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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. A.C.Z., 2019 ONCA 69

DATE: 20190130

DOCKET: C63647

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.C.Z.

Appellant

John Rosen and Lindsay Daviau, for the appellant

Michael Perlin, for the respondent

Heard and released orally: January 28, 2019

On appeal from the conviction entered on February 16,
    2017, by Justice Tamarin Dunnet of the Superior Court of Justice.

ORAL ENDORSEMENT

[1]

A.C.Z. appeals his conviction, after a judge alone trial, on a single
    charge of sexual interference.  Central to his appeal is the appellants
    contention that the trial judge improperly curtailed his counsels
    cross-examination of the complainants mother.  The appellant also brings an
    application to admit fresh evidence relating to this issue.

[2]

The facts underlying the conviction arise out of the appellants alleged
    sexual abuse of his nine year old stepdaughter.  The complainant alleges that
    on a number of occasions, when the appellant was alone with her, he sexually
    abused her by touching her breasts and her vagina.  The complainant did not
    report this abuse at the time.  Rather, some years later, when she was a
    teenager, she revealed this abuse as a result of issues that arose regarding
    her performance at school.

[3]

At trial, the defence contended that the complainant had been encouraged
    by her mother to make false allegations against the appellant because of family
    law proceedings that were ongoing between the mother and the appellant.  One of
    the issues was whether the appellant was upset with the mother regarding her
    claims for child support.  During the cross-examination of the mother, the appellants
    counsel tried to put before the mother receipts that showed that the appellant
    had made numerous cash payments for child support.  Crown counsel objected to
    the line of questioning on the basis that the questioning was on a collateral
    matter.  The trial judge agreed and curtailed that line of questioning.

[4]

We agree, as does counsel for the respondent, that the collateral fact
    rule had no application to the issue raised:
R. v. A.C.
, 2018 ONCA
    333.  That does not change the fact that a trial judge has a wide discretion to
    control trial proceedings.  This includes controlling the scope of the
    questioning of witnesses whether in chief or in cross-examination.  While the
    right of cross-examination is to be jealously protected and broadly construed, it
    is not unlimited:
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at
    paras. 44-45.

[5]

We see no unfairness that arose from the curtailment of the
    cross-examination.  We reach this conclusion for two main reasons.

[6]

First, as the trial judge recognized, the central issue fell to be
    determined on the evidence of the complainant.  The trial judge found the
    complainants evidence to be clear and compelling.  The issue that the
    appellant raises regarding the mothers evidence does not impact on that
    conclusion.

[7]

Second, the trial judge recognized that there were problems with the
    mothers evidence.  Again, however, the mothers evidence was largely
    peripheral to the central issue.  At most, her evidence provided corroboration
    for the complainants evidence that there were times when she was alone with
    the appellant such that the abuse could have occurred.  The trial judge was
    entitled to accept the mothers evidence as providing that corroboration while
    recognizing the other problems with the mothers evidence.

[8]

In terms of the fresh evidence, we would not admit it because, for the
    reasons we have already given, it fails to satisfy either the second or fourth
    factors from
R. v. Palmer
, [1980] 1 S.C.R. 759, that is, it does not
    bear upon a decisive or potentially decisive issue in the trial nor could it be
    expected to have affected the result.

Conclusion

[9]

The appeal is dismissed.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmad, 2019 ONCA 60

DATE: 20190129

DOCKET: C65132

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zaheer Ahmad

Appellant

Zaheer Ahmad, in person

Andrew Hotke, for the respondent

Heard and released orally: January 14, 2019

On appeal from the conviction
    entered on October 17, 2017, and the sentence imposed on November 28, 2017, by
    Justice C. Brown of the Superior Court of Justice, sitting without a jury.

ORAL ENDORSEMENT

[1]

The appellant was convicted of criminal harassment through repeated
    communications to the complainant.  He was sentenced to two years less one day
    imprisonment, less 19 months credit for pre-sentence custody leaving a remnant
    custodial sentence of 5 months less one day, plus three years probation.  The
    appellant was also ordered to pay $1,423.80 as restitution to the complainant
    to compensate her for days of work lost due to attending court.

