Her Majesty the Queen v. R.J., 2008 ONCA 840

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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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. R.J., 2008 ONCA 840

DATE: 20081212

DOCKET: C46955

COURT OF APPEAL FOR ONTARIO

Rosenberg and Simmons JJ.A. and Speyer J. (ad hoc)

BETWEEN:

Her Majesty the Queen

Respondent

and

R. J.

Appellant

Paul Calarco, for the appellant

John Patton, for the respondent

Heard: June 27, 2008

On appeal from the conviction entered by Justice William Festeryga of the Superior Court of Justice, sitting with a jury, dated February 15, 2007 and from the sentence imposed dated April 10, 2007.

NOTE: This decision is subject to a publication ban pursuant to s. 486.5 of the Criminal Code. The full text of this decision is not being posted, because of the difficulty of editing it to remove information that could identify the complainant while maintaining the integrity of the decision. However, the decision is available, upon request, through the Court of Appeal's registry office.

The determinative issue on this appeal is whether the trial judge erred in failing to provide an adequate answer to the jury's questions. The jury's questions concerned the facts and specifically a request for the timeline of various events. The court concluded that the trial judge did not properly answer the jury's questions regarding the timeline and it was not satisfied that the result would have been the same had the questions been properly answered.

Rosenberg J.A.:

DISPOSITION

69Accordingly, I would allow the appeal from conviction on the charges of sexual assault, set aside those convictions and the conditional stays on the other charges, and order a new trial on all the charges. In view of this disposition, it is unnecessary to deal with the sentence appeal.

Signed: “Marc Rosenberg J.A.”