





The court released its judgment in
this matter to counsel, the appellant and the trial judge only, on November 20,
2014 after an
in camera
hearing.  The court has received submissions
from counsel who reviewed the unredacted judgment.  The court has determined
that the attached redacted version of the reasons should be released to the
public.  The full reasons along with the rest of the Court of Appeal file
remain under seal.



The court further orders that the
unredacted reasons may be provided to Crown counsel engaged in or supervising
the prosecution of the appellant.  Crown counsel may provide the unredacted
version to the officer in charge of the investigation.







COURT OF APPEAL FOR ONTARIO

CITATION: R. v. X.Y., 2014 ONCA 826

DATE: 20141120

DOCKET: C56505 and M44145

Doherty, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

X.Y.

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Susan Magotiaux, for the respondent

Heard: November 12, 2014

On appeal from the order [date redacted] of a judge [name
of judge redacted] of the Superior Court of Justice.

By the Court:

[1]

This interlocutory appeal is brought pursuant to s. 37.1 of the
Canada
Evidence Act
, R.S.C. 1985, c. C-5.  The s. 37 proceeding was brought by
the Crown in the course of pre-trial motions in a trial at which the appellant
and others were charged with various offences.  The trial is adjourned pending
the outcome of this appeal.

[2]

The trial judge was faced with a fluid and very unusual situation.  His
carefully crafted response to that situation included orders under s. 37(4) and
37(6) of the
Canada Evidence Act
and an order governing the conduct of
part of the trial [description of trial redacted] made under s. 37.3 of the
Canada
Evidence Act
.  This appeal purports to challenge all facets of the trial
judges orders although s. 37.1 of the
Canada Evidence Act
, which
creates the right of appeal, does not provide for an appeal from an order made
under s. 37.3.

[Paragraphs 3-7 have been redacted.]



[8]

We are in substantial
agreement with the position advanced by the Crown.  [One sentence redacted.]  Evidentiary
rulings are properly made by trial judges under the rules governing the
admissibility of evidence in a criminal trial.  Section 37 orders target
disclosure of specific information and are more appropriately sought in the
criminal trial context, after an evidentiary ruling is made by the trial judge
and the ruling contemplates the disclosure of certain information during
testimony.  If the Crown takes the position that the ruling would result in the
disclosure of information protected by the confidential informant privilege,
that Crown may seek a s. 37 order: see
R. v. Pilotte
, [2002] 163
C.C.C. (3d) 225 at para. 41-44; leave to appeal to S.C.C. refused, 170 C.C.C.
(3d) vi.

[9]

We recognize that only the Crown can institute a proceeding under s. 37
of the
Canada Evidence Act
.  [One sentence redacted.]  The Crown in
exercising its power to invoke s. 37 proceeding, is under a legal obligation to
do all in its power to avoid revealing the identity of a confidential informant:
R. v. Named Person B
, [2013] 1 S.C.R. 405 at para. 140, per Cromwell
J. in dissent but not on this point.  This obligation may necessitate the
initiation of a s. 37 proceeding by the Crown even if the evidentiary ruling is
favourable to the Crowns position at trial.

[Paragraphs 10-23 have been redacted.]



[24]

The
appeal is dismissed.  The matter is remitted to the trial court for the
continuation of the trial.

[25]

The
entire appeal file in this court is currently under seal.  Most of the oral
argument on the appeal was heard
in camera
.  It may be that
publication of these reasons in the normal course would compromise the identity
of a confidential informant.  Consequently these reasons will be released at
this time only to the trial judge and to the parties on the terms and
conditions discussed at oral argument.  After the parties have had an
opportunity to review the reasons, they may arrange a conference call with the
president of the panel to determine what steps, if any, should be taken in
respect of the further release of these reasons.



Released: November 20, 2014 (D.D.)

Doherty J.A.

K. Feldman
J.A.

Janet Simmons
J.A.


