Court File and Parties
Court File No.: CR-20-100002520000
Date: 2025-03-10
Ontario Superior Court of Justice
Between:
His Majesty the King (on behalf of M.C.)
and
Tristan Cameron Kirkpatrick
Appearances:
Neville Golwalla, for the Crown
M.C., in person
Heard: December 16, 2024 and January 15, 2025
Judge: B. P. O'Marra
Ruling on an Application for an Order to Vary or Revoke a Publication Ban Pursuant to Section 486.51 of the Criminal Code
Background
[1] On December 16, 2021, the accused was found not guilty of sexual assault by jury. At the outset of the trial, the presiding judge had made an order pursuant to s. 486.4 of the Criminal Code banning the publication of information that could identify the complainant, M.C., and a witness, A.B. That section provides in part as follows:
Order restricting publication — sexual offences
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.0, 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).
Mandatory order on application
(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.
Inquiry by court
(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).
Duty to inform
(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
(c) informed them of their right to apply to revoke or vary the order.
Limitation
(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.
Limitation - victim or witness
(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.
The Application
[2] Pursuant to s. 486.51 of the Criminal Code and at the request of M.C., the Crown presented an application to vary or revoke the publication ban as it relates to M.C. only. The section provides as follows:
Application - vary or revoke
486.51(1) If a person who is the subject of an order made under section 486.4 or 486.5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.
Order - vary or revoke
(2) If an application to vary or revoke an order made under section 486.4 or 486.5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any 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.
Hearing
(3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any 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, the court shall hold a hearing to determine whether the order should be varied or revoked.
Factor
(4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other 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.
Notice
(5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.
Submissions
(6) The accused shall not be permitted to make submissions in relation to the application.
Notice of change
(7) If the order is varied or revoked, the prosecutor shall notify the accused.
Positions of the Parties
[3] On this application, the Crown advised that the witness A.B. wants the publication ban related to her identity to remain in place.
[4] M.C. advised the court that she never requested a publication ban regarding her identity and requests that the ban be revoked. She also expressed concern that she could be prosecuted for violating the ban related to A.B., with whom she had a relationship.
Legislative Purpose and Analysis
[5] The legislative purpose of such publication bans was to allow victims and witnesses to participate in the criminal justice system without suffering negative consequences associated with their identities being made public. The hope was that publication bans would encourage victims to report such crimes: R. v. Garcha, 2024 ONSC 1057 at para. 9.
[6] The amendments to s. 486.51 of the Criminal Code were a recognition that some complainants want to speak out about their experience, including reference to their identity. In such an application, the court is required to consider whether it is possible to vary or revoke the publication ban “in a manner that protects the privacy interests of any other person” who is the subject of such an order: Criminal Code s. 486.51(4).
[7] I am satisfied that the publication ban in regard to M.C. should be rescinded so far as it relates to her identity. The ban remains in place for the witness A.B. Allegations of sexual assault and related offences are often very challenging to prove to the criminal standard of beyond a reasonable doubt. There is a significant public interest in encouraging witnesses to such crimes to come forward and testify. Those witnesses have a statutory right to the protection of their identity.
Result
[8] The publication ban related to M.C. is rescinded.
B. P. O'Marra
Released: March 10, 2025