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. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
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.
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.
R. v. M.J.O., 2007 ONCA 319
DATE: 20070430
DOCKET: M34986, C43839 & C44591
COURT OF APPEAL FOR ONTARIO
SHARPE, BLAIR and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Applicant/Appellant
And
M.J.O.
Respondent
Howard Leibovich for the Crown
M.J.O. on his own behalf
HEARD: April 26, 2007
ENDORSEMENT
[1] The Crown moves for an order: (1) permitting it to file an extended factum of 42 pages; (2) appointing amicus curiae.
[2] The respondent opposes the appointment of amicus and adamantly argued that he had been deprived of the files he compiled during the trial proceedings.
[3] We are advised by the Crown that the respondent’s files are being preserved at the Brampton courthouse and that they are available and can be provided to the respondent. The respondent has the right to argue his own case and he should be provided with his files.
[4] We are satisfied, given the complexity of the record, that the Crown should be permitted to file an extended factum of 42 pages and so order. The respondent is entitled to file a factum of the same length.
[5] We are also satisfied that it would be difficult for the panel hearing this appeal to do justice to the issues without the assistance of amicus. Accordingly order to go appointing Mr. Phil Downes as amicus; fees and disbursements of amicus to be paid by the Crown.
[6] Given the complexity of this appeal, we direct that this matter be spoken to at the June 19 2007 sittings in Kingston with a view to ensuring that it proceeds in an orderly and expeditious manner by
(1) setting a time for the delivery of all materials;
(2) fixing the time for oral argument; and
(3) setting a date for the hearing of the appeal.
[7] The Crown, the respondent and amicus (should amicus choose to participate in the June 19 hearing) are to be given no longer than 15 minutes each on that date to make any and all submissions they have relating to these issues.
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
“S.E. Lang J.A.”