



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), (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    the complainant or a witness shall not be published in any document or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,
    346 or 347,

(ii) an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(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
    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.

(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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. S.M., 2014 ONCA 728

DATE: 20141021

DOCKET: C56946

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

S.M.

Respondent

Ian Bulmer, for the appellant

David Humphrey and Cody Cornale, for the respondent

Heard and released orally: October 15, 2014

On appeal from the acquittal entered on March 27, 2013 by
    Justice Giselle M. Miller of the Superior Court of Justice.

ENDORSEMENT

[1]

The Crowns principal ground of appeal is that the trial judge erred by
    failing to give effect to the on or about language in the indictment.  We do
    not agree.  Although the trial judge did not specifically refer to these words,
    her reasons show that she considered them.  In substance she concluded that in
    the light of the way the case was presented, an expansive interpretation of the
    words on or about would work an injustice.  There was an ample basis to
    support her conclusion.

[2]

The defence put forward an alibi for the actual date specified in the
    indictment  June 25, 2010.  The Crown had every opportunity to ask the
    complainant when the incident took place or even whether it took place on a
    date other than June 25.  Yet the Crown did neither.  And the Crown had every
    opportunity to test the respondents denial by asking about another date.  Yet
    the Crown did not do so.  Finally, the Crown did not seek to amend the
    indictment until closing submissions.  Had it asked any of these questions or
    sought an amendment earlier, the defence may well have been different.

[3]

The context is critical in assessing on or about language in an
    indictment.  Here, given the way the case was presented, to expand the
    timeframe of the indictment in the way the Crown contends would be unfair.

[4]

The Crowns alternative argument is that the trial judge erred by
    refusing to amend the indictment.  We do not accept this argument.  We agree
    with the trial judge that the Crowns request to amend only in closing
    submissions was too late, and to then grant the amendment would have prejudiced
    the respondent.

[5]

Accordingly, the appeal is dismissed.

John Laskin J.A.

E.E. Gillese
    J.A.

G. Pardu J.A.


