



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. MacKay,









2021 BCCA 87




Date: 20210104

Docket: CA44514

Between:

Regina

Respondent

And

Kurk Joshua MacKay

Appellant

And

Ministry of
Children and Family Development

Intervenor

Restriction
on publication:
A publication
ban has been mandatorily imposed under
s. 486.4(2) of the
Criminal
Code
in cases
involving sexual offences to ban the
publication, broadcasting or transmission in any way of evidence that could
identify a
complainant or any witness under the age of 18. This publication ban
applies
indefinitely unless otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information Registration Act
[
SOIRA
],
no
person shall disclose any information that is collected pursuant to an order
under

SOIRA
or the fact that information relating to a person is collected
under
SOIRA
.

FILE
SEALED IN PART




Before:



The Honourable Mr. Justice Willcock

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Butler




On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 9, 2017 (
R. v. MacKay
, Victoria Docket 165264).

Oral Ruling re
In Camera
Proceedings




Counsel for the Appellant

(via videoconference):



T.J. Russell





Counsel for the Respondent

(via videoconference):



M.G. Scott





Counsel for the Intervenor

(via videoconference):



L. Hawes





Place and Date of Hearing:



Vancouver, British
  Columbia

January 45, 2021





Place and Date of Judgment:



Vancouver, British
  Columbia

January 4, 2021








Summary:

The appellant applies for an
order that the entire appeal be held in camera, or, in the alternative, an
order that the grounds of appeal addressing errors relating to the trial
judges application of ss. 278.93 and 278.3 of the Criminal Code be
held in camera. Held: Application granted in part. The application to hear the
entire appeal in camera is dismissed, but the application to hear the grounds
of appeal addressing ss. 278.93 and 278.3 in camera is granted.

[1]

WILLCOCK J.A.
: The appellant applies for an order that this
appeal be heard
in camera
pursuant to s. 9 of the
Court of
Appeal Act
, R.S.B.C. 1996, c. 77, and our general jurisdiction.

[2]

In the alternative, he seeks an order that those aspects of the appeal
founded upon the grounds the trial judge erred in addressing the application
pursuant to s. 278.93 of the
Criminal Code
, R.S.C. 1985,
c. C‑46 for the determination that evidence of a complainants
sexual activity might be admitted into evidence be heard
in camera
,
and an order that that aspect of the appeal founded on the grounds of the trial
judge erred in addressing an application for production of third party records
in possession of the intervenor, Ministry of Children and Family Development,
be heard
in camera
.

[3]

We are of the view the application to hear the entire appeal
in camera
ought to be dismissed.

[4]

We will hear those grounds of appeal founded upon the alleged error in
addressing s. 278.93 in relation to a complainants prior sexual activity,
and the appeal founded upon an alleged error in relation to s. 278.3 for
production of third party records
in camera
. These appeals may require
us to make determinations that are required to be made following an
in‑camera
hearing pursuant to the applicable provisions of the
Criminal Code
.

The Honourable Mr. Justice
Willcock

The Honourable Madam Justice
Dickson

The
Honourable Mr. Justice Butler


