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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Graham, 2013 ONCA 652

DATE: 20131030

DOCKET: M42387 (C50624)

Rosenberg, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Graham

Applicant/Appellant

Dale Graham, appellant in person

Jill Copeland, amicus curiae

Alison Wheeler, counsel for respondent

Heard: October 11, 2013

On an application for an order pursuant to s. 683(1)(b) of the Criminal Code of Canada for the examination of witnesses be examined before a judge of the Court of Appeal or before a special examiner.

ENDORSEMENT

[1] We have had the benefit of an extensive record, submissions from amicus, a lengthy affidavit from the appellant, lengthy submissions from the appellant and submissions from Crown counsel. We have carefully considered this matter and this material. We are satisfied that this application under s. 683 of the Criminal Code must be dismissed.

[2] We accept that the s. 683 test embraces two categories of evidence: evidence that could be admissible as fresh evidence and evidence that could assist in developing material that will be admissible as fresh evidence. The application in this case meets neither criteria. Any application under s. 683 must be measured against the uncontroverted facts at trial that are not subject to challenge. In this case, there was simply no dispute that child pornography was found in the applicant’s computer. Much of the proposed fresh evidence centres on evidence that would simply be irrelevant given the undisputed facts. Other proposed evidence is redundant or mere speculation. There must be some “reasonable possibility”, and for the reasons set out in detail in the Crown’s careful submissions, this evidence does not meet the test and the proposed examinations do not meet the reasonable possibility test.

[3] Accordingly, the application is dismissed.

Released: “MR” October 30, 2013

“M. Rosenberg J.A.”

“P.S. Rouleau J.A.”

"G.R. Strathy J.A."