WARNING

The President of the panel hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240826 DOCKET: M55295 (C69815) Simmons, van Rensburg and Thorburn JJ.A.

BETWEEN

His Majesty the King Moving Party

and

Jeffrey Reimer Responding Party

Dana Achtemichuk, for the moving party Jessica Zita, for the responding party

Heard: August 15, 2024

REASONS FOR DECISION

Introduction

[1] The Crown moves for a stay and temporary publication ban pending a proposed application for leave to appeal to the Supreme Court of Canada, and if leave is granted, the appeal.

[2] In its motion, the Crown confirms that it intends to seek leave to appeal two decisions of this court:

• this court’s July 2, 2024, decision in R. v. Reimer, 2024 ONCA 519 (the “substantive decision”), setting aside Mr. Reimer’s convictions for sexual assault-related offences and ordering a new trial; and
• this court’s July 23, 2024, decision in R. v. Reimer, 2024 ONCA 588 (the “publication ban decision”), declining the Crown’s request for a discretionary publication ban in relation to the substantive decision in accordance with R. v. T.W.W., 2024 SCC 19.

[3] In the substantive decision, this court determined that the trial judge erred in dismissing Mr. Reimer’s application to admit evidence at trial of other sexual activity ( i.e. , evidence of sexual activity other than the sexual activity that formed the subject matter of the charge) under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. While this court held that the trial judge made errors in dismissing Mr. Reimer’s application, it did not determine admissibility. The other sexual activity Mr. Reimer sought to have admitted at trial consisted of sexualized text messages he and the complainant exchanged in the weeks leading up to their meeting when the conduct forming the subject matter of the charges took place. In addition to generalized descriptions of this other sexual activity, paragraphs 66-68 of the substantive decision reproduce verbatim some of the sexualized text messages.

[4] In the publication ban decision, this court declined the Crown’s request for a discretionary publication ban in relation to the substantive decision “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”.

[5] The Supreme Court of Canada ordered such a ban in its recent decision in T.W.W., 2024 SCC 19: see paras. 77 and 82. Applying the test articulated in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, [1] and drawing on the legislative context and objectives of the s. 276 regime, this court was not satisfied that a publication ban was necessary or proportional. This court acknowledged that publication of details of the other sexual activity at issue poses a serious risk to the complainant’s personal privacy and dignity and that these are important public interests. However, this court found that that risk had been sufficiently addressed by various alternative measures, which it described. [2] This court concluded that the requirement that justice be seen to be done and the precedential value of the decision strongly supported publication. Several grounds of appeal involved determinations of relevance. If the factual details of the other sexual activity evidence identified in the decision were not made public, the justice of the decision and its precedential value would remain opaque. In all the circumstances, this court concluded that a publication ban would not be proportional.

[6] To date, this court has released the substantive decision to the parties only. [3] However, because the publication ban decision did not refer to the nature of the other sexual activity evidence, [4] that decision was released in the normal course and published on the court’s website.

[7] In its present notice of motion, the Crown requests two orders:

1. a stay of the publication ban decision (2024 ONCA 588) pending the application for leave to appeal to the Supreme Court of Canada, and if leave is granted, pending the Supreme Court’s determination of the appeal;

2. a temporary discretionary publication ban per R. v. T.W.W., 2024 SCC 19 until the matter is finally disposed of by the Supreme Court, stating:

   This appeal is subject to 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.

[8] The Crown asserted that the wording of the proposed order is the same as the Supreme Court’s order in T.W.W., 2024 SCC 19 at paras. 77 and 82. The language of the proposed order is also identical to the terms of a publication ban imposed by this court in R. v. E.N., 2024 ONCA 472, a decision of this court released after the Supreme Court’s decision in T.W.W., 2024 SCC 19.

[9] As set out in its factum on this motion, the Crown’s position is that, in the publication ban decision, this court misunderstood the nature of the order that the Crown sought, namely, a T.W.W. discretionary publication ban identically worded to the temporary publication ban the Crown now seeks on this motion. In the publication ban decision, this court proceeded on the basis that the publication ban the Crown sought would not permit the court to include in the publicly released substantive decision information that would disclose the nature of the sexual activity at issue in the s. 276 application. However, it is the Crown’s position on this motion that the T.W.W. discretionary publication ban it requested would not have prohibited this court from publishing the substantive decision in full on its website in the normal course, i.e. , with all references to the nature of the sexual activity at issue on the s. 276 application intact. The Crown notes that the Supreme Court released its decision in T.W.W., 2024 SCC 19 without redacting any of the references in the decision to the other sexual activity at issue: see, e.g. , T.W.W., 2024 SCC 19, at paras. 2, 7, 38, 42. The Crown submits that a T.W.W. discretionary publication ban applies only to “other parties”, such as the litigants (who in T.W.W., 2024 SCC 19 were required to file redacted versions of their factums for posting on the court’s website), as well as “law reporters, media outlets and reporters, and the general public”: T.W.W., 2024 SCC 19, at para. 64.

