



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an
    offence punishable on summary conviction.




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.C., 2021 ONCA 776

DATE: 20211101

DOCKET: C67417

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.C.

Appellant

Phillip Millar, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: October 26, 2021 by
    video conference

On appeal from the conviction entered by Justice Norman S.
    Douglas of the Ontario Court of Justice on August 20, 2019.

REASONS FOR DECISION

[1]

This is an appeal from a conviction for sexual assault. The matter
    proceeded under the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
)
. The complainant, her friend, and the
    accused testified, as did a couple of other witnesses. The case turned entirely
    on an assessment of credibility.

[2]

Section 142 of the
YCJA
provides that proceedings in youth
    justice court are generally governed by provisions applicable to summary
    conviction offences found in the
Criminal Code
, R.S.C., 1985, c. C-46,
    except where they are inconsistent with the
YCJA
. The respondent
    acknowledges that those provisions include s. 802(3) of the
Criminal Code
, requiring that
every witness shall be
    examined under oath.

[3]

Section 14 of the
Canada Evidence Act
, R.S.C., 1985, c. C-5,
provides an
    alternative to an oath by way of solemn affirmation:

14(1) A person may, instead of taking an oath, make the
    following solemn affirmation:

I solemnly affirm that the evidence
    to be given by me shall be the truth, the whole truth and nothing but the
    truth.

(2) Where a person makes a solemn affirmation in accordance
    with subsection (1), his evidence shall be taken and have the same effect as if
    taken under oath.

[4]

The respondent accepts that the most critical witnesses in this trial 
    the complainant, her friend, and the appellant  were neither sworn nor
    affirmed in accordance with the statutory requirements. Even so, the respondent
    argues that s. 686(1)(b)(iv) of the
Criminal Code
can be applied to
    cure what is described as a procedural irregularity, given that the witnesses who
    were 16 and 17 years of age at the time understood the need to tell the truth
    even though they were not placed under oath or affirmed: see
R. v.
    Esseghaier
, 2021 SCC 9, 454 D.L.R. (4th) 179, at para. 39.
[1]


[5]

In our view, this is not an appropriate case in which to apply the
    procedural proviso.

[6]

We do not accept in this case, one that turned completely on the
    credibility of the unsworn and unaffirmed witnesses, that the failure to administer
    oaths or affirmations was as benign as suggested. The respondent is right to
    point out that there were some limited exchanges with the Crown witnesses, who
    testified by video link, about whether they would promise to tell the truth
    and the legal nature of a promise. As for the appellant, he was asked if he
    wanted to take an oath on the Bible or would prefer a promise. He responded,
    Yeah, promise.

[7]

While we accept the respondents observation that everyone in the
    courtroom proceeded as though the witnesses had been properly affirmed, they
    were not and, in our view, the casual manner in which the promises were made,
    including answers such as yeah and okay in response to general questions
    about whether the witnesses were comfortable with promising or whether they
    understood that a promise is legally binding, did not in the circumstances of
    this case act as a functional equivalent of an oath or affirmation, as the
    Crown submitted.

[8]

Therefore, despite the respondents capable arguments, we are not able
    to conclude that the accused suffered no prejudice in this case.

[9]

The conviction appeal is allowed and a new trial is ordered.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.A.





[1]

The respondent also acknowledges that there is some
    uncertainty as to whether s. 686(1)(b)(iii) might also be used to proviso an
    error relating to the swearing or affirming of witnesses. We agree, with the
    respondents submission, that this issue need not be resolved in this case.


