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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Byun, 2020 ONCA 600

DATE: 20200923

DOCKET: C67426

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sang Jun Byun

Appellant

Sang Jun Byun, acting in person

Andrew Furgiuele, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: September 9, 2020 by
    video conference

On appeal from the conviction entered on
    June 25, 2019 by Justice Richard T. Knott of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

In June 2019, the appellant was convicted of
    sexual assault by Knott J. of the Ontario Court of Justice following a trial in
    Brockville. In September 2019, the appellant received a custodial sentence of
    14 months plus three years probation, a ten year weapons prohibition and a 20
    year SOIRA order.

[2]

The appellant appeals the conviction.

[3]

The appellant, complainant and four other people
    went to a cottage for a weekend. The appellant and complainant did not know
    each other prior to this weekend. The complainant was married; her husband did
    not come to the cottage. A great deal of alcohol was consumed by the attendees,
    including the appellant and the complainant.

[4]

The appellant and the complainant went to sleep
    in different bedrooms. At some time during the night, the appellant went to the
    washroom to vomit. He then went to the complainants bedroom and got into her
    bed. He testified that he did not see anyone else in the bed when he entered.

[5]

The complainant testified that she awoke to a
    man having intercourse with her. She initially thought it might have been a
    dream or her husband. She pushed the person off her and, along with other
    occupants of the cottage who were now awake, confronted the appellant, while
    making a recording of part of the confrontation. Due to her intoxication, there
    were certain gaps in her memory of the events, including how and when she went
    to the bedroom.

[6]

The appellant testified that he awoke to the
    complainant hugging him from behind and touching his penis. He said that the
    complainant flipped him over and initiated intercourse. The intercourse ended
    after a couple of minutes and he went back to sleep.

[7]

In his reasons, the trial judge rejected the
    accuseds evidence. He found that it was contradicted by the complainants
    evidence, her description of his post-conduct behaviour, the recorded
    confrontation, and the accuseds conversation with one of the other men at the
    cottage. At no point on the recording or in his conversation with that man did
    the accused say that the complainant initiated the intercourse or profess his
    innocence.

[8]

The trial judge said that he had a doubt as to
    whether the accused entered the bedroom knowing that it was occupied. He found
    that the complainant was awakened by a man engaging in sexual intercourse with
    her. He concluded that the complainant did not consent to intercourse:

I accept the complainants evidence without a
    reasonable doubt that she was awakened by a man engaging in sexual intercourse
    with her. She pushed the man off her. She may have thought the man was her husband
    then may have guessed it was [one of the other men at the cottage]. She did not
    know it was the accused who was engaging in sexual intercourse until she saw
    the accused at the end of the bed.

[9]

The trial judge considered whether the accused
    had an honest but mistaken belief with respect to the complainants consent. He
    determined that the defence was not available to the accused because any such
    belief was anchored in his own self-induced intoxication. The trial judge also
    found that the accused did not take reasonable steps to make sure that the
    complainant was awake, knew she was engaging in sexual activity, and with whom.

[10]

On this appeal, the appellant advances two
    grounds of appeal.

[11]

First, the appellant contends that the trial
    judge erred by rejecting the defence of an honest but mistaken belief in
    consent on account of reasonable steps not being taken to ascertain consent.

[12]

We do not accept this submission. We see no
    error with the trial judges approach to reasonable steps. The trial judge concluded
    that the appellant took no steps to ensure [the complainant] was awake and
    aware of what was going to transpire. He took no steps to ensure she knew, in
    the dark of the room, that she was having sexual intercourse with the accused.
    The appellant did not point to any evidence that would undermine the trial
    judges conclusion on this issue. This conclusion is owed deference.

[13]

Second, the appellant asserts that the trial
    judge erred in rejecting the defence of an honest but mistaken belief in consent
    on account of self-induced intoxication.

[14]

We are not persuaded by this submission. The
    trial judge said:

He was drunk. He knew she was drunk.

I do not expect some drunken man to take all
    reasonable steps such as turning on the lights and having a full and frank
    discussion about what they were about to engage in, but the accused took no
    steps.

But the accuseds defence that the complainant
    consented to the sexual activity was due to his own self-induced intoxication,
    and he did not take reasonable steps in the circumstances, known to him at the
    time, to ascertain the complainant was consenting.

[15]

In our view, this was a full and sound
    assessment of the defence presented by the appellant.

[16]

The appellant is on bail pending appeal. At the
    hearing, the parties agreed that he would surrender into custody when the court
    provided notice of the release of its decision.

[17]

The appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2020 ONCA 573

DATE: 20200918

DOCKET: M51716 (C67054)

Hourigan
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Andrew Campbell

Appellant (Applicant)

Christen Cole and Anthony Moustacalis, for the
    appellant

Lorna Bolton, for the respondent

Heard: September 14, 2020 by videoconference

REASONS
    FOR DECISION

(a)

Introduction

[1]

On November 2,
    2018, the appellant was convicted of kidnapping, pointing a firearm, and
    assault causing bodily harm. He was sentenced to 7 years imprisonment, less
    credit for pre-trial custody and time spent on restrictive bail conditions.

