Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of queen's bench of alberta
Appeal ‑‑ Supreme Court of Canada ‑‑ Jurisdiction -- Publication ban as to identity of sexual assault complainant -- Trial judge lifting ban on own motion and without consent after acquitting accused ‑‑ Whether or not Supreme Court had jurisdiction to hear Crown's appeal from order lifting ban ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) , (3) .
Appeal ‑‑ Supreme Court of Canada -- Mootness ‑‑ Mandatory publication ban as to identity of sexual assault complainant lifted by trial judge without consent ‑‑ Name not yet published by media ‑‑ Whether or not live issue ‑‑ If not, whether Supreme Court should exercise jurisdiction to hear case.
Criminal law ‑‑ Publication bans -- Rescission of ban as to identity of sexual assault complainant ‑‑ Trial judge finding during accused's trial for sexual assault that complainant a prostitute ‑‑ Trial judge lifting ban on own motion and without consent after accused's acquittal ‑‑ Whether or not judge authorized to lift ban ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 486(3) , (4) .
At the request of the Crown, the trial judge in a sexual assault case ordered a publication ban as to identity of the complainant under s. 486(3) and (4) of the Criminal Code . After acquitting the accused, the trial judge on his own motion rescinded the order on the ground that the complainant's evidence was not credible. The order lifting the ban was later stayed pending appeal. The Crown appealed from the rescission order directly to this Court under s. 40(1) of the Supreme Court Act . At issue were: (1) whether or not this Court had jurisdiction; (2) whether or not the appeal was moot; and (3) whether or not s. 486(3) and (4) of the Code authorized a judge to revoke an order banning publication as to a sexual assault complainant's identity without obtaining the consent of the Crown and the complainant.
Held: The appeal should be allowed.
This Court had jurisdiction, pursuant to s. 40(1) of the Supreme Court Act , to grant leave and to hear the appeal. Since the acquittal was based on a finding that the Crown had failed to prove the charge beyond a reasonable doubt, the Crown could not appeal the acquittal under s. 676(1)(a) of the Code. Given that an appeal from the rescinding order did not fall under any of the subsections of s. 676(1) , the trial court was the court of last resort in the province with respect to the order sought to be appealed. This Court's jurisdiction under s. 40(1) was not precluded by s. 40(3). The order revoking the ban was not a "judgment . . . acquitting . . . or affirming . . . [an] acquittal of an indictable offence" and had no bearing whatsoever on the acquittal.
The case at bar could not be considered moot. The dispute between the parties remained unresolved. That no news organization had publicized the complainant's name did not mean that no media outlet would not publish her name at some time if the ban is lifted. Even if the appeal were moot, the Court's discretion to hear the appeal should be exercised because the issue is important and may affect future cases.
Nothing in the language of s. 486(4) purports to authorize revocation of the order and, given the purpose of the legislation, no such power can or ought to be implied. Subsections (3) and (4) of s. 486 were enacted to encourage victims to come forward and complain and to facilitate the prosecution and conviction of those guilty of sexual offences. The mandatory nature of an order under s. 486(4) furthered this goal. A revocable publication ban, like a discretionary ban, would not provide the certainty that is necessary to encourage victims to come forward and so would not achieve Parliament's objective. The limited power of a court to reconsider and vary its orders made as to the trial's conduct was not expressly excluded by s. 486. Generally, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place. Where an order is required to be made by statute, the circumstances that are relevant are those whose presence makes the order mandatory. As long as these circumstances are present, there cannot be a material change of circumstances.
Here, the Crown did not withdraw its application or consent to revocation of the order. Accordingly, the circumstances that were present and required the order to be made had not changed. The trial judge, therefore, did not have the power to revoke the order. Had the Crown but not the complainant consented to the revocation order, the trial judge would equally have had no authority to revoke. The complainant was also entitled to the publication ban even if the Crown had not applied for it. If, however, both the Crown and the complainant consent, then the circumstances which make the publication ban mandatory are no longer present and, subject to any rights that the accused may have under s. 486(3), the trial judge can revoke the order.
