Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20241003 DOCKET: C69894

Rouleau, van Rensburg and Madsen JJ.A.

BETWEEN

His Majesty the King Respondent

and

L.D. Appellant

Counsel: Geoff Haskell, for the appellant James Clark, for the respondent

Heard: September 24, 2024

On appeal from the convictions entered by Justice Gilles Renaud of the Ontario Court of Justice on May 13, 2020.

Reasons for Decision

[1] The appellant appeals his convictions for sexual assault, uttering threats, and failing to comply with a release order. He raises two grounds of appeal: first that the trial judge erred in dismissing his s. 10(b) Charter application; and second, that the trial judge erred in refusing his election to have a preliminary inquiry under s. 536 of the Criminal Code, and instead proceeding to hear pretrial motions and then the trial. We are not persuaded by either ground.

[2] On the s. 10(b) ground of appeal the appellant contends that he was deprived of the opportunity to speak with his counsel of choice and instead that he was “steered toward” duty counsel by the arresting police officer. The appellant’s counsel acknowledges that the officer was not negligent and made reasonable efforts to contact the appellant’s counsel of choice. He contends however that the trial judge’s conclusion that the appellant had voluntarily spoken to duty counsel was not supported by the evidence: in particular, the officer did not have any notes to explain why the appellant, who had repeatedly refused to speak with duty counsel, ultimately agreed to do so. The appellant says that the officer became impatient, and that he should have waited to permit the appellant to speak to his counsel of choice the following day. He also contends that the appellant did not clearly and unequivocally waive his right to speak with his counsel of choice.

[3] We disagree. Although the trial judge was critical of the officer for his failure to make a note of the circumstances surrounding the appellant’s decision to speak with duty counsel, he ultimately accepted the officer’s evidence that he would not have pressured the appellant to speak to duty counsel. Since the appellant did not testify on the voir dire there was no evidence that the officer had become impatient or that the appellant had been pressured. The trial judge carefully considered the voir dire evidence and concluded that the police officer had respected the appellant’s rights to counsel, had made repeated and timely efforts to contact the appellant’s counsel of choice over the course of several hours, had advised the appellant of the availability of duty counsel, and that ultimately the appellant made his own choice to speak to duty counsel. These conclusions were open to the trial judge on the evidence, and the appellant has demonstrated no legal error or misapprehension of the evidence.

[4] On the second ground of appeal, although characterized as an error of law, the appellant challenges the trial judge’s factual finding that he had already made an election to be tried by judge alone when he appeared in the Ontario Court of Justice (the “OCJ”) before the trial judge on November 29, 2018.

[5] The circumstances amply supported the trial judge’s conclusion. When the court clerk began to arraign the appellant and read him his election using the words of s. 536(2) of the Criminal Code, his counsel interjected to say that his understanding was that there had already been an election when the appellant was represented by other counsel, and that the matter had been set for trial. Crown counsel agreed that an election had already been made, referring to the fact that they were in court that day for a scheduled two-hour pretrial motion, with two days for trial scheduled in January 2019. Trial dates had previously been set for November 2017 in the OCJ, but these dates were vacated. The trial Crown referred to a form completed by a pretrial judge in the OCJ with an “X” beside the word “trial”. Defence counsel made no submissions. The trial judge gave trial counsel the opportunity to speak to his client. He then took a brief recess so that he could review the court file. When the trial judge returned, he read out what he referred to as a “preparatory” decision, and he requested submissions. Again, defence counsel did not argue that an election had not been made, but asserted that, if an election had been available on that day, the appellant would have wanted a preliminary inquiry. On the trial judge’s instruction, the court clerk endorsed the information to show an election for trial in the OCJ.

[6] We see no error in the trial judge’s conclusion that the appellant had already made an election to be tried by a judge in the OCJ. The fact that he referred to the delay that would occur if a preliminary inquiry were to take place (which could not proceed that day because the complainant was not in court) is of no moment. It was an observation but did not inform his conclusion. The trial judge was not purporting to exercise a discretion that he did not have, to refuse the appellant’s election; rather he concluded that the election had already been made. Absent the Crown’s consent a re-election was not possible.

[7] The appeal is accordingly dismissed.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L. Madsen J.A.”