[2]

The appellant
    brings an application for an order for the appointment of counsel under s. 684
    of the
Criminal Code
. For the reasons that follow, the
    application is granted.

(b)

Analysis

(i)

Governing Principles

[3]

Pursuant to s.
    684 (1), this court has the authority to assign counsel to act on an
    appellants behalf if, in its opinion, it appears both:

(i) desirable in the
    interests of justice that the appellant should have legal assistance; and

(ii) the appellant
    does not have sufficient means to obtain that assistance:
R v. Staples
,
    2016 ONCA 362, at paras. 31-32, reconsideration allowed,
R. v. Staples
,
    2017 ONCA 138.

[4]

Two general
    principles applicable to s. 684 applications are worth noting. First, an order
    for government-funded counsel is exceptional relief:
Staples
, (2016),
    at para. 40. Second, the appellant bears the burden of proof on a s. 684 application:
R. v. Abbey
, 2013 ONCA 206, 115 O.R. (3d) 13, at
    para. 31.

[5]

As part of the
    analysis of the interests of justice component of the test, the court should
    consider the merits of the appeal on the basis of the record. Put simply,
    appeals that are devoid of merit will not be helped by appointing counsel.
    Given that the record is often incomplete at the time of the application, this
    is not a probing examination of the merits:
R.
    v. Adams
, 2016 ONCA
    413.  Rather, the applicant need only satisfy that the court that the proposed
    grounds of appeal are arguable: see
R. v.
    Bernardo
, (1997), 121
    C.C.C. (3d) 123 (Ont. C.A.).

[6]

Where an
    appellant advances arguable grounds, the next component of the interests of
    justice analysis is whether the appellant can effectively advance the grounds
    of appeal without the assistance of counsel or the court can properly decide
    the appeal without the assistance of counsel. As part of this inquiry, the
    court examines the complexities of the arguments to be advanced and the
    appellants ability to make legal argument in support of the grounds of appeal:
Bernardo
, at para. 24.

[7]

The financial
    eligibility requirement in s. 684(1) of the
Criminal
    Code
reflects two
    values. First, the governments resources to fund legal representation are limited.
    Second, if it is in the interests of justice for an appellant to have a lawyer
    to argue the appeal, yet the appellant cannot afford to retain one, then the
    denial of a s. 684(1) order will adversely affect the appellants fair appeal
    rights:
R. v. Le
, 2016 ONCA 798, 134 O.R. (3d) 623, at
    para. 17.

[8]

An appellant
    seeking appointment of counsel under s. 684(1) must be clear and transparent in
    disclosing his or her financial affairs. The court must be satisfied that he or
    she has exhausted all other means of paying for counsel:
Staples
(2016), at para. 40.

(ii)

Application of
    the Principles

[9]

The appellant
    argues that is in the interests of justice that he should have legal assistance
    in pursuing his meritorious appeal and that he does not have the means to
    obtain that assistance.  In contrast, the Crown takes the position that the
    applicant has failed to demonstrate that he lacks financial means to retain
    counsel privately and has failed to establish that the appointment of counsel
    is in the interests of justice.

[10]

I turn first to
    a consideration of the merits of the appeal. The appellant raises various
    grounds of appeal, including ineffective assistance of counsel, the
    voluntariness of his police statement, the sufficiency of the jury charge
    regarding the use of prior inconsistent statements and post offence conduct,
    and unreasonable verdict. I would not categorize any of the grounds of appeal
    as strong, however I am not prepared to conclude that none of the grounds are
    arguable.

[11]

The next part
    of the analysis is whether the appellant can effectively advance the grounds of
    appeal without the assistance of counsel or the court can properly decide the
    appeal without the assistance of counsel. The appellant has not completed high
    school and has limited experience with the court system. The issues are not
    novel, but they are, in my view, beyond his capabilities to effectively argue.
    I also believe that the court will be greatly assisted by having s. 684
    counsel, as opposed to duty counsel, make submissions on these issues.

[12]

The final
    consideration is the financial means of the appellant.  The appellant has filed
    sworn affidavit evidence that since 2013 he has earned less than $11,000 per
    annum and that he has exhausted his ability to obtain financial assistance from
    his mother and aunt. While the Crown submits that the appellant is not credible
    and that there is a possibility that one of his cousins can assist him, I found
    those submissions speculative and I am satisfied that the appellant does not
    have the means to retain counsel.

(c)

Disposition

[13]

The appellant
    has met his onus on the test for a s. 684 order and the application is granted.
    On the state of the record, I am not prepared to limit the order to specific
    grounds of appeal. Counsel may provide me with a draft order. If no agreement
    can be reached on its terms, they may make written submissions and I will
    settle the order.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Elliott, 2020 ONCA 589

DATE: 20200921

DOCKET: C68209

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shea Timothy Elliott

Appellant

Shea Elliott, acting in person

Nicole Rivers, for the respondent

Heard: September 8, 2020 by
    video conference

On appeal from the convictions entered
    on July 31, 2019 and the sentence imposed on February 21, 2020 by Justice Deborah
    J. Austin of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

In July 2019, the appellant was convicted of
    possession of a drug (fentanyl) for the purpose of trafficking, possession of
    drugs (x3), and four firearms offences by Austin J. of the Ontario Court of
    Justice following a trial in Sarnia.

