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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-07-12

Docket: M49315 (C63699)

Motion Judge: Strathy C.J.O.

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 and by supplementary written submissions

Reasons for Decision

[1] On June 29, 2018, I released reasons in this matter, stating that I was not prepared to grant leave to intervene to ALS on the material filed, but that I was prepared to reconsider the matter on a proper record: 2018 ONCA 606.

[2] In a subsequent teleconference, counsel for the proposed intervener requested and was granted an opportunity to file additional materials and a schedule was established.

[3] ALS has filed a motion record, a book of authorities, a factum on the motion to intervene and a draft of the factum it proposes to file if granted leave.

[4] The respondent has filed a factum in response to the motion. If leave to intervene is granted, it asks that it be permitted to file a factum of up to 35 pages in length, to enable it to respond to the intervener's submissions.

[5] ALS proposes to make submissions on:

a) the framework required to determine when Gladue principles apply to a particular area of law;

b) why Gladue principles should be applied in relation to the weight placed on a prior criminal record by the trier of fact;

c) how Gladue principles should be applied in the case of reliance on a prior criminal record by the trier of fact; and

d) whether these issues should be entertained by an appellate court in this case when Gladue concerns were not raised at trial.

[6] I am satisfied that proposed submissions (a), (b) and (c) will provide a useful perspective on the issues in this appeal, will be of assistance to the court on the appeal and will not cause injustice to the parties.

[7] The respondent's opposition is largely in relation to submission (d), which it characterizes as the "threshold issue". It submits that this issue does not require the perspective of an intervener and that ALS is proposing to expand the issues on appeal.

[8] As the respondent has not yet filed its factum, I cannot say whether the "threshold issue" will be in play on the appeal, but it probably will be. The intervener addresses the issue in its factum in seven brief paragraphs and cites five authorities. In my view, the court would benefit from submissions from all parties on this issue. As I am prepared to grant leave to intervene on the other issues, I cannot see that the intervener's submissions on this issue will cause prejudice.

[9] I am therefore satisfied that the proposed intervention by ALS meets at least one of the three criteria articulated in Bedford v. Canada (Attorney General), 2009 ONCA 669: ALS has an important perspective on the issues in this appeal, distinct from that of the immediate parties and it is able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[10] The motion for leave to intervene is granted on the following conditions:

a) ALS shall not supplement the record by way of its factum or otherwise and shall accept the evidentiary record prepared by the parties;

b) ALS may file a factum not more than 10 pages in length, no later than July 23, 2018;

c) ALS may have up to 20 minutes to make oral submissions, which, by consent of the appellant, will be deducted from the appellant's time allocation; and

d) ALS shall make reasonable efforts to avoid duplicating the submissions of the parties.

[11] In light of the intervention, I grant the respondent's request to file a factum of 35 pages in length.

"G.R. Strathy C.J.O."