Code
, R.S.C. 1985, c. C-46

seven
    years concurrent on each count

·

Possession of a loaded firearm without a serial number- two years
    consecutive to the robbery sentences

·

Possession of a firearm without a serial number  two years
    concurrent

·

Possession of cocaine  30 days concurrent

·

Youth sentence

·

Robbery  one year concurrent to adult sentence

[2]

At the sentencing proceedings the Crown sought a global sentence of 12
    years for the adult offences; the defence suggested six to seven years would be
    adequate. For the youth sentence the Crown sought one year concurrent and the
    defence advocated for a sentence of three to six months, also concurrent.

Nature of the offences

[3]

The home invasions took place between November 2014 and January 2015.

[4]

The first offence was committed when the appellant was 17 years old in
    November 2014. He and one other person entered L.s apartment and the appellant
    caged her with his arms and legs around her on a couch. He asked her where
    she kept her money. After they obtained some money and her cell phone, they
    left the apartment. L. was not injured and no other violence was used.

[5]

On January 3, 2015, four males, including the appellant, forced their
    way into Z.s home. One of them, not the appellant, hit Z. on the head and
    kicked her several times. Another, again not the appellant, had an imitation
    firearm in his possession. While the culprits searched the apartment, Z.
    escaped and shouted for help. The four males left. They stole $200-$300, an
    iPhone, and the keys to her apartment. Surveillance video recorded the men
    leaving the residence, one of whom was the appellant.

[6]

Three weeks later, H.W. woke to find a man (not the appellant) armed
    with a knife in her bedroom. He demanded money and held the knife to her cheek,
    cut her on the face, and placed a comforter over her head. The victim could
    feel a large amount of blood flowing from the cut on her cheek and cried out.
    The man ran out of her room. The males who entered her apartment were not
    initially masked but donned masks after entering the apartment. Surveillance
    recorded that the appellant was one of the males who entered her home.

[7]

The next day, L. was expecting a visitor. Lobby camera footage showed
    the appellant using the buzzer system to get into the building, with three
    other men. When L. heard a knock at her door, she opened it and four men forced
    their way in. She was hit on the head, had a bag placed over her head and was beaten
    and dragged to the bathroom. Another male entered the bathroom brandishing a
    firearm and asked where her money was. One of the males sexually assaulted her.
    There was no evidence identifying the appellant as the one who assaulted her or
    used the firearm. The men left after gathering two cell phones, purses, jewelry,
    and money.

[8]

On March 2, 2015, about five weeks after the last robbery, a search
    warrant executed at the appellants home uncovered a loaded handgun, with an
    obliterated serial number and 8.05 grams of cocaine.

Plea

[9]

The appellant pleaded guilty to the offences on October 6, 2016. An
    agreed statement of facts outlined the circumstances of each of the offences.

Analysis

[10]

The
    sentencing judge made errors in principle which had an impact on the sentences
    imposed, and accordingly it falls to this court to determine a fit sentence:
    see
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at paras. 41-44;
R v. Friesen
, 2020 SCC
    9, 444 D.L.R. (4
th
) 1, at paras. 25-27.

[11]

The
    sentencing judge did not differentiate in the principles to be applied when
    sentencing a youth under the
Youth Criminal Justice Act
(
YCJA
), S.C. 2002, c. 1 as opposed to an adult. A youth
    sentence must be the least restrictive sentence possible, while still holding
    the young person accountable:
YCJA
, ss. 38(2)
    (d), (e). General deterrence is not a relevant factor when sentencing a young
    person. The sentencing judge was under the mistaken impression that there was a
    joint submission for a one-year custodial sentence for this offence. She
    indicated that she would deliver reasons on the youth sentence at a later date,
    but those reasons were never delivered.

[12]

The
    appellant was a youthful first offender. When dealing with the adult offences,
    the sentencing judge referred to rulings from this court indicating that
    ordinarily for youthful offenders, as for first offenders, the objectives of
    individual deterrence and rehabilitation are paramount. She then went onto say
    that that principle did not apply because of the aggravating feature of the
    home invasion. That was a misreading of this courts authorities: see e.g.
R. v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643,
at para.
32;
R. v. Priest
(1996),
    1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)
.
Where
    a term of incarceration must be imposed because of the nature of the offence,
    for a young first offender, the term should be as short as possible and
    tailored to the individual circumstances of the accused.
R.
    v. Priest
at p. 12. In
R. v. Kwakye
, 2015 ONCA 108, [2015] O.J. No. 707 (QL)
this court noted that rehabilitation remains an important factor, when
    sentencing a young first offender on any offence, including manslaughter.
R. v. Jacko
,
    2010 ONCA 452, 101 O.R. (3d) 1

provides another example:
perpetrators of a serious home invasion had their sentences reduced on appeal
    to two years less a day and a conditional sentence in order to better reflect
    their rehabilitative potential.

[13]

This
    is particularly important when sentencing a youthful first offender to a first
    penitentiary sentence. This court noted in
R. v. Borde
(2003),
    2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36:

Aside from the
    gravity of the appellant's crimes, the overwhelming factor is his youth. In my
    view, the trial judge erred in principle in focusing almost exclusively on the
    objectives of denunciation and general deterrence, given the appellant's age
    and that this was his first adult prison sentence and his first penitentiary
    sentence. The length of a first penitentiary sentence for a youthful offender should
    rarely be determined solely by the objectives of denunciation and general
    deterrence. Where, as here, the offender has not previously been to
    penitentiary or served a long adult sentence, the courts ought to proceed on
    the basis that the shortest possible sentence will achieve the relevant
    objectives. The trial judge's repeated references to the need to send a message
    and his statement that the sentence was meant to deter others who resort to
    guns make it clear that general deterrence and to a less extent denunciation
    determined the length of the sentence. In my view, this error led the trial
    judge to impose an excessive sentence for the aggravated assault.

[14]

The
    appellant had the support of his family and community. The sentencing judge
    failed to give adequate weight to the appellants rehabilitative potential.

[15]

Finally,
    the sentencing judge erred when she found that it was an aggravating factor
    that the appellant deliberately used his baby-faced appearance to dupe the
    victims into opening their doors. This was not an argument advanced by the
    Crown, and the evidence did not support this conclusion. In effect, the
    sentencing judge used the appellants youth as an aggravating factor.

[16]

These
    offences were in the nature of a spree, all committed before the appellant was
    subject to the sanction of imprisonment, when he was a youthful first offender.
    Fresh evidence bears out the rehabilitative potential the appellant has. He is
    now on parole and working. He pleaded guilty at an early opportunity and was
    remorseful for his actions.

[17]

We
    would not interfere with the one-year concurrent youth sentence. The effect of
    that sentence is now spent. Pursuant to s. 82 of the
YCJA,
the appellant has been deemed never to have been found guilty of the youth
    offence, as that sentence was completed by March 24, 2018. Variation of that
    sentence would have no practical effect.

