



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. M.C., 2018 ONCA 634

DATE: 20180712

DOCKET: M49315 (C63699)

Strathy C.J.O. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

AND

M.C.

Appellant

AND

Aboriginal Legal Services

Applicant
(Proposed Intervener)

Jonathan Rudin and Melissa D. Atkinson, for the proposed
    intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Heard: June 21, 2018 and by supplementary written submissions

REASONS FOR DECISION

[1]

On June 29, 2018, I released reasons in this
    matter, stating that I was not prepared to grant leave to intervene to ALS on
    the material filed, but that I was prepared to reconsider the matter on a
    proper record:
2018 ONCA 606.

[2]

In a subsequent teleconference, counsel for the proposed
    intervener requested and was granted an opportunity to file additional materials
    and a schedule was established.

[3]

ALS has filed a motion record, a book of authorities, a factum on
    the motion to intervene and a draft of the factum it proposes to file if
    granted leave.

[4]

The respondent has filed a factum in response to the motion. If leave
    to intervene is granted, it asks that it be permitted to file a factum of up to
    35 pages in length, to enable it to respond to the interveners submissions.

[5]

ALS proposes to make submissions on:

a)

the framework required to determine when
Gladue

principles apply to a particular area of law;

b)

why
Gladue

principles
    should be applied in relation to the weight placed on a prior criminal record
    by the trier of fact;

c)

how
Gladue

principles
    should be applied in the case of reliance on a prior criminal record by the
    trier of fact; and

d)

whether these issues should be entertained by an
    appellate court in this case when
Gladue

concerns
    were not raised at trial.

[6]

I am satisfied that proposed submissions (a),
    (b) and (c) will provide a useful perspective on the issues in this appeal,
    will be of assistance to the court on the appeal and will not cause injustice
    to the parties.

[7]

The respondents opposition is largely in
    relation to submission (d), which it characterizes as the threshold issue. It
    submits that this issue does not require the perspective of an intervener and
    that ALS is proposing to expand the issues on appeal.

[8]

As the respondent has not yet filed its factum,
    I cannot say whether the threshold issue will be in play on the appeal, but
    it probably will be. The intervener addresses the issue in its factum in seven
    brief paragraphs and cites five authorities. In my view, the court would
    benefit from submissions from all parties on this issue. As I am prepared to
    grant leave to intervene on the other issues, I cannot see that the
    interveners submissions on this issue will cause prejudice.

[9]

I am therefore satisfied that the proposed intervention by ALS
    meets at least one of the three criteria articulated in
Bedford v. Canada
    (Attorney General)
, 2009 ONCA 669: ALS has an important perspective on the
    issues in this appeal, distinct from that of the immediate parties and it is
    able to make a useful contribution to the resolution of the appeal without
    causing injustice to the immediate parties.

[10]

The motion for leave to intervene is granted on the following
    conditions:

a)


ALS shall not supplement the record by way of
    its factum or otherwise and shall accept the evidentiary record prepared by the
    parties;

b)

ALS may file a factum not more than 10 pages in length, no later
    than July 23, 2018;

c)


ALS may have up to 20 minutes to make
    oral submissions, which, by consent of the appellant, will be deducted from the
    appellants time allocation; and

d)


ALS shall make reasonable efforts to
    avoid duplicating the submissions of the parties.

[11]

In light of the intervention, I grant the
    respondents request to file a factum of 35 pages in length.

G.R.
    Strathy C.J.O.


