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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-04-05

Docket: M48924 (C56862)

Panel: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Rene Contreras Appellant

and

Virgil Cojocaru Applicant

Counsel

• Robin Parker, for the applicant
• Christine Bartlett-Hughes, for the respondent
• Anthony Moustacalis, for the appellant

Heard: March 26, 2018

Motion for directions.

Reasons for Decision

[1] This is a motion for directions brought on behalf of the impugned counsel in an appeal alleging ineffective assistance.

[2] The applicant's motion originally sought an order granting him intervener status. It was for that reason the case management judge referred the motion to a panel of the court. The applicant then changed the relief sought on this motion. He now wants to wait to determine whether he will seek intervener status until after reviewing the transcripts of the cross-examinations on the affidavits filed with respect to the issue of ineffective assistance, including of the cross-examination of his former principal and others. On this motion he now seeks an order that he is entitled to copies of those transcripts.

[3] Although the current request should have been raised with the case-management judge in accordance with this court's protocol, in light of the delays occasioned thus far and the consent of all counsel, the motion proceeded before the panel.

[4] The basis for the applicant's request is twofold: (i) he wishes to review the transcripts in order to assess the potential for a motion to intervene; and (ii) he wants the information to be able to clear his name.

[5] In our view, neither of these reasons support the order sought.

[6] On the record before us, there is no potential for a successful motion to intervene. Although the threshold for a merit assessment at this stage is low, the applicant has failed to reach it. We see no potential basis that would support a motion for intervener status.

[7] The right to intervene in criminal proceedings should be granted sparingly: R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.), at para. 398. The issue on this appeal is whether there has been a miscarriage of justice such that the appellant should have a new trial. The applicant seeks to inject a collateral issue into the process. This is evident from the Motion for Directions, which states, in part:

The applicant's position is that he did not ineffectively assist the appellant, but if he did, that responsibility is shared with his former articling principal and mentor.

[8] This issue is not before the court on the appeal, which is not a forum for resolving disputes between the applicant and his former principal.

[9] To the extent that the applicant has an interest in protecting his personal and professional reputation, this Court's Practice Direction pertaining to allegations of ineffective assistance of counsel provides him with a process that appropriately protects those interests.

[10] Further, involvement of the applicant as intervener would cause prejudice to the appellant. The conviction under appeal was entered on January 14, 2013. The appellant has been on strict bail conditions and is entitled to have his appeal heard expeditiously. It would also require the appellant to, in effect, respond to two Crowns and potentially put the applicant at odds with his duty of loyalty to the appellant.

[11] In short, there is no basis to order that transcripts be available to a non-party to support a meritless intervener motion. There is also no basis to provide the transcripts to support the appellant's attempt to inject a collateral issue into the appeal process.

[12] Accordingly the motion is dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

Sachs J.