[18]

We
    agree the offences were serious and merit a stiff sentence. Tailoring that
    sentence to the circumstances of this appellant, we are of the view that a
    global sentence of seven years, before credit for pre-sentence custody, would
    be adequate. That is still a very substantial jail sentence for a youthful
    first offender going to the penitentiary.

[19]

We
    would vary the adult sentences imposed by the trial judge as follows:

1.

Robbery Count 3, the appellant was a party to a robbery committed while
    a participant was armed with a restricted firearm. This attracts a minimum
    sentence of five years. We impose that sentence less credit for presentence
    custody of 605 days for 403 days actual presentence custody for a net sentence
    of 1220 days.

2.

Robbery Counts 6, and 11, four years incarceration concurrent to the
    sentence on Count 3 on each count.

3.

Count 7, forcible entry contrary to s. 73 of the
Criminal
    Code
. The Crown concedes that the seven years incarceration must
    be reduced, and we substitute a one-year sentence concurrent to the sentence on
    Count 3, as the maximum available sentence is not more than two years.

4.

Count 22 possession of a loaded firearm contrary to s. 95(1) of the
Criminal Code
, we maintain the two-year consecutive
    sentence consecutive to Count  3.

5.

Count 25 possession of firearm without a serial number, we maintain the
    two years concurrent to the sentence on Count 22.

6.

Count 26, possession of cocaine, we maintain the 30 days concurrent to Counts
    22 and 23.

[20]

The
    victim fine surcharge is set aside, in light of
R. v.
    Boudreault
, 2018 SCC 58, [2018] S.C.R. 599.

[21]

The
    other ancillary orders made by the sentencing judge are affirmed.

G. Pardu J.A.

David Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gefen v. Gaertner, 2021 ONCA 631

DATE: 20210916

DOCKET: M52606 (C68850)

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Henia Gefen in
    her personal capacity and
    as estate trustee of the Estate of Elias Gefen

Plaintiff (
Appellant/Responding Party
)

and

Arie
    Gaertner, Miller, Canfield, Paddock and Stone LLP
the Jewish
    Home for the Aged, Baycrest Hospital,
Baycrest
    Centre for Geriatric Care,
\
Yehuda Gefen
and
Harry Gefen

Defendants (
Respondents/
Moving Party
/
Responding Party
)

AND BETWEEN

Harry Gefen

Plaintiff by Counterclaim

(
Respondent/Responding Party
)

and

Henia Gefen in her personal capacity and
as estate trustee of the Estate of Elias Gefen, Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd.,
1393522 Ontario Limited and 1585708 Ontario Limited

Defendants by Counterclaim

(
Appellant/
Responding Party
)

Christopher
    M.B. Graham, for the moving party, Lucia Maria Saunders, Estate Trustee of the
    Estate of Yehuda Gefen (deceased)

Ronald B.
    Moldaver, Q.C., for the responding party, Henia Gefen in her personal capacity
    and as estate trustee of the estate of Elias Gefen

Devin
    McMurtry, for the responding party, Harry Gefen

Heard: September 15, 2021 by video conference

REASONS FOR DECISION

[1]

At the conclusion of submissions, we advised
    counsel that the motion to quash the appeal would be dismissed with reasons to
    follow. These are our reasons.

[2]

The moving party seeks to quash the appeal of
    the responding party, Henia Gefen, on the ground that it is out of time.

[3]

The trial judge released her reasons for
    decision on October 17, 2019. The judgment dismissed the claim of Henia Gefen
    in her personal capacity and as estate trustee. The judgment also dismissed the
    counterclaim of the responding party, Harry Gefen.

[4]

The appeal of Harry Gefen from that judgment,
    and the appeal of Henia Gefen in respect of paragraph 5 of that judgment, are
    scheduled to be heard on October 13, 2021.

[5]

Although the reasons were released on October
    17, 2019, and a decision on costs was released on February 14, 2020, the
    judgment itself was not signed until October 16, 2020, because the parties
    could not agree on the form of judgment. It was necessary for the trial judge
    to convene a case conference and to receive further submissions in order to
    settle the judgment. On October 13, 2020, the trial judge released an
    endorsement giving reasons for settling the form of judgment.

[6]

On October 20, 2020, Henia Gefen served a notice
    of appeal from the judgment, but only insofar as para. 5 of the judgment was
    concerned. That paragraph identified assets owned by the deceased at the time
    of his death.

[7]

The moving party submits that the time for
    appeal generally runs from the date of the release of the reasons, not from the
    date that the judgment is finally settled and issued. That proposition, as a
    general rule, is well supported by authority:
Fontaine v. Canada (Attorney
    General)
, 2012 ONCA 206, 213 A.C.W.S. (3d) 7.

[8]

The general rule may be displaced where the
    judgment provides otherwise, or where the judgment is uncertain on a point, or
    where something of substance has been missed. In such cases, time runs from the
    date of entry of the judgment, not the date of pronouncement:
Fontaine
,
    at paras. 59-60;
Byers (Litigation Guardian of) v. Pentex Print Master
    Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.), at paras. 31, 33, 34, 36,
    43.

[9]

It is equally well settled, however, that the
    appeal itself is from the judgment and not from the reasons:
Ross v. Canada
    Trust Company
, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. The
    content of para. 5 of the judgment was not a part of the trial judges summary
    of disposition at para. 248 of her reasons, where she summarized the relief
    that she granted.

[10]

It was not until the judgment was finally
    settled, and issued, that the responding party, Henia Gefen, became aware that
    the content of para. 5 would form part of the judgment of the court. It is reasonable,
    in our view, to treat October 16, 2020 as the date on which time to appeal
    began to run and it is not, therefore, out of time.

[11]

Quite apart from the foregoing, the two appeals
    are factually connected, the moving party has identified no prejudice as a
    result of an extension of time and it would have been in the interests of
    justice that an extension be granted, had it been necessary.

[12]

The motion to quash is dismissed, with costs to
    the responding party, Henia Gefen, fixed in the amount of $3,500, inclusive of
    disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pinder v. Biggar, 2021 ONCA 623

DATE: 20210917

DOCKET: M52551 (C69419)

Benotto, Brown and Harvison
Young JJ.A.

BETWEEN

Jack
Pinder, Victor Dusik and Innotech Safety Solutions Inc.

Creditors

(Respondents/Moving Parties)

and

Wayne Biggar

Debtor

(
Appellant/Responding Party
)

and

Hospodar Davies & Goold

Garnishee

(Respondent/Responding
Party)

Stephen Barbier and Ben Tustain, for
the moving parties

Douglas Spiller, for the responding
party Wayne Biggar

John Davies, for the responding party Hospodar
Davies & Goold
[1]

Heard: September 8, 2021 by video conference

REASONS FOR DECISION

[1]

The respondents, Jack Pinder, Victor Dusik and
Innotech Safety Solutions Inc., move to quash the appeal brought by the appellant,
Wayne Biggar, from the order made by Skarica J. dated April 13, 2021 following
a garnishment hearing (the Order) on the basis that the Order is
interlocutory, not final.