[2]

The appellant appeals against conviction and sentence.  At the opening
    of the appeal hearing, we denied the appellants adjournment request.  At the
    last date on which this matter was spoken to, it was ordered to proceed on this
    date.  In his submissions on his conviction appeal, the appellant failed to
    identify any reversible error by the trial judge.  The trial judge applied the
    proper legal test and gave thorough reasons for conviction.  The conviction appeal
    is, therefore, dismissed.

[3]

The custodial portion of the sentence has now been served.  The Crown
    concedes that the restitution order should be struck out if, for no other
    reason than that the trial judge failed to consider the ability to pay and that
    the appellant did not have the ability to pay.  The sentence appeal is allowed
    to the extent of setting aside the restitution order but is otherwise
    dismissed.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

G.T.
    Trotter 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.S., 2019 ONCA 72

DATE: 20190131

DOCKET: C61018

Doherty, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.S.

Appellant

Graham Jenner, for the appellant

Joe Hanna, for the respondent

Heard: January 25, 2019

On appeal from the conviction entered on May 26, 2014 and
    the sentence imposed on December 12, 2014 by Justice B.A. Allen of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of a series of sexual and violent offences
    against the complainant. The offences occurred in the context of a two-year
    sexual relationship. The complainant was aged 12-14 years at the time of the
    offences, and therefore legally incapable of consenting to the sexual relations,
    while the appellant was aged 27-29. The trial judge imposed sentences totalling
    8 years. The complainant first met the appellant when she would come to his
    mothers apartment to play with his younger sister. The complainants household
    was highly dysfunctional, and although she was intermittently in the care of
    Native Child and Family Services (NCFS), she was frequently truant and living
    clandestinely with the appellant.

[2]

The appellant appealed against both conviction and sentence. At the
    conclusion of the hearing, we dismissed the conviction appeal and allowed the
    sentence appeal in part, with reasons to follow. These are those reasons.

Conviction appeal

[3]

With respect to the appeal against conviction, the appellant argues that
    the trial judge erred by:

(1)

relying on photographic evidence
    that had not been authenticated;

(2)

rendering an unreasonable
    conviction under the meaning of s. 686(1)(a)(i) by relying on the complainants
    evidence, given her inconsistent statements and admitted perjury;

(3)

relying on evidence from the
    complainants mother and stepfather, despite finding them to be unreliable
    witnesses;

(4)

misapprehending the evidence that
    the complainant had been coached in her police statement by the NCFS and had a
    motive to lie.

[4]

We do not agree with the submissions.

The
    photographs:

[5]

With respect to the photographs, it was not necessary that they be
    authenticated by evidence from the person who took the photographs. They were
    capable of being authenticated by the evidence of the complainant, who was able
    to identify herself and the appellant in the photographs, explain the
    interactions depicted, and the locations at which the photographs were taken. She
    was also able to provide a reasoned explanation for the approximate date range
    she gave for the photographs, and her belief that her sister was the likely
    photographer. The trial judge made no error in receiving the photographs into
    evidence.

The reasonableness of the conviction:

[6]

The appellant focuses on the nature and number of admitted lies the
    complainant told the police and repeated at the preliminary inquiry. The trial
    judge was alive to the untruthful statements and carefully considered both the
    complainants explanations for them and the circumstances surrounding the
    recantations. The trial judge found that the complainants admitted lies did
    not negate her credibility or reliability on the central issue: she and the
    appellant had engaged in sexual intercourse approximately 300 times over a
    two-year sexual relationship, and the appellant had on various occasions physically
    assaulted her.

