Important Notice Regarding Publication Bans

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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240723 Docket: M55255 (C69815)

Before: Simmons, Hourigan and Paciocco JJ.A.

Between: His Majesty the King, Moving Party and Jeffrey Reimer, Responding Party

Counsel: Dana Achtemichuk, for the moving party James Lockyer and Jason Dickson, for the responding party

Heard: in writing

Reasons for Decision

[1] After consulting with the complainant’s counsel, the Crown moves for an order granting a publication ban relating to this panel’s decision in R. v. Reimer, 2024 ONCA 519. This decision, which overturned Mr. Reimer’s sexual assault conviction because of errors by the trial judge in dismissing his application under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, includes references to evidence of other sexual activity ( i.e. , sexual activity other than the sexual activity that was the subject-matter of the charge) that Mr. Reimer sought to have admitted at trial. In light of this and the Supreme Court of Canada’s recent decision in R. v. T.W.W., 2024 SCC 19, which addressed issues relating to court openness in appeals of s. 276 determinations, the court released its decision on the appeal to the parties only on July 2, 2024, and asked the parties to advise within seven days whether they would be seeking a discretionary publication ban. Mr. Reimer advised that he would not be seeking a discretionary publication ban. The Crown advised that it would be and filed its motion for the publication ban on July 16, 2024. In its motion, the Crown is seeking an order “prohibiting the publication, broadcast or transmission of any information about or reference to the nature of the sexual activity of the complainant which is at issue in this proceeding, other than that which forms the subject-matter of the charge.” [1] Mr. Reimer took no position on the motion. This court has implied jurisdiction to make the order requested: T.W.W., at para. 68. However, we are not satisfied that the requested publication ban is necessary to balance the competing interests at stake. Accordingly, we dismiss the motion.

[2] Publication bans compromise the open court principle, therefore the discretion to impose publication bans should not be exercised lightly: T.W.W., at para. 69. Publication bans at the appeal level should therefore be “exceptional”: T.W.W., at para. 73, quoting Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 63. The evaluation of publication ban motions begins with the presumption that courts will be open and that their decisions will be available for publication: T.W.W., at para. 71. The test articulated in Sherman Estate is to be applied, drawing on the legislative context and objectives of the s. 276 regime and the complainant’s right of privacy and the interests of justice, to determine whether that presumption has been overcome, and the onus of doing so rests with the moving party: T.W.W., at paras. 71-72. This Sherman Estate test, at para. 38, provides that the moving party must establish three things:

(1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[3] The first component of the test is met. Publication of the other sexual activity evidence in this case poses a serious risk to the complainant’s personal privacy and dignity, and these are important public interests: T.W.W., at para. 74.

[4] However, the second component of the test is not met. In the particular circumstances of this case, the risks that the publication of the decision poses to the complainant’s dignity and privacy have been materially mitigated by the fact that the complainant’s name has been anonymized in the decision, unnecessary biographical information has been eliminated, the complainant had no prior or subsequent relationship with Mr. Reimer other than through private communications, and Mr. Reimer does not live in the same city as the complainant. Moreover, the s. 276 application before trial was conducted in camera, and the contents of the application as well as the evidence, the argument and the decision on the application were all subject to a publication ban below. In the circumstances, although evidence of other sexual activity involving the complainant will be published, there is little risk that this evidence will be linked to her. We recognize that the low risk that the complainant will be linked to this evidence may not entirely alleviate the complainant’s anxiety over the publication of the decision. However, we are not satisfied that the requested publication ban is necessary. The serious risk to privacy and dignity has been addressed sufficiently by the alternative measures described.

[5] The third component of the test is decisive against the requested publication ban since the benefits of the ban would not outweigh its negative effects. We have already described the mitigated negative effects of publication on the complainant’s privacy and dignity. In contrast, the negative effects that the requested publication ban would have on the open court principle are not mitigated, but significant.

[6] First, a number of the grounds of appeal addressed in this decision turn on relevance determinations, which, by their very nature, are based on the specific facts of the case. Unless the select factual details of the other sexual activity evidence identified in the decision are made available to the public, public scrutiny of this court’s decision will not be possible. The open court principle exists to ensure that justice can be seen to be done. The justness of this decision will remain opaque if the requested publication ban is imposed, and justice will not be seen to be done.

[7] Second, this decision addresses complex issues about the reach of the prohibited inference relating to consent, an issue on which lower courts require guidance. Once again, this court’s assessment of the nature of the inferences being drawn is based on a close examination of the other sexual activity evidence. The illustrative and precedential value of the decision on this point will be largely undermined if the requested publication ban is granted. The comments made by O’Bonsawin J. for the majority in T.W.W., at para. 79, relating to the role of the Supreme Court of Canada apply without modification to the decisions of this court: “Reasons from, and hearings before, this Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value which, through the principle of stare decisis, binds and guides lower courts in the consistent application of the law.” We do not suggest that this consideration will always trump the privacy interests of a complainant in s. 276 cases, but this particular decision addresses issues of conceptual difficulty that require appellate guidance. Given that its resolution turns so closely on the facts, the benefit of that guidance will be diminished, if not lost, by the order requested.

[8] In our view, the measures taken to protect the identity of the complainant so that she is not linked to the other sexual activity evidence contained in the decision appropriately balance the competing interests, whereas the publication ban would not be proportional.

[9] The motion is dismissed. Since our reasons on the motion do not refer to the nature of the other sexual activity evidence, they will be published in the normal course. The court’s decision on the appeal, R. v. Reimer, 2024 ONCA 519, which does refer to the nature of the other sexual activity evidence, will be published in full 10 days after the release of these reasons unless the Crown notifies us beforehand of its intention to appeal this motion decision.

“Janet Simmons J.A.”

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

Footnote

[1] The wording of this proposed order is the same as the wording of the order made by the Supreme Court of Canada in T.W.W., at para. 82.