Cases Cited
Referred to: R. v. Hinse, [1995] 4 S.C.R. 597; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Reigate Rural District Council v. Sutton District Water Co. (1908), 99 L.T.R. 168; Hirsch v. Protestant Board of School Commissioners, [1926] S.C.R. 246; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Oley v. City of Fredericton (1983), 50 N.B.R. (2d) 196; R. v. Khela, [1995] 4 S.C.R. 201; R. v. Stinchcombe, [1991] 3 S.C.R. 326.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1927, c. 36, ss. 1013 [am. 1930, c. 11, s. 28; am. 1931, c. 28, s. 14; am. 1938, c. 44, s. 48], 1023 [am. 1935, c. 56, s. 16; am. 1947, c. 55, s. 30].
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 486(3) [rep. & sub. c. 23 (4th Supp.), s. 1], (4) [idem], 675, 676(1) [am. c. 27 (1st Supp.), s. 139], 691 [am. c. 34 (3rd Supp.), s. 10; am. 1991, c. 43, s. 9 (Sch., item 9)], 693 [am. c. 27 (1st Supp.), s. 146; am. c. 34 (3rd Supp.), s. 12].
Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 139.
Supreme Court Act , R.S.C. 1927, c. 35, s. 41 [rep. & sub. 1949 (2nd Sess.), c. 37, s. 2].
Supreme Court Act , R.S.C., 1985, c. S‑26 , ss. 2 "judgment", 40(1) [rep. & sub. 1990, c. 8, s. 37], (3).
APPEAL from an order of the Alberta Court of Queen's Bench setting aside a publication ban made at the beginning of a trial pursuant to s. 486 of the Criminal Code . Appeal allowed.
Jack Watson, Q.C., for the appellant.
Philip G. Lister, Q.C., for the respondent.
The judgment of the Court was delivered by
1 Sopinka J. -- This appeal concerns the power of a trial judge to rescind a ban on publication made under s. 486(3) and (4) of the Criminal Code , R.S.C., 1985, c. C-46 . The order banning publication of the name of the complainant and any information capable of identifying her was issued on request of the Crown. After acquitting the respondent, the trial judge on his own motion rescinded the order on the ground that the complainant's evidence was not credible. The Crown appeals from the rescission order on the grounds that under the Criminal Code provisions there is no power to rescind and, if there is, it was not properly exercised in this case.
I. Facts
2 The respondent John Adams was charged with one count of sexual assault using a weapon, one count of confining, one count of aggravated assault, one count of threatening and one count of possession of a weapon. At the request of the Crown, the trial judge imposed a ban on the publication of the complainant's name pursuant to s. 486(4) of the Criminal Code .
3 During the course of the trial, Feehan J. found that the complainant was a prostitute. The trial judge further held that the complainant had agreed to engage in prostitution with Mr. Adams.
4 The evidence led at trial was confusing and contradictory. While the complainant claimed that Adams had threatened her with a sword and forced her to perform sexual acts, Adams stated that he had refused to engage in sexual acts with the complainant upon learning that she was pregnant. In addition, Adams claimed that the complainant had stolen $900 from his wallet, and that when he had discovered that the money was missing, the complainant became hysterical and attacked him with a sword.
5 After reviewing all of the evidence before him, Feehan J. found that he was unable to determine exactly what happened on the night in question. Neither the complainant nor the accused had given completely reliable evidence, and the various allegations could not be verified by independent witnesses. As a result of these findings, the trial judge made the following statement:
There is an important rule of law which applies in this case as it applies in all criminal cases and it is known as the presumption of innocence. To be put simply, it means that the accused person is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The presumption of innocence and the burden of proof in a criminal case are inseparable. The onus or burden of proving the guilt of the accused beyond a reasonable doubt rests with the Crown, and that burden never shifts. There is no burden on the accused to prove his innocence. The Crown must prove each and every ingredient of the offence charged beyond a reasonable doubt. If a judge believes the complainant, he may convict. If he believes the accused, most times he must acquit, but there is something in between. If the judge is unsure, if he's not convinced beyond a reasonable doubt, that doubt must go to the accused and not to the Crown.
