



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(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) 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    that could identify the victim or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 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 complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     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.

(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    shall not be published in any document or broadcast or transmitted in any way.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; and

(b) on
    application of the victim or the prosecutor, make the order.

(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.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(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.

(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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.C., 2019 ONCA 553

DATE: 20190702

DOCKET: M50558 (C62938)

Brown J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Dana Achtemichuk, for the appellant

Catherine Weiler, for the respondent

Heard: June 25, 2019

REASONS FOR DECISION

[1]

This is an application to the Court of Appeal for interim release
    pending the new trial ordered by this court.

[2]

In 2016, the applicant was convicted on three counts of assault with a
    weapon, one count of aggravated assault, and one count of assault. He received
    a sentence of 4.5 years, less 10 months credit for presentence custody.

[3]

He appealed his conviction.

[4]

The applicant was released from custody on statutory release on January
    18, 2019. However, upon his release he was arrested and held in immigration
    detention pending his deportation.

[5]

By decision dated May 28, 2019, this court allowed the appeal, set aside
    the convictions, and ordered a new trial: 2019 ONCA 442.

[6]

At some point after this court released that decision, the applicant was
    released from immigration detention but continued to be detained.

[7]

The Crown is re-prosecuting the applicant. That proceeding is taking
    place in the Superior Court of Justice (SCJ) in a region outside of Toronto.
    The first appearance before the SCJ took place on June 11, 2019. A judicial
    pre-trial was scheduled for June 26, 2019.

[8]

Around the middle of June, 2019, applicants counsel sought a date to
    bring a bail application before the SCJ but was advised that the application
    had to be brought before the Court of Appeal.

[9]

When the application was brought in this court, Crown counsel took the
    position that it should have been brought before the SCJ. Nevertheless, Crown
    counsel worked out terms of interim release with applicants counsel.

[10]

The
    matter proceeded before me on June 25, 2019. I expressed the view that the
    application properly lay to the SCJ. However, I heard it and endorsed the
    record: For written reasons to follow, application for pre-trial release
    granted on terms set out in consent order filed.

[11]

I
    write simply to observe that this application for bail should have been
    accepted by the SCJ for hearing.

[12]

In
R. v. Manasseri
, 2017 ONCA 226, Watt J.A. observed, at paras. 40 and
    41, that judicial decisions have interpreted the phrase "pending the new
    trial" in s. 679(7.1) of the
Criminal Code
:

[T]o
encompass two discrete time
    periods with implications for the forum in which the application for release is
    heard and determined. Those time periods are:

i. the time between the order for a new trial and the
    successful appellant's first appearance in the trial court; and

ii. the time between the first appearance in the trial court
    and the start of the new trial.

See,
R. v. Barbeau
(1998), 131 C.C.C. (3d) 350
    (Que. C.A.) (Fish J.A., in chambers, at p. 352;
R. v. Ranger
(2003),
    180 O.A.C. 138 (C.A.) (Feldman J.A., in chambers, at para. 9.

In the first time period, a judge of the court of appeal has
    exclusive jurisdiction over release pending a new trial:
Barbeau
, at
    p. 352;
Ranger
, at para. 10;
R. v. Vincent
, 2008 ONCA 76,
    [2008] O.J. No. 534, (Sharpe J.A., in chambers), at para. 7;
R. v. Geddes
,
    2012 MBCA 31, 100 W.C.B. (2d) 817 (Chartier J.A., in chambers), at para. 3. In
    the second time period, a judge of the court of appeal and a judge of the trial
    court have concurrent jurisdiction over release pending a new trial:
Ranger
,
    at paras. 19, 21;
Vincent
, at para. 8.

[13]

Watt
    J.A. went on to identify, in para. 43, a number of considerations to take into
    account in determining the most appropriate forum for the hearing and
    determination of the interim release application.

[14]

In
    the present case, by the time the applicant sought to arrange a date for a
    pre-trial interim release hearing in this matter, the period of exclusive
    jurisdiction of this court under s. 679(7.1) of the
Criminal Code
was
    at an end: this court had directed a new trial by reasons dated May 28, 2019
    and the applicant had had his first appearance before the Superior Court of
    Justice on June 11, 2019. By the time the applicant sought to schedule a
    hearing date with the SCJ for his interim release application, the SCJ and this
    court had concurrent jurisdiction to hear the application.

[15]

Where
    concurrent jurisdiction over judicial interim release exists, the message of
    this court has been consistent and clear: courts of appeal should deal with
    bail pending appeal and superior courts should deal with bail prior to and
    during a trial. Any departure from that clear division of labour requires an
    applicant to demonstrate special circumstances that would justify an
    appellate court exercising its concurrent jurisdiction under s. 520 of the
Criminal
    Code
:
R. v. Durrani
, 2008 ONCA 856, at para. 34;
R. v. George
,
    2018 ONCA 314, at paras. 18 and 19.

[16]

These
    principles apply equally when considering the appropriate forum in which to
    hear a bail application following the ordering of a new trial.

[17]

As
    I read the decision in
Manasseri
,
    in that case
this court determined, in effect, that special
    circumstances in that case made this court the appropriate forum in which to
    hear and determine the application for release pending the new trial. However,
    where a new trial has been ordered by this court and the SCJ has concurrent
    jurisdiction, the general division of labour set out in
Durrani
should guide counsels selection of the appropriate forum in which to bring a
    bail application. In the present case, the SCJ should have acceded to counsels
    request to schedule a bail hearing.

David Brown J.A.