[10] During oral submissions on this motion, various issues emerged in relation to the Crown’s position concerning the T.W.W. publication ban it sought in relation to the substantive decision and the temporary T.W.W. publication ban it now seeks on this motion (the “orders”). For example:

• the orders do not include any language such as that contained at paragraph 64 of T.W.W., 2024 SCC 19 stating to whom they apply;
• in addition to the Supreme Court’s website, T.W.W. has been published on other data bases;
• while the Crown maintains that the orders would not restrict the use in court proceedings of the substantive decision as published in full on the court’s website, the litigants in T.W.W., 2024 SCC 19 were required to file redacted factums for posting on the Supreme Court’s website;
• similarly, while the Crown maintains that the orders would not restrict the use in court proceedings of the substantive decision as published on the court website, the orders do not contain any exceptions or limitations permitting the transmission of the substantive decision between counsel, their clients or staff;
• while the Crown maintains that the orders would not restrict “private” transmission of the substantive decision between, for example, a lawyer and an individual, the orders do not contain any such exceptions or limitations;
• whether the orders would prohibit publication of the details of the other sexual activity referred to in the substantive decision in academic writing or legal newspapers may not be clear.

[11] We observe as well that the references in T.W.W., 2024 SCC 19 to the other sexual activity at issue were general descriptions and did not include references of a character similar to the verbatim reproductions of sexualized text messages that appear at paragraphs 66-68 of the substantive decision. Our review of the redacted T.W.W., 2024 SCC 19 factums published on the Supreme Court of Canada website did not permit us to determine whether more detailed references had been omitted from the T.W.W., 2024 SCC 19 decision. However, we have noted the court’s comment at para. 77 of T.W.W., 2024 SCC 19 that the appeal dealt with a question of law and that counsel were able to argue the case without heavy reliance on information and evidence that is mandatorily protected under s. 278.95 of the Criminal Code.

[12] In response to questions from the panel at the oral hearing of this motion, the Crown confirmed that it intends to raise issues on its proposed appeal to the Supreme Court of Canada concerning the scope and application of a T.W.W. discretionary publication ban.

[13] Following discussions with the panel, the Crown also amended its request for relief on this motion. Rather than the two orders set out in its notice of motion, the Crown now seeks only an order that this court publicly release a temporarily redacted version of the substantive judgment (the “temporarily redacted version”) pending the outcome of its planned Supreme Court of Canada litigation in which only paragraphs 66, 67 and 68 of the substantive decision are redacted. In effect, this is a request that this court partially stay the publication ban decision. The Crown also asks for an order sealing the motion record in this matter and requiring that a redacted motion record be filed deleting any references to any information about or reference to the nature of the other sexual activity at issue on the s. 276 application. [5]

[14] The responding party took no position on the Crown’s motion. Nor was there any response to the media notice of this motion, which was posted on the court’s website in advance of the hearing date.

The test on a stay motion

[15] The Crown did not invoke s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, as authority for seeking a stay of the publication ban order or for doing so prior to filing its leave application. Rather, it relies on the court’s inherent power and jurisdiction to control its own process (which we take to mean implied power: T.W.W., 2024 SCC 19, at para. 68). In the alternative, the Crown relies on s. 683(3) of the Criminal Code and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[16] Given that this motion was unopposed, even if the implied power discussed in T.W.W., 2024 SCC 19 does not extend to permitting this court to grant a stay of the publication ban order or doing so prior to the Crown filing its leave application, we would permit the Crown to amend its notice of motion and rely on s. 65.1 of the Supreme Court Act.

[17] The test on an application for a stay pending leave to appeal is well-established. The moving party must demonstrate:

• a serious issue to be adjudicated on appeal;
• that it will suffer irreparable harm if the stay is not granted;
• that the balance of convenience favours granting a stay: Yaiguaje v. Chevron Corporation, 2014 ONCA 40, 35 O.A.C. 109, at para. 3; RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334.

[18] However, these three factors are not watertight compartments: the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677.

[19] Under s. 65.1(2) of the Supreme Court Act, or by analogy to that provision, the court may grant a stay prior to a leave application being filed if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

Discussion

[20] We will begin with consideration of the test for a stay.

