Non-Publication and Non-Broadcast Order Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 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 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 03 26 COURT FILE No.: Information No. 19-6425

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.S.

Before: Justice J.P.P. Fiorucci

Heard on: November 13, 2020 Ruling re: Appointment of amicus curiae released on: March 26, 2021

Counsel: K. Malkovich........................................................................................ counsel for the Crown R.S.................................................................................................. Self-Represented Accused P. Boushy............................................................................................................. amicus curiae

FIORUCCI J.:

Appointment of Amicus Curiae

[1] R.S. was charged with sexual assault in July of 2019. The alleged offence date was November 14, 2018.

[2] On September 28, 2020, R.S. attended Court for his scheduled trial date as a self-represented accused. He was prepared to proceed with his trial. Mr. Boushy had been appointed as counsel to conduct the cross-examination of the complainant, pursuant to s. 486.3 of the Criminal Code.

[3] On September 28, 2020, Crown counsel advised that she had recently learned that material disclosure had not been made to the self-represented accused. This new disclosure consisted of four videotaped and/or audiotaped statements, including the complainant’s police statement. Notwithstanding Crown counsel’s attempts to provide this disclosure to R.S. and to Mr. Boushy in advance of the trial date, her efforts were unsuccessful. The trial was adjourned as a result of this late disclosure.

[4] New trial dates were scheduled in November and December of 2020. Although the new trial dates were under the presumptive ceiling of 18 months established by R. v. Jordan, 2016 SCC 27, they were perilously close to the ceiling in a case involving a self-represented accused that was adjourned because of late disclosure.

[5] On November 12 and 13, 2020, the complainant testified and was cross-examined by Mr. Boushy, acting in his capacity as s. 486.3 counsel. When the complainant’s testimony was completed, Mr. Boushy, with the concurrence of R.S., asked that I consider appointing him as amicus curiae for the remainder of the trial. The Crown opposed the appointment of amicus.

[6] I appointed Mr. Boushy as amicus curiae. I instructed myself in accordance with the principles set out in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 regarding the Court's inherent jurisdiction to appoint an amicus in criminal trials, which is grounded in its authority to control its own process and function as a court of law.

[7] In R.S.’s case, I made a finding that the assistance of amicus curiae was essential to discharging my judicial functions, mindful that my authority to appoint amicus was to be used “sparingly and with caution, in response to specific and exceptional circumstances”: Ibid, at para. 47.

[8] Part of my judicial function was to ensure that the trial concluded within a reasonable time, knowing that the presumptive ceiling date was fast-approaching. At the point when I was asked to consider the appointment of amicus, I foresaw issues that had the potential to push the end date of the trial beyond the presumptive ceiling date unless the trial proceeded in an orderly and expeditious fashion.

[9] For instance, A.S. was not present to testify on November 13, 2020. R.S. expected that A.S. would be called by the Crown and would be available for cross-examination. It was R.S.’s position that cross-examination of this witness was essential for him to make full answer and defence. There was no agreement between the Crown and the self-represented accused as to whether A.S.’s evidence would be received by the Court, and if so, how it would be introduced. The potential that A.S. would not be available to testify, either remotely or in person, on any of the November or December dates, raised the prospect that the trial would be extended beyond the presumptive ceiling. In my view, amicus could assist with any issues surrounding the reception of A.S.’s evidence and expedite resolution of that issue.

[10] Furthermore, R.S. advised the Court that, based on his review of the complainant’s video statement, which he received on September 28, 2020, he intended to argue that a potential racial bias contributed to the allegation made against him. The Crown submitted that L.R. had already been cross-examined on this issue, and that no evidentiary foundation existed to support such a claim. Nonetheless, R.S. made it clear that he intended to make these submissions at the conclusion of his trial, and I found that the assistance of amicus, either to provide relevant authorities to the Court or provide structure to the self-represented accused’s arguments, was essential to ensure that the trial proceeded efficiently and expeditiously.

[11] Another issue that was raised to support the appointment of amicus was the failure of the police to conduct a proper investigation. This submission focused primarily on the fact that the gloves seized from the complainant’s hospital room were not sent for forensic analysis. Although I found this argument to be a less compelling basis to appoint amicus, the time required for the self-represented accused to make submissions on the issue had the same potential to extend the trial beyond the presumptive ceiling. Once again, amicus could help curtail the time required and provide structure to the accused’s arguments.

[12] Had any of these issues, alone or in combination, resulted in a delay of the end date of the trial, the Court could have been faced with a s. 11(b) Charter unreasonable delay application made by the self-represented accused. This would have resulted in the expenditure of further judicial resources at a time when the Courts in this jurisdiction are struggling to meet the demands of a backlog of cases caused by the COVID-19 interruption of trial proceedings. My decision to appoint amicus curiae was in response to these specific and exceptional circumstances.

[13] I appointed Mr. Boushy as amicus. The accused consented to his appointment. Mr. Boushy had reviewed the Crown disclosure in order to prepare his cross-examination of the complainant. He was available to discharge his duties as amicus without an adjournment of the trial dates.

[14] The trial proceeded and was completed on December 21, 2020. I have released separate reasons for judgment for the trial.

Released: March 26, 2021 Signed: Justice J.P.P. Fiorucci