



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Barreau, 2021 ONCA 918

DATE: 20211221

DOCKET: M52943 (C69723)

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Barreau

Respondent

and

J.R.

Appellant

and

Toronto Police Service

Appellant

David Butt, for the appellant/moving
    party J.R.

Noah Schachter, for the
    appellant/moving party Toronto Police Service

Nicolas de Montigny, for the respondent
    Attorney General of Ontario

Chris Rudnicki and Theresa Donkor, for
    the respondent Kevin Barreau

Heard: December 17, 2021 by video
    conference

On appeal from
    the judgment of Justice Jill M. Copeland of the Superior Court of Justice,
    dated July 27, 2021, dismissing an application for
certiorari
from the
    order of Justice Russell S. Silverstein of the Ontario Court of Justice, dated May
    27, 2021.

REASONS FOR DECISION

[1]

As an issue on this appeal concerns whether the
    third-party records regime in ss. 278.1-278.9 of the
Criminal Code
, R.S.C., 1985, c. C-46,
applies, by
    order of the panel on the motion this appeal was heard
in camera
.

[2]

The arguments below focused on the applicability
    of the third-party records regime to the evidence it was anticipated the former
    officer (J.R.) would provide. The application judge concluded that the trial
    judge had not made an error of jurisdiction or an error of law on the face of
    the record in issuing a subpoena requiring J.R. to testify at Mr. Barreaus
    trial. We see no error in her analysis or her conclusions.

[3]

As both the trial judge and application judge
    held, clearly the third-party records regime would not apply to the oral
    statements allegedly made by J.R. to her former colleague (A), who provided
    two affidavits on the application before the trial judge.

[4]

As to the draft statement of claim, which in one
    paragraph repeated the alleged oral statement, both judges below correctly
    stated the applicable legal principles. In particular, they recognized that the
    principles in
R. v. Shearing
,
2002 SCC 58, [2002] 3 S.C.R. 33,

applied to the issue of the lawfulness of how the defence acquired the
    draft statement of claim. We see no reversible error in their conclusions that
    settlement and mediation privilege did not apply and, therefore, in the
    particular circumstances, the third-party records regime did not apply.

[5]

In any event, the trial judge held that if the
    third-party records regime applied, upon applying the statutory criteria he
    concluded that production of the draft statement of claim to the defence on its
Charter
application was necessary in the interests of justice. We see
    no reversible error in that conclusion.

[6]

The appeal is dismissed.

[7]

The interim stay dated August 9, 2021 granted by
    Harvison Young J.A. is set aside. Accordingly, the unsealing and set aside orders
    made by Copeland J. at paras. 29(ii) and (iii) of her endorsement dated July
    27, 2021 are now in force.

E.E. Gillese
    J.A.

David Brown J.A.

S. Coroza J.A.


