R. v. M.E., 2024 ONCJ 69

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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) MANDATORY ORDER ON APPLICATION — 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. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. M.E., 2024 ONCJ 69 DATE: 2024 02 06 COURT FILE No.: Halton Icon # 1211 998 22 12100508 BETWEEN: HIS MAJESTY THE KING — AND — M.E. & M.R. ( ex parte) Before Justice Scott Latimer In Chambers

Reasons for Decision released on February 6, 2024 Reyam Zager....................................................................................... counsel for the Crown LATIMER J.: [1] This decision relates to a Crown application, on behalf of two young women, to revoke the publication bans presently in placeregarding their identities. As a provincial court judge, I have jurisdiction to consider the entirety of this application and I have done so: see

section 486.51(2) of the Criminal Code; R. v. Adams, (SCC), [1995] 4 SCR 707, at paras. 27-30. [2] On January 9, 2022, this case entered the system in bail court and, as is common, a

section 486.4 Code order was immediatelymade. This order restricted public dissemination of any information that could identify the named victims. The charges before the courtinvolved, inter alia, sexual assault and child pornography. [3] The criminal proceedings remained in the Ontario Court of Justice and are now complete. M.E. pleaded guilty before me andwas sentenced on September 25, 2023, following a joint recommendation by Crown and defence counsel. The other individual, M.R.,proceeded to trial before a different judge and his charges were stayed for delay pursuant to

section 11(

b) of the Charter. [4] The material filed on this application includes detailed consent forms signed by both women. Within, they indicate theirunderstanding of the existing publication ban, their right to independent legal advice, and the fact that a revocation of their non-publication order would only apply to them and not to the ongoing existence of other orders relating to other individuals. [5] In the past, applications such as these were burdened by legal uncertainty and onerous procedural complications.

Section 486.51of the Criminal Code has removed these burdens. This provision, which became law on October 26, 2023, has clarified this area ofcriminal procedure and streamlined the application process for victims of crime. It expressly addresses the following areas of prioruncertainty:

(1) Notice to the accused person is not required, nor does the accused person have standing in relation to the application: see ss.486.51(5) & 486.51(6).

(2) The application may be considered in chambers: see s. 486.51(2). [6] Further, it is implicit in the provision that a court retains jurisdiction to consider a s. 486.51 application even after the criminalproceedings have ended. This is a relevant consideration for a statutory court like the Ontario Court of Justice.

Allowing theseapplications to be brought in the Ontario Court following a completed matter is consistent with the legislation’s overall intention toprovide efficient access to justice for individuals who make an informed decision to no longer be shielded by a publication ban thatwould otherwise exist in perpetuity. It is also consistent with the inherent jurisdiction of all courts to control their own process: seeCanada Broadcasting Corp. v Manitoba, 2021 SCC 33, at paras. 36-40; Adams, supra. [7] On the present application, the facts involve some victims seeking revocation but not others.

I have considered whethergranting this application impacts on the privacy interests of these other individuals: s. 486.51(2)-(5). I have determined that it does not. My order will expressly address this concern with the following language: Publication bans made in this matter pursuant to

section 486.4 of the Criminal Code as related to Kaylyn Knab and Reyva Verma arerevoked. All other s. 486.4 publication bans related to information #1211 998 22 12100508 remain in force. [8] Finally, while the provision requires the prosecutor to bring the motion, and while the Crown has indicated their consent to theapplication being granted in this case, I do not consider Crown consent as a necessary precondition for revocation, for reasons previouslystated in R. v. Evans, [2020] O.J. No. 4228, at paras. 22-27. [9]

Section 486.51 seeks to support victims who may actively choose to speak about their experiences. Compelling state counsel tobring the application at their behest furthers this valid legislative objective. What is not required by the provision, however, is stateagreement with an individual’s decision. In this way, the provision promotes the agency and independence of victims of crime indetermining their own path forward.

As Arif Virani, the Minister of Justice, said in the House of Commons on September 20, 2023,during second reading of this legislation: Bill S-12 also includes important and useful reforms of publication ban provisions. These reforms aim to empower victims of crime byensuring that their wishes are respected when it comes to issuing, lifting or changing publication bans, and that their right toinformation about their case is fully upheld. … When someone has the courage to reopen an immensely painful

chapter in their life in order to lift a publication ban, I firmlybelieve our justice system needs to make it easier for them to heal and not retraumatize them. That is critical. [emphasis added][1] Disposition

[ 10 ] The application is granted. The prosecutor is to provide a new draft order consistent with the language used in paragraph 7 of these Reasons . Released: February 6, 2024 Justice Scott Latimer