[2]

In February 2020, the appellant received a
    global custodial sentence of 660 days, less pre-trial credit of 140 days, plus
    one year of probation.

[3]

The appellant appeals his convictions and the
    sentence.

[4]

The charges arose from a search of the
    appellants residence of August 8, 2018. The evidence against the appellant was
    obtained in the course of the execution of a search warrant by Sarnia Police
    Services. At trial, the appellant admitted that the address searched was his
    residence. However, he testified that there had been a large party at the
    residence on the weekend preceding the search and that drugs had been consumed
    by many party attendees. The attendees must have left the dugs the police found
    several days later.

[5]

The trial judge bluntly rejected the
    appellants testimony on this point:

[H]is evidence claiming no knowledge of the
    drugs found by the police during the search and his claim that they must have
    merely been items left over from a party held the weekend before the search,
    are simply not plausible, believable or capable of being true.

[6]

On this appeal, the appellant raises the same
    issue. We agree with the trial judge. The amount of drugs and the locations
    inside the residence where they were found amply support the trial judges
    conclusion on the various drug charges.

[7]

The appellant also claims that, as a
    self-represented litigant, he did not receive adequate assistance from the
    trial judge. The record does not support this claim.

[8]

The appellant made no submissions about the
    convictions on the various firearms charges. Even so, the respondent concedes
    that the conviction on count 8 of the information cannot stand because it was
    particularized as involving a prohibited weapon: to wit a gun pursuant to s.
    91(2) of the
Criminal Code
. On all the other firearms counts, we agree
    with the trial judges analysis and conclusions.

[9]

On the sentence appeal, we see no basis for
    interfering with the global sentence of 660 days, less pre-trial credit of 140
    days, plus one year of probation.

[10]

The conviction appeal is allowed with respect to
    count 8 of the information and an acquittal is entered. On all the other
    counts, the conviction appeal is dismissed. The sentence appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

S. Coroza J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

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. Fasoranti, 2020 ONCA 576

DATE: 20200911

DOCKET: M51710

Strathy C.J.O. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Babatunji Lloyd Fasoranti

Applicant/Appellant

Christopher K. Assié, for the applicant/appellant

Lisa Joyal, for the respondent

Heard: August 21, 2020 by teleconference

[1]

A non-publication order under s. 517 of the
Criminal
    Code
was imposed in this matter in the court below. That order precludes
    the publication, broadcast or transmission of any evidence taken, information
    given, representations made and reasons given.

[2]

The decision in
R. v. Fasoranti
, 2020
    ONCA 576, contains information covered by that order.

[3]

Accordingly, the decision will be available on
    the website of the Court of Appeal for Ontario once the non-publication order
    ceases to be in effect.

[4]

In the interim, a copy of the full decision is
    available at the Registry of the Court of Appeal for Ontario at 130 Queen
    Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gong, 2020 ONCA 587

DATE: 20200918

DOCKET: M51634 (C68411)

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Respondent)

and

Xiao Hua Gong

Respondent (Appellant)

Davin Garg, for the applicant

Scott Hutchison and Alexa Ferguson, for
    the respondent

Heard: August 26, 2020 by
    videoconference

Nordheimer
    J.A.:

[1]

The Crown brings this motion to quash an appeal
    taken by Mr. Gong from the order of the application judge
[1]
. For the following reasons,
    the motion is granted and the appeal is quashed.

I: BACKGROUND

[2]

Mr. Gong is charged with four offences: fraud
    over $5,000; possession of property obtained by crime; laundering proceeds of
    crime; and uttering a forged document.

[3]

In March 2018, investigators for the Ontario
    Securities Commission (the "OSC") obtained a production order under
    the provisions of the
Criminal Code
R.S.C. 1985, c. C-46 in relation
    to the appellant and several companies under his control. The production order related
    to the files held by Price Waterhouse Coopers ("PWC") in relation to
    accounting and taxation matters for the appellant and his companies. The
    appellant asserted claims of solicitor-client or litigation privilege over the documents
    covered by the production order.

[4]

On consent, the documents which are the subject
    of the production order were sealed and filed with the court pending the determination
    of the privilege claims.

[5]

The application judge rejected the claim of
    litigation privilege. She also rejected the solicitor-client privilege claim in
    its broadest respect. However, the application judge found that it would be
    necessary to review each of the documents in question to make a final
    determination as to the application of solicitor-client privilege. To
    accomplish that review, she appointed two referees whose task was to review all
    of the documents and separate them into various categories that she
    established. The application judge hoped that this process would expedite the
    review of the documents.

[6]

The appellant first sought leave to appeal to
    the Supreme Court of Canada from the order of the application judge, under s.
    40(1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26. That application
    was dismissed by a judgment of the court which read, in part, dismissed for
    want of jurisdiction: 39040 (April 16, 2020).

