W A R N I N G
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), (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, 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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(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 significant 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) society’s 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.
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. 205, c. 32, s. 15.
CITATION: R. v. Stroud, 2007 ONCA 697
DATE: 20071012
DOCKET: C46960
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
NATHANIEL SHAW STROUD
Appellant
Paul Calarco for the appellant
Christopher Webb for the respondent
Heard and endorsed: October 10, 2007
On appeal from conviction by Justice Kenneth E. Pedlar of the Superior Court of Justice dated July 7, 2005 and sentence imposed November 16, 2006.
APPEAL BOOK ENDORSEMENT
Moldaver and Armstrong JJ.A.:
1The trial judge left the defence of honest but mistaken belief with the jury when he should not have. There was no basis in fact or law to leave it since on this record, there is nothing to indicate that the appellant took any steps, let alone reasonable steps, to ascertain whether the complainant was consenting to his sexual advances.
2In any event, in our view, the similar fact evidence led by the Crown was admissible to show a pattern of bizarre sexual behaviour, a component of which was the appellant’s complete indifference as to whether the complainant was consenting or not. As such, the impugned evidence went to show a specific propensity and did not engage impermissible general propensity reasoning. Accordingly, the appeal from conviction is dismissed.
3The appellant did not pursue his sentence appeal. That appeal is dismissed as abandoned.
Feldman J.A. (concurring):
4I agree that the trial judge erred in leaving the defence of honest but mistaken belief in consent in this case. There was no air of reality to the defence. The appellant did not testify and there is no suggestion that the appellant took any reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting.
5I do not agree however, that the similar act evidence was admissible in this case. It was not admitted to go to the mens rea of the appellant nor could it since he pled guilty on the previous occasion and never raised a defence of honest but mistaken belief in consent.
6In the circumstances, I would have allowed the Crown to amend its factum to ask this court to apply the proviso. However, in light of the disposition of the majority, that need not be done.