[2]

For the reasons that follow, we conclude that
the Order is interlocutory in nature and quash Mr. Biggars appeal.

[3]

By way of background, in 2018 Mr. Biggar commenced
an oppression action against the respondents, in which he obtained an
interlocutory injunction and orders to produce information. Mr. Biggar later alleged
that the respondents failed to comply with the production order and he moved
for contempt. The respondents brought a cross-motion to dissolve the
injunction. By order dated June 5, 2019 Perell J. dismissed Mr. Biggars
contempt motion and dissolved the injunction. He ordered costs against Mr. Biggar.

[4]

Mr. Biggar sought to appeal the order of Perell
J., first to this court and then to the Divisional Court. By the time all the
appellate dust had settled, the order of Perell J. was left standing,
undisturbed, and Mr. Biggar had been ordered to pay the respondents costs
totalling $128,500 ($110,000 by Perell J.; $7,500 by this court; and $11,000 by
the Divisional Court).

[5]

Mr. Biggar has exhausted his rights of appeal in
respect of the order of Perell J., the cost order of this court, and that
of the Divisional Court.

[6]

Mr. Biggars oppression action remains
outstanding, with no final determination having been made.

[7]

The respondents sought to enforce the cost
orders totalling $128,500 by garnishing part of the proceeds of the sale of Mr.
Biggars matrimonial home, which were being held in trust by a law firm pending
the determination of the matrimonial litigation between Mr. Biggar and his
wife. At the request of Mr. Biggar, the motion judge held a garnishment
hearing.

[8]

As the motion judge noted in his oral reasons
for the Order, Mr. Biggars wife did not oppose the respondents effort to
garnish as she was satisfied that sufficient funds would remain in trust to
satisfy the claims she is asserting against Mr. Biggar in their matrimonial
litigation. The motion judge relied on the statements made by Ms. Biggar at
para. 18 of her affidavit of December 11, 2020 where she deposed:

I was aware that I could oppose the
garnishment but based upon the amount being sought under the garnishment I
instructed my solicitors not to oppose as I felt there would be sufficient
funds remaining to address issues of equalization and costs in the matrimonial
proceedings.

[9]

Following a garnishment hearing, the motion
judge ordered $128,500 to be paid from the trust funds to the respondents in
satisfaction of Mr. Biggars cost obligations to them. In addition, he ordered
$5,600 to be paid for accrued postjudgment interest on the cost awards.

[10]

Mr. Biggar has appealed the Order to this court,
contending that it is a final order. The respondents move to quash the appeal
on the basis that the Order is interlocutory. Mr. Biggars wife did not oppose
the Order and she is not a party to Mr. Biggars appeal. The garnishee takes no
position on this motion.

[11]

The Order is an interlocutory one. It was made
within the oppression action Mr. Biggar commenced, not within the matrimonial
litigation. The Order did not finally dispose of the rights of the parties in
the oppression action, including any right to substantive relief sought by Mr.
Biggar:
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.), at p. 680;
Sun Life Assurance Co. v. York Ridge Developments Ltd.
(1998),
116 O.A.C. 103 (C.A.), at para. 13. Nor did it finally dispose of an issue
raised by a defence in the oppression action, as Mr. Biggar is the plaintiff:
Ball
v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). Nor does the Order end a
discrete proceeding before the court, as the garnishment hearing was simply a
step in the process to enforce cost orders made in the oppression action:
Buck
Brothers Ltd. v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.).

[12]

The legal effect of the Order that Mr. Biggar
seeks to appeal is interlocutory in nature: the Order was made in furtherance
of the respondents efforts to enforce cost awards made against Mr. Biggar in
the oppression action and in respect of which Mr. Biggar has exhausted his
rights of appeal.

[13]

Accordingly, this court has no jurisdiction to
hear an appeal from the Order:
Courts of Justice Act
, R.S.O. 1990, c.
C.43, s. 6(1)(b) (
CJA
). Mr. Biggars appeal is quashed. Any avenue
of appeal that Mr. Biggar may have left in respect of the Order lies to the
Divisional Court pursuant to
CJA
s. 19(1)(b) and must be considered by
that court.

[14]

If the parties are unable to agree upon the
costs of this motion to quash and the motion to extend, they may deliver
written cost submissions, not exceeding three pages in length (excluding any
Bill of Costs), within 10 days of the date of these reasons.

M.L.
Benotto J.A.

David
Brown J.A.

Harvison
Young J.A.

[1]
John Davies appeared but made no written or oral submissions on
behalf of the responding party Hospodar Davies & Goold.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McLaughlin-Coward, 2021 ONCA
    626

DATE: 20210917

DOCKET: C68324

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allister McLaughlin-Coward

Appellant

Allister McLaughlin-Coward, acting in
    person

Michael Crystal, appearing as duty
    counsel

Avene Derwa, for the respondent

Heard: September 10, 2021 by
    video conference

On appeal from the sentenced imposed on April
    27, 2020 by Justice Iona M. Jaffe of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of one count of
    aggravated assault. He was sentenced to 6 years imprisonment, less 17 months
    credit for time spent in pre-sentence custody (PSC), and another 4 months as
    a result of the harsh conditions of confinement. He applies for leave to appeal
    his sentence.

[2]

The appellant attacked his former partners
    husband, the victim, with a knife. The appellant and his former partner had a
    daughter together 14 years earlier. The appellant was frustrated about not
    being able to see her. One afternoon, he showed up unannounced at the home of
    his former partner and the victim, demanding to see his daughter. His former
    partner told the appellant that he must follow the formal access procedures.

[3]

When the victim intervened, the appellant
    threatened him. The conflict soon turned physical. The appellant was armed with
    two knives. He stabbed the victim multiple times. The police arrived shortly
    after and saw the appellant using a screwdriver to puncture the tire of the
    familys vehicle. In the course of his arrest, the appellant yelled at the
    victim, I hope it hurt.

[4]

The appellant gave an inculpatory statement to
    the police at the scene in which he explained that he believed his daughter was
    being exploited. He told the police that he did not intend to kill the victim,
    but he knew that it could have happened. He said he wanted to hurt the victim.

[5]

The victim sustained serious injuries. The
    sentencing judge noted:

He was stabbed twice in the stomach. One
    stomach wound was one centimeter in length and the other was five centimeters.
    The larger of those two stab wounds eviscerated the victims abdominal
    contents. The victim also sustained five stab wounds in the back and one on the
    left side of his neck. The victim required surgery and spent three days in
    hospital.

[6]

The appellant entered a plea of guilty to the
    offence.

[7]

At the time, he was 41 years old. He had prior
    convictions for assault with a weapon in 2008, for which he received a
    suspended sentence, and possession of a weapon in 2017, for which he received a
    suspended sentence (after spending 75 days in PSC).