[7]

The appellant then brought an appeal to this
    court, which the Crown moves to quash on the basis that no appeal lies from the
    application judges order.

II: Analysis

[8]

The first issue to be determined is whether the
    order under appeal is criminal or civil, because that determination directs the
    applicable appeal route, if any. The Crown says that this is a criminal matter
    and any appeal route must be found in the
Criminal Code
. The appellant
    says that it is a civil matter so that an appeal lies to this court from the
    final order under s. 6(1)(b) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43.

[9]

The governing principles are found in
Canadian
    Broadcasting Corporation v. Ontario
, 2011 ONCA  624, 107 O.R. (3d) 161,
    per Doherty J.A., at para. 18. There are three categories of orders that would
    be considered to be criminal in nature. Those three categories are: (i) an
    order made in the course of a criminal proceeding, (ii) an order directly
    impacting on an ongoing or pending criminal proceeding, or (iii) an order
    rescinding or varying an order made in a criminal proceeding. The order of the
    application judge here clearly fits into the first and second categories.

[10]

The circumstances here mirror what occurred in
Ontario
    (Provincial Police) v. Assessment Direct Inc.
,
2018 ONCA 78, leave
    to appeal to S.C.C. refused, 37918 (June 21, 2018). In that case, the police
    had obtained documents pursuant to a search warrant issued in a possible
    criminal prosecution. No charges had yet been laid. The targets of the search
    warrant claimed privilege over the documents. The application judge found that
    certain documents were not privileged and ordered that they be released to the
    police. The targets appealed to this court from that order. This court quashed
    the appeal, specifically finding that no appeal lay under s. 6(1)(b) of the
Courts
    of Justice Act
. In doing so, this court said, at para. 3:

In our view, the order is properly
    characterized as affecting the enforcement or implementation of the search
    warrant. The search warrant is a judicial order made on an
ex parte
application brought under the
Criminal Code
pertaining to an ongoing
    criminal investigation. In our view, judicial orders that are directed at the
    enforcement or implementation of a criminal order are themselves criminal in
    nature.

[11]

The production order in this appeal was granted
    under the pertinent provisions of the
Criminal Code
. It was directed
    at gathering possible evidence of a
Criminal Code

offence. Criminal
    charges were laid against the appellant in the months before the production
    order was granted. Presumably any material that is obtained by the Crown
    through the production order (if the privilege claim fails) was always intended
    to, and will, be used in furtherance of a prosecution. In those circumstances,
    I do not see how this process could be characterized as anything other than a
    criminal matter.

[12]

In my view, the order at issue here is an order
    that was directed at the enforcement or implementation of a criminal order.

[13]

The appellant attempts to distinguish this case
    from
Assessment Direct
by relying on the Supreme Court of Canadas
    judgment that dismissed the motion for leave to appeal for want of
    jurisdiction. The appellant submits that [i]f an application under s. 40 of
    the
Supreme Court Act
is not the correct avenue of appeal then it must
    be the case that an appeal lies to this Court (Respondents factum para. 34).

[14]

The flaw in that submission is the assumption
    that there must be a route of appeal. That is not necessarily the case. Any appeal
    route must be found in a statute:
Kourtessis v. Minister of National
    Revenue
,
[1993] 2 S.C.R. 53, at pp. 69-70. I have already set out
    why the order in question here does not arise from a civil matter with the
    result that the
Courts of Justice Act
cannot be relied upon to provide
    an appeal route. Consequently, the appellant must find an appeal route in the
Criminal
    Code
. The appellant acknowledges that no such appeal route exists under
    the
Criminal Code
.

[15]

The appellant also contends that there must be
    an appeal route because if the documents are released to the Crown then the
    proverbial cat is out of the bag. However, that is often the result in a
    criminal proceeding where pre-trial rulings are made with respect to the
    seizure of evidence. Evidence gathered through search warrants, wiretaps,
    production orders, and the like, are often determined before trial. Indeed,
    they may be determined before charges have been laid, as was the case in
Assessment
    Direct
. That fact does not change the existing appeal routes. An accused
    person who fails to successfully challenge one of these types of orders can
    only appeal that result after the trial is completed and the accused is found
    guilty. That reality exists notwithstanding the unbagging of the proverbial
    cat.

[16]

The appellant tries to sustain his position by
    reference to a variety of other decisions, none of which, viewed fairly, assist
    him. I do not intend to refer to all of the cases upon which the appellant
    relies, but I will mention the two that emanate from this court. The appellant
    contends that
R. v. Consolidated Fastfrate Transport Inc.
(1995), 125
    D.L.R. (4th) 1 (Ont. C.A.). is directly analogous to the case at bar. That is
    simply not the case. In
Fastfrate
, an injunction had been obtained to
    restrain the accused company from disposing of its assets pending trial. This
    court understandably held that the injunction was a civil order and thus
    appealable under the
Courts of Justice Act
. As Galligan J.A. said, at
    p. 6: It is my view that the order in this case was a civil order made for the
    purpose of assisting the criminal law and did not itself become a part of the
    ongoing criminal proceedings. An injunction bears no comparison to a
    production order granted under the
Criminal Code
.

