



WARNING

THIS IS AN APPEAL RELATING TO CHARGES 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    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to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    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent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. D.A., 2018 ONCA 96

DATE: 20180201

DOCKET: C62799

Doherty, LaForme and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Mark Sandler and Amanda Ross, for the appellant

Andrew Hotke, for the respondent

Heard: January 17, 2018

On appeal from the convictions entered by Justice Peter
    N. Bourque of the Ontario Court of Justice on August 4, 2016.

Paciocco J.A.:

[1]

This is an appeal by D.A. from his August 4, 2016 convictions of three historical
    sexual offence charges. His appeal is based exclusively on the judges denial
    of two s. 11(b) unreasonable delay applications D.A. brought. If either of D.A
    s. 11(b) applications should have been granted by the trial judge, D.A.s conviction
    appeal must be allowed since a successful s. 11(b) application would have
    required the charges to be stayed.

[2]

D.A.s first s. 11(b) application was brought prior to the decision in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. Its outcome therefore
    depended on the law developed in
R. v. Morin
, [1992] 1 S.C.R. 771. I
    refer to this first application as the
Morin
application.

[3]

The second application was brought after
Jordan
was decided.
    Although the factual foundation for the second application remained the same as
    the first application, D.A.s second application  his
Jordan
application
     was based on retroactive changes
Jordan
made to the law.

[4]

It is not controversial that the delay in D.A.s case is presumptively
    unreasonable applying the
Jordan
test. In spite of this, D.A. is
    correct to concede before us that the outcome of his appeal turns on whether
    the trial judge erred in deciding the
Morin
application. This is
    because there is nothing in this case that would prevent the Crown from invoking
    its reasonable reliance on the
Morin
regime to defeat D.A.s
    transitional
Jordan
application.

[5]

In my view, the trial judge did err in deciding the
Morin
application.
    He was wrong in finding the
Morin
delay to be approximately 14 months. Properly
    analysed, the total
Morin
delay was upwards of 17 months, a period of
    delay that was not reasonable in the circumstances of this case.

[6]

The trial judge arrived at 14 months of
Morin
delay by holding
    D.A. responsible for the delay between February 26, 2015 and August 10, 2015,
    the day the trial date was set, because D.A. should have been ready to set a
    trial date on February 26, 2015 or shortly thereafter. There are several
    reasons why this finding was in error.

[7]

First, at the February 26, 2015 judicial pretrial the Crown gave an
    extensive disclosure package to D.A. That disclosure package included a video
    statement given by D.A., electronic discs, and more than 120 pages of printed
    material, including multiple police notes. The pretrial judge recognized that
    the pretrial could not go ahead because of the substantial, late disclosure
    that had just been made. Defence counsel needed time to review the disclosure before
    proceeding. In the face of this last minute, material disclosure, the trial
    judges conclusion that the Crown had substantially filled the essential
    disclosure requests by February 25, 2015, to an extent which allowed the matter
    to proceed further, to judicial pre-trial and then setting a trial date was
    unreasonable.

[8]

Second, on February 26, 2015 D.A. stood charged only with youth
    offences. The adult charges that are the subject of this appeal had not yet
    even been laid. The delay in laying the adult charges arose because of a
    miscalculation by the investigator of D.A.s age during the period D.A. was
    alleged to have been carrying on a sexually exploitive relationship with the
    complainant, a neighbouring child. By February 26, 2015, that error had been
    discovered. D.A. was aware that the Crown was contemplating additional adult charges.
    The pretrial judge was also aware of this. Appropriately, the pretrial judge
    recognized that D.A. was in no position to move the case forward until the
    nature of the charges he would face was settled.

[9]

The Crown concedes this latter point but urges that since the adult
    charges were laid on March 17, 2015, D.A. should have been ready to set a trial
    date, at the latest, when the matter next returned to court on April 2, 2015.
    The Crown contends that this additional 5 weeks of delay should not change the
    outcome. There are several difficulties with the Crowns position.

[10]

First,
    April 2, 2015 was the first appearance on the adult charges. The judicial pretrial
    set for that date was scheduled in youth court, relating to the youth matters. It
    is not reasonable to expect D.A. to have set a trial date on his first
    appearance on the adult charges, without the benefit of a pretrial on those
    charges.

[11]

To
    underscore the unfairness in placing responsibility on D.A. to set a trial date
    on the adult charges on April 2, 2015, it is instructive that even on May 14,
    2015, the date that was set to accommodate a joint pretrial on the youth and
    adult matters, the Crown did not have the adult file in court. This led to yet
    a further adjournment.

[12]

The
    second reason why the Crowns contention that D.A. should have set the trial
    date on April 2, 2015 is unfair is that, once again, just before the April 2,
    2015 pretrial began the Crown gave yet another substantial disclosure package to
    D.A., consisting of both electronic and paper disclosure exceeding 80 pages. Since
    D.A.s counsel could not possibly review this material before the scheduled
    pretrial, the Crown agreed to adjourn the pretrial to May 14, 2015.

