Publication Ban Warning
WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.
Publication Restriction Order
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: 20211101 DOCKET: C67417
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
K.C. Appellant
Counsel: Phillip Millar, for the appellant Hannah Freeman, for the respondent
Heard and released orally: October 26, 2021 by video conference
On appeal from the conviction entered by Justice Norman S. Douglas of the Ontario Court of Justice on August 20, 2019.
Reasons for Decision
[1] This is an appeal from a conviction for sexual assault. The matter proceeded under the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”) . The complainant, her friend, and the accused testified, as did a couple of other witnesses. The case turned entirely on an assessment of credibility.
[2] Section 142 of the YCJA provides that proceedings in youth justice court are generally governed by provisions applicable to summary conviction offences found in the Criminal Code , R.S.C., 1985, c. C-46, except where they are inconsistent with the YCJA . The respondent acknowledges that those provisions include s. 802(3) of the Criminal Code , requiring that every witness “shall be examined under oath.”
[3] Section 14 of the Canada Evidence Act , R.S.C., 1985, c. C-5, provides an alternative to an oath by way of solemn affirmation:
14(1) A person may, instead of taking an oath, make the following solemn affirmation:
I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.
(2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath.
[4] The respondent accepts that the most critical witnesses in this trial – the complainant, her friend, and the appellant – were neither sworn nor affirmed in accordance with the statutory requirements. Even so, the respondent argues that s. 686(1) (b)(iv) of the Criminal Code can be applied to cure what is described as a procedural irregularity, given that the witnesses who were 16 and 17 years of age at the time understood the need to tell the truth even though they were not placed under oath or affirmed: see R. v. Esseghaier , 2021 SCC 9 , 454 D.L.R. (4th) 179, at para. 39 . [1]
[5] In our view, this is not an appropriate case in which to apply the procedural proviso.
[6] We do not accept in this case, one that turned completely on the credibility of the unsworn and unaffirmed witnesses, that the failure to administer oaths or affirmations was as benign as suggested. The respondent is right to point out that there were some limited exchanges with the Crown witnesses, who testified by video link, about whether they would “promise” to tell the truth and the legal nature of a promise. As for the appellant, he was asked if he wanted to “take an oath on the Bible or would… prefer a promise”. He responded, “Yeah, promise.”
[7] While we accept the respondent’s observation that everyone in the courtroom proceeded as though the witnesses had been properly affirmed, they were not and, in our view, the casual manner in which the promises were made, including answers such as “yeah” and “okay” in response to general questions about whether the witnesses were “comfortable” with promising or whether they understood that a promise is legally binding, did not in the circumstances of this case act as a “functional equivalent” of an oath or affirmation, as the Crown submitted.
[8] Therefore, despite the respondent’s capable arguments, we are not able to conclude that the accused suffered no prejudice in this case.
[9] The conviction appeal is allowed and a new trial is ordered.
“Fairburn A.C.J.O.”
“Paul Rouleau J.A.”
“Grant Huscroft J.A.”
[1] The respondent also acknowledges that there is some uncertainty as to whether s. 686(1)(b)(iii) might also be used to proviso an error relating to the swearing or affirming of witnesses. We agree, with the respondent’s submission, that this issue need not be resolved in this case.