[7]

The appellant argued that the trial judge erred by finding that the
    complainants lies actually made her more credible than she would have been
    without the lies. We do not agree with this reading of the trial judges
    reasons. The trial judge expressed concern about the effect of the untruthful
    statements on the complainants credibility. In stating that the recantations
    have a redeeming feature and cast a somewhat more positive light on her
    general credibility, she was merely stating that the complainants
    acknowledgment and recantation of the lies had some ameliorative effect. It is
    not open to us to interfere with the trial judges credibility assessment.

The parents evidence:

[8]

With respect to the complainants parents evidence as to the sexual
    relationship between the appellant and the complainant, it was open to the
    trial judge to rely on the parents evidence where it was supported by other
    credible evidence, notwithstanding her finding that the parents substance
    abuse made their evidence generally unreliable. The evidence of the parents that
    the trial judge was willing to accept was consistent with the photographic
    evidence and the evidence she accepted from other sources, including the
    complainant, the NCFS, and the police. The trial judge viewed the parents
    evidence as providing some additional support for evidence from sources that she
    found more reliable. She did not err in doing so.

The evidence
    of motive to lie:

[9]

This argument rests on the trial judges statement at paragraph 58 of
    her reasons that (t)here is no substantiation for the defence theory that the
    complainant fabricated the claims she made to the police as part of a deal with
    the NCFS to secure her independence from them. There is, as the appellant
    argues, some evidence that could have supported that allegation. However, we do
    not read the trial judges reasons as denying this. Rather, she concluded that in
    light of the totality of the evidence that she accepted, she could not draw the
    inference urged by the defence. The trial judge made no error in so finding.

Sentence appeal

[10]

The
    appellant advances multiple arguments on the sentence appeal.

[11]

The
    trial judge found that the appellant was in a position of trust or authority
    over the complainant, which is an aggravating factor under s. 718.2(a)(iii) of
    the
Criminal Code
. The appellant disputes this, arguing that he was
    simply a neighbour trying to help the complainant through a difficult home
    life, and ended up romantically involved with her. We do not agree. As the
    trial judge found, the appellant made himself a confidante for a troubled and
    vulnerable 12 year old girl. He provided places of refuge and protection from
    neglectful parents who were adrift in their own world of substance abuse. She
    stopped going to school and to her family home in order to spend all her time
    with him. He facilitated her flight from the NCFS and kept her in hiding. She
    was wholly dependent upon him for companionship, food, and shelter. He made
    himself, in the trial judges words, her world. The trial judge made no error
    in characterizing the relationship as one of trust, coming within s.
    718.2(a)(iii).

[12]

We
    do not agree that the trial judge inappropriately considered the complainants
    age as an aggravating factor under s. 718.2(a)(ii.1) with respect to the sexual
    interference conviction, which necessarily involves the abuse of a person under
    the age of 16. The complainants age was relevant to assessing her degree of
    vulnerability, and the age difference was relevant to assessing the appellants
    degree of culpability.

[13]

The
    appellant argues that the trial judge erred in considering the appellants
    conviction for arson as an aggravating factor, given that the conviction
    post-dated the conduct for which the appellant was sentenced. The Crown
    concedes, properly, that this was an error, but argues that it did not have an
    impact on the appellants sentence. We agree. Although it was an error to
    consider post-offence conduct, we are not persuaded that it had any impact on
    sentencing. The fact of the arson conviction was listed as part of an extensive
    criminal record, which was itself only one of ten aggravating factors
    considered by the trial judge. Additionally, it was not an error for the trial
    judge to consider the arson conviction when assessing his rehabilitative
    potential.

[14]

The
    appellant also argues that the trial judge erred in relying on facts that were
    not in evidence, specifically, facts related to the appellants subsequent
    conviction for sexual offences. Again, it was not an error for the trial judge,
    in assessing the appellants prospects for rehabilitation, to consider his
    conduct when he was on bail.

[15]

The
    appellant argues, and we agree, that the trial judge erred in failing to comply
    with s. 726 of the
Criminal Code
and ask the appellant if he had
    anything to say. We are not satisfied, however, that this error had any impact
    on sentence.

