



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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)
Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)

On application of a justice
    system participant who is involved in proceedings in respect of an offence
    referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a
    judge or justice may make an order directing that any information that could
    identify the justice system participant shall not be published in any document
    or broadcast or transmitted in any way if the judge or justice is satisfied
    that the order is necessary for the proper administration of justice.

(3)

An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)

An applicant for an order
    shall


(
a
) apply
      in writing to the presiding judge or justice or, if the judge or justice has
      not been determined, to a judge of a superior court of criminal jurisdiction in
      the judicial district where the proceedings will take place; and


(
b
) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)

An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)

The judge or justice may hold
    a hearing to determine whether an order should be made, and the hearing may be
    in private.

(7)

In determining whether to make
    an order, the judge or justice shall consider


(
a
) the right to a fair and public hearing;



(
b
)
      whether there is a real and substantial risk that the victim, witness or
      justice system participant would suffer significant harm if their identity were
      disclosed;

(
c
)
      whether the victim, witness or justice system participant needs the order for
      their security or to protect them from intimidation or retaliation;

(
d
)
      societys interest in encouraging the reporting of offences and the
      participation of victims, witnesses and justice system participants in the
      criminal justice process;

(
e
)
      whether effective alternatives are available to protect the identity of the
      victim, witness or justice system participant;



(
f
) the salutary and deleterious effects of the proposed
      order;



(
g
) the impact of the proposed order on the freedom of
      expression of those affected by it; and



(
h
) any other factor that the judge or justice considers
      relevant.


(8)

An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)

Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way


(
a
) the contents of an application;



(
b
) any
      evidence taken, information given or submissions made at a hearing under
      subsection (6); or



(
c
) any
      other information that could identify the person to whom the application
      relates as a victim, witness or justice system participant in the proceedings. 
      2005, c. 32, s. 15.


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. 205, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.G., 2012
    ONCA 895

DATE: 20121219

DOCKET: C53495

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. G.

Appellant

S. G., in person

Delmar Doucette, duty counsel

Eric Siebenmorgen, for the respondent

Heard and released orally: November 21, 2012

On appeal from the conviction entered on January 27, 2011
    and the sentence imposed on March 25, 2011 by Justice Paul F. Lalonde of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted by a jury of two counts relating to assaults
    committed on her 23-month-old daughter. She defended the case primarily on the
    basis that the assailant was her then boyfriend who had a disposition for
    violence.

[2]

Mr. Doucette raises three grounds of appeal. Mr. Siebenmorgen, for
    the respondent, acknowledges that errors in the jury selection process warrant
    the setting aside of the convictions and an order for a new trial. We agree

[3]

The first error has to do with the timing of the decision to choose
    alternate jurors. Under s. 631(2.1) of the
Criminal Code
the decision
    to choose alternate jurors must be made before the clerk of the court withdraws
    any cards from the box at the outset of jury selection. Here, the trial judge
    did not make his decision to select alternates until a jury of 12 had already been
    selected. No statutory authority permits the decision to select alternates to
    be made at the time of the selection process at which it was made here.

[4]

Of greater significance, however, is the second error. During the
    selection of the alternates for which each party would have been entitled to
    two further peremptory challenges, the trial judge erroneously concluded that
    the appellant had exhausted all her peremptory challenges. As a result, an
    alternate who later became a juror by substitution, was selected without
    affording the appellant a peremptory challenge to which she was entitled.

[5]

Whether the first flaw, considered on its own, would be fatal, and not
    remediable under s. 643(3), s. 670(a), or s. 686(1)(b)(iv), or their
    combination, we need not decide. The respondent acknowledges and we agree that
    the second error is fatal to the validity of the conviction. It cannot be saved
    by either s. 670 or s. 686(1)(b)(iv) whether considered singly or in
    combination.

[6]

In the result, the appeal is allowed, the convictions set aside, and a
    new trial ordered. In the circumstances, we do not need to consider the other
    grounds of appeal advanced on the appellants behalf.

R. Juriansz J.A.

David Watt J.A.

Gloria Epstein J.A.