All charges against the accused are dismissed. I lift the ban on the publication of the name of the complainant. [Emphasis added.]
At the conclusion of the trial, counsel for the Crown submitted that the publication ban should not have been lifted. The trial judge stayed the revocation of the ban pending a further hearing of the matter. At the conclusion of the hearing the trial judge upheld his revocation order citing his findings that the complainant was a prostitute and a liar. The latter was not a finding which appears to have been made at trial. Subsequently the order lifting the ban was stayed by Wachowich A.C.J. pending appeal.
II. Statutory Provisions
Criminal Code , R.S.C., 1985, c. C-46
486. ...
(3) Subject to subsection (4), where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 346 or 347, the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(4) The presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant to proceedings in respect of an offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and
(b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.
III. Judgment Below
Alberta Court of Queen's Bench
6 On July 21, 1994, Feehan J. addressed the Crown's arguments concerning the revocation of the publication ban. Although he was willing to accept that lifting the ban could deter some individuals from reporting sexual assault, the judge expressed the view that the primary purpose of the ban was to protect "innocent" victims. In his view, the protection of s. 486(4) should extend to "honest evidence" only, and should not be applied where the complainant is "a liar" and "a prostitute".
7 Feehan J. then went on to consider policy reasons in favour of lifting the publication ban. In his view:
... this woman went into the beer parlor as a predator, and this fellow says he lost $900. I didn't make that as a finding of fact, but he says he lost $900.
. . .
Don't we owe society a duty to tell the next person that goes into that beer parlor for a beer and maybe also looking for a prostitute, that this is a dangerous one[?]
Feehan J. accordingly held that the protection of s. 486(4) should not apply in the case at bar, and upheld his original ruling revoking the publication ban.
IV. Issues
8 The following issues were raised by the parties:
1.Does this Court have jurisdiction to hear this appeal?
2.Is this appeal moot?
3.Do subss. (3) and (4) of s. 486 of the Criminal Code authorize a judge to revoke an order banning publication without obtaining the consent of the Crown and the complainant?
4.If the answer to No. 3 is yes, was the revocation order properly made in the circumstances of this case?
9 In view of the conclusion I have reached with respect to the first three issues, it will not be necessary to deal with the fourth issue.
V. Analysis
1. Jurisdiction
10 The Crown applied for leave to appeal directly to this Court from the order of the trial judge, pursuant to s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 . By reason of the jurisdictional issue raised by the application, an oral hearing of the leave application was ordered. A full bench heard the application which included submissions as to jurisdiction. The application was granted without reasons. The issue of jurisdiction was further raised on the appeal. In my view, the Court had jurisdiction to grant leave and to hear the appeal.
11 Section 40(1) of the Supreme Court Act authorizes an appeal to this Court with leave of this Court from "any ... judgment...of the highest court of final resort in a province, or a judge thereof". If the Crown did have the right to appeal to the Court of Appeal, this Court would lack the jurisdiction to hear an appeal of the order in question based on s. 40(1) of the Supreme Court Act . It is, therefore, necessary to consider whether the Crown had the right to appeal to the Court of Appeal from the order in question. Appeals by the Crown in criminal matters are governed by the Criminal Code . Section 676(1) provides as follows:
676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone; or
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.
12 The order in issue was made after the respondent had been acquitted. The acquittal was based on the trial judge's conclusion, based on his assessment of the evidence, that the Crown had failed to prove the guilt of the accused beyond a reasonable doubt. Understandably, the Crown has decided not to attempt to challenge this finding on appeal. Since no point of law appeared to be raised, the Crown could not surmount the jurisdictional hurdle imposed by s. 676(1)(a) that the appeal involve "a question of law alone". An appeal from the order itself does not fit within any of the subsections of s. 676(1) and the trial court is, therefore, the court of last resort in the province with respect to the order sought to be appealed. Section 2 of the Supreme Court Act defines "judgment" as including "any ... order...". Accordingly, s. 40(1) confers jurisdiction on this Court unless this conclusion is precluded by s. 40(3) of the Supreme Court Act .
13 Section 40(3) provides as follows:
40. ...