[16]

Most
    significantly, the appellant argues that the sentence imposed is unfit, falling
    outside the appropriate range. We do not agree. This ground of appeal is
    largely exhausted by our rejection of the argument that the trial judge erred
    in finding the appellant to have been in a position of trust. In any event,
    given the complainants vulnerability, the appellants domination of her, the
    disparity in ages, the duration of the abuse, and the instances of violence
    (including choking the complainant and punching her in the face), we do not
    agree that the sentence is unfit.

[17]

The
    crown concedes, and we agree, that the trial judge erred in failing to give the
    appellant credit for 105 days of pre-trial custody, which when calculated on a
    1.5:1 basis, should have resulted in a credit of 158 days.

Disposition

[18]

The
    appeal as to conviction is dismissed. Leave to appeal sentence is allowed, and
    the sentence appeal is allowed only with respect to credit for pre-trial
    custody. The sentence appeal is dismissed in all other respects.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balendra, 2019 ONCA 68

DATE: 20190130

DOCKET: C62701

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rajeev Henry Balendra

Appellant

Glen Henderson, for the appellant

Michael Bernstein, for the respondent

Heard: December 7, 2018

On appeal from the convictions entered on August 23, 2016
    by Justice Susan E. Healey of the Superior Court of Justice, sitting with a
    jury, and from the sentence imposed on August 26, 2016.

Harvison Young J.A.:

[1]

The appellant appeals from his convictions on a
    number of charges relating to the possession of fraudulent and forged credit
    cards and possession of identity information with intention to commit fraud. He
    also seeks leave to appeal from his sentence of four years imprisonment.

[2]

The appellant argues that the trial judge erred
    in admitting evidence that should have been excluded pursuant to s. 8 and s.
    24(2) of the
Canadian Charter of Rights and Freedoms
as the products of warrantless, unreasonable searches. The evidence
    consisted principally of lists of credit card numbers and an apparent template
    for a drivers licence on a USB key seized from the appellant, as well as other
    evidence found in the van he was driving, following his arrest for careless
    driving and possession of a stolen vehicle.

[3]

The appellant also submits that the trial judge
    erred in principle by failing to consider rehabilitation as a factor in the
    sentencing equation, focusing only on deterrence and denunciation. This error,
    the appellant says, led the trial judge to impose a demonstrably unfit
    sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal from conviction, grant leave to appeal from sentence but dismiss the
    sentence appeal.

FACTUAL Background

[5]

On March 13, 2013, two Ontario Provincial Police officers, Sergeant
    Humber and Constable Hitch, detected what they believed to be a stolen vehicle.
    The vehicle, a red Dodge Caravan, was travelling northbound in the center lane
    of Highway 400. Sgt. Humber believed the van was stolen based on information
    obtained from police databases that showed the vehicle on record with Toronto
    Police Services as a stolen vehicle.

[6]

Just prior to the Mapleview Drive exit, the van quickly swerved across
    the right-hand lane of traffic, across the bullnose, and onto the exit ramp. It
    was Sgt. Humber's impression, based on his belief that the vehicle was stolen,
    that this was an evasive maneuver to avoid police pursuit. Constable Hitch, who
    was driving, maneuvered the police vehicle in front of the van and brought it
    to a stop on the shoulder of the exit ramp, with a back-up vehicle arriving
    behind to block the van. Sgt. Humber exited the police vehicle and immediately
    drew his service revolver, pointing it at the passenger still inside the van.

[7]

Both occupants complied with police demands. Sgt. Humber arrested the
    passenger, Serhiy Pidliskovyy, at 3:09 p.m. for possession of stolen property
    in relation to the van. A wallet belonging to Mr. Pidliskovyy was searched at
    the roadside. Sgt. Humber found an Ontario drivers licence in the name of
    Matthew Spazza, bearing a photograph of Mr. Pidliskovyy, as well as a patient
    identification card from Mount Sinai Hospital bearing Mr. Pidliskovyy's photograph
    and name. Sgt. Humber testified that the discrepancy caused him to be suspicious
    about the drivers licence. Inquiries made by him later that day to the
    Ministry of Transportation showed that the licence number, name and address did
    not exist in their records.

