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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210408

DOCKET: (M52320) C68627

Hoy J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent (Responding Party)

and

J. M. Applicant (Moving Party)

Counsel: Jessica Zita, for the applicant Bradley Reitz, for the respondent

Heard: April 8, 2021 by video conference

Endorsement

[1] Following a nine-day trial by jury, the applicant was convicted of sexual assault and sentenced to 18 months’ custody. He was a first offender and is on bail, pending appeal.

[2] Legal Aid Ontario refused his application for legal aid coverage for an appeal on the basis that his appeal did not have sufficient merit to justify giving him a legal aid certificate. Its refusal of coverage was upheld on appeal to the Provincial Office.

[3] The applicant now seeks an order pursuant to s. 684 of the Criminal Code, appointing legal counsel Jessica Zita to assist him on his appeal. The Crown opposes.

[4] Section 684(1) provides that a judge of this court may assign counsel to act on behalf of an accused where, in the opinion of the judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. An order for government-funded counsel is exceptional relief: R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 40, reconsideration allowed, R. v. Staples, 2017 ONCA 138.

[5] The Crown does not contest, and the applicant has satisfied me, that he does not have sufficient means to obtain legal assistance. He has child support obligations and has lost his minimum wage employment because of the COVID-19 pandemic.

[6] However, I am not persuaded that it is in the interests of justice that I order legal assistance. On the applicant’s behalf, Ms. Zita takes issue with several aspects of the jury charge. The Crown characterizes the applicant’s grounds of appeal as devoid of merit. I would not go that far. But I am of the view that the issues on appeal are relatively straight forward and of a nature that can be fairly and properly dealt with by this court on an inmate appeal. I conclude this notwithstanding the applicant’s evidence that he suffered from a learning disability and, at age 30, still experiences challenges with reading comprehension and communication. In the opinion letter provided to Legal Aid Ontario and in her appeal of Legal Aid Ontario’s refusal to issue a certificate, Ms. Zita provides a careful roadmap of the arguments that she would make on appeal regarding the charge to the jury.

[7] Accordingly, this application is dismissed.

“Alexandra Hoy J.A.”