[8]

The Crown submitted that the appellant should
    receive a sentence in the range of 5 to 6 years imprisonment, whereas counsel
    for the appellant sought a sentence of 15 to 18 months.

[9]

The sentencing judge provided thorough reasons
    for sentence. She identified general deterrence and denunciation as the primary
    objectives in sentencing the appellant. In doing so, she relied on the victims
    injuries, the fact that the appellant armed himself with two knives, the
    appellants related criminal record, and that part of the scenario occurred in
    front of his daughter. The sentencing judge characterized the attack as unprovoked
    and vicious, which left the victim seriously injured.

[10]

On the other side of the equation, the
    sentencing judge took into account the mitigating value of the appellants
    guilty plea. She also considered the detailed information about his life
    circumstances in the Pre-Sentence Report (PSR) and the challenges he has
    faced over the years. At the time, the appellant denied any alcohol or
    substance abuse. However, he was medicated for anxiety and depression.

[11]

In her reasons, the sentencing judge expressed
    concern about the appellants insight into the gravity of the offence. In his
    discussions with the author of the PSR, he seemed to suggest that his actions
    were justified on some level (i.e., for the protection of his daughter). He
    made similar comments to the sentencing judge when asked if he had anything to
    say before his sentence was imposed.

[12]

On appeal, the appellant submits that the trial
    judge misunderstood his attitude in court. He acknowledges that he showed
    little emotion at the time. He explained that he was under stress as a result
    of the conditions of his pre-sentence custody and that he was trying to be
    strong for his daughter. The appellant says that he was remorseful then, as he
    is now.

[13]

There is no indication that the sentencing judge
    formed her impressions about the appellants lack of insight based on his
    emotional presentation. Her observations were based on the appellants statements
    to the author of the PSR, and his words prior to being sentenced. During the
    hearing of the appeal, the appellant made similar statements, focusing on his
    concern for his daughter, rather than the impact of his offence on the victim.

[14]

We see no error in the trial judges treatment
    of this factor. It was a finding that was open to her to reach on the record.
    She did not improperly treat the appellants lack of insight as an aggravating
    factor; instead, she merely found that she was limited in her ability to give
    effect to the appellants rehabilitative potential by virtue of his attitude
    towards his conduct. In the circumstances, the trial judge was correct to focus
    on general deterrence and denunciation. The sentence imposed properly reflects
    the application of those principles to this case. It cannot be said that the
    sentence is unfit.

[15]

In conclusion, we note that the author of the
    PSR recommended that the appellant take rehabilitative and/or counselling
    programs directed at: substance abuse, anger management, counseling through a
    mental health professional, and additional counselling as directed. At the
    appeal hearing, the appellant expressed a willingness to follow this
    rehabilitative path and we encourage him to do so.

[16]

The application for leave to appeal sentence is
    allowed, but the appeal is dismissed.

Alexandra
    Hoy J.A.

Gary
    Trotter J.A.

David
    M. Paciocco 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.
    N.H., 2021 ONCA 636

DATE: 20210917

DOCKET: C63612

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.H.

Appellant

Margaret Bojanowska, for the appellant

Philippe Cowle, for the respondent

Heard: September 29, 2020 by
    video conference

On appeal from
    the convictions entered on September 23, 2016 by Justice Beth A. Allen
    of the Superior Court of Justice, sitting with a jury and from the sentence
    imposed on April 21, 2017.

ADDENDUM

Introduction

[1]

On November 4, 2020, we released our reasons in this
    matter to the parties only. Because our reasons contained references to
    evidence the appellant applied to adduce at trial under s. 276 of the
Criminal
    Code
and to the trial judges decision dismissing that application, we
    requested submissions from the parties concerning publication of our reasons.
    Among other things, we asked whether the publication ban contained in s. 278.95
[1]
of the
Criminal Code
applies to our reasons and if it does, whether we could make an order
    permitting publication of our reasons as-is,
i.e.
, unredacted, in
    the same form in which they were distributed to the parties.

[2]

The Crown responded to our request and informed
    us that appellants counsel agreed with its response. In essence, the Crown
    submitted that the s. 278.95 publication ban applies to our reasons but
    that this court has, and in this case we should invoke, inherent jurisdiction
    to make an order permitting publication of our reasons as is.

[3]

Prior to this panel determining the issue, two
    other panels of this court requested submissions concerning publication of
    their reasons in other appeals involving the same or similar publication bans. In
    at least one of those matters, the Crown submitted this court has jurisdiction
    under s. 278.95(1)(d)(ii) of the
Criminal Code
to make an order
    permitting publication of unredacted reasons subject to the s. 278.95
    publication ban. Given that submission, we requested further submissions
    concerning the jurisdiction issue.

[4]

Counsel have now clarified that the Crowns
    position is that this court has inherent jurisdiction to make an order
    permitting publication of our reasons as is and should exercise that discretion
    based on the same factors that would guide a trial judge or a justice under s.
    278.95(1)(c) or (d)(ii) of the
Criminal Code
.

[5]

For the reasons that follow, we accept the
    Crowns position and order that our reasons in this matter may be published in
    the form released to the parties on November 4, 2020, subject to the s. 486.4
    publication ban imposed at trial.

The Section
278.95
Criminal
    Code
Publication Bans and Related Provisions

[6]

Section 278.93
    of the
Criminal Code
sets out the procedure for an accused to
    apply for a hearing to determine the admissibility at trial of evidence of
    other sexual activity on the part of the complainant not the subject of the
    charge before the court. Section 278.93(4) specifies that the presiding judge
    or justice may decide to hold an admissibility hearing.
[2]
Section 278.94 prescribes various
    procedural rules relating to any hearing that is ordered, including a
    requirement that the presiding judge or justice give reasons for the admissibility
    determination: s. 278.94(4).
[3]

[7]

Section 278.95
    prohibits publication of: the contents of a s. 278.93 application; the evidence
    or representations made on a s. 278.93 application or at a s. 278.94 hearing;
    and of the decision(s) concerning same, but subject to certain exceptions
    concerning the decision(s) made as set out in s
s.
    278.95(1)(c) and (d)
:

278.95 (1) A person shall not
    publish in any document, or broadcast or transmit in any way, any of the
    following:

(a) the contents of an application
    made under subsection 278.93;

(b) any evidence taken, the
    information given and the representations made at an application under section
    278.93 or at a hearing under section 278.94;

(c)
the
    decision of a judge or justice under subsection 278.93(4), unless the judge or
    justice, after taking into account the complainants right of privacy and the
    interests of justice, orders that the decision may be published, broadcast or
    transmitted
; and

(d)
the
    determination made and the reasons provided under subsection 278.94 (4) unless
;

(i) that determination is that
    evidence is admissible, or

(ii)
the judge
    or justice, after taking into account the complainants right of privacy and
    the interests of justice, orders that the determination and reasons may be
    published, broadcast or transmitted
. [Emphasis added.]