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
14 It is apparently intended to exclude an appeal under s. 40(3) of the Supreme Court Act of judgments in respect of which an appeal lies by virtue of the Criminal Code provisions. In respect of indictable offences, the subsection prohibits an appeal from a judgment of any court:
(1) acquitting,
(2) convicting,
(3) setting aside a conviction,
(4) affirming a conviction,
(5) setting aside an acquittal,
(6) affirming an acquittal.
The use of the words "[n]o appeal to the Court lies under this section" implies that it was the intention of Parliament to affirm that in the instances I have listed above the avenues of appeal provided in the Code were to be followed. When s. 40(3) (formerly s. 41(3)) was passed in 1949, s. 691 (formerly s. 1023) provided and continues to provide for an appeal to this Court by the accused from a judgment:
(a)affirming a conviction (s. 691(1), formerly s. 1023(1)),
(b)setting aside an acquittal (s. 691(2), formerly s. 1023(2)).
Section 693 (formerly s. 1023) provided and continues to provide for an appeal to this Court from a judgment:
(a)setting aside a conviction (s. 693(1), formerly s. 1023(3)),
(b)affirming an acquittal (s. 693(1), formerly s. 1023(3)). This is expressed as dismissing an appeal taken pursuant to s. 676(1)(a) (formerly s. 1013), thus affirming the acquittal.
15 Accordingly, these rights of appeal are excluded by items (3), (4), (5) and (6) listed above. In 1985, and after s. 40(3) was passed, the avenues of appeal to this Court by the Crown were expanded under the Criminal Code to permit an appeal from a judgment dismissing a Crown appeal from an order of a superior court (1) quashing an indictment, (2) refusing to exercise jurisdiction on an indictment, or (3) staying an indictment. See R.S.C., 1985, c. 27 (1st Supp.), s. 139 (formerly S.C. 1985, c. 19, s. 137). However, s. 40(3) was not up-dated to reflect this change in the Code.
16 Items (1) and (2) preclude an appeal under s. 40(1) where an appeal is provided under the provisions of the Criminal Code to the Crown from an acquittal (s. 676(1)(a)) and to the accused from conviction (s. 675). When s. 40(3) was enacted these rights of appeal were contained in s. 1013 of the Criminal Code , R.S.C. 1927, c. 36, as amended.
17 It is clear, therefore, that s. 40(3) precludes an appeal that falls within one of the six categories that I have listed and in respect of which an appeal lies pursuant to the provisions of the Criminal Code . In addition, this Court has recently held, in R. v. Hinse, [1995] 4 S.C.R. 597, that s. 40(3) extends to any order that is integrally related to one of the categories. In concluding that an order made under the ancillary jurisdiction of a court of appeal pursuant to s. 686(8) is not integrally related to one of the kinds of judgments listed in s. 40(3), the Chief Justice stated (at p. 623):
However, in my view, when a court of appeal exercises its power to impose an order under s. 686(8), it is not rendering an order which constitutes an integral part of a "judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence". Rather, as I shall endeavour to explain, the court is imposing an order which is by nature ancillary to the underlying judgment rendered by the court. As such, I am of the view that in accordance with a purposive interpretation of ss. 2 and 40(3), an accused or the Crown is entitled to seek leave to appeal a s. 686(8) order under this Court's general jurisdiction as defined in s. 40(1) of the Supreme Court Act . [Emphasis in original.]
As a result, an appeal is precluded by s. 40(3) not only in respect of the six instances which I have listed but also the vast array of interlocutory orders and rulings made at trial with respect to the conduct of the proceedings.
18 Applying the foregoing to this appeal, it is manifest that the order revoking the ban was not a "judgment ...acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence". The order was made after an acquittal had been ordered and no appeal would lie to the Court of Appeal from the order itself under the provisions of the Criminal Code . The order is not integrally related to the acquittal. Indeed, it had no bearing whatsoever on the acquittal. Accordingly, s. 40(3) is not a bar and this Court has jurisdiction to hear this appeal.
2. Mootness
19 The respondent submitted that the appeal was moot on the ground that no media outlet has yet expressed the desire to publish the name of the complainant. He submits, therefore, that there is no live controversy and that we should not exercise our discretion to hear the appeal.
