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 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240912 DOCKET: C65077

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Duane Newton Appellant

Counsel: Duane Newton, acting in person Naomi Lutes, appearing as duty counsel Nicholas Hay, for the respondent

Heard and released orally: September 10, 2024

On appeal from the conviction entered on July 20, 2017, and the sentence imposed on December 8, 2017, by Justice Christopher Bondy of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from his conviction for assault and sexual assault in 2017. He has served his sentence and has abandoned his sentence appeal.

[2] The appellant argues that he was denied his right to trial within a reasonable time. Relatedly, he argues that his trial counsel provided ineffective assistance in failing to bring an application under s. 11(b) of the Charter.

[3] We do not agree.

The application judge did not err

[4] The application judge carefully reviewed the chronology of the matter before refusing to hear the appellant’s s. 11(b) application. The appellant was found guilty on July 20, 2017, and his sentencing hearing was set for October 26, 2017. One week before the hearing, trial counsel advised that he would be bringing a s. 11(b) application and a pre-trial was scheduled to discuss the matter. On October 23 a pre-trial was held, and the application judge noted that counsel advised that no s. 11(b) application was being brought and the matter should proceed to sentencing.

[5] On the instructions of the appellant, trial counsel filed a notice of a s. 11(b) application on December 7, the day before the sentencing decision was to be released. No materials were filed in support, nor did the application refer to the chronology outlined above. The application judge found that a s. 11(b) application had expressly been contemplated and had been raised with the Crown and the court. The court had offered a hearing date for the application and set a deadline for filing materials, but the application was unequivocally and expressly abandoned. The application judge found that this was a tactical decision, and in these circumstances she did not permit the application to be brought at the late date.

[6] We are satisfied that the application judge considered the relevant factors and made no errors in principle. She made a discretionary decision that was open to her on the record and there is no basis for this court to interfere with it on appeal.

The appellant has not established that he received ineffective assistance of trial counsel

[7] The appellant argues that his trial counsel provided ineffective assistance in failing to bring the s. 11(b) application earlier. He submits that trial counsel abandoned the s. 11(b) application without his knowledge or consent.

[8] The appellant must establish, on a balance of probabilities:

i) the facts on which the claim is grounded; ii) the incompetence of the representation provided by trial counsel (the performance component); and, iii) a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).

R v. Cherrington, 2018 ONCA 653, at para. 25.

[9] Trial counsel testified that the s. 11(b) application was not abandoned because it was never brought in the first place. On October 21, 2017 he explained to the appellant that he was dissuaded from bringing a s. 11(b) application following his pre-trial meeting, at which the pre-trial judge expressed the view that the application was unlikely to succeed. Trial counsel testified that he and the appellant agreed the application would not be brought because of its low probability of success. Trial counsel attended a second pre-trial meeting on October 23, 2017 and informed the pre-trial judge that no s. 11(b) application would be brought. Thus, no further steps were taken in the matter, such as ordering trial transcripts.

[10] These steps are noted in counsel’s dockets as submitted to legal aid. They confirm that there was no failure to bring the application earlier, but instead an informed decision not to bring it at all, a decision the appellant was aware of well before the sentencing date. The appellant has not established a factual basis for his claim. Moreover, the decision not to bring the application was reasonable in all of the circumstances.

[11] We see no merit in the appellant’s additional arguments that trial counsel wrongly cross-examined the complainant concerning a prior allegation; wrongly failed to cross-examine Officer Burke about efforts to arrest the appellant; failed to ask appropriate questions of Officer Jones; or failed to cross-examine the “lead investigator”. These were judgment calls that trial counsel was permitted to make and they reveal no incompetence.

[12] The fresh evidence is admitted, but the appeal is dismissed.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”