The Crowns Position

[8]

In essence, the
    Crown submits:

·

the s. 278.95
    publication ban applies to our reasons;

·

the authority
    to make an order permitting publication under s
s.
    278.95(1)(c) and/or (d)(ii) is restricted to the judge who made the decision
    under s. 278.93 or 278.94 as the case may be; and

·

this court has,
    and in this case should invoke its inherent jurisdiction to make an order
    permitting publication of its reasons in the same form in which they were
    distributed to the parties.

(i)

The s. 278.95
publication
ban applies to our reasons

[9]

In brief, the Crown
    submits that the s. 278.95 publication ban applies to our reasons and that neither
    of the exceptions to the application of the ban set out in
ss. 278.95(1)(c) and (d) apply. That is: i) the evidence sought to
    be adduced in the court below was not admitted; and ii) the judge in the court
    below did not make an order permitting publication, broadcast or transmission
    of her decision. In fact, there was no discussion in the court below concerning
    whether the ban should apply.

[10]

The Crown is not aware of any provisions that
    would limit or restrict the duration or operation of the ban but submits s.
    278.95 should not be interpreted to impose such limits or restrictions, as a
    restrictive interpretation would defeat its purpose. The purpose of s. 278.95
    can be gleaned by analogy to similar publication bans and by reference to the
    statutory context. In
Canadian Newspapers Co. v. Canada (Attorney
    General),
[1988] 2 S.C.R. 122, at pp. 129-32, the Supreme Court of Canada
    discussed the purpose of s. 486.4 publication bans, which protect the identity of
    complainants in prosecutions for sexual offences. Broadly speaking, the Court
    recognized that the purpose of the publication ban was to foster complaints
    from victims of sexual assault by protecting them from the trauma of
    wide-spread publication, which could result in embarrassment and humiliation.

[11]

The Crown notes that those same important
    objectives underlie the statutory framework surrounding applications to lead
    evidence of extrinsic sexual activity. In ss. 276(3)(b),(f), and (g), Parliament
    expressly lays out the objectives of encouraging reporting and protecting the
    dignity and privacy of complainants as factors that the court must consider in determining
    whether the evidence of extrinsic sexual is admissible. As highlighted in
Canadian
    Newspapers
, at pp. 131-33, legislation aimed at protecting a complainants
    privacy rights must be robust, as temporary protection is effectively no
    protection at all.

[12]

Finally, the Crown submits that the existence of
    a s. 486.4 publication ban does not affect whether the s. 278.95 ban applies.
    The scope of the bans and the protected interests under them are different.
    Whether a s. 486.4 ban is in place, a complainant may, or may not, wish the
    details of the evidence presented on a s. 276 application to remain
    private.

(ii)

Subsections 278.95(1)(c) and (d)(ii) do not
    provide this court with authority to permit publication of our reasons

[13]

The Crown submits that the authority to make an
    order pursuant to ss. 278.95(1)(c) or (d)(ii) is restricted to the judge
    who made the decision under ss.
278.93 or

278.94. Subsections 278.95(1)(c) and (1)(d) both refer to the judge
    or justice (as opposed to a judge or justice), suggesting that the authority
    is granted specifically to the judge who made the decision. The French text
    supports this interpretation, referring to le juge ou le juge de paix. Read
    on its face,
no language in
s. 278.95 purports to create any power exercisable by a reviewing
    court.

(iii)

This court has, and should invoke in this case its inherent jurisdiction
    to make an order permitting publication of its reasons as-is

[14]

The Crown acknowledges that it may be possible
    for this court to access the trial courts power to make an order under s.
    278.95 through s. 13(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 (the
CJA
),
[4]
or to find jurisdiction to make an order permitting publication through the
    combined operation of s. 683(3) of the
Criminal Code
and s. 134 of the
CJA
.
[5]

[6]
However, the Crown submits
    both of those options present challenges. In any event, the Crown submits this
    court has inherent jurisdiction to make an order permitting publication of its
    reasons as is. As will be discussed further below, the Crown relies on several
    cases holding that a court has inherent jurisdiction to control its own records
    in support of that proposition. Further, taking account of the statutory
    factors that would guide trial judges making the same decision under ss.
    278.95(c) or (d), the Crown submits this court should make an order permitting
    publication of its reasons in this case for four reasons:

·

the complainant is comfortable with this courts
    decision being published as is;

·

the complainants privacy remains protected
    through the s. 486.4 publication ban, which will remain in place;

·

on the particular facts of this case, the
    privacy rights at issue are already lessened, because the evidence at issue on
    the s. 276 application came out at trial despite the trial judges ruling; and

·

the development of the jurisprudence surrounding
    s. 276 applications and evidence of extrinsic sexual activity will benefit from
    the publication of this courts decision as is.

Discussion

(1)

This court has inherent jurisdiction to permit publication of its
    reasons as is

[15]

Assuming that we cannot authorize publication,
    broadcast or transmission of our reasons under ss. 278.95(1)(c) or (d)(ii) of
    the
Criminal Code
, we are satisfied that, in any event, we have inherent
    jurisdiction to do so.

[16]

In support of its position that this court has
    inherent jurisdiction to order that its judgment be published unedited and
    effectively override the s. 276.3 publication ban, the Crown initially relied
    on this courts decisions in
Re Joudrie
(1997), 100 O.A.C. 25 and
R. v. A.B.
(1997), 33 O.R. (3d) 321 in which this court lifted
    publication bans imposed at trial under ss. 486(3) and (4) of the
Criminal
    Code
. Although this court did not discuss its jurisdiction in those cases,
    the Crown submitted that, by implication, it relied on its inherent
    jurisdiction to control its own records.

[17]

In our view, those cases appear to be premised
    on a courts inherent jurisdiction to vary or revoke an order made at trial
    where the circumstances that were present at the time the order was made have
    materially changed. The Crown has subsequently clarified
[7]
that it relies on a general
    line of cases establishing a courts authority to control its own records.

[18]

Those cases are:
R. v. Garofoli
, [1990]
    2 S.C.R. 1421, at p. 1457;
Vickery v. Nova Scotia Supreme Court
    (Prothonotary)
, [1991] 1 S.C.R. 671, at pp. 681-83;
R. v.
    Bernardo
, [1995] O.J. No. 1472 (Gen. Div.), at paras. 13, 112-28, leave to
    appeal refused, [1995] S.C.C.A. No. 250, further appeal dismissed for lack of
    jurisdiction, (1998) 122 C.C.C. (3d) 475 (Ont. C.A.); and
R. v. Canadian
    Broadcasting Corp.
, 2010 ONCA 726, 102 O.R. (3d) 673.