20 An issue of mootness involves a two-stage process. The first stage requires consideration of whether a live controversy remains. In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353, this Court stated:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties.
21 The second stage applies if no live controversy remains. The Court must then consider whether to exercise its discretion to hear the appeal notwithstanding that it is moot. In my view, the case at bar cannot be considered moot. Clearly, the dispute between the parties remains unresolved. Although no news organization has yet deemed the complainant's name to be newsworthy information, this does not mean that no media outlet will ever wish to publish the complainant's name if the ban is lifted. The publicity surrounding this case increases the likelihood that a news organization might seek to print the complainant's name.
22 In any event, even if the appeal were moot I would exercise the Court's discretion to hear the appeal. The issue is one that is important and may affect future cases. It is in the public interest that the question be resolved.
3. Was the Order Authorized?
23 To answer this question it is necessary to consider (1) whether the language of s. 486(3) and (4) authorizes a judge to revoke the order, and (2) whether the revocation of the order is supportable on the basis of the exercise of an inherent power of a court to reconsider an order previously made. In approaching the interpretation of any statutory provision, it is prudent to keep in mind the simple but fundamental instruction offered by the court in Reigate Rural District Council v. Sutton District Water Co. (1908), 99 L.T.R. 168 (K.B.), at p. 170, and affirmed by this Court in Hirsch v. Protestant Board of School Commissioners, [1926] S.C.R. 246:
... it is always necessary in construing a statute, and in dealing with the words you find in it, to consider the object with which the statute was passed, because it enables one to understand the meaning of the words introduced into the enactment.
This well-settled rule of statutory interpretation has continued to be followed by this Court to the present time.
24 The "object and purpose" of the s. 486 publication ban were considered by this Court in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122. In that case, the Court held that the object of the predecessor to the relevant subsections was to encourage the reporting of sexual offences. In addition, the subsections were held to pursue the broader objective of suppressing criminal activity. According to Lamer J. (as he then was) for the Court, at p. 130:
Encouraging victims to come forward and complain facilitates the prosecution and conviction of those guilty of sexual offences. Ultimately, the overall objective of the publication ban ...is to favour the suppression of crime and to improve the administration of justice.
These objectives were held to be "pressing and substantial" within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms .
25 According to the Court in Canadian Newspapers, the mandatory nature of an order under s. 486 serves to further the goal of encouraging the reporting of sexual offences. As Lamer J. stated, at pp. 131-32:
When considering all of the evidence adduced by appellant, it appears that, of the most serious crimes, sexual assault is one of the most unreported. The main reasons stated by those who do not report this offence are fear of treatment by police or prosecutors, fear of trial procedures and fear of publicity or embarrassment. Section [486] is one of the measures adopted by Parliament to remedy this situation, the rationale being that a victim who fears publicity is assured, when deciding whether to report the crime or not, that the judge must prohibit upon request the publication of the complainant's identity or any information that could disclose it.
In addition, the Court pointed out that complainants must be certain that their names will not be published in order for the object of the publication ban to be achieved. According to Lamer J., at p. 132:
Obviously, since fear of publication is one of the factors that influences the reporting of sexual assault, certainty with respect to non-publication at the time of deciding whether to report plays a vital role in that decision. Therefore, a discretionary provision under which the judge retains the power to decide whether to grant or refuse the ban on publication would be counterproductive, since it would deprive the victim of that certainty. Assuming that there would be a lesser impairment of freedom of the press if the impugned provision were limited to a discretionary power, it is clear, in my view, that such a measure would not, however, achieve Parliament's objective, but rather defeats it. [Emphasis in original.]
Lamer J. went on to hold that a "discretionary ban is not an option as it is not effective in attaining Parliament's pressing goal" (pp. 132-33). As a result, the mandatory nature of the publication ban was not only necessary to ensure certainty for the complainant, but it was also necessary in order for the section to achieve Parliament's objective. Had the order in question been merely discretionary, s. 486 might not have survived the "rational connection" branch of the Oakes test.
