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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20200218 DOCKET: M51269

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Responding Party

and

K.V. Moving Party

Counsel: Kristin Bailey, for the moving party Kevin Rawluk, for the responding party

Heard: February 7, 2020

REASONS FOR DECISION

[1] K.V. is currently being tried in the Ontario Court of Justice on sexual offence charges relating to his young daughter, the complainant.

[2] After evidence in the trial was completed on May 29, 2019, K.V. launched an abuse of process application before the trial judge. K.V. claims that an abuse of process occurred during the trial when, in violation of a court order, and contrary to the Rules of Professional Conduct of the Law Society of Ontario, the investigating officer, who had already testified as a witness in the proceeding, was directed by the prosecuting Crown counsel to question the complainant about her testimony while the complainant was still under cross-examination.

[3] The abuse of process hearing was scheduled to be heard on August 16, 2019. On that day, it was adjourned because neither the prosecuting Crown counsel nor the investigating officer were present; defence counsel had anticipated they would be present. The trial judge refused an invitation from the Crown to resolve the motion on the paper record, commenting that more context could be acquired from oral evidence, and the hearing was adjourned.

[4] On October 4, 2019, K.V. obtained and served a subpoena on the prosecuting Crown counsel to give evidence at the re-scheduled abuse of process hearing, set to be heard on December 2, 2019. On November 19, 2019, prosecuting Crown counsel succeeded in having that subpoena quashed by a Superior Court judge.

[5] K.V. quickly applied for legal aid to facilitate an appeal of that order. The legal aid application was delayed but finally approved on January 24, 2020. K.V. is now ready to file his notice of appeal and has applied before me for an extension of the time to file the notice of appeal.

[6] The Crown concedes that K.V. had a bona fide intention to appeal during the requisite period and has explained the delay in not filing the appeal. However, the Crown contends that K.V. has not established that the extension is in the interests of justice because his appeal lacks merit and is delaying the completion of a sexual offence trial involving a minor.

[7] I do not agree with the Crown that the appeal is frivolous. I accept that context and statements made by the prosecuting Crown attorney on the record support a strong inference that the Crown acted as he did in order to determine whether to maintain his objection under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, to a line of questioning defence counsel was pursuing. However, this alone does not render the appeal meritless.

[8] First, the Superior Court judge exercised his discretion to quash the subpoena, in part, on the basis that Crown discretion must be protected. K.V.’s contention that this was erroneous because the Crown was not exercising protected discretion when acting illegally and contrary to a court order is not without merit.

[9] Second, the Superior Court judge concluded that the subpoena was a fishing expedition, bereft of a reasonable likelihood that the prosecuting Crown attorney would have relevant evidence to give. However, K.V.’s contention that the seriousness of the apparent breaches that occurred will be relevant to the outcome of the abuse of process application is not without merit, and as the trial judge had recognized, the prosecuting Crown attorney is likely to give relevant evidence. That evidence could include testimony about what consideration, if any, he gave to the trial judge’s ruling and to his ethical obligations before instructing the investigating officer. These things could affect the seriousness of any breaches that may have occurred.

[10] Finally, the Superior Court judge did not find there to be extraordinary circumstances warranting the subpoenaing of a prosecuting Crown attorney. There may be merit in K.V.’s contention that this “extraordinary circumstance” standard was either met, or does not apply where there is a manifest breach of a court order and a rule of professional conduct by a prosecuting Crown attorney.

[11] I do appreciate the Crown’s concerns about delay in the prosecution of a sexual assault trial involving a minor. And it may be that defence counsel aggravated the delay by taking inadequate steps to attempt to ensure the timely attendance of the prosecuting Crown attorney at the scheduled abuse of process hearings. However, I make two points.

[12] First, K.V. has a right of appeal from the Superior Court judge’s decision. He is therefore entitled to delay the trial to exercise his right of appeal even though it is a serious sexual assault prosecution involving a minor. The primary focus on this application should be on the delay caused in filing the notice of appeal and that delay has been explained.

[13] Second, the delay that is occurring, including the delay in having the abuse of process hearing conducted, has not delayed the testimony of the young complainant. Her evidence is completed.

[14] I appreciate the heightened public interest in completing charges of this kind; however, I am satisfied that it is in the interests of justice for K.V. to be given an extension of time to file the notice of appeal.

[15] I understand that the notice of appeal is ready to go, and that K.V. can file the notice of appeal on short notice. I would order that the notice of appeal be filed within 3 business days of the release of this decision, and that he perfect his appeal within 30 days of the filing of the notice of appeal.

[16] I will not order the Crown to file its response materials in an expedited manner but would encourage that to occur.

“David M. Paciocco J.A.”