



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. K.V., 2020 ONCA 131

DATE: 20200218

DOCKET: M51269

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

K.V.

Moving Party

Kristin Bailey, for the moving party

Kevin Rawluk, for the responding party

Heard: February 7, 2020

REASONS FOR DECISION

[1]

K.V. is currently being tried in the Ontario Court of Justice on
    sexual offence charges relating to his young daughter, the complainant.

[2]

After evidence in the trial was completed on May 29, 2019, K.V.
    launched an abuse of process application before the trial judge. K.V. claims
    that an abuse of process occurred during the trial when, in violation of a
    court order, and contrary to the Rules of Professional Conduct of the Law
    Society of Ontario, the investigating officer, who had already testified as a
    witness in the proceeding, was directed by the prosecuting Crown counsel to
    question the complainant about her testimony while the complainant was still
    under cross-examination.

[3]

The abuse of process hearing was scheduled to be heard on August 16,
    2019. On that day, it was adjourned because neither the prosecuting Crown
    counsel nor the investigating officer were present; defence counsel had
    anticipated they would be present. The trial judge refused an invitation from
    the Crown to resolve the motion on the paper record, commenting that more
    context could be acquired from oral evidence, and the hearing was adjourned.

[4]

On October 4, 2019, K.V. obtained and served a subpoena on the
    prosecuting Crown counsel to give evidence at the re-scheduled abuse of process
    hearing, set to be heard on December 2, 2019. On November 19, 2019, prosecuting
    Crown counsel succeeded in having that subpoena quashed by a Superior Court
    judge.

[5]

K.V. quickly applied for legal aid to facilitate an appeal of that
    order. The legal aid application was delayed but finally approved on January
    24, 2020. K.V. is now ready to file his notice of appeal and has applied before
    me for an extension of the time to file the notice of appeal.

[6]

The Crown concedes that K.V. had a bona fide intention to appeal during
    the requisite period and has explained the delay in not filing the appeal.
    However, the Crown contends that K.V. has not established that the extension is
    in the interests of justice because his appeal lacks merit and is delaying the
    completion of a sexual offence trial involving a minor.

[7]

I do not agree with the Crown that the appeal is frivolous. I accept
    that context and statements made by the prosecuting Crown attorney on the
    record support a strong inference that the Crown acted as he did in order to determine
    whether to maintain his objection under s. 276 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to a line of questioning defence
    counsel was pursuing. However, this alone does not render the appeal meritless.

[8]

First, the Superior Court judge exercised his discretion to quash the
    subpoena, in part, on the basis that Crown discretion must be protected. K.V.s
    contention that this was erroneous because the Crown was not exercising
    protected discretion when acting illegally and contrary to a court order is not
    without merit.

[9]

Second, the Superior Court judge concluded that the subpoena was a
    fishing expedition, bereft of a reasonable likelihood that the prosecuting
    Crown attorney would have relevant evidence to give. However, K.V.s contention
    that the seriousness of the apparent breaches that occurred will be relevant to
    the outcome of the abuse of process application is not without merit, and as
    the trial judge had recognized, the prosecuting Crown attorney is likely to
    give relevant evidence. That evidence could include testimony about what
    consideration, if any, he gave to the trial judges ruling and to his ethical
    obligations before instructing the investigating officer. These things could
    affect the seriousness of any breaches that may have occurred.

[10]

Finally,
    the Superior Court judge did not find there to be extraordinary circumstances
    warranting the subpoenaing of a prosecuting Crown attorney. There may be merit
    in K.V.s contention that this extraordinary circumstance standard was either
    met, or does not apply where there is a manifest breach of a court order and a
    rule of professional conduct by a prosecuting Crown attorney.

[11]

I
    do appreciate the Crowns concerns about delay in the prosecution of a sexual
    assault trial involving a minor. And it may be that defence counsel aggravated
    the delay by taking inadequate steps to attempt to ensure the timely attendance
    of the prosecuting Crown attorney at the scheduled abuse of process hearings.
    However, I make two points.

[12]

First,
    K.V. has a right of appeal from the Superior Court judges decision. He is
    therefore entitled to delay the trial to exercise his right of appeal even
    though it is a serious sexual assault prosecution involving a minor. The
    primary focus on this application should be on the delay caused in filing the
    notice of appeal and that delay has been explained.

[13]

Second,
    the delay that is occurring, including the delay in having the abuse of process
    hearing conducted, has not delayed the testimony of the young complainant. Her
    evidence is completed.

[14]

I
    appreciate the heightened public interest in completing charges of this kind;
    however, I am satisfied that it is in the interests of justice for K.V. to be
    given an extension of time to file the notice of appeal.

[15]

I
    understand that the notice of appeal is ready to go, and that K.V. can file the
    notice of appeal on short notice. I would order that the notice of appeal be
    filed within 3 business days of the release of this decision, and that he
    perfect his appeal within 30 days of the filing of the notice of appeal.

[16]

I
    will not order the Crown to file its response materials in an expedited manner
    but would encourage that to occur.

David
    M. Paciocco J.A.