[19]

None of the above-noted cases dealt with a
    reviewing courts power to lift a statutory publication ban. However, they all
    dealt with public access to court records and affirmed the supervisory power a
    court holds over access to its records. Further,
Vickery
relied on
A.G.
    (Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, in which the Supreme
    Court clearly stated, at p. 189, Undoubtedly every court has a supervisory and
    protecting power over its own records.

[20]

The records at issue in the cases upon which the
    Crown relied include exhibits at a criminal trial or preliminary inquiry
    (transcripts of an alleged confession after an accused was acquitted:
Vickery
;
    explicit recordings of violent crime:
Bernardo
; preliminary inquiry exhibits:
CBC
; search warrants and the information to obtain based on which they
    were issued:
MacIntyre
; and affidavits, upon which the police relied
    to obtain wiretaps:
Garofoli
).

[21]

Here, the court record at issue is this courts
    reasons for decision, which include reference to the reasons of the court below
     the object of a s. 278.95 statutory publication ban. However, if this court
    has supervisory and protective powers over externally filed court records, it
    must follow that it has at least the same or greater powers over its own
    reasons.

[22]

Moreover, given that s. 278.95 is silent on the
    powers of a reviewing court, whatever inherent jurisdiction this court
    possesses necessarily survives, as it has not been displaced by clear and
    precise statutory language:
Canada (Attorney General) v. Fontaine
,
    2017 SCC 47, [2017] 2 S.C.R. 205, at para. 33;
R. v. Adams
,
    [1995] 4 S.C.R. 707, at para. 28.

[23]

Undoubtedly, the tests enunciated in the early
    cases for restricting public access to court records have been superseded by
    the Dagenais/Mentuck test: see
Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835;
R. v. Mentuck
, 2001 SCC
    76, [2001] 3 S.C.R. 442
. However, what is at issue in this
    case is not restricting public access. Rather, the issue is whether statutorily
    restricted public access to this courts reasons should be expanded.

[24]

Accepting that this court has inherent
    jurisdiction over its own records, we conclude that it can exercise its discretion
    concerning publication, based on the same factors that the court below is
    entitled to permit publication of its reasons. It makes sense that this courts
    discretion should be exercised in a manner that accords with the framework of
    the statutory publication ban.

[25]

We also accept the Crowns submission that this
    courts discretion extends to permitting publication of any portion of the
    reasons of the court below that refer to the content of the underlying
    application and the evidence and representations made in relation to it or at a
    hearing. That is consistent with a purposive interpretation of s. 278.95(1). To
    hold otherwise would make the discretion to permit publication conferred in
    that section, and by extension this courts inherent jurisdiction to do so,
    meaningless.

(2)

This court should permit publication of its reasons as is in this
    case

[26]

In this case, there was no discussion in the
    court below concerning whether the mandatory s. 278.95 publication ban should
    be lifted under s. 278.95(1)(c). The mandatory ban therefore applied by
    statute. The question of what, if any, deference is owed to the court below
    does not arise.

[27]

On appeal, the Crown asks that this court
    exercise its discretion to publish its reasons. It notes that the complainant
    is comfortable with that result and the complainants identity will in any
    event be protected by the s. 486.4 publication ban, which will remain in place.
    Equally important, the development of the jurisprudence surrounding s. 276
    applications and evidence of extrinsic sexual activity will benefit from the
    publication of this courts decision as is.

[28]

We accept the Crowns submissions as supporting
    the order it seeks. They take proper account of both the complainants privacy
    right and the interests of justice, the relevant factors under s. 278.95(1)(c)
    of the
Criminal Code
.

Disposition

[29]

Based on the foregoing reasons, we order that,
    despite the s. 278.95 publication ban, our reasons in this matter may be
    published in the form released to the parties on November 4, 2020, subject to
    the s. 486.4 publication ban imposed at trial.

Janet
    Simmons J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.

Appendix A

English Version

Evidence of complainants sexual
    activity

276 (1)
In proceedings in respect of an offence under section 151, 152,
    153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271,
    272 or 273, evidence that the complainant has engaged in sexual activity,
    whether with the accused or with any other person, is not admissible to support
    an inference that, by reason of the sexual nature of that activity, the
    complainant

(a)
is more likely to have consented to the sexual activity that forms
    the subject-matter of the charge; or

(b)
is less worthy of belief.

Conditions for admissibility

(2)
In proceedings in respect of an offence referred to in subsection (1), evidence
    shall not be adduced by or on behalf of the accused that the complainant has
    engaged in sexual activity other than the sexual activity that forms the
    subject-matter of the charge, whether with the accused or with any other
    person, unless the judge, provincial court judge or justice determines, in
    accordance with the procedures set out in sections 278.93 and 278.94, that the
    evidence

(a)
is not being adduced for the purpose of supporting an inference
    described in subsection (1);

(b)
is relevant to an issue at trial; and

(c)
is of specific instances of sexual activity; and

(d)
has significant probative value that is not substantially
    outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge must consider

(3)
In determining whether evidence is admissible under subsection (2), the judge,
    provincial court judge or justice shall take into account

(a)
the interests of justice, including the right of the accused to
    make a full answer and defence;

(b)
societys interest in encouraging the reporting of sexual assault
    offences;

(c)
whether there is a reasonable prospect that the evidence will
    assist in arriving at a just determination in the case;

(d)
the need to remove from the fact-finding process any discriminatory
    belief or bias;

(e)
the risk that the evidence may unduly arouse sentiments of prejudice,
    sympathy or hostility in the jury;

(f)
the potential prejudice to the complainants personal dignity and
    right of privacy;

(g)
the right of the complainant and of every individual to personal
    security and to the full protection and benefit of the law; and

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

Interpretation

(4)
For the purpose of this section,
sexual activity
includes any communication made for a sexual purpose or whose content is of a
    sexual nature.

Application for hearing  sections
    276 and 278.92

278.93 (1)
Application may be made to the judge, provincial court judge or
    justice by or on behalf of the accused for a hearing under section 278.94 to
    determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Form and content of application

(2)
An application referred to in subsection (1) must be made in writing, setting
    out detailed particulars of the evidence that the accused seeks to adduce and
    the relevance of that evidence to an issue at trial, and a copy of the
    application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

(3)
The judge, provincial court judge or justice shall consider the application
    with the jury and the public excluded.

Judge may decide to hold hearing

(4)
If the judge, provincial court judge or justice is satisfied that the
    application was made in accordance with subsection (2), that a copy of the
    application was given to the prosecutor and to the clerk of the court at least
    seven days previously, or any shorter interval that the judge, provincial court
    judge or justice may allow in the interests of justice and that the evidence
    sought to be adduced is capable of being admissible under subsection 276(2),
    the judge, provincial court judge or justice shall grant the application and
    hold a hearing under section 278.94 to determine whether the evidence is
    admissible under subsection 276(2) or 278.92(2).

