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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. C.D.H., 2014 ONCA 183

DATE: 20140307

DOCKET: M43410

Hourigan J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

C. D. H.

Respondent

Jennifer Woollcombe, for the applicant

Celine Dostaler, for the respondent

Heard: March 5, 2014

Motion for extension of time.

[As transcribed from the handwritten endorsement on the back of the Application Record.]

ENDORSEMENT

[1] The Crown brings an application to file an appeal of certain acquittals ordered by the trial judge. The primary ground of appeal is a reasonable apprehension of bias based on a conversation that the investigating officer had with the trial judge in chambers after the release of the trial judge’s reasons.

[2] The test for an extension for the Crown in these circumstances is the interests of justice, having regard to factors such as whether the Crown formed a bona fide intention to appeal during the relevant time period, whether reasonable diligence was used in locating the party for service, whether the respondent would suffer undue prejudice and whether there is an arguable appeal: see, R. v. Watkins, 1999 1374 (ON CA), [1999] O.J. 2314 (C.A. In Chambers). This is not a rigid test. The focus is on the interests of justice. The failure of the Crown to establish any one of the factors is not an absolute bar to an extension of time: R. v. Wa, [2013] O.J. No. 6034 (C.A. In Chambers).

[3] The Crown quite properly admits that no intention to file an appeal was formed during the requisite time period. However, I am satisfied that the Crown intended to seek some form of redress to deal with this issue. They mistakenly thought that a mistrial application was available.

[4] I am of the view that the respondent will not suffer any undue prejudice by reason of the 12 day delay. Any prejudice arises from the appeal itself and not the delay.

[5] Turning to the merits of the appeal, I am satisfied that the Crown has established, at the very least, that there is an arguable appeal on the merits. In this regard, it must be noted that this was a case where the complainant’s credibility was a significant issue. The reported conversation between the trial judge and the investigating officer touches upon the complaint’s credibility in a significant way.

[6] I conclude that it is in the interests of justice to grant the extension. This is a case where very serious issues have been raised; issues that go to the heart of trial fairness. The Crown made a mistake in terms of the appropriate remedy, however the Crown has also acted responsibly and professionally in dealing with a very difficult and very sensitive matter. This is a case that should proceed before this court. It would not be in the interests of justice to prevent this case from proceeding by reason of a simple mistake regarding the appropriate remedy.

[7] The application is granted. The Crown will have till March 14, 2014 to file its Notice of Appeal. Service of the Notice of Appeal may be made on the respondent’s lawyer of record, Celine Dostaler, and need not be made personally on Mr. H.

“William Hourigan J.A.”