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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) 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 victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (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.

Ontario Court of Justice

Date: 2024 12 16 Court File No.: 23-48101907 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

MG

Before: Justice Cidalia C. G. Faria

Heard on: December 13, 2024 Witness Caution Endorsement released: December 16, 2024

Counsel: Seeta Scully......................................................................................... counsel for the Crown Anne Marie Morphew.............................................................. counsel for the accused MG

Faria J.:

Background

[1] On November 18, 2024, MG’s trial on one count of assault and two counts of sexual assault began. On November 20, 2024, during the cross-examination of the Crown’s main witness, LSB, an issue arose. She was excused for the parties to discuss the issue. It was decided LSB was to obtain independent advice. LSB returned and I cautioned her that as she was in cross-examination, she was not to speak to anyone about her evidence except her lawyer.

[2] LSB requested she be able to speak to her “therapist”. I included the exception in my caution and advised her as follows:

“You cannot speak about this case, questions asked, or answered or any material or about the events themselves except with your lawyer and your therapist.” [1]

[3] LSB then asked if she could answer questions in her upcoming family law litigation process and I advised her to get independent legal advice on that issue.

[4] On December 12, 2024, I received a Motion for Direction from Counsel for MG regarding the caution I had provided to LSB.

[5] The Crown and Counsel for MG, Ms. Morphew, received an Endorsement dated December 5, 2024, made by Justice Sharma of the Superior Court of Justice, wherein he directs his endorsement be provided to me. LSB and MG are in family law proceedings. The family law parties seek clarification or modification of my caution to LSB as it relates to her family law counsel.

Position of the Parties

[6] Defence counsel for MG submits the caution should be stated:

LSB is prohibited from speaking to anyone about her evidence given at the trial or the issues at the trial except to her therapist and counsel providing her with independent legal advice in the criminal trial.

[7] Ms. Morphew elaborated this caution clearly prohibits LSB from discussing her evidence with family law counsel, such as the questions and answers given, the tenor or themes of cross-examination, or any opinions on LSB’s conduct or demeanour as a witness, but, permits LSB to speak to her family law counsel about the underlying events to prepare for family law proceedings. She further submitted, that given a family law trial has been set, presumably, LSB has already spoken about the criminal allegations with her family law counsel.

[8] The Crown agrees with the Defence clarification and submits the caution should be stated as follows:

While her testimony is ongoing, L.S.B. is prohibited from speaking to anyone about her evidence given at the trial or the issues at the trial except to her therapist or counsel providing her with independent legal advice in the criminal trial. She is not permitted to speak to her family counsel about the subject matter of the criminal trial, nor can she answer questions or written undertakings regarding the subject matter of the ongoing criminal trial.

[9] The Crown submitted her additions were to assist LSB’s family law counsel navigate preparation for trial, and to ensure LSB is not in a position of conflict when asked questions pursuant to the family law process about her evidence in the criminal trial.

Analysis

[10] Justice Sharma’s endorsement states LSB’s family law Counsel, Emma Compeau, is seeking an adjournment of a family law trial scheduled for May 12, 2025 because it addresses “the same or similar allegations of domestic violence”. She claims she is unable to prepare for trial as she is unable to speak to her client, about “this family case, the undertakings for disclosure her client is required to provide, questioning of the Applicant, and other matters in relation to this family proceeding so that it is trial ready for May 2025.”

[11] Justices Shore, Maxwell, and Sharma have all expressed the importance of proceeding with the family law trial expeditiously. The family law trial is 5 months away in May 2025, and LSB’s evidence, even on the understanding of the family law counsel, will be concluded in March or April, well before the start of the family law trial.

[12] The obligations of counsel regarding communications with witnesses giving evidence about that evidence are well-known, and even codified. It is also well-known what evidence is: the substance, form, and nature of what is said in testimony.

[13] At the beginning of this trial, there was also an order excluding witnesses made. The conduct of the family law lawyer who chose to attend some or all of the criminal proceedings is also governed by that order.

[14] Justice Sharma astutely, and in my view, accurately states “At this stage, I am not certain that the Respondent speaking with her family lawyer to prepare for this family trial would necessarily breach the caution given by Justice Faria. Respondent’s family counsel would have ethical and professional obligations to ensure that she does not influence the testimony the Respondent will give in the criminal trial.”

[15] My original caution, the codified professional obligations of communications with witnesses giving evidence, the witness exclusion order, the timing of the two proceedings, and Justice Sharma’s observations, should all be sufficient guidance as to family law counsel can prepare herself and her client for the family law trial.

[16] For that reason, I decline to further assist family law counsel as the Crown requests with any modification that refers to the family law process, and the role of the family law counsel.

[17] I also reiterate my original response to LSB’s inquiry about answering questions during her family law litigation process, which is to get independent legal advice on the issue.

[18] However, I do agree with Justice Sharma’s request that clarification may assist.

Caution

[19] My caution is as follows:

LSB is prohibited from speaking to anyone about her evidence given at the trial or the issues at the trial except to her therapist or counsel providing her with independent legal advice. LSB is expressly not permitted to speak with her family law counsel regarding her evidence at the criminal trial that is the subject matter of the trial.

[20] I intentionally add the emphasis.

[21] I thank both parties for their able submissions.

Released: December 16, 2024 Signed: Justice Cidalia C.G. Faria

[1] Counsel for the Defence ordered the oral record of my caution. The Crown took no issue with this quote. Both parties agreed and accurately understood “lawyer” in this instance referred to the lawyer who was to give the witness independent legal advice. It is also my practice to caution witnesses this way, but for the inclusion of the therapist. I found the inclusion of the therapist exception to be necessary as an accommodation to the witness’ request for mental health care prior to the completion of her cross-examination.