



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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 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;
    2005, c. 43, s. 8(3)(b).

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. Mennes, 2013 ONCA 567

DATE: 20130917

DOCKET: M42590 (C34654)

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emile Marcus Mennes

Appellant

Emile Marcus Mennes in person

Michael Bernstein for the respondent Crown

Motion to reinstate an appeal

Heard: September 11, 2013

BY THE COURT

[1]

The appellant moves for an order to reinstate his appeal against
    conviction and sentence.

[2]

The appellant was convicted of sexual assault, sexual interference, and
    sexual touching on January 25, 1996 and given an indeterminate sentence on
    November 13, 1996.

[3]

The appellant appealed conviction and sentence. This court appointed
    senior counsel to represent the appellant but when that counsel was unable to
    obtain adequate instructions from the appellant, the appointment was rescinded,
    the appeal was converted to an inmate appeal and the same counsel was appointed
    as
amicus curiae
.

[4]

The appellant abandoned the inmate appeal on September 23, 2003.

[5]

In November 2004 the appellant asked to have the appeal reinstated. He
    was given leave to do so, but on certain terms, including filing a factum by
    March 31, 2005. He received two extensions of that date and the court ordered
    that he be provided certain materials. He failed to provide the factum or any
    satisfactory explanation for his failure to do so and, accordingly, his motion
    to reopen the appeal was dismissed by a panel of this court on November 23,
    2005.

[6]

In the motion now before the court, the appellant submits that he should
    be permitted to reopen the appeal on the ground that the Ministry of the
    Attorney General fraudulently concealed relevant case law and that, but for
    that concealment, his appeals against conviction and sentence would have been
    successful.

[7]

In our view, there is no merit to this motion.

[8]

Assuming, without deciding, that we still have jurisdiction at this
    point to reopen the appeal, the appellant has failed to establish grounds that
    would justify granting that relief.

[9]

The contention that the Ministry of the Attorney General fraudulently
    concealed case law is without merit.

[10]

First,
    as we have already indicated, it was for the appellant to take the necessary
    steps to bring his appeal forward. He abandoned the appeal and then failed to
    take the steps he was required to do in order to have it reopened. As the
    appeal was never presented to the court, the matter never reached the stage at
    which it would be for Crown counsel to live up to their well-recognized duty to
    bring relevant authorities to the courts consideration.

[11]

Second,
    the authorities the appellant claims were concealed reflected well known and
    well recognized legal principles of which the court, had it had occasion to
    consider the appeal, would certainly have been aware.

[12]

Finally
    we observe that the appellant referred us to the passage in the trial
    transcript relating to his opening of his defence which he identified as the
    key element to his contention that the judge was biased and that he was denied
    natural justice. The judge invited the appellant to make a brief outline of
    the defense case, but no more. We have reviewed that transcript and we see no
    error on the part of the trial judge, nothing that could give rise to a
    reasonable apprehension of bias and nothing that could constitute a denial of
    natural justice.

[13]

For
    these reasons the motion to reinstate the appeal is dismissed.

Alexandra
    Hoy A.C.J.O

M. Rosenberg J.A.

Robert J. Sharpe J.A.
    

Released: September 17, 2013


