



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Contreras, 2018 ONCA 328

DATE: 20180405

DOCKET: M48924 (C56862)

Feldman and Benotto JJ.A. and Sachs J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Contreras

Appellant

and

Virgil Cojocaru

Applicant

Robin Parker, for the applicant

Christine Bartlett-Hughes, for the respondent

Anthony Moustacalis, for the appellant

Heard: March 26, 2018

Motion for directions.

REASONS FOR DECISION

[1]

This is a motion for directions brought on
    behalf of the impugned counsel in an appeal alleging ineffective assistance.

[2]

The applicants motion originally sought an
    order granting him intervener status. It was for that reason the case
    management judge referred the motion to a panel of the court. The applicant
    then changed the relief sought on this motion. He now wants to wait to
    determine whether he will seek intervener status until after reviewing the transcripts
    of the cross-examinations on the affidavits filed with respect to the issue of
    ineffective assistance, including of the cross-examination of his former
    principal and others. On this motion he now seeks an order that he is entitled
    to copies of those transcripts.

[3]

Although the current request should have been raised
    with the case-management judge in accordance with this courts protocol, in
    light of the delays occasioned thus far and the consent of all counsel, the
    motion proceeded before the panel.

[4]

The basis for the applicants request is
    twofold: (i) he wishes to review the transcripts in order to assess the
    potential for a motion to intervene; and (ii) he wants the information to be
    able to clear his name.

[5]

In our view, neither of these reasons support
    the order sought.

[6]

On the record before us, there is no potential
    for a successful motion to intervene. Although the threshold for a merit
    assessment at this stage is low, the applicant has failed to reach it. We see
    no potential basis that would support a motion for intervener status.

[7]

The right to intervene in criminal proceedings
    should be granted sparingly:
R. v. Seaboyer
(1986), 50 C.R. (3d) 395 (Ont. C.A.), at para. 398. The issue on this appeal is
    whether there has been a miscarriage of justice such that the appellant should
    have a new trial. The applicant seeks to inject a collateral issue into the process.
    This is evident from the Motion for Directions, which states, in part:

The applicants
    position is that he did not ineffectively assist the appellant, but if he did,
    that responsibility is shared with his former articling principal and mentor.

[8]

This issue is not before the court on the appeal,
    which is not a forum for resolving disputes between the applicant and his
    former principal.

[9]

To the extent that the applicant has an interest
    in protecting his personal and professional reputation, this Courts Practice
    Direction pertaining to allegations of ineffective assistance of counsel
    provides him with a process that appropriately protects those interests.

[10]

Further, involvement of the applicant as
    intervener would cause prejudice to the appellant.  The conviction under appeal
    was entered on January 14, 2013. The appellant has been on strict bail
    conditions and is entitled to have his appeal heard expeditiously. It would
    also require the appellant to, in effect, respond to two Crowns and potentially
    put the applicant at odds with his duty of loyalty to the appellant.

[11]

In short, there is no basis to order that
    transcripts be available to a non-party to support a meritless intervener motion.
    There is also no basis to provide the transcripts to support the appellants
    attempt to inject a collateral issue into the appeal process.

[12]

Accordingly the motion is dismissed.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J.


