



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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.




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. 539(1), (2), (3) or (4) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

539(1)          Prior to the commencement of the
    taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the
    prosecutor, and

(b) shall, if application therefor is made by any
    of the accused, make an order directing that the evidence taken at the inquiry
    shall not be published in any document or broadcast or transmitted in any way
    before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the
    trial is ended.

(2)     Where an accused is not represented by
    counsel at a preliminary inquiry, the justice holding the inquiry shall, prior
    to the commencement of the taking of evidence at the inquiry, inform the
    accused of his right to make application under subsection (1).

(3)     Everyone who fails to comply with an order
    made pursuant to subsection (1) is guilty of an offence punishable on summary
    conviction

(4)      [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st
    Supp.), s.97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Webster, 2016 ONCA 189

DATE: 20160307

DOCKET: C60789

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher John Webster

Appellant

Robert Sheppard, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: February 29, 2016

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated July 22, 2015, granting certiorari setting
    aside the order of Justice Wayne G. Rabley of the Ontario Court of Justice,
    dated May 8, 2015, discharging the appellant.

ENDORSEMENT

[1]

The appellant was discharged at the conclusion of a preliminary inquiry
    into several offences alleged to have been committed against his domestic partner.
    The preliminary inquiry judge was of the view that there was no evidence that
    the person before the court was the person who committed the offences alleged.

[2]

The Crown applied to a judge of the Superior Court of Justice (the
    motion judge) to quash the discharge and have the matter remitted to the
    preliminary inquiry justice with a direction that the justice order the
    appellants committal. That application succeeded.

[3]

The appellant appeals the order of the motion judge and seeks to have his
    discharge reinstated.

[4]

In this court, the appellant says that what constituted the whole of
    the evidence was a question of law for the preliminary inquiry justice to
    decide. Even if he erred in holding that he could not consider the biographical
    details about the person charged contained in the information, such an error
    was not jurisdictional in nature, and thus not remediable on an application for
    an extraordinary remedy.

[5]

As the complainant began her evidence at the preliminary inquiry, she
    testified that:


i.

she knew Christopher Webster;


ii.

Christopher Webster had been her fiancé; and


iii.

she and Christopher Webster lived in the same apartment at the same
    address specified in the information.

The complainant did not make any dock identification
    because she testified in a sequestration suite not in the courtroom and had no
    view of the dock or of the appellant.

[6]

It is well settled that the identity of names a complainant identifies
    as her assailant and the person charged constitutes some evidence of identity.
    It is all the more so, when the name is accompanied by an address and other
    biographical details:
R. v. Chandra
(1975), 29 C.C.C. (2d) 570
    (B.C.C.A.), at p. 573; and
R. v. B.(D.)
, [2007] O.J. No. 1893 (C.A.),
    at para. 1.

[7]

In our view, the failure of the preliminary inquiry justice to consider
    the identity of names as some evidence of identity amounts to a failure to
    consider the whole of the evidence as required by s. 548(1) of the
Criminal
    Code
. Such a failure, in our view, in the circumstances of this case, constituted
    a jurisdictional error and was properly remedied by the motion judge.

[8]

The appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.