[8]

At approximately the same time, the appellant, who had been driving the
    van, was arrested by Constable Hitch for possession of stolen property and
    careless driving. Both individuals were taken into custody at the OPP
    detachment office in Barrie. The van was removed by a towing company and
    secured in a compound within the City of Barrie.

[9]

Sgt. Humber arrived at the detachment office at approximately 3:25 p.m.
    He was not involved in processing either the appellant or Mr. Pidliskovyy, but
    instead continued with the investigation and preparation of the bail documents.
    He was able to confirm the identities of both individuals, and learned that the
    appellant was subject to a drivers licence suspension, which was imposed on
    him for driving a vehicle while under suspension.

[10]

Sometime
    later, Sgt. Humber became aware that Constable Hitch was in possession of a
    passport-sized photograph of Mr. Pidliskovyy that had been discovered during
    the search of the appellant, located in a pocket in the appellants clothing.
    The photograph in question was an identical likeness to that on the drivers
    licence found in Mr. Pidliskovyy's possession. The other significant item found
    in the possession of the appellant was a USB key, which came to Sgt. Humber's
    attention later that day at 9:55 p.m.

The first search of the USB key

[11]

When
    presented with the USB key, Sgt. Humber proceeded to search it, approximately
    seven hours after the appellants arrest. Sgt. Humber testified that he
    believed the USB key could hold valuable information to assist in facilitating
    the creation of the drivers licence found on Mr. Pidliskovyy. He testified
    that at that time in the evening of March 13, 2013, he was engaged in
    investigating a separate impersonation offence in relation to Mr. Pidliskovyy
    and the appellant.

[12]

Sgt.
    Humber looked at the contents of the USB key for approximately 10 to 30
    minutes. He saw that it contained, among other things, multiple credit card
    numbers and what he believed to be a drivers licence template. At that time,
    he made only brief notes about what he looked at on the USB key, but no other
    notes about any further aspect of the process that he followed when accessing
    it. His notes stated that the search of the USB key was "incident to
    arrest". Accordingly, Sgt. Humber agreed that he understood that there was
    a privacy interest in relation to the USB key, and he had turned his mind to
    his right to engage in such search without a warrant.

[13]

Sgt.
    Humber confirmed that the appellant had been arrested at that point only in
    relation to the facts related to the stolen vehicle and careless driving. He
    confirmed that he did not search the USB key in relation to either of those
    offences, nor was there any indication that he might expect to find any
    information pertaining to those offences.

The search of the van

[14]

As
    a result of the information he obtained through the search of the USB key, Sgt.
    Humber decided to conduct a more thorough search of the van that the appellant
    had been driving. On March 14, 2013, he attended at the impound lot where the
    van was being held and proceeded to search it. He testified that he did not
    seek a warrant prior to this search because he understood that the vehicle was
    stolen, and further understood that there would be no expectation of privacy in
    a stolen vehicle. Sgt. Humber acknowledged that he wanted to perform the search
    of the van in part because of what he had found on the USB key, and that his
    intent was to further the investigation.

[15]

While
    searching the van, Sgt. Humber noticed a loose ceiling compartment, from which
    he extracted a concealed plastic bag containing what appeared to be a number of
    credit cards. At that time he noted that the name Matthew Spazza appeared on
    some of the cards, but he took no further steps to process the contents of the
    bag at the impound lot. Sgt. Humber took the bag, along with some other items
    found in the vehicle (including a rental agreement purportedly issued by SSS
    Rent-A-Car to an individual with the surname of Sookhoo), back to the
    detachment to be secured.

