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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Dyce, 2016 ONCA 397 Date: 2016-05-25 Docket: M46424 (C60818)

Before: Watt J.A.

Between:

Her Majesty the Queen Respondent

and

Wayne Dyce Applicant (Appellant)

Counsel: Wayne Dyce, acting in person Lorna Bolton, for the respondent

Heard and released orally: May 11, 2016

Endorsement

[1] The applicant seeks release pending the determination of his appeal from convictions of sexual assault and sexual assault with a weapon. He also seeks leave to appeal sentence.

[2] It is settled law in this province that second and subsequent applications for release pending appeal require an appellant to demonstrate a material change in circumstances from those under consideration on the prior application or applications. A material change in circumstances requires information that could alter the assessment of one or more of the statutory factors governing release pending appeal. See, R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A.).

[3] Mr. Dyce raises two points in his submissions about changes in circumstances. He contends that he now has obtained a copy of the decision tree provided to the jury on the count of sexual assault with a weapon. He says it is flawed because it fails to display a not guilty verdict in a box opposite a negative finding about the use of a weapon and also contains a flawed definition of "weapon", or no definition at all of "weapon" or "bodily harm".

[4] A decision tree is not a jury instruction. It is, rather, a deliberation aid to assist jurors in the deliberation process. It is the jury charge that describes and defines the constituent elements of the offences on which jurors are to deliberate. The absence of definitions or accurate definitions from a decision tree is of no moment, provided the essential elements are explained, as they were here, in the charge to the jury. "Weapon" is exhaustively defined in s. 2 of the Criminal Code as is "bodily harm". Bodily harm is not an essential element of sexual assault with a weapon.

[5] There is no material change in circumstances that would justify a fresh look at the issue of release pending appeal. The information provided, including the decision tree that was filed as a lettered exhibit at trial, is incapable of altering the assessment of any of the statutory factors governing release pending appeal, in particular, the requirement that the appeal not be frivolous.

[6] The application is dismissed.

"David Watt J.A."