(1) Serious Question to be Adjudicated

[21] While reserving its right to more fully formulate its proposed grounds of appeal in its leave application, on this motion, the Crown relies on two proposed grounds of appeal concerning the publication ban decision.

[22] First, it asserts that this court adopted an overly narrow conception of “serious risk to an important public interest” at the first step of the Sherman test by confining that risk to this complainant’s personal privacy and dignity. The Crown submits this court erred by failing to also consider the risk that publication of sexualized text messages exchanged between the parties would jeopardize the likelihood of future complainants reporting sexual offences or participating in the court process and diminish their overall confidence in the administration of justice. Failure to consider the potential chilling effect of publication of the complainant’s sexualized text messages in, for example, a national newspaper, says the Crown, had a cascading effect on this court’s assessment of the remaining steps of the Sherman test. This court’s assessment of the sufficiency of alternative measures at step two would necessarily be impacted if the court defined serious risk too narrowly at step one. Moreover, the court could only properly balance the competing interests at step three if they were properly characterized.

[23] Second, the Crown submits that this court erred in assessing the proportionality of the requested publication ban because it misunderstood the Crown’s request. As discussed above, Crown submits that the requested ban would not have prevented the court from publishing its reasons in the normal course on its website. As such, the public’s ability to assess whether justice was done and the precedential value of the decision would not have been compromised.

[24] Although ordinarily the threshold for establishing a serious issue to be adjudicated is low, the criteria for granting leave to appeal to the Supreme Court of Canada add another dimension to the test: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16.

[25] Under s. 40(1) of the Supreme Court Act, leave may be granted where any question involved is one that ought to be decided by the Supreme Court by reason of its public importance, or the importance of any issue of law or any issue of mixed fact and law, or for any other reason of such a nature and significance as to warrant a decision by the Supreme Court.

[26] The stay test requires that a judge hearing a stay motion pending a Supreme Court leave application consider not only whether the proposed appeal raises a serious issue to be adjudicated under RJR-MacDonald Inc. v. Canada (Attorney General). The judge must also consider the factors in s. 40(1) and assess whether there is some merit in the leave application: Yaiguaje v. Chevron Corporation, 2014 ONCA 40, at para. 4.

[27] In our view, the Crown’s proposed grounds pass the first step of the test for granting a stay. In applying the first step of the Sherman test in the publication ban decision, this court focused on the risk that publication would pose to the complainant’s personal privacy and dignity. Whether a court considering a T.W.W. discretionary publication ban should also consider the potential chilling effect of publication on future complainants has at least arguable merit and is a question of sufficient importance to warrant the Supreme Court’s consideration.

[28] Similarly, taking account of the references to other sexual activity in T.W.W., 2024 SCC 19, and the fact that T.W.W., 2024 SCC 19 has been published on both the Supreme Court’s website and on other data bases [6], the Crown’s submission that a T.W.W. discretionary publication ban does not prevent an appeal court from publishing on its own website reasons that include references to other sexual activity in the ordinary course has arguable merit. As the Crown asserts that this court misunderstood its position – and the law – the second question is also of sufficient importance to warrant the Supreme Court’s consideration.

(2) Irreparable harm

[29] The Crown submits that simply publishing the substantive decision without redactions or a publication ban could lead to widespread media publication of the sexualized text messages reproduced at paragraphs 66-68 of the substantive reasons. This, says the Crown, could lead to irreparable harm to the privacy and dignity of the complainant in this case. Further, says the Crown, if it is correct in its interpretation of a T.W.W. discretionary publication ban but no measures are taken to preserve its right to have the substantive decision published in the ordinary course, but subject to the publication ban, its appeal rights in relation to the publication ban decision will effectively be rendered moot.

[30] The Crown submits that, properly interpreted, a T.W.W. discretionary publication ban would prohibit any media publication of the sexualized text messages if this court were to publish the substantive decision on its website in the normal course. Given the difficulties in understanding the scope and application of a temporary T.W.W. discretionary publication ban, the Crown is now asking that the court publish a temporarily redacted version of the substantive judgment, i.e. , with paragraphs 66-68 redacted, pending the outcome of the Supreme Court litigation.

[31] We are satisfied that the Crown has established irreparable harm would occur if it is denied the partial stay sought. Although we are sceptical that the complainant in this case would suffer significant harm because of the alternative measures that are in place to prevent the sexualized text messages from being connected to her, we do not dispute that media publication of the verbatim sexualized text messages reproduced at paragraphs 66-68 of the substantive decision could cause her anxiety and that that harm could not be undone if a publication ban is subsequently imposed. We also accept that the Crown’s appeal rights in relation to the publication ban decision would be rendered moot if the partial stay is not granted.