The second search of the USB key

[16]

Five
    days later, on March 19, 2013, Sgt. Humber again accessed the USB key in order
    to look at the information contained on it, and printed off numerous pages
    containing approximately 2,500 credit card numbers, the Ontario drivers
    licence that he believed to have been used as a template, and a photograph of
    an unidentified male. He testified that he observed the same information on
    that date that he had seen on March 13. No particular notes were made of the
    procedure used to access the information on March 19. Sgt. Humber testified
    that he made the decision to print off the credit card numbers in particular
    because he believed that another offence had been "stumbled across".
    Using the credit card information, he then contacted a number of banks and
    financial institutions for the purpose of obtaining information about whether
    those card numbers had been compromised for the purpose of fraud or theft.
    Eventually each of those institutions provided him with information on the
    status of the cards and their use, with an estimate of resultant financial
    loss.

[17]

Sgt.
    Humber testified that he did not seek a warrant before accessing the material
    on the USB key and printing it, because he felt that he was lawfully in
    possession of the information, having seen it on a prior occasion incident to
    the arrest of the appellant.

[18]

After
    printing the contents of the USB key on March 19, Sgt. Humber decided to apply
    for a search warrant for the purpose of carrying out a more probing search of
    the device. The warrant was issued on June 27, 2013, after which date the USB
    key was delivered to an officer in the e-crimes unit. The resulting search did
    not reveal any additional information beyond that which Sgt. Humber had already
    obtained.

[19]

Based on the information obtained through the searches, the
    appellant was charged with eight fraud-related offences. He pleaded not guilty
    and elected to be tried before a judge and jury.

[20]

Prior to trial, the appellant brought an application to exclude
    the evidence under s. 24(2), arguing that his s. 8
Charter
rights had
    been infringed by the following three searches:

a.

The first search of the USB key on March 13, 2013;

b.

The search of the impounded van on March 14, 2013;

c.

The second search of the USB key on March 19, 2013.

DECISION BELOW

[21]

The
    trial judge dismissed the
Charter
application: see
R. v. Balendra
,
    2016 ONSC 5143. She found that the appellants s. 8 rights had not been infringed
    by any of the searches.

[22]

With
    respect to the search of the USB key on March 13, the trial judge recognized
    that the appellant had a reasonable expectation of privacy in the USB key. She
    also recognized that because the search was conducted without a warrant, the
    Crown had the burden of establishing that it was reasonable. The trial judge
    found that the Crown met its burden by showing that the search was a valid
    search incident to arrest, in that it was founded on the appellants lawful
    arrest, and was conducted truly incident to the arrest in a reasonable manner.

[23]

With
    respect to the search of the van on March 14, the trial judge determined that
    the appellant had no reasonable expectation of privacy in the van, and thus did
    not have standing to advance a s. 8 claim. The trial judges conclusion was
    based in part on Sgt. Humbers evidence on the
voir dire
that the van
    was stolen, and his evidence that the appellant had no lawful status to operate
    the van because his drivers license was suspended.

[24]

Finally,
    the trial judge found that the search of the USB key on March 19 was not a new
    search, but rather an extension of the search conducted on March 13. As the
    search on March 13 was reasonable, the trial judge reasoned that the search on
    March 19 was also reasonable.

[25]

Given
    the trial judges finding that there was no s. 8 infringement, the evidence
    obtained through the searches was admitted at trial. The appellant was
    convicted of four fraud-related offences and sentenced to four years
    imprisonment.

The issues on appeal

[26]

On appeal, the appellant submits that the trial
    judge erred in her analysis of s. 8 with respect to each of the searches
    conducted by Sgt. Humber. If this court concludes that the searches were unreasonable,
    the appellant submits that the evidence should have been excluded under s.
    24(2), and that an order vacating his conviction and entering an acquittal in
    its place should follow.

[27]

The appellant further submits that the trial
    judge erred in imposing a demonstrably unfit sentence of four years
    imprisonment. If the appeal from conviction is dismissed, he seeks a reduction
    of his sentence.