Hearing  jury and public excluded

278.94 (1)
The jury and the public shall be excluded from a hearing to
    determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Complainant not compellable

(2)
The complainant is not a compellable witness at the hearing but may appear and
    make submissions.

Right to counsel

(3)
The judge shall, as soon as feasible, inform the complainant who participates
    in the hearing of their right to be represented by counsel.

Judges determination and reasons

(4)
At the conclusion of the hearing, the judge, provincial court judge or justice
    shall determine whether the evidence, or any part of it, is admissible under
    subsection 276(2) or 278.92(2) and shall provide reasons for that
    determination, and

(a)
if not all of the evidence is to be admitted, the reasons must
    state the part of the evidence that is to be admitted;

(b)
the reasons must state the factors referred to in subsection 276(3)
    or 278.92(3) that affected the determination; and

(c)
if all or any part of the evidence is to be admitted, the reasons
    must state the manner in which that evidence is expected to be relevant to an
    issue at trial.

Record of reasons

(5)
The reasons provided under subsection (4) shall be entered in the record of the
    proceedings or, if the proceedings are not recorded, shall be provided in
    writing.

Publication prohibited

278.95 (1)
A person shall not publish in any document, or broadcast or
    transmit in any way, any of the following:

(a)
the contents of an application made under subsection 278.93;

(b)
any evidence taken, the information given and the representations
    made at an application under section 278.93 or at a hearing under section
    278.94;

(c)
the decision of a judge or justice under subsection 278.93(4),
    unless the judge or justice, after taking into account the complainants right
    of privacy and the interests of justice, orders that the decision may be
    published, broadcast or transmitted; and

(d)
the determination made and the reasons provided under subsection
    278.94(4), unless

(i)
that determination is that evidence is admissible, or

(ii)
the judge or justice, after taking into account the complainants
    right of privacy and the interests of justice, orders that the determination
    and reasons may be published, broadcast or transmitted.

Offence

(2)
Every person who contravenes subsection (1) is guilty of an offence punishable
    on summary conviction.

Order restricting
    publication  sexual offences

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, 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).

Mandatory order on application

(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.

Victim under 18  other
    offences

(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.

Mandatory order on application

(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.

Child pornography

(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.

Limitation

(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.

Version française

Preuve concernant le comportement
    sexuel du plaignant

276 (1)
Dans les poursuites pour une infraction
    prévue aux articles 151, 152, 153, 153.1 ou 155, aux paragraphes 160(2) ou (3)
    ou aux articles 170, 171, 172, 173, 271, 272 ou 273, la preuve de ce que le
    plaignant a eu une activité sexuelle avec laccusé ou un tiers est inadmissible
    pour permettre de déduire du caractère sexuel de cette activité quil est :

a)
soit plus susceptible davoir consenti à
    lactivité à lorigine de laccusation;

b)
soit moins digne de foi.

Conditions de ladmissibilité

(2)
Dans les poursuites visées au paragraphe
    (1), laccusé ou son représentant ne peut présenter de preuve de ce que le
    plaignant a eu une activité sexuelle autre que celle à lorigine de laccusation
    sauf si le juge, le juge de la cour provinciale ou le juge de paix décide,
    conformément aux articles 278.93 et 278.94, à la fois:

a)
que cette preuve nest pas présentée afin
    de permettre les déductions visées au paragraphe (1);

b)
que cette preuve est en rapport avec un
    élément de la cause;

c)
que cette preuve porte sur des cas
    particuliers dactivité sexuelle;

d)
que le risque deffet préjudiciable à la
    bonne administration de la justice de cette preuve ne lemporte pas
    sensiblement sur sa valeur probante.

Facteurs à considérer

(3)
Pour décider si la preuve est admissible
    au titre du paragraphe (2), le juge, le juge de la cour provinciale ou le juge
    de paix prend en considération:

a)
lintérêt de la justice, y compris le
    droit de laccusé à une défense pleine et entière;

b)
lintérêt de la société à encourager la
    dénonciation des agressions sexuelles;

c)
la possibilité, dans de bonnes conditions,
    de parvenir, grâce à elle, à une décision juste;

d)
le besoin décarter de la procédure de
    recherche des faits toute opinion ou préjugé discriminatoire;

e)
le risque de susciter abusivement, chez le
    jury, des préjugés, de la sympathie ou de lhostilité;

f)
le risque datteinte à la dignité du
    plaignant et à son droit à la vie privée;

g)
le droit du plaignant et de chacun à la
    sécurité de leur personne, ainsi quà la plénitude de la protection et du
    bénéfice de la loi;

h)
tout autre facteur quil estime applicable
    en lespèce.

Précision

(4)
Il est entendu que, pour lapplication du
    présent article,
activité sexuelle
sentend notamment de toute communication
    à des fins dordre sexuel ou dont le contenu est de nature sexuelle.

Demande daudience : articles 276 et
    278.92

278.93 (1)
Laccusé ou son représentant peut demander
    au juge, au juge de la cour provinciale ou au juge de paix de tenir une
    audience conformément à larticle 278.94 en vue de décider si la preuve est
    admissible au titre des paragraphes 276(2) ou 278.92(2).

Forme et contenu

(2)
La demande daudience est formulée par
    écrit et énonce toutes précisions utiles au sujet de la preuve en cause et le
    rapport de celle-ci avec un élément de la cause; une copie en est expédiée au
    poursuivant et au greffier du tribunal.

Exclusion du jury et du public

(3)
Le jury et le public sont exclus de
    laudition de la demande.

Audience

(4)
Une fois convaincu que la demande a été
    établie conformément au paragraphe (2), quune copie en a été expédiée au
    poursuivant et au greffier du tribunal au moins sept jours auparavant, ou dans
    le délai inférieur autorisé par lui dans lintérêt de la justice, et quil y a
    des possibilités que la preuve en cause soit admissible, le juge, le juge de la
    cour provinciale ou le juge de paix accorde la demande et tient une audience
    pour décider de ladmissibilité de la preuve au titre des paragraphes 276(2) ou
    278.92(2).

Audience  exclusion du jury et du
    public

278.94 (1)
Le jury et le public sont exclus de
    laudience tenue pour décider de ladmissibilité de la preuve au titre des
    paragraphes 276(2) ou 278.92(2).

Non-contraignabilité

(2)
Le plaignant peut comparaître et présenter
    ses arguments à laudience, mais ne peut être contraint à témoigner.

Droit à un avocat

(3)
Le juge est tenu daviser dans les
    meilleurs délais le plaignant qui participe à laudience de son droit dêtre
    représenté par un avocat.

Motifs

(4)
Le juge, le juge de la cour provinciale ou
    le juge de paix rend une décision, quil est tenu de motiver, à la suite de
    laudience sur ladmissibilité de tout ou partie de la preuve au titre des
    paragraphes 276(2) ou 278.92(2), en précisant les points suivants:

a)
les éléments de la preuve retenus;

b)
ceux des facteurs mentionnés aux
    paragraphes 276(3) ou 278.92(3) ayant fondé sa décision;

c)
la façon dont tout ou partie de la preuve
    à admettre est en rapport avec un élément de la cause.

