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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Bent, 2016 ONCA 722

DATE: 20161003

DOCKET: C59544

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Bent

Respondent

Craig Harper, for the appellant

Paul Calarco, for the respondent

Heard: April 18, 2016

Supplementary reasons to the judgment in R. v. Bent, 2016 ONCA 651, released on August 31, 2016.

ADDENDUM

Gillese J.A. (concurring):

[1] This appeal was argued and decided on a mistaken record. Out of fairness to the trial judge, as well as the parties, that mistake needs to be corrected.

[2] The appellant was acquitted of charges of assault, sexual interference, sexual assault, uttering threats, and forcible confinement arising out of allegations involving a 15-year old complainant in July 2009. At trial, the Crown brought a similar fact application relating to the appellant’s 2011 conviction for a sexual offence involving a 14-year old victim. The trial judge dismissed the application and promised that detailed reasons would follow.

[3] The Crown appealed the acquittal. Its factum on the appeal mistakenly stated that the trial judge had never provided the promised reasons and one of its two grounds of appeal was the inadequacy of the trial judge’s reasons for dismissing the application. Through inadvertence, defence counsel had never received a copy of the reasons so counsel for the respondent also understood that the trial judge had never provided the promised reasons.

[4] Consequently, the appeal was argued by counsel for both parties and decided by this court on the mistaken premise that the trial judge had failed to give detailed reasons for dismissing the application.

[5] This court released its decision in respect of the appeal on August 31, 2016. Very shortly thereafter, it was made aware that the trial judge had in fact delivered the promised reasons. Those reasons are now before the court. In addition, the court has received written submissions by both parties on how it ought to deal with the matter of having heard and decided the appeal on the basis of the incorrect record.

[6] As the majority would have dismissed the appeal, the enhanced record only reinforces its determination of the appeal. I would have allowed the appeal on the basis of the inadequacy of the reasons. On the basis of the rectified record, however, I would dismiss the appeal.

[7] A trial judge’s determination of a similar fact application is entitled to substantial appellate deference: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153. The Crown has not pointed to any specific error in the trial judge’s reasons and, having reviewed those reasons, I see none.

[8] Accordingly, deference is owed to the trial judge’s determination of the application. For these reasons, I concur that the appeal should be dismissed.

Released: October 3, 2016 (“G.R.S.”)

“E.E. Gillese J.A.”