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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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

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

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

WARNING

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

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Webster, 2016 ONCA 189

DATE: 20160307

DOCKET: C60789

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher John Webster

Appellant

Robert Sheppard, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: February 29, 2016

On appeal from the judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated July 22, 2015, granting certiorari setting aside the order of Justice Wayne G. Rabley of the Ontario Court of Justice, dated May 8, 2015, discharging the appellant.

ENDORSEMENT

1The appellant was discharged at the conclusion of a preliminary inquiry into several offences alleged to have been committed against his domestic partner. The preliminary inquiry judge was of the view that there was no evidence that the person before the court was the person who committed the offences alleged.

2The Crown applied to a judge of the Superior Court of Justice (the motion judge) to quash the discharge and have the matter remitted to the preliminary inquiry justice with a direction that the justice order the appellant’s committal. That application succeeded.

3The appellant appeals the order of the motion judge and seeks to have his discharge reinstated.

4In this court, the appellant says that what constituted the “whole of the evidence” was a question of law for the preliminary inquiry justice to decide. Even if he erred in holding that he could not consider the biographical details about the person charged contained in the information, such an error was not jurisdictional in nature, and thus not remediable on an application for an extraordinary remedy.

5As the complainant began her evidence at the preliminary inquiry, she testified that:

i. she knew Christopher Webster;

ii. Christopher Webster had been her fiancé; and

iii. she and Christopher Webster lived in the same apartment at the same address specified in the information.

The complainant did not make any dock identification because she testified in a sequestration suite not in the courtroom and had no view of the dock or of the appellant.

6It is well settled that the identity of names a complainant identifies as her assailant and the person charged constitutes some evidence of identity. It is all the more so, when the name is accompanied by an address and other biographical details: R. v. Chandra (1975), 1975 1294 (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; and R. v. B.(D.), 2007 ONCA 368, [2007] O.J. No. 1893 (C.A.), at para. 1.

7In our view, the failure of the preliminary inquiry justice to consider the identity of names as some evidence of identity amounts to a failure to consider the whole of the evidence as required by s. 548(1) of the Criminal Code. Such a failure, in our view, in the circumstances of this case, constituted a jurisdictional error and was properly remedied by the motion judge.

8The appeal is dismissed.