[17]

The other case is
R. v. Lepage
(1997),
    36 O.R. (3d) 3 (C.A.), in which the accused applied for a declaration that ss.
    672.47 and 672.54 of the
Criminal Code
were unconstitutional. The
    trial judge found that s. 672.54 violated s. 15 of the
Charter
. The
    Crown appealed. In a footnote to his decision, Doherty J.A. noted that the
    issue of this courts jurisdiction to hear the appeal was not contested.
    However, he went on to observe that, in any event, the respondents successful
    application for declaratory relief engaged the civil appellate jurisdiction of
    this court under the
Courts of Justice Act
.
No declaratory
    relief was sought or obtained in this case. I also note that this court
    expressly noted in
Assessment Direct
that no declaratory relief had
    been sought in that case. The decision in
Lepage
simply does not
    assist the appellant.

[18]

Two other cases support the Crowns position, which
    appellants counsel, very fairly and responsibly, included in his factum. The
    first is
Dee v. Her Majesty the Queen in Right of Canada
, 2008 NBCA 10,
    232 C.C.C. (3d) 269, where the New Brunswick Court of Appeal held that no
    appeal lay from the determination by a judge of the Court of Queen's Bench that
    certain documents, seized from the premises of a law firm in compliance with a production
    order issued pursuant to s. 487.012 of the
Criminal Code
, were not
    privileged because the order was made in the course of a criminal investigation
    that led to a criminal prosecution.

[19]

The other is
R. v. Wilder
(1996), 110 C.C.C.
    (3d) 186 (B.C.C.A.). In that case, the target of a search warrant, whereby documents
    were seized from a solicitor's office under s. 488.1 of the
Criminal Code
,
    moved to quash the search warrant. The documents in question had been sealed
    pursuant to the procedure set out in s. 488.1. The British Columbia Court of
    Appeal held that no appeal lay to it from the order of the application judge
    made under s. 488.1 regarding whether solicitor-client privilege attached to
    the documents.

[20]

Finally, the appellant invokes the decision in
Lavallee
, Rackel
    & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v.
    Canada (Attorney General); R. v. Fink
, 2002 SCC 61, [2002] 3 S.C.R. 209,
    to argue that since the principle of solicitor-client privilege is involved in
    this case, broad remedies should be provided.

[21]

That submission runs headlong into the principle
    that appeal rights must be found in a statute. I have already referred to the
    decision in
Kourtessis
where that point was clearly made: [a]ppeals
    are solely creatures of statute per La Forest J. at p. 69. There is nothing in
Lavallee
that alters that basic principle  a principle that does not
    vary based on the importance of the underlying issue. The decision in
Lavallee
dealt with the process under the
Criminal Code
to protect a claim of
    privilege. It did not purport to address what, if any, appeal routes lay from
    decisions that ruled on whether the privilege applied.

[22]

The appellants submission also runs counter to
    many prior decisions, some of which I have referred to above, where solicitor-client
    privilege was at issue, but that fact did not alter the conclusion regarding
    whether an appeal lay or not.

[23]

To conclude, no appeal lies at this stage from
    the order of the application judge. Different considerations will come into
    play if a trial is held, if the material seized is relied upon at the trial,
    and if the appellant is convicted.

III: Conclusion

[24]

I would grant the motion and quash the appeal.

Released: PL September 18, 2020

I.V.B. Nordheimer J.A.

I agree. P. Lauwers
    J.A.

I agree. David Brown
    J.A.

[1]

R. v. Gong
, 2019 ONSC 5899.


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. Hopwood, 2020 ONCA 608

DATE: 20200928

DOCKET: C67206

Miller, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jake Hopwood

Respondent

Jeremy Tatum, for the appellant

Colleen McKeown, for the respondent

Heard: September 11, 2020 by
    videoconference

On appeal from the sentence imposed on June
    25, 2019 by Justice David Berg of the Ontario Court of Justice, with reasons
    reported at 2019 ONCJ 450.

Nordheimer
    J.A.:

[1]

The Crown appeals the sentence of eight and
    one-half years that was imposed on the respondent on his conviction for a
    variety of offences arising out of a home invasion robbery. The Crown also
    appeals the sentence of six months that was imposed on the respondent on his
    conviction for attempt to obstruct justice.

A.

Background

(a)

The home invasion

[2]

Since the facts underlying the convictions are
    of importance to the determination of the appropriateness of the sentences
    imposed, I will set them out in some detail. I take them largely from the
    sentencing judges reasons.

[3]

The respondent was found guilty of robbing,
    confining, seriously assaulting, kidnapping, and attempting to extort the
    victim over a course of 42 hours. The respondent and three others began by
    conniving their way into the victims apartment. I should mention that the
    victim is intellectually challenged, although there is no evidence that this
    fact motivated the respondent and the others to commit the offences.

[4]

While in the apartment, the victim was struck by
    all three of his assailants. The blows drew blood. He was ordered to sit down
    and be silent. The assailants demanded the PIN for the victims bank card. They
    removed from the apartment any object they thought might have some value
    including the victims identification documents, his cell phone, loose change,
    a video game console, game cartridges, a television and 150 videotapes.

