



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), (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    the complainant or a witness shall not be published in any document or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, 172, 172.1, 173, 210, 211,
    212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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).

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. J.E.T., 2013 ONCA 492

DATE: 20130723

DOCKET: M42495 (C53171)

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.E.T.

Appellant

David E. Harris, for the appellant

Kim Crosbie, for the respondent

Heard: July 17, 2013

By the Court:

[1]

The appellant was convicted by a jury in October 2010 on eight counts
    relating to sexual offences and assaults committed against six sisters some forty
    years earlier. He was sentenced to a total of ten years imprisonment.

[2]

He died on March 23, 2013, while on bail pending appeal. In the normal
    course, this appeal becomes moot and should abate as a result of the
    appellants death. However, his widow, the applicant, seeks to continue the
    appeal, following the procedure outlined by the Supreme Court of Canada in
R.
    v. Smith
(2004), 181 C.C.C. (3d) 225.

[3]

Under this procedure, there is a discretion to permit the appeal to
    continue where special circumstances make it in the interests of justice to do
    so.  This discretion is to be sparingly exercised in rare and exceptional cases.

[4]

In
Smith
at para. 50, Binnie J. referred to a list of
    non-exhaustive factors that may be present in any particular case, which the
    court may take into account in the exercise of its discretion.  The key factor
    in the present case relates to the primary issue raised on appeal, namely,
    whether it is of general public importance, particularly if it is otherwise
    evasive of appellate review.

[5]

In this regard, the moving party focuses on the ground of appeal related
    to the expert evidence offered by a Crown witness on the memories of victims of
    childhood sexual abuse and matters of recovered memory and repressed
    memory.  He asserts that the trial judge improperly admitted that expert evidence.
    If the appeal proceeds, the moving party will seek leave to adduce fresh
    evidence from an expert who will testify that, based on the current state of
    research, the factual underpinnings for the Crowns expert opinion were
    incorrect.

[6]

The moving party argues that this issue is of broad public importance
    and that it presents this Court with an opportunity to contribute to the law on
    recovered memory. He also says that the impugned expert evidence calls into
    question the integrity of the process by which the appellant was convicted.

[7]

Turning to the factors identified in
Smith
, we are prepared to
    assume that if leave is granted the appeal will proceed in a proper adversarial
    context and that the grounds of appeal, taken together, have some merit. We
    cannot, however, conclude that there are special circumstances that transcend
    the death of the appellant. While the issue of repressed or recovered
    memory is an important one, it was not the sole focus of the evidence of the
    Crowns expert.  Moreover, the issue cannot be described as one that is
    evasive of appellate review. It has been the subject of discussion in a
    number of cases  see for example:
R. v. Markman
, [2002] O.J. No. 4250
    (C.A.);
R. v. B.M.

(1998), 130 C.C.C. (3d) 353 (Ont. C.A.). As
    the respondents counsel puts it, the issue has arisen in the past and will
    again in the future.

[8]

That brings into play the fourth factor mentioned in
Smith
,
    namely, whether the nature of the order that this Court could make justifies
    the expenditure of limited judicial resources to resolve a moot appeal.  If the
    applicant succeeds on the appeal, the court would most likely order a new trial
     something that is not possible in the circumstances of this case: see
R.
    v. Niemi
, [1998] O.J. No. 460 (C.A.), at para. 3. In this case, the
    defence did not adduce expert evidence on the issue of false memories and, as
    the Crown submits, the issue was not litigated at trial in the manner in which
    it is now being argued.   An academic inquiry into the issue, at the appellate
    level, without an underlying
lis
, would be incomplete, would not serve
    the interests of justice in this particular case and would not justify the
    substantial expenditure of limited judicial and court resources.

[9]

We do not overlook another aspect of the special circumstances
    inquiry, that is, the consequences for the applicants family. However, even if
    the appeal were to be allowed, it could not be construed as an exoneration of
    the deceased. Moreover, two of the convictions were based on the evidence of a
    witness who had always remembered the sexual assaults at issue  that is,
    convictions that were not founded on repressed or recovered memory.

[10]

In
    sum, this is not one of those exceptional cases in which leave to continue the
    appeal should be granted. The motion is dismissed and the appeal is dismissed
    as abated.

RELEASED: JUL 23 2013                          John
    Laskin J.A.

JL                                                             E.E.
    Gillese J.A.


G.R.
    Strathy J.A.