26 A revocable publication ban, like a discretionary ban, would fail to provide the certainty that is necessary to encourage victims to come forward. If the trial judge were given the power by the legislation to revoke the ban, the complainant would never be certain that her anonymity would be protected. The ban would serve as little more than a temporary guarantee of anonymity. There is nothing in the language of s. 486(4) that purports to authorize revocation of the order and, given the purpose of the legislation, no such power can or ought to be implied.
27 The respondent submits, however, that there is nothing in the section that prevents a judge from reconsidering and, if appropriate, from revoking the order. Reliance is, therefore, placed on the inherent power of a trial judge to reconsider, vary or rescind previous orders made during the course of trial.
28 I agree with the respondent that nothing in the language of s. 486 of the Criminal Code expressly excludes any power possessed by a court to reconsider an order made under s. 486(3) and (4). These provisions address the making of the order but do not deal with whether the order is reviewable after it has been made. It is, therefore, not inconsistent with the interpretation of these subsections to hold that, whatever inherent power to reconsider resides in a court, survives. Indeed, as I shall point out hereafter, it may be desirable and in keeping with the purpose and objects of the section to permit reconsideration and revocation of the order if the circumstances which justified its making have ceased to exist. It is, therefore, necessary to consider what authority a judge has to reconsider a previous order and its application to the circumstances of this case.
29 A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. City of Fredericton (1983), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked. This will apply with greater force when the initial making of the order is mandatory.
30 As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place. In R. v. Khela, [1995] 4 S.C.R. 201, this Court had occasion to consider this issue in relation to an order requiring the Crown to disclose pursuant to the principles in this Court's decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326. In the majority reasons the following statement was made with respect to the proper approach to reconsideration of such an order (at pp. 210-11):
Where new evidence which may warrant a change in the terms of the Crown 's obligation to disclose comes into the possession of the Crown , the appropriate procedure is an application to the trial judge to vary. The trial judge has a discretion to vary an order for disclosure on the basis of evidence which establishes that the factual foundation upon which the order was based has changed. Such an application should be made at the earliest opportunity. Difficulties in compliance with disclosure orders should be resolved by application to vary disclosure obligations rather than by non-compliance followed by an attempt at ex post facto justification on the basis of alleged new circumstances.
Where an order is required to be made by statute, the circumstances that are relevant are those whose presence makes the order mandatory. As long as these circumstances are present, there cannot be a material change of circumstances.
31 Subsections (3) and (4) of s. 486 make the order banning publication mandatory on the application of the prosecution, the complainant or a witness under the age of 18. In this case, the circumstance that made the order mandatory was an application by the prosecutor. The Crown did not withdraw its application or consent to revocation of the order. Accordingly, the circumstances that were present and required the order to be made had not changed. The trial judge, therefore, did not have the power to revoke the order.
32 While this conclusion is sufficient to dispose of this case, it is useful to add that, had the Crown consented to the revocation order but the complainant did not, the trial judge would equally have had no authority to revoke. The complainant was also entitled to the publication ban even if the Crown had not applied for it. If, however, both the Crown and the complainant consent, then the circumstances which make the publication ban mandatory are no longer present and, subject to any rights that the accused may have under s. 486(3), the trial judge can revoke the order. There may be circumstances in which the facts are such that both the Crown and the complainant conclude, after hearing the evidence or some of it, that the public interest and that of the complainant are better served if the facts are published.
33 It might still be argued that a witness might object to the revocation. Whether such an objection would prevail requires considerable speculation as to the nature of the order, whether revocation would disclose the identity of the witness and whether the witness is one that the section is designed to protect. I would leave for another day the question whether every witness under 18 years of age could insist on the ban being maintained against the wishes of the Crown and the complainant. As well, I would not rule out the traditional power of a court to set aside or review an order that has been obtained by fraud or misrepresentation. No such issue arises here and I would prefer to leave consideration of the exercise of this power to a case in which the point is raised directly.
34 In the result, the appeal is allowed, the order of the trial judge dated June 17, 1994 and affirmed on July 21, 1994 is set aside and the order banning publication dated June 14, 1994 is restored.
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