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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(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).

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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mennes, 2013 ONCA 567

DATE: 20130917

DOCKET: M42590 (C34654)

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emile Marcus Mennes

Appellant

Emile Marcus Mennes in person

Michael Bernstein for the respondent Crown

Motion to reinstate an appeal

Heard: September 11, 2013

BY THE COURT

[1] The appellant moves for an order to reinstate his appeal against conviction and sentence.

[2] The appellant was convicted of sexual assault, sexual interference, and sexual touching on January 25, 1996 and given an indeterminate sentence on November 13, 1996.

[3] The appellant appealed conviction and sentence. This court appointed senior counsel to represent the appellant but when that counsel was unable to obtain adequate instructions from the appellant, the appointment was rescinded, the appeal was converted to an inmate appeal and the same counsel was appointed as amicus curiae.

[4] The appellant abandoned the inmate appeal on September 23, 2003.

[5] In November 2004 the appellant asked to have the appeal reinstated. He was given leave to do so, but on certain terms, including filing a factum by March 31, 2005. He received two extensions of that date and the court ordered that he be provided certain materials. He failed to provide the factum or any satisfactory explanation for his failure to do so and, accordingly, his motion to reopen the appeal was dismissed by a panel of this court on November 23, 2005.

[6] In the motion now before the court, the appellant submits that he should be permitted to reopen the appeal on the ground that the Ministry of the Attorney General fraudulently concealed relevant case law and that, but for that concealment, his appeals against conviction and sentence would have been successful.

[7] In our view, there is no merit to this motion.

[8] Assuming, without deciding, that we still have jurisdiction at this point to reopen the appeal, the appellant has failed to establish grounds that would justify granting that relief.

[9] The contention that the Ministry of the Attorney General fraudulently concealed case law is without merit.

[10] First, as we have already indicated, it was for the appellant to take the necessary steps to bring his appeal forward. He abandoned the appeal and then failed to take the steps he was required to do in order to have it reopened. As the appeal was never presented to the court, the matter never reached the stage at which it would be for Crown counsel to live up to their well-recognized duty to bring relevant authorities to the court’s consideration.

[11] Second, the authorities the appellant claims were “concealed” reflected well known and well recognized legal principles of which the court, had it had occasion to consider the appeal, would certainly have been aware.

[12] Finally we observe that the appellant referred us to the passage in the trial transcript relating to his opening of his defence which he identified as the key element to his contention that the judge was biased and that he was denied natural justice. The judge invited the appellant “to make a brief outline of the defense case, but no more”. We have reviewed that transcript and we see no error on the part of the trial judge, nothing that could give rise to a reasonable apprehension of bias and nothing that could constitute a denial of natural justice.

[13] For these reasons the motion to reinstate the appeal is dismissed.

“Alexandra Hoy A.C.J.O”

“M. Rosenberg J.A.”

“Robert J. Sharpe J.A. ”

Released: September 17, 2013