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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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. R.L., 2009 ONCA 286
DATE: 20090406
DOCKET: C48518
COURT OF APPEAL FOR ONTARIO
Moldaver, Armstrong and MacFarland JJ.A.
BETWEEN:
Her Majesty the Queen
Applicant/Appellant
and
R. L.
Respondent
Elise Nakelsky, for the appellant
Dirk Derstine, for the respondent
Heard: April 1, 2009
On appeal from the order of Justice Nancy Spies of the Superior Court of Justice awarding costs against the Crown on March 5, 2008.
ENDORSEMENT
[1] An unfortunate series of events bring this case before this court.
[2] The production of a Youth Court Record was the subject of a disclosure motion before the trial judge in the Superior Court. The Crown’s position was that she was statutorily precluded from disclosing the document.
[3] The trial judge proceeded to make a declaration that the document was not caught by the provisions of the Youth Criminal Justice Act which prohibited production.
[4] Crown counsel, despite that ruling felt precluded from disclosing the record. She offered to meet with the trial judge and defence counsel in court to explain her position well before the trial was set to resume. However the trial judge declined that offer, indicating instead that any explanation should be given on January 28, the first day of trial.
[5] The Crown then suggested to defence counsel that they proceed before a Youth Court Judge in Provincial Court for an order that the document be produced. The Crown offered to accommodate defence counsel’s schedule to have the application completed before the matter was to be returned before the trial judge. Rather than insist on going back before the trial judge, counsel for the defendant accepted the Crown’s suggestion to move before the Youth Court Judge. The motion proceeded and the Youth Court Judge, although provided with a copy of the trial judge’s ruling, denied access to the document.
[6] Before the Youth Court Judge the Crown maintained its position that it was statutorily precluded from disclosing the document and that the Superior Court Judge’s declaration was of no effect because it neither ordered production of the document nor did it require the Crown to produce it.
[7] On receiving the ruling of the Youth Court Judge, the Defendant served a motion on January 24th returnable January 28th seeking various forms of relief including an order that the proceeding be stayed as an abuse of process and an order requiring the costs of the Youth Court proceeding to be paid by the Crown. The motion raised serious allegations of misconduct against the respective Crowns – the Crown with carriage of the case and two other Crowns who had taken over the file after the original Crown had undergone surgery.
[8] In the meantime, after receipt of the Defendant’s motion material, new information came to the attention of the Crown which resulted in the Crown seeking to have the charges against the accused withdrawn. The defence was notified of this development before the January 28th return date.
[9] When the matter returned before the trial judge, the Crown with carriage was unavailable as a result of her recent surgery. The substituted Crown sought an adjournment and was refused. No opportunity was given to obtain transcripts of the earlier proceedings before the trial judge or an affidavit from the Crown with carriage. The matter proceeded and findings of serious misconduct were made against the three Crowns involved and costs awarded against the Crown.
[10] The trial judge was understandably upset that she had made a ruling which she anticipated would clear the way for the Crown to make disclosure, while at the same time noting that the Crown had not given any express undertaking to do so.
[11] What the Crown did here may well have been an exercise of poor judgment but it did not amount to the type of misconduct warranting costs. This is especially so in view of the original Crown’s efforts to explain why she was not prepared to disclose the document prior to the January 28th resumption of trial and defence counsel’s failure to object to the procedure suggested by the Crown rather than insisting that the matter be returned to the trial judge.
[12] Furthermore given the short time frame, the seriousness of the allegations and the complexities of the legal issues, we are of the view that the trial judge ought to have granted the adjournment sought by the Crown.
[13] As indicated above, the trial judge was understandably upset with what she understood the Crown intended to do after she had given her interpretation of the statute. However a review of the entire record of this unfortunate case leads to the conclusion that the findings of misconduct against the various Crowns cannot stand.
[14] The appeal is allowed and the costs order against the Crown is quashed.
“M.J. Moldaver J.A.”
“Robert P. Armstrong J.A.”
“J. MacFarland J.A.”