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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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

CITATION: R. v. R.S., 2020 ONCA 39

DATE: 20200122

DOCKET: C63906 and C63907

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S. and A.C.

Appellants

Najma Jamaldin, for the appellants

Rick Visca, for the respondent

Heard and released orally: January 20, 2020

On appeal from the convictions entered on December 1, 2016 and the sentences imposed on March 16, 2017 by Justice Michael J. Epstein of the Superior Court of Justice.

REASONS FOR DECISION

[1] After a joint trial, the appellants were convicted of numerous drugs and weapons offences. A.C. was sentenced to two years’ imprisonment after receiving 19 months’ credit for pre-sentence custody. Receiving the same credit, R.S. was sentenced to an additional six years and five months.

[2] The appellants challenge their convictions on the basis of fresh evidence. The Crown concedes that, based on this evidence, the fairness of the trial was compromised, the convictions should be set aside, and a new trial ordered. The Crown has undertaken not to re-prosecute the appellants.

[3] The nature of the fresh evidence is unusual and can be addressed briefly. Among the police officers involved in the investigation and prosecution of the appellants was R.C. The Crown acknowledges that he was “an essential trial witness.” R.C. was a member of A.C.’s adoptive family.

[4] At her bail hearing into these offences, A.C. told the justice of the peace that she had been sexually assaulted by her adoptive brother, R.C., some twenty years ago, when they were both young persons. This prompted an investigation of R.C. No charges were laid, but an Occurrence Report was generated. It was not disclosed to A.C.; however, her counsel was aware of the allegations. The record is unclear as to whether R.S.’s trial counsel was aware of the sexual assault allegations.

[5] The case proceeded to trial. R.C. was not seriously challenged by counsel for the appellants in cross-examination. The trial judge was never made aware of the relationship between A.C. and R.C. or the sexual assault allegations.

[6] Following the appellants’ convictions, there was further investigation into the sexual assault allegations. Again, no charges were laid.

[7] On appeal, A.C. has asserted in her affidavit that, as a result of the alleged assaults, she was disturbed and intimidated by R.C.’s participation in and presence at the trial, so much so that she chose not to testify in her own defence.

[8] The Crown on appeal has made thorough inquiries of the police service in question as to R.C.’s participation in the trial. By the date of the hearing of the appeal, questions remain unanswered. As the Crown states in its factum, “The respondent has no reason to doubt that the matter was being reviewed and investigated by the police service, but the Respondent chose to operate on its own timeline.” The adequacy or integrity of this investigation is not before us.

[9] In conceding the appeal, the Crown does not admit that the failure to disclose the initial Occurrence Report affected the outcome of the trial. Moreover, the Crown takes the position that it was not the trial Crown’s responsibility to advise the trial judge of A.C.’s concerns with R.C. However, the Crown, “accepts that A.C.’s fair trial interests were compromised by virtue of R.C.’s participation in the investigation and prosecution, and that an order for a new trial is justified.” With respect to R.S., the Crown concedes that, had his counsel had access to the information about the relationship between A.C. and R.C., “R.S.’s trial strategy and the trial verdicts could have been different.”

[10] We accept the Crown’s concession. We admit the fresh evidence, set aside the verdicts of guilty, and order a new trial for both appellants on the understanding that the Crown will not re-prosecute.

[11] Given the nature of the claims made in the fresh evidence that we have admitted, and in view of the ultimate result that we anticipate, it is appropriate to make an order under s. 486.5 of the Criminal Code in relation to the identity of A.C. This necessitates referring to both appellants only by their initials.

[12] We wish to acknowledge and thank Mr. Visca for the Crown for his fairness and sensitivity in the manner in which he responded to this appeal.

“David Watt J.A.”

“M. Tulloch J.A.”

“Gary Trotter J.A.”