Forme

(5)
Les motifs de la décision sont à porter
    dans le procès-verbal des débats ou, à défaut, donnés par écrit.

Publication interdite

278.95 (1)
Il est interdit de publier ou de diffuser
    de quelque façon que ce soit le contenu de la demande présentée en vertu de
    larticle 278.93 et tout ce qui a été dit ou déposé à loccasion de cette
    demande ou aux audiences mentionnées à larticle 278.94. Linterdiction vise
    aussi, dune part, la décision rendue sur la demande daudience au titre du
    paragraphe 278.93(4) et, dautre part, la décision et les motifs mentionnés au
    paragraphe 278.94(4), sauf, dans ce dernier cas, si la preuve est déclarée
    admissible ou, dans les deux cas, si le juge ou le juge de paix rend une
    ordonnance autorisant la publication ou la diffusion après avoir pris en
    considération le droit du plaignant à la vie privée et lintérêt de la justice.

Infraction

(2)
Quiconque contrevient au paragraphe (1)
    commet une infraction punissable sur déclaration de culpabilité par procédure
    sommaire.

Ordonnance limitant la
    publication  infractions dordre sexuel

486.4 (1)
Sous réserve du paragraphe (2), le juge
    ou le juge de paix qui préside peut rendre une ordonnance interdisant de
    publier ou de diffuser de quelque façon que ce soit tout renseignement qui
    permettrait détablir lidentité de la victime ou dun témoin dans les
    procédures relatives à:

a)
lune des infractions suivantes:

(i)
une infraction prévue aux articles 151,
    152, 153, 153.1, 155, 160, 162, 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 ou 347,

(ii)
une infraction prévue par la présente
    loi, dans toute version antérieure à la date dentrée en vigueur du présent
    sous-alinéa, dans le cas où lacte reproché constituerait une infraction visée
    au sous-alinéa (i) sil était commis à cette date ou par la suite;

b)
deux infractions ou plus dans le cadre de
    la même procédure, dont lune est une infraction visée à lalinéa a).

Obligations du juge

(2)
Dans les procédures relatives à des
    infractions visées aux alinéas (1)a) ou b), le juge ou le juge de paix qui
    préside est tenu:

a)
daviser dès que possible les témoins
    âgés de moins de dix-huit ans et la victime de leur droit de demander
    lordonnance;

b)
de rendre lordonnance, si le
    poursuivant, la victime ou lun de ces témoins lui en fait la demande.

Victime de moins de dix-huit ans
    autres infractions

(2.1)
Sous réserve du paragraphe (2.2), le juge
    ou le juge de paix qui préside peut rendre une ordonnance interdisant de
    publier ou de diffuser de quelque façon que ce soit tout renseignement qui
    permettrait détablir lidentité de la victime âgée de moins de dix-huit ans
    dans les procédures relatives à toute infraction autre que celles visées au
    paragraphe (1).

Obligations du juge

(2.2)
Dans les procédures relatives à toute
    infraction autre que celles visées au paragraphe (1), le juge ou le juge de
    paix qui préside est tenu, si la victime est âgée de moins de dix-huit ans:

a)
daviser dans les meilleurs délais la
    victime de son droit de demander lordonnance;

b)
de rendre lordonnance, si le poursuivant
    ou la victime lui en fait la demande.

Pornographie juvénile

(3)
Dans les procédures relatives à une
    infraction visée à larticle 163.1, le juge ou le juge de paix rend une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité dun témoin âgé de
    moins de dix-huit ans ou dune personne faisant lobjet dune représentation,
    dun écrit ou dun enregistrement qui constitue de la pornographie juvénile au
    sens de cet article.

Restriction

(4)
Les ordonnances rendues en vertu du
    présent article ne sappliquent pas à la communication de renseignements dans
    le cours de ladministration de la justice si la communication ne vise pas à
    renseigner la collectivité.

[1]
Many of the
Criminal Code
provisions referred to in
    this Addendum have been renumbered since the trial. For convenience, we will
    refer to the current section numbers.

[2]

Sections 278.93 and 278.94 also apply to applications and
    hearings regarding the admissibility of records in the accuseds possession
    that relate to a complainant, which are presumptively inadmissible under s.
    278.92.

[3]
All
Criminal Code
provisions referred to in this Addendum
    are set out in full, in both French and English, in Appendix A.

[4]
Section 13(2) of the
CJA
states: A judge of the Court of Appeal is, by
    virtue of his or her office, a judge of the Superior Court of Justice and has
    all the jurisdiction, power and authority of a judge of the Superior Court of
    Justice.

[5]

Section 683(3) of the
Criminal Code
states:

A court of appeal may
    exercise, in relation to proceedings in the court, any powers not mentioned in
    subsection (1) that may be exercised by the court on appeals in civil matters,
    and may issue any process that is necessary to enforce the orders or sentences
    of the court, but no costs shall be allowed to the appellant or respondent on
    the hearing and determination of an appeal or on any proceedings preliminary or
    incidental thereto.

Section 134(1) of the
CJA
states:

Unless
    otherwise provided, a court to which an appeal is taken may,

(a) make
    any order or decision that ought to or could have been made by the court or
    tribunal appealed from;

(b) order a
    new trial;

(c) make
    any other order or decision that is considered just.

[6]

The Crown notes there is precedent for this
    court to impose a publication ban pursuant to s. 134(1) of the
CJA
:
R.
    v. G.M.
, [2000] O.J. No. 5007, at para. 4. (Presumably, this was done in
    conjunction with s. 683(3) of the
Criminal Code
.) Further, the
    Crown notes that a Superior Court judge has inherent jurisdiction to vary or
    lift publication bans pursuant to s. 486.4 after the trial judge has become
functus
    officio
(
R. v. Ireland
(2005), 203 C.C.C. (3d) 443 (Ont. S.C.J.)). As
    noted, under s. 13(2) of the
CJA
, judges of this court have the
    jurisdiction, power and authority of judges of the Superior Court of Justice.

[7]
In our second request for submissions referred to above, we asked
    if this courts inherent jurisdiction to make an order permitting unredacted
    publication of its reasons was confined to situations where there had been a
    material change in circumstances. We asked this question because in
Re
    Joudrie
and
R. v. A.B.
, the complainants asked on appeal
    that publication bans imposed at trial be lifted and the Crown supported their
    requests. In lifting the publication bans, this court had regard to principles
    set out in
R. v. Adams
, [1955] 4 S.C.R. 707. In
Adams
, the
    Supreme Court of Canada held, at para. 30, that, as a general rule, any order
    relating to the conduct of a trial can be varied or revoked if the
    circumstances that were present at the time the order was made have materially
    changed. To be material, the change must relate to a matter that justified the
    order in the first place.