WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 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
(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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (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.
Ontario Court of Justice
Date: 2018-07-03
Court File No.: Newmarket 17-09605
Between:
Her Majesty the Queen
— and —
RRF
Ruling on Application to Quash the Information
Heard and Delivered: 3 July, 2018
Ms. Phyllis Castiglione ............................ counsel for the Crown
Ms. Megan Andrews ............................ counsel for the defendant
KENKEL J.:
Introduction
[1] RRF is charged with sexual assault and sexual interference arising out of an alleged touching of a person under the age of 16 years that occurred on a flight from South Korea to Toronto. On arraignment the defence applied without notice to quash the Information for lack of jurisdiction over the alleged offences.
Offences Committed on Aircraft – s.7
[2] Materials filed in May for a third party records application including a transcript of the complainant's statement to the police set out the allegation – a young teen complained that she was sexually touched by her coach during a plane ride on a return flight to Toronto. That application did not proceed so the jurisdictional issue was not identified at that time.
[3] Section 7(1)(b) of the Criminal Code deems an indictable offence committed aboard an aircraft to have been committed in Canada where the flight terminates in Canada. That subsection applies in this case. It's conceded that the Crown could prove the accused is a Canadian citizen so the consent of the Attorney General of Canada to prosecute is not required under s.7(7).
[4] The defence application to quash the Information flows from the fact that the flight terminated at the airport in Peel Region, the Information alleges an offence in Toronto, and the trial is scheduled to be heard today in Newmarket, York Region. The defence submits that the charges should have been laid in Peel Region and the matter heard in Brampton. In the alternative, the reference to Toronto is confusing and prejudicial.
[5] Section 7(1)(b) deems this alleged act to have been committed "in Canada". Section 7(5) provides that, "Proceedings in respect of that offence may … be commenced in any territorial division in Canada and the accused may be tried … in the same manner as if the offence had been committed in that territorial division." Newmarket therefore has jurisdiction over this offence as if it had been committed here.
[6] If the matter had no connection to York Region such that it was inconvenient to hear the trial here the defence might have a practical argument that despite legal jurisdiction the case should be transferred to a more convenient forum. That doesn't apply in this case. No potential witness lives in Peel Region and the Peel Regional Police took no part in this investigation. The matter was investigated by the York Regional police, the complainant lives in York Region as does another Crown witness. The accused lives nearby in North York. While I acknowledge the Brampton court's general expertise in all things involving airports, in this case it's plain that Newmarket not only has the legal jurisdiction to hear this case, but it's also the most convenient forum.
[7] The final objection comes from the reference in the Information to Toronto as the location of the alleged offences. Attributing a location to an alleged incident that occurred on an international flight is unusual in this jurisdiction so it's perhaps not surprising to see some issue in that regard. Section 7(5) permits the trial to be heard in "any territorial division in Canada" so the notional Canadian location stated on the Information whether it's Toronto or Mississauga is not an essential averment. The reference to Toronto could not reasonably result in any prejudice to the accused as the materials filed and the submissions of both counsel show the details of the very specific allegation have been disclosed to the defence. The accused is well aware of the specifics of the allegations including the date, time and in-flight location of the specific transaction at issue.
Conclusion
[8] The application to quash the Information for lack of jurisdiction is dismissed. The clerk will receive the accused's plea and the trial will proceed.
Delivered: 3 July, 2018.
Justice Joseph F. Kenkel