



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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)      Unless an order is made under
    section 486.4, on application of the prosecutor in respect of a victim or a
    witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)      On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)      An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)      An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)      The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)      In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)      An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)      Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or
    justice system participant in the proceedings.
2005,
    c. 32, s. 15; 2015, c. 13, s. 19

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. R.S., 2020 ONCA 39

DATE: 20200122

DOCKET: C63906 and C63907

Watt, Tulloch and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S. and A.C.

Appellants

Najma Jamaldin, for the appellants

Rick Visca, for the respondent

Heard and released orally: January 20, 2020

On appeal from the convictions entered on December 1, 2016
    and the sentences imposed on March 16, 2017 by Justice Michael J. Epstein of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

After a joint trial, the appellants were convicted of numerous drugs and
    weapons offences. A.C. was sentenced to two years imprisonment after receiving
    19 months credit for pre-sentence custody. Receiving the same credit, R.S. was
    sentenced to an additional six years and five months.

[2]

The appellants challenge their convictions on the basis of fresh
    evidence. The Crown concedes that, based on this evidence, the fairness of the
    trial was compromised, the convictions should be set aside, and a new trial
    ordered. The Crown has undertaken not to re-prosecute the appellants.

[3]

The nature of the fresh evidence is unusual and can be addressed
    briefly. Among the police officers involved in the investigation and
    prosecution of the appellants was R.C. The Crown acknowledges that he was an
    essential trial witness. R.C. was a member of A.C.s adoptive family.

[4]

At her bail hearing into these offences, A.C. told the justice of the
    peace that she had been sexually assaulted by her adoptive brother, R.C., some
    twenty years ago, when they were both young persons. This prompted an
    investigation of R.C. No charges were laid, but an Occurrence Report was
    generated. It was not disclosed to A.C.; however, her counsel was aware of the
    allegations. The record is unclear as to whether R.S.s trial counsel was aware
    of the sexual assault allegations.

[5]

The case proceeded to trial. R.C. was not seriously challenged by
    counsel for the appellants in cross-examination. The trial judge was never made
    aware of the relationship between A.C. and R.C. or the sexual assault
    allegations.

[6]

Following the appellants convictions, there was further investigation
    into the sexual assault allegations. Again, no charges were laid.

[7]

On appeal, A.C. has asserted in her affidavit that, as a result of the
    alleged assaults, she was disturbed and intimidated by R.C.s participation in
    and presence at the trial, so much so that she chose not to testify in her own
    defence.

[8]

The Crown on appeal has made thorough inquiries of the police service in
    question as to R.C.s participation in the trial. By the date of the hearing of
    the appeal, questions remain unanswered. As the Crown states in its factum,
    The respondent has no reason to doubt that the matter was being reviewed and
    investigated by the police service, but the Respondent chose to operate on its
    own timeline. The adequacy or integrity of this investigation is not before
    us.

[9]

In conceding the appeal, the Crown does not admit that the failure to
    disclose the initial Occurrence Report affected the outcome of the trial. Moreover,
    the Crown takes the position that it was not the trial Crowns responsibility
    to advise the trial judge of A.C.s concerns with R.C. However, the Crown,
    accepts that A.C.s fair trial interests were compromised by virtue of R.C.s
    participation in the investigation and prosecution, and that an order for a new
    trial is justified. With respect to R.S., the Crown concedes that, had his
    counsel had access to the information about the relationship between A.C. and
    R.C., R.S.s trial strategy and the trial verdicts could have been different.

[10]

We accept the Crowns concession. We admit the fresh evidence, set aside
    the verdicts of guilty, and order a new trial for both appellants on the
    understanding that the Crown will not re-prosecute.

[11]

Given the nature of the claims made in the fresh evidence that we have admitted,
    and in view of the ultimate result that we anticipate, it is appropriate to
    make an order under s. 486.5 of the
Criminal Code
in relation to the
    identity of A.C. This necessitates referring to both appellants only by their
    initials.

[12]

We wish to acknowledge and thank Mr. Visca for the Crown for his
    fairness and sensitivity in the manner in which he responded to this appeal.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


