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. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged; or
(d) if he or she is ordered to stand trial, the trial is ended.
539(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
539(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction
539(4) [Repealed, 2005, c. 32, s. 18(2).]
R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).
486.4(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.
486.4(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.
486.4(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.
486.4(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.
486.4(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.
486.6(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
Date: 2017-02-15
Docket: C62502
Panel: Hoy A.C.J.O., Doherty and Miller JJ.A.
Between
Her Majesty the Queen Appellant
and
L.F.P. Respondent
Counsel: Jessica Smith Joy, for the appellant Dominic Lamb, for the respondent
Heard and released orally: February 10, 2017
On appeal from: The decision, dated July 20, 2016, by Justice Maranger of the Superior Court of Justice, dismissing an application for certiorari and mandamus in relation to the ruling of Justice Fornier, dated June 18, 2015.
Endorsement
[1] In oral argument, although not in his factum, counsel for the respondent concedes that the six-count indictment presently before the trial judge is properly preferred by the Crown under s. 574.1(b). Count six in the indictment is identical to count five in the information. The preliminary inquiry judge discharged the respondent on count five and it was that order that led to these proceedings.
[2] Given the position taken by counsel today, we think that the best and, more importantly, most expeditious course is to dismiss the Crown appeal as moot and direct that the trial proceed on the indictment as presently preferred and lodged in the trial court. Counsel for the respondent, who is trial counsel, has made it clear that he will not challenge the indictment in the trial court.
[3] We will, however, comment briefly on the merits of the appeal, as in our view the preliminary inquiry judge did fall into jurisdictional error. The preliminary inquiry judge failed to consider all of the evidence relevant to count five as that count was amended by the Crown. After the amendment of count five, the allegation in that count was not tied to any specific sexual act, including the alleged act of anal intercourse that had been the subject of count five before it was amended. Count five as amended alleged a continuing sexual assault over a three-year time period in both Ontario and Quebec. A single charge of sexual assault can refer to numerous acts which are all part of the same transaction, e.g. see R. v. Sandhu (2009), 242 C.C.C. (3d) at 262.
[4] The complainant testified at the preliminary inquiry that he was regularly sexually abused by the respondent over some three years. On his evidence, the abuse occurred in Quebec at the respondent's cottage and in Ottawa. On his evidence, the abuse was part of an ongoing relationship in which the respondent gave the complainant money and other gifts.
[5] On any view of the evidence adduced at the preliminary inquiry, there was a basis upon which a trier of fact could conclude that the complainant was regularly and repeatedly sexually abused by the respondent over the time period set out in the information and that the abuse constituted a single ongoing transaction, some of which had occurred in Ontario. The preliminary inquiry judge should have committed for trial on count five.
[6] The appeal is dismissed as moot.
"Alexandra Hoy A.C.J.O."
"Doherty J.A."
"B.W. Miller J.A."