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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2018-06-29

Docket: M49315 (C63699)

Motion Judge: Strathy C.J.O.

Parties

Between

Her Majesty the Queen Respondent

And

M.C. Appellant

And

Aboriginal Legal Services Applicant (Proposed Intervener)

Counsel

• Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener
• Candice Suter, for the respondent
• Louis P. Strezos, for the appellant

Heard: June 21, 2018

Reasons for Decision

Introduction

[1] Aboriginal Legal Services ("ALS") seeks leave to intervene in this appeal as a friend of the court.

[2] The appellant challenges the admission of his criminal record into evidence in a judge-alone trial. He submits that the systemic factors recognized in R. v. Gladue, [1999] 1 S.C.R. 688, should inform the probative value/prejudicial effect analysis when considering the criminal record of an indigenous accused under R. v. Corbett, [1988] 1 S.C.R. 670. He also submits that Gladue principles should have been applied to determine the use of the appellant's prior convictions in the assessment of his credibility.

Test for Intervention

[3] Interventions in criminal matters, where the liberty of the accused is at stake, should be granted sparingly: R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.), at p. 398. The court will consider, among other things, the nature of the case, the issues that arise and the likelihood that the applicant can make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[4] I should say at the outset that no issue is raised concerning ALS's experience and expertise in criminal law issues affecting indigenous peoples. ALS has made important contributions as an intervener in this court, the Supreme Court of Canada and other appellate courts.

[5] However, the record on this motion does not discharge the burden of establishing that ALS is able to make a useful contribution to the resolution of this appeal without causing injustice to the immediate parties.

Procedural Requirements

[6] Subsection 7.2.10.4 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario sets out the materials that must be filed on a motion to intervene:

After the date for the hearing of the motion to intervene is confirmed, the moving party must file a notice of motion, motion record, factum, and other material for use by the court. [Emphasis added.]

[7] These requirements are mandatory.

[8] A motion record is necessary to provide context for the motion, to identify the issues, the positions taken by the parties to the appeal and to enable the court to ascertain whether the contribution of the proposed intervener will inform the court's appreciation of the issues.

[9] The factum of a party seeking leave to intervene will set out, among other things, the submissions that the moving party would make at the hearing of the appeal and will demonstrate how the test for intervention is met. In some cases, it may be advisable to file a draft factum, containing the submissions that will be made if leave to intervene is granted.

[10] Needless to say, the factum assists the court in preparing for the motion and in probing the position of the proposed intervener and the respondent on the motion. It assists the court in determining whether the proposed intervener would make a useful contribution beyond that offered by the parties, without causing injustice to the immediate parties.

[11] Injustice can occur, for example, where the intervener is not simply offering a new perspective on the issues, but is raising new issues. It can also occur where the intervener's perspective is no different from the perspective being advanced by one of the parties. Deciding whether an intervener meets the conditions for intervention frequently requires a careful analysis of the submissions of the parties to the appeal and the arguments the intervener proposes to advance.

Application to This Case

[12] In this case, ALS filed only a notice of motion and an affidavit sworn by the President of its Board of Directors. It did not file a motion record to establish the context in which the issues arise, a factum setting out its submissions on the motion, or any other materials, such as a book of authorities, for the use of the court.

[13] The affidavit summarized the work done by ALS, including its extensive experience in interventions. It said nothing about the submissions or contribution ALS proposed to make in the appeal, if granted leave to intervene.

[14] The notice of motion contained three paragraphs which suggest that ALS's proposed contribution would be directed at the application of Gladue factors "during the weighing of evidence portion of a trial." ALS submits that a "finder of fact must give express consideration to the systemic factors identified in R. v. Williams, [1998] 1 S.C.R. 1128 and Gladue and its progeny when determining what inferences can be drawn from an Indigenous person's criminal record." ALS says that Gladue factors must be considered when the accused's criminal record is used to assess credibility.

[15] The respondent argues that the intervener's proposed submissions go to the weight to be accorded to the criminal record in light of Gladue factors, whereas the appellant's submissions relate to the admissibility of the criminal record and that the intervener is really raising a new issue.

[16] I do not propose to resolve this question. Notwithstanding the helpful oral submissions on behalf of ALS, the best I can say on the material before me is that the proposed intervener might be able to make a useful contribution to the appeal without prejudice to the parties. That is not sufficient.

Decision and Conditions

[17] In the particular circumstances of this case, including the importance of the issues, I have decided to permit the proposed intervener to re-submit this motion, if so advised, on a proper record and on certain conditions. As the appeal is scheduled to be argued in September and there is an existing schedule for the delivery of the respondent's factum, the appeal will have to be re-listed if the intervention motion proceeds.

[18] The conditions are as follows:

a) if the intervener wishes to proceed with the motion, and the parties do not consent to the re-listing of the appeal, counsel will, within 10 days, arrange a teleconference through the Registrar;

b) the intervener's materials will be filed within 21 days of this date or such other date as the parties may agree upon or the court may order;

c) the responding parties may file additional responding material, if so advised, within 21 days of receipt of the intervener's materials – as the Crown filed extensive materials on the motion, including a factum, it is not required to file any additional materials; and

d) the motion will be considered on the written materials filed and personal attendance will not be required.

[19] If the parties are able to resolve the motion, a draft order may be submitted with the intervener's materials, for the court's consideration.

G.R. Strathy C.J.O.