[5]

The assailants then forced the victim to
    accompany them to their vehicle. They drove him to a park where he was
    assaulted again. The assailants told him that they wanted $300,000. The victim
    was taken to a gas station and required to use a pay phone in an attempt to
    contact his father in order to convey the ransom demand. He was told he would
    be killed if he did not assist them in this endeavour. They may have threatened
    him with death at other points during his ordeal. When the victims father
    could not be reached, the assailants took the victim to a house in Ottawa. He
    was taken into the basement laundry room and placed inside a dog cage. The
    dimensions of that cage did not allow him to stand or stretch out. The victim
    estimated that he was kept caged for two days. While he was fed by his
    assailants, they forced him to urinate into a bag.

[6]

His assailants continued to hit the victim while
    asking about money. They threatened to kill or mutilate his two cats, who were
    back at his apartment. They threatened to hurt his mother and later told the
    victim that his mother was already dead. The victim recalled at one point they
    took him out of the cage and taped him by his wrists and ankles to a chair.
    There was also an incident in the basement when his assailants had him stand
    and they then poured bleach and gasoline on his naked torso and scrubbed him
    with a brush. Finally, his assailants drove the victim to a remote spot in the Kingston/Gananoque
    Region. Upon reaching the forested area, the victim was told to remove his
    outer clothing and footwear, leaving him in his undergarments. The respondent
    and one of the other assailants took the victim some distance into the forest,
    where the other assailant choked the victim into unconsciousness and left him
    lying in the woods.

[7]

When the victim regained consciousness, he
    wandered until he came upon a house. He rang the doorbell. The people of that
    house contacted the police. The victim suffered swelling, bruises, cuts and
    abrasions from his ordeal.

(b)

The attempt to obstruct justice

[8]

On July 8, 2017, two correctional officers at the
    Ottawa-Carlton Detention Centre intercepted the respondent attempting to pass a
    note to T.M., a co-accused, who was being held in a unit neighbouring the respondents
    unit. T.M. was scheduled to testify in the near future against the respondent at
    the trial related to the home invasion, as well as another incident near
    Toronto. The respondents trial ended up not going ahead at that time. In his
    note, the respondent asked T.M. to change his anticipated testimony to reflect
    a position more favourable to the respondent. In effect, the respondent asked T.M.
    to lie for him.

(c)

The sentencing decision

[9]

The Crown sought a sentence of 12 years for the
    home invasion offences. The defence sought a sentence of five years. On the
    attempt to obstruct justice count, the Crown sought a sentence of two and one-half
    years consecutive. The defence sought a sentence in the range of four to six
    months.

[10]

The sentencing judge imposed a sentence of eight
    and one-half years on the home invasion offences and a sentence of six months
    consecutive on the attempt to obstruct justice offence. The sentencing judge noted
    that the respondent was 25 years old at the time of the offences and had no
    criminal record. He was in a relationship. He had a grade 11 education and had
    taken some further courses while in custody.

[11]

The sentencing judge also took into account that
    T.M., who had pleaded guilty to some offences arising out of the home invasion,
    had been sentenced to six and one-half years. T.M. was 18 years old at the time
    of the offences and he also did not have a criminal record. The sentencing
    judge noted that, unlike the respondent, T.M. had pleaded guilty to the
    offences. The sentencing judge was of the view that the principle of parity in
    sentencing played a significant role in this matter. He also said that the
    principles of denunciation and deterrence were the primary objectives in
    sentencing the respondent.

[12]

In sentencing the respondent on the attempt to
    obstruct justice count, the sentencing judge noted the fairly wide range of
    sentences that have been imposed for this offence. He also noted that the
    respondent was facing very serious charges and that the attempted obstruction
    was in order to avoid having to take responsibility for his actions. However,
    the sentencing judge also noted that there were no threats or inducements made
    or offered. I note that this latter finding appears to be a generous one given
    the wording of the note that the respondent authored in which he twice said to T.M.:
    You know I got you.

B.

Analysis

(a)

The home invasion offences

[13]

As will be apparent from the background facts,
    this was an especially egregious instance of a home invasion robbery. The
    length of the events surrounding the home invasion, the abuse of the victim,
    the caging of the victim, and leaving the victim in a remote area unconscious,
    place this home invasion at the higher end of the spectrum of these types of
    robberies.