[13]

The
    Crown suggested before us that its consent to adjourn the April 2, 2015
    pretrial because of its own last minute disclosure is unimportant in assessing
    unreasonable delay unless, by its nature, the information disclosed is shown to
    have been essential to the case. I do not agree. The accused is entitled to review
    disclosure they have received to determine its importance, before moving a case
    forward. Where, as here, that disclosure is made so late that it cannot be
    reviewed before a scheduled appearance, the Crown cannot fairly assert that the
    accused should go ahead and set a date at that scheduled appearance.

[14]

The
    final and most important reason why it was not fair to expect D.A. to set a
    trial date on April 2, 2015 is that essential disclosure was still outstanding
    on that date.

[15]

In
    particular, disclosure had not yet been made of the occurrence report and
    police officers notes relating to the initial complaint. That complaint was
    made in April of 2012 when the police attended the complainants home on an
    unrelated matter. The Crown, incorrectly, was insisting that disclosure of this
    April 2012 information required a third party records application, hence the
    delay.

[16]

The
    importance of the records relating to the initial police complaint in a sexual
    assault allegation is obvious, but those records took on added significance in
    this case. Disclosure that had been made suggested that the complainants mother
    initiated the complaint, and there were issues relating to the mothers credibility
    arising from an unsubstantiated allegation she made that D.A. had breached his
    bail conditions. The history of the complaint in this case mattered, as, of
    course, did any statements made by the complainant about what happened.

[17]

Police
    notes about this April 2012 meeting were not disclosed until April 29, 2015. The
    third party records application was not heard until May 13, 2016, at which time
    the occurrence report itself was disclosed.

[18]

This
    material proved to include statements from the complainant and her mother about
    the alleged assaults. It also included an allegation by the complainant that D.A.
    had attempted to persuade her not to go ahead with the complaint so that his
    life would not be ruined. The Crown ultimately relied upon this information at
    trial as post-offence conduct indicative of guilt.

[19]

On
    August 11, 2015, two further pages of handwritten notes from the complainant
    were disclosed.

[20]

Moreover,
    disclosure relating to statements made by D.A. to the police was still outstanding
    on April 2, 2015. While most of the information about D.A,s statements had already
    been disclosed, on March 17, 2015 defence counsel advised the Crown that an
    officer appeared to have interviewed D.A. twice. That officers notes were not
    disclosed until June 3, 2015. Despite a number of pretrial requests, audiotape
    evidence of D.A.s arrest relating to the implementation of his
Charter
rights was not disclosed until the third day of the trial. This information was
    important to the voluntariness of D.A.s statements.

[21]

Significantly,
    when the trial judge rejected D.A.s
Morin
application he
    misapprehended the nature of the disclosure being sought relating to D.A.s
    statements. He discounted claims by D.A. that non-disclosure relating to statements
    D.A. had made was material, on the mistaken basis that there are no
    confessions or admissions. In fact, at the subsequent trial the Crown led a
    statement from D.A. as containing relevant admissions that supported the
    complainants account.

[22]

On
    this record, it was not reasonable for the trial judge to find that D.A. was
    responsible for the delay after February 26, 2015 because of an unreasonable insistence
    on receiving nonessential disclosure before moving the case forward. Given the
    role played by the Crown in delaying the progress of the case and the
    outstanding material disclosure, it is not fair to blame D.A. for not moving
    the case forward on that date, on April 2, 2015, or arguably even on May 14,
    2015.

[23]

Even
    applying the trial judges underestimated period of
Morin
delay, a delay
    of almost 14 months appreciably exceeds the
Morin
guideline for
    provincial trials of 8-10 months. The trial judge nonetheless denied the
    application because he found the case to be complex, the charges serious, and
    the prejudice modest.

[24]

I
    take no issue with the proposition that a trial judge may be entitled to refuse
    to stay a proceeding under the
Morin
regime after a 14 month delay in
    a complex case involving a serious charge where the delay had a modest level
    of repercussions for the accused. That, however, is not this case. When defence
    delay is properly quantified, the total
Morin
delay is upwards of 17
    months.

[25]

Moreover,
    I cannot accept the trial judges conclusion that this prosecution was complex.
    This was a standard credibility case made only marginally more difficult
    because the prosecution involved both youth and adult charges.

[26]

The
    trial judge may also have underestimated the prejudice to D.A. caused by the
    delay. The trial judge noted in his decision that a defendant who insists upon
    all elements of disclosure before setting dates runs the risk of being
    content with the pace of proceedings. Given that the trial judge mistakenly
    believed that D.A. was insisting on all elements of disclosure before setting
    dates, his sense of the prejudice the delay was causing D.A. may have been
    unfairly minimized.

[27]

In
    my view, notwithstanding that the charges against D.A. were extremely serious, the
    trial judge erred in denying D.A.s
Morin
application. Properly
    calculated, the total
Morin
delay came close to doubling the
Morin
guidelines in a non-complex case where there was some prejudice. Much of that
    delay was attributable to the Crowns errors or last-minute disclosure
    practices. The
Morin
application should have been allowed. The charges
    against D.A. should have been stayed.

[28]

I
    would therefore allow D.A.s conviction appeal, set aside the convictions, and
    stay the proceedings on the charges that are before us.

Released: February 1, 2018 (D.D.)

David M. Paciocco J.A.

I agree. Doherty J.A.

I agree. H.S. LaForme J.A.


