



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. G.C., 2018 ONCA 392

DATE: 20180423

DOCKET: C61394

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.C.

Appellant

G.C., in person

Erika Chozik, duty counsel

Deborah Calderwood, for the respondent

Heard: April 6, 2018

On appeal from the conviction entered on April 23, 2015
    and the sentence imposed on August 14, 2015 by Justice Leonard Ricchetti of the
    Superior Court of Justice sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of incest and sexual
    assault. The complainant was his teenage daughter. She gave birth to two of his
    children. He received a global sentence of ten years.

[2]

At trial, the appellant was represented by
    counsel. He testified. Midway through his cross-examination, he dismissed his
    counsel, claiming that his lawyer had been incompetent. The appellant then made
    an application for a mistrial on the basis of what he asserted was the ineffective
    assistance of counsel. The jury was sent away for a brief time so that the
    mistrial application could be heard. The application was dismissed.

[3]

The appellant maintains that the trial judge
    erred in law by failing to apply the same standard as that used to assess claims
    for ineffective assistance of counsel on appeal. On appeal, the test focusses
    on whether there is a reasonable possibility that a miscarriage of justice
    resulted from ineffective assistance at trial:
R. v. Stark,
2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 14-15. The test for a
    mistrial is different. The decision whether to grant a mistrial is a matter
    that lies within the discretion of the trial judge, who must assess whether
    there is a real danger that trial fairness has been compromised:
R.
    v. Khan,
2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

[4]

We disagree that the same test to assess
    ineffective assistance claims on appeal should apply at trial. An incompetence
    of counsel claim, brought during the course of a trial, should be approached
    within the principled framework for mistrial applications. Bearing in mind the
    unique dynamics of each trial, judges need to be left with a broad discretion
    to manage the trial process. A mistrial is a remedy of last resort, and it falls
    squarely within the discretion of the trial judge who is in the best position
    to assess whether such a remedy is needed in order to avoid miscarriages of
    justice. No new test is required.

[5]

Read in totality, the trial judges reasons
    demonstrate that he essentially considered the incompetence claim by applying a
    mistrial framework. He was faced with a difficult and complex issue at a
    sensitive time in the trial. He managed the issue in a deft manner and we see
    no error in his exercise of discretion. We specifically endorse the trial
    judges conclusion that there had been no incompetence of counsel in this case.

[6]

We also agree with the Crowns submission that,
    in any event, this was an overwhelming prosecution case. The complainants
    evidence was supported by independent DNA evidence suggesting that her children
    were fathered by the appellant. There was no miscarriage of justice.

[7]

We also see no error in the sentence imposed.

[8]

The conviction and sentence appeals are dismissed.

Paul Rouleau J.A.

M. Tulloch J.A.

Fairburn J.A.