[14]

When considering the sentences for home invasion
    robberies, reference is often made to this courts decision in
R. v. Wright
(2006), 83 O.R. (3d) 427 and the mention of a range of 4 to 13 years. However,
    it is best to reproduce exactly what was said in that case on that point. Blair
    J.A. said, at para. 23:

The cases to which we have been referred, and
    which my own research has uncovered, reflect a gamut of sentencing dispositions
    in "home invasion" cases from as low as four or five years, to as
    high as eleven to thirteen years  with the suggestion that even higher
    sentences may be reserved for situations involving kidnapping, the infliction
    of serious injuries, sexual assault or death. Whether a "range" of
    that elasticity is of much assistance to trial judges in their efforts to
    preserve sentencing parity for similar offences involving similar offenders
    apart from signalling that a significant penitentiary jail term is generally
    called for  is not clear to me. The downside of attempting to articulate a
    range for a type of crime that can manifest itself in such a wide variety of
    ways, and be committed by such a wide variety of individuals, is that the
    "range" becomes so broad, it is virtually meaningless. Nonetheless,
    to the extent there can be said to be a range in home invasion cases, it would
    appear that the one that currently exists is the expansive one outlined above.
    [footnotes omitted]

[15]

To the extent that
Wright
establishes a
    range, it will be seen that the sentence sought by the Crown was at the high
    end of the range. The sentence imposed by the sentencing judge was more towards
    the middle of that range but was still one that constituted a significant
    penitentiary jail term.

[16]

The Crown complains that the sentencing judge
    was unduly influenced by the parity principle. The Crown also points out that
    the sentencing judge did not have the reasons for sentence that were given when
    T.M. was sentenced and, consequently, the sentencing judge did not have a
    proper foundation for evaluating the basis for the sentence that was imposed on
    T.M. or for properly applying the parity principle.

[17]

There is merit to the Crowns position but, in
    the end result, this court must still abide by the principles about sentence
    review established by the Supreme Court of Canada in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089 where Wagner J. said that, in order for an
    appellate court to intervene in a sentencing, it must be found that the
    sentencing judge made an error in principle, failed to consider a relevant
    factor, or erroneously considered an aggravating or mitigating factor. Further,
    this error must have had an effect on the sentence. An appellate court may also
    intervene where the sentence is demonstrably unfit.

[18]

I consider the sentence imposed on the
    respondent to fall at the very lowest end of an acceptable spectrum of
    sentences for the offences involved, given the manner in which those offences
    were committed. However, I cannot say that the sentence was demonstrably unfit.
    I do not see any error in principle or any failure to consider a relevant
    factor. Parity did play some role in the analysis and I am not satisfied that
    the sentencing judge overemphasized that principle in deciding on the sentence
    he imposed.

[19]

The sentence sought by the Crown would not have
    reflected parity with the sentence imposed on T.M., even accepting that T.M.
    pleaded guilty and he did so to different offences than the respondent was
    convicted for. More importantly, the sentence sought by the Crown did not take
    into account the relatively young age of the respondent or the fact that he had
    no criminal record. A sentence of 12 years for a first offender would be
    excessive, even given the seriousness of the events underlying the offences.

[20]

In the end result, while the sentence imposed
    was lenient in all of the circumstances, the Crown has failed to overcome the
    very high hurdle that would justify this court interfering with the sentence
    imposed on the home invasion offences.

(b)

The attempt to obstruct justice offence

[21]

I reach a different conclusion on the attempt to
    obstruct justice offence. In my view, a six-month sentence, for what the
    respondent attempted to achieve, is demonstrably unfit. The sentencing judge
    also committed an error in principle in failing to give proper consideration to
    a decision of this court, as I shall explain.

[22]

I begin with the principle that efforts by
    accused persons (whether directly or through others) to interfere with
    witnesses strike at the very heart of our justice system. There are already
    very serious concerns regarding the willingness of people, who observe crimes,
    to come forward and offer themselves as witnesses. Concerns around the code of
    silence, and possible repercussions from being considered a rat or a
    snitch, often lead persons to remain silent when they ought to be coming
    forward and assisting the authorities to properly investigate and prosecute
    criminal activities.

[23]

Against that backdrop, interference with persons
    who are prepared to be witnesses only serves to exacerbate the problem. It must
    be clear to all accused persons that attempting to interfere in any way with a
    witness represents conduct that will not be tolerated. In that regard, I
    respectfully adopt what the British Columbia Court of Appeal said in
R. v.
    Hall
, 2001 BCCA 74, per Saunders J.A. at para. 12:

Obstruction of justice or attempting to
    obstruct justice strikes at our system of a lawful society. The message must be
    clear that this type of interference with the community system for handling
    criminal offences will not be tolerated. It is for this reason that the courts
    must act firmly to express society's disapproval and denunciation of such
    conduct.

[24]

While there may be other conduct that would
    constitute an attempt to obstruct justice that would warrant a minor sentence
    of the type that was imposed here, attempting to interfere with a witness does
    not fall into that category. Indeed, I would say that, as a general
    proposition, attempting to interfere with a witness should normally attract a
    penitentiary term of imprisonment. I find support for that position in the fact
    that penitentiary terms of imprisonment are often imposed for persons who
    refuse to testify:
R. v. Yegin
, 2010 ONCA 238. If a persons personal
    choice not to give evidence can attract such sentences, then it seems to me that
    a persons choice to interfere with another persons right to testify should draw,
    at least, equal condemnation. In this case, therefore, the sentence sought by
    the Crown of two and one-half years was entirely appropriate.