(3) Balance of Convenience

[32] We are satisfied that the balance of convenience favours granting the partial stay the Crown now seeks.

[33] As we have explained, the Crown has demonstrated irreparable harm will occur if a partial stay is not granted. Further, at this stage we are also entitled to consider the public interest: RJR-MacDonald Inc. v. Canada (Attorney General), at pp. 343-47. Although that case was decided in the context of constitutional litigation, we are satisfied that the overall justice of this case warrants consideration of the public interest at this stage. In that respect, we cannot discount the possibility that widespread media publication of the sexualized text messages could have an immediate chilling effect on some future complainants by causing them to lose faith in the administration of justice.

[34] On the other hand, we also acknowledge that the sexualized text messages reproduced verbatim at paragraphs 66-68 of the substantive decision provide important context for the relevance assessment made by this court. Moreover, that context is important to permitting adequate public scrutiny of the decision so that justice can be seen to be done, and also to the precedential value of the substantive decision.

[35] Nonetheless, on a careful review of the substantive decision, we are satisfied that other paragraphs of the judgment that provide a general description of the timing, content and significance of the sexualized text messages permit a sufficient understanding of the decision to allow adequate public scrutiny and afford to it acceptable precedential value while the Supreme Court litigation is outstanding.

(4) Should a stay be granted before the Crown’s leave application is filed?

[36] As we have said, given that this motion was unopposed, even if the implied power of this court to control its own process, discussed above, does not extend to permitting this court to grant a stay of the publication ban decision or to do so prior to the Crown filing its leave application, we would permit the Crown to amend its notice of motion and rely on s. 65.1 of the Supreme Court Act.

[37] Under s. 65.1(2) of the Supreme Court Act, or by analogy to that provision, the court may grant a stay prior to a leave application being filed if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

[38] We accept the Crown’s assertion on this motion that it intends to seek leave to appeal both the substantive decision and the publication ban decision to the Supreme Court of Canada. For the same reasons that we conclude the partial stay requested should be granted, we are satisfied that delaying doing so until the leave application is filed and allowing the substantive decision to be published in the interim could result in a miscarriage of justice.

Disposition

[39] Based on the foregoing reasons, we make the following orders:

1. This court’s decision in R. v. Reimer, 2024 ONCA 588, shall be partially stayed pending the Crown’s application for leave to appeal to the Supreme Court of Canada, and, if leave is granted, the appeal, or further order of the Supreme Court, on terms that, other than to the parties, it will only be made available, including through publication on the court’s website, with paragraphs 66-68 redacted and with an addendum specifying that the decision has been redacted pursuant to an interim order and with a warning attached as set out in subparagraph 2 below;
2. Pending the Crown’s application for leave to appeal R. v. Reimer, 2024 ONCA 588, and, if leave is granted, the appeal, or further order of the Supreme Court, any information about or reference to the nature of the other sexual activity at issue in this proceeding, other than that which forms the subject-matter of the charge, and other than that which appears in the temporarily redacted version of the decision as posted on this court’s website, shall not be published, broadcast or transmitted;
3. The Crown’s motion record in this matter shall be sealed and the Crown shall forthwith file a redacted motion record in which any information about or reference to the nature of the other sexual activity at issue in this proceeding, other than that which forms the subject-matter of the charge, as well as the identity of the complainant shall be redacted.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“Thorburn J.A.”

[1] The Sherman Estate test requires that the moving party 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. the benefits of the order sought outweigh its negative effects.

[2] These included anonymizing the complainant’s name, eliminating unnecessary biographical information, and the fact that Mr. Reimer and the complainant did not live in the same city and had had no prior or subsequent relationship.

[3] In the publication ban decision, this court indicated that the substantive decision would be published ten days following the release of the publication ban decision unless the Crown notified the court of its intention to appeal the publication ban decision within that period. The Crown requested an extension of time to determine whether it would appeal. The request for an extension was refused and the Crown was directed to bring a stay motion. In its stay motion, the Crown has confirmed that it intends to seek leave to appeal both the publication ban decision and the substantive decision to the Supreme Court and that the deadline for the leave application is October 1, 2024.

[4] For example, the publication ban decision did not disclose that the other sexual activity evidence consisted of sexualized text messages.

[5] The appeal giving rise to the substantive decision (the “substantive decision appeal”) was heard prior to the release of the Supreme Court’s decision in T.W.W., 2024 SCC 19. Prior to the substantive decision appeal hearing, a sealing order was made with respect to a portion of the appeal record as well as an order that the portion of the oral hearing relating to the s. 276 application be heard in camera.

[6] Following the motion hearing, we have confirmed that T.W.W. has been published in full on other data bases as well.