



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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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the victim shall not be published in any document or broadcast or transmitted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. M.C., 2018 ONCA 606

DATE: 20180629

DOCKET: M49315 (C63699)

Strathy C.J.O. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent



AND

M.C.

Appellant

AND



Aboriginal Legal Services

Applicant
(Proposed Intervener)



Jonathan Rudin and Melissa D. Atkinson, for the proposed
intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Heard: June 21, 2018

REASONS FOR DECISION

[1]

Aboriginal Legal Services (ALS) seeks leave to
intervene in this appeal as a friend of the court.

[2]

The appellant challenges the admission of his
criminal record into evidence in a judge-alone trial. He submits that
the
systemic
factors recognized in
R. v. Gladue
, [1999] 1 S.C.R. 688, should inform the probative value/prejudicial
effect analysis when considering the criminal record of an indigenous accused
under
R. v. Corbett
, [1988] 1 S.C.R. 670. He
also submits that
Gladue

principles should
have been applied to determine the use of the appellants prior convictions in
the assessment of his credibility.

[3]

Interventions in criminal matters, where the
liberty of the accused is at stake, should be granted sparingly:
R.
v. Seaboyer

(1986),
50 C.R. (3d) 395
(Ont. C.A.), at p. 398. The court
will consider, among other things, the nature of the case, the issues that
arise and the likelihood that the applicant can make a useful contribution to
the resolution of the appeal without causing injustice to the immediate
parties.

[4]

I should say at the outset that no issue is
raised concerning ALSs experience and expertise in criminal law issues
affecting indigenous peoples. ALS has made important contributions as an
intervener in this court, the Supreme Court of Canada and other appellate
courts.

[5]

However, the record on
this motion
does not discharge the
burden of establishing that ALS is able to make a useful contribution to the
resolution of
this appeal
without causing injustice to the immediate parties.

[6]

Subsection 7.2.10.4 of the Practice Direction Concerning
Criminal Appeals at the Court of Appeal for Ontario sets out the materials that
must
be filed on a motion
to intervene:

After the date for the hearing of the motion
to intervene is confirmed, the moving party
must
file a notice of motion, motion record, factum, and other material
for use by the court. [Emphasis added.]

[7]

These requirements are mandatory.

[8]

A motion record is necessary to provide context
for the motion, to identify the issues, the positions taken by the parties to
the appeal and to enable the court to ascertain whether the contribution of the
proposed intervener will inform the courts appreciation of the issues.

[9]

The factum of a party seeking leave to intervene
will set out, among other things, the submissions that the moving party would
make at the hearing of the appeal and will demonstrate how the test for
intervention is met. In some cases, it may be advisable to file a draft factum,
containing the submissions that will be made if leave to intervene is granted.

[10]

Needless to say, the factum assists the court in
preparing for the motion and in probing the position of the proposed intervener
and the respondent on the motion. It assists the court in determining whether
the proposed intervener would make a useful contribution beyond that offered by
the parties, without causing injustice to the immediate parties.

[11]

Injustice can occur, for example, where the
intervener is not simply offering a new perspective on the issues, but is
raising new issues. It can also occur where the interveners perspective is no different
from the perspective being advanced by one of the parties. Deciding whether an
intervener meets the conditions for intervention frequently requires a careful
analysis of the submissions of the parties to the appeal and the arguments the intervener
proposes to advance.

[12]

In this case, ALS filed only a notice of motion
and an affidavit sworn by the President of its Board of Directors. It did not
file a motion record to establish the context in which the issues arise, a
factum setting out its submissions on the motion, or any other materials, such
as a book of authorities, for the use of the court.

[13]

The affidavit summarized the work done by ALS,
including its extensive experience in interventions. It said
nothing
about the submissions or contribution ALS proposed to make in the appeal, if
granted leave to intervene.

[14]

The notice of motion contained three paragraphs which suggest
that ALSs proposed contribution would be directed at the application of
Gladue
factors during the weighing of evidence portion of a trial. ALS submits that
a finder of fact must give express consideration to the systemic factors
identified in [
R. v. Williams
, [1998] 1 S.C.R. 1128] and
Gladue
and its progeny when determining what inferences can be drawn from an Indigenous
persons criminal record. ALS says that
Gladue
factors must be
considered when the accuseds criminal record is used to assess credibility.

[15]

The respondent argues that the interveners proposed submissions
go to the
weight
to be accorded to the criminal record in light of
Gladue
factors, whereas the appellants submissions relate to the
admissibility
of the criminal record and that the intervener is really raising a new issue.

[16]

I do not propose to resolve this question. Notwithstanding
the helpful oral submissions on behalf of ALS, the best I can say on the material
before me is that the proposed intervener
might
be able to make a useful contribution to the appeal without
prejudice to the parties. That is not sufficient.

[17]

In the particular circumstances of this case, including
the importance of the issues, I have decided to permit the proposed intervener
to re-submit this motion, if so advised, on a proper record and on certain
conditions. As the appeal is scheduled to be argued in September and there is
an existing schedule for the delivery of the respondents factum, the appeal will
have to be re-listed if the intervention motion proceeds.

[18]

The conditions are as follows:

a)

if the intervener wishes to proceed with the
motion, and the parties do not consent to the re-listing of the appeal, counsel
will, within 10 days, arrange a teleconference through the Registrar;

b)

the interveners materials will be filed within
21 days of this date or such other date as the parties may agree upon or the
court may order;

c)

the responding parties may file additional
responding material, if so advised, within 21 days of receipt of the
interveners materials  as the Crown filed extensive materials on the motion,
including a factum, it is not required to file any additional materials; and

d)

the motion will be considered on the written
materials filed and personal attendance will not be required.

[19]

If the parties are able to resolve the motion, a
draft order may be submitted with the interveners materials, for the courts
consideration.

G.R.
Strathy C.J.O.


