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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.

CITATION: R. v. Floria, 2009 ONCA 117

DATE: 20090206

DOCKET: M37167-C49629

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Respondent on Appeal)

and

Ioan-Florin Floria

Respondent (Appellant on Appeal)

Shawn Porter, for the applicant (respondent)

Ioan-Florin Floria, appearing in person

Heard and orally released: February 2, 2009

On appeal from the order of Justice Croll of the Superior Court of Justice released October 14, 2008.

ENDORSEMENT

[1] The appellant faces several criminal charges. The proceedings are presently at the preliminary inquiry stage.

[2] The appellant is self-represented. The Crown sought certain undertakings from the appellant as a condition precedent to making disclosure. No agreement could be reached between the parties as to the terms of any undertaking that the appellant might give.

[3] The Crown brought a motion in the Superior Court for directions. Croll J. made an order requiring the appellant to provide a certain undertaking as a condition precedent to obtaining the disclosure proffered by the Crown. The appellant has purported to appeal that decision.

[4] The Crown moves to quash the appeal on the basis that this court has no jurisdiction to hear an appeal from the order of Croll J. The right of appeal to this court is statutory. In criminal matters, the right of appeal must be found in the Criminal Code: see s. 674. The only possible statutory source for this appeal is s. 784. That section reads:

An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.

[5] The motion for directions brought by the Crown before Croll J. was not a proceeding by way of mandamus certiorari or prohibition. While it could be said that there is some similarity between the motion for directions and prerogative writ motions in that both seek the assistance of the Superior Court in the exercise of its supervisory jurisdiction over the lower courts, that similarity cannot turn a motion for directions into a motion for one of the prerogative writs described in s. 784.

[6] Mr. Floria has argued that in fact this was a motion in the nature of mandamus because the motion sought to compel him to provide an undertaking. Mandamus is a term used to describe an order seeking to compel a statutory body or an inferior court to exercise a power that that statutory body or inferior court has. Mandamus cannot be directed to compel an individual to do something, as for example to sign an undertaking in order to obtain necessary disclosure. This was not a mandamus motion or anything akin to a mandamus motion.

[7] We agree with the Crown’s motion that this court has no jurisdiction to hear the appeal brought. The appeal is quashed and the matter remitted to the provincial court for the preliminary inquiry.

“Doherty J.A.”

“J. Simmons J.A.”

“E.E. Gillese J.A.”