



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Dyce, 2016 ONCA 397

DATE: 20160525

DOCKET: M46424 (C60818)

Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Dyce

Applicant (Appellant)

Wayne Dyce, acting in person

Lorna Bolton, for the respondent

Heard and released orally: May 11, 2016

ENDORSEMENT

[1]

The applicant seeks release pending the determination of his appeal from
    convictions of sexual assault and sexual assault with a weapon. He also seeks
    leave to appeal sentence.

[2]

It is settled law in this province that second and subsequent
    applications for release pending appeal require an appellant to demonstrate a
    material change in circumstances from those under consideration on the prior
    application or applications. A material change in circumstances requires
    information that could alter the assessment of one or more of the statutory
    factors governing release pending appeal. See,
R. v. Baltovich
(2000),
    144 C.C.C. (3d) 233 (Ont. C.A.).

[3]

Mr. Dyce raises two points in his submissions about changes in
    circumstances. He contends that he now has obtained a copy of the decision tree
    provided to the jury on the count of sexual assault with a weapon. He says it
    is flawed because it fails to display a not guilty verdict in a box opposite a
    negative finding about the use of a weapon and also contains a flawed
    definition of weapon, or no definition at all of weapon or bodily harm.

[4]

A decision tree is not a jury instruction. It is, rather, a deliberation
    aid to assist jurors in the deliberation process. It is the jury charge that
    describes and defines the constituent elements of the offences on which jurors
    are to deliberate. The absence of definitions or accurate definitions from a
    decision tree is of no moment, provided the essential elements are explained,
    as they were here, in the charge to the jury. Weapon is exhaustively defined
    in s. 2 of the
Criminal Code
as is bodily harm. Bodily harm is not
    an essential element of sexual assault with a weapon.

[5]

There is no material change in circumstances that would justify a fresh
    look at the issue of release pending appeal. The information provided,
    including the decision tree that was filed as a lettered exhibit at trial, is
    incapable of altering the assessment of any of the statutory factors governing
    release pending appeal, in particular, the requirement that the appeal not be
    frivolous.

[6]

The application is dismissed.

David Watt J.A.