[25]

On that latter point, I note that this court upheld
    a two and one-half year sentence for obstruction of justice in
R. v.
    Williams
, 2016 ONCA 937. That case was provided to the sentencing judge.
    The sentencing judge attempted to locate the trial judges reasons for sentence,
    but he was unable to. This inability then led the sentencing judge to conclude
    that the appellate ruling in
Williams
is of no use to me in
    sentencing the respondent.

[26]

With respect, it was not open to the sentencing
    judge to dismiss this courts decision in
Williams
in that fashion.
    While the particulars underlying the sentence may not have been available to
    the sentencing judge, he nonetheless had a decision of this court suggesting
    that the sentence being sought by the Crown with respect to the respondent was clearly
    one that was open to him. He also had this courts view of the seriousness of
    these types of offences. He committed an error in principle by failing to take
    that decision into account in arriving at the sentence.

C.

Conclusion

[27]

I would grant leave to appeal and allow the appeal
    only to the extent that I would impose a sentence of two and one-half years on
    the attempt to obstruct justice count, consecutive to the sentences on the
    other counts. The appeal of the sentence on the other counts is dismissed.

Released: BWM September 28, 2020

I.V.B Nordheimer J.A.

I agree. B.W. Miller
    J.A.

I agree. Thorburn J.A.


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.

WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the
    prosecutor or the accused intends to show cause under section 515, he or she
    shall so state to the justice and the justice may, and shall on application by
    the accused, before or at any time during the course of the proceedings under
    that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(a)     if a preliminary
    inquiry is held, the accused in respect of whom the proceedings are held is
    discharged; or

(b)     if the accused in respect of whom
    the proceedings are held is tried or ordered to stand trial, the trial is
    ended.

Failure to comply

(2)     Everyone who
    fails without lawful excuse, the proof of which lies on him, to comply with an
    order made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3)     [Repealed, 2005,
    c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.H.S., 2020 ONCA 584

DATE: 20200917

DOCKET: C66697

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.S.

Appellant

J.H.S., appearing as self-represented

Andrew Furgiuele, appearing as duty
    counsel

Jessica Smith Joy, for the respondent

Heard via video conference:
    September 10, 2020

On appeal from a conviction entered by
    Justice Marc R. Labrosse of the Superior Court of Justice, dated March 25,
    2018, and the sentence imposed on February 25, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of
    sexual assault and received a six-month custodial sentence. He appeals from
    conviction and sentence.

[2]

The appellant maintains that the trial judge
    erred in admitting the complainants video recorded statement as her in-chief testimony
    pursuant to s. 715.2 of the
Criminal Code
, R.S.C., 1985, c. C-46 (
Criminal
    Code
). His complaint is a narrow one.

[3]

The appellant acknowledges that all but one of
    the statutory prerequisites set out in s. 715.2 of the
Criminal Code
were
    met. For instance, he acknowledges that the complainant has a physical
    disability within the meaning of s. 715.2. (Among other physical challenges
    faced by the complainant, she is also legally blind.) Nor does he dispute that
    the complainant gave a video recorded statement to the police shortly after the
    alleged offence, in which she described the acts complained of.

[4]

The appellants argument rests solely on the
    suggestion that the trial judge erred when he concluded that the statutory
    prerequisite  that the complainant may have difficulty communicating her
    evidence by reason of her physical disability  was met.

[5]

The trial judge gave multiple reasons for why
    the statutory test had been met, including that the complainant could not
    prepare to give her evidence in the same way as a person without her physical
    disabilities. The trial judge concluded that the complainants inability to see
    would interfere with her proper preparation for giving evidence. The trial judge
    specifically pointed to the preliminary inquiry transcript as demonstrating
    that the complainant was in need of refreshing her memory and that, if the
    video was not used as her in-chief testimony, this would create a significant
    challenge for her because of her visual impairment.

[6]

In light of these circumstances, we find no
    error in the trial judges approach. Notably, the complainant was produced for
    a full cross-examination and no prejudice is alleged. We defer to the trial
    judge on this point.

[7]

The appellant also argues that the trial judge
    erred in precluding him from leading specific evidence pertaining to prior
    sexual history. While the appellant succeeded on his s. 276
Criminal Code
prior sexual activity application as it related to one prior incident, he was
    denied the opportunity to elicit evidence about another incident. The trial
    judges ruling in this respect is detailed and explains why the evidence was
    irrelevant to the proceedings. The trial judge properly summarized and applied
    the law. We find no error in his approach.

[8]

Nor do we accede to the suggestion that the
    verdict was unreasonable. The trial judge gave lengthy reasons for judgment. He
    reviewed and correctly applied the principles from
R. v.
W.(D.)
[1991] 1 S.C.R. 742
. The trial judge also
    explained his credibility findings. We owe deference to those findings.

[9]

The appellant also argues that the trial was
    unfair. We see nothing in the record to support this claim.

[10]

The appellant has already served his sentence.
    It was not unreasonable given the aggravating circumstances involved, including
    the vulnerability of the complainant. It appears that the appellants real
    complaint is with the mandatory, statutory s. 490.012(1)
Criminal Code
order
    that was imposed. We would not give effect to this submission. It is a
    mandatory order.

[11]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.