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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. S.M., 2014 ONCA 728

DATE: 20141021

DOCKET: C56946

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

S.M.

Respondent

Ian Bulmer, for the appellant

David Humphrey and Cody Cornale, for the respondent

Heard and released orally: October 15, 2014

On appeal from the acquittal entered on March 27, 2013 by Justice Giselle M. Miller of the Superior Court of Justice.

ENDORSEMENT

[1] The Crown’s principal ground of appeal is that the trial judge erred by failing to give effect to the “on or about” language in the indictment. We do not agree. Although the trial judge did not specifically refer to these words, her reasons show that she considered them. In substance she concluded that in the light of the way the case was presented, an expansive interpretation of the words “on or about” would work an injustice. There was an ample basis to support her conclusion.

[2] The defence put forward an alibi for the actual date specified in the indictment – June 25, 2010. The Crown had every opportunity to ask the complainant when the incident took place or even whether it took place on a date other than June 25. Yet the Crown did neither. And the Crown had every opportunity to test the respondent’s denial by asking about another date. Yet the Crown did not do so. Finally, the Crown did not seek to amend the indictment until closing submissions. Had it asked any of these questions or sought an amendment earlier, the defence may well have been different.

[3] The context is critical in assessing “on or about” language in an indictment. Here, given the way the case was presented, to expand the timeframe of the indictment in the way the Crown contends would be unfair.

[4] The Crown’s alternative argument is that the trial judge erred by refusing to amend the indictment. We do not accept this argument. We agree with the trial judge that the Crown’s request to amend only in closing submissions was too late, and to then grant the amendment would have prejudiced the respondent.

[5] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“G. Pardu J.A.”