[28]

The respondent submits that the trial judge did
    not err in dismissing the s. 8 application, and that even if she did, any
    infringement of s. 8 would not have justified excluding the evidence under s.
    24(2). The respondent also notes that a warrant to search the USB key was
    obtained by Sgt. Humber on June 27, 2013. This warrant, the respondent argues,
    would have issued even if the fruits of the warrantless searches of the USB key
    and van were excised from the ITO, such that the evidence would have been
    admissible on this alternative basis.

[29]

With respect to the sentence appeal, the
    respondent submits that the trial judge did not fail to consider relevant
    factors, and that the ultimate sentence imposed was not excessive or otherwise
    demonstrably unfit.

ANALYSIS

[30]

I begin with the standard of review to apply to
    the issues on this appeal. Whether the trial judge erred in determining that the
    searches of the USB key and van did not infringe the appellants s. 8 rights is
    a question of mixed fact and law.
While deference is owed to the trial
    judges factual findings, her legal conclusions are reviewable on the
    correctness standard:
R. v. Shepherd,
2009 SCC 35,
    [2009] 2 S.C.R. 527, at para. 20.

[31]

For the reasons that follow, I find that the
    trial judge correctly determined that the appellant lacked a reasonable
    expectation of privacy in the stolen van. However, I conclude that she erred in
    her analysis of s. 8 with respect to the two warrantless searches of the USB
    key. These searches were not truly incident to arrest and therefore infringed
    the appellants s. 8 rights. Nevertheless, I would decline to exclude the
    evidence under s. 24(2).

[32]

With respect to the sentence appeal, I find that
    the sentencing judge did not err in principle and that the sentence was not
    demonstrably unfit.

The first USB key search on March 13, 2013

[33]

The appellant argues that he had a reasonable expectation
    of privacy in the USB key, and that its search on the evening of March 13 did
    not constitute a valid search incident to his arrest. The search therefore
    infringed his s. 8 right to be free from unreasonable search and seizure.

[34]

The respondent submits that the appellant did
    not have a reasonable expectation of privacy in the USB key, but that even if
    he did, the search was reasonable as a valid search incident to arrest.

(1)

Did the appellant have a reasonable expectation
    of privacy in the USB key?

[35]

I agree with the appellant that it is clear,
    since the decision of this Court in
R. v. Tuduce
, 2014 ONCA 547,
314 C.C.C. (3d) 429,
that
    he had a reasonable expectation of privacy in the contents of the USB key found
    in his pocket.

[36]

The respondent submits that the trial judge
    erred in treating the USB key as though it were a computer or a cell phone. In
    her ruling on the s. 8
voir dire
, the trial
    judge recognized, at para. 42, the appellants reasonable expectation of
    privacy in the USB key in the following manner:

[O]n balance, given that a USB drive is quite
    capable of holding and revealing extensive personal information about a person
    in the same way as a computer, I find that the applicant has established that
    he had a reasonable expectation of privacy in relation to the USB drive.

[37]

In
Tuduce
, at
    paras. 71-75, Gillese J.A. considered the privacy interests implicated in USB
    keys found in a persons possession:

First, a USB key can store a significant amount of data. USB
    keys commonly hold anywhere from one to ten gigabytes of data, and USB keys
    with a storage capacity of over one terabyte exist. It seems likely that their
    storage capacities will only increase over time.

Second, data can be left on a USB key without a users
    knowledge. This data includes information about the date and time a file was
    created or modified and information about the user who created or modified that
    file.

Third, a user does not have complete control over which files
    an investigator will be able to find on a USB key. Data can be salvaged from a
    USB key through forensic analysis even after a user has deleted or saved over
    it.

It is true that a USB key is not a home computer or a cell phone.
    Thus, it may not always contain personal information, like a list of contacts,
    the contents of past communications, and information about an individuals web
    searching habits.

On the other hand, however, a persons personal USB key
    arguably engages more serious privacy interests than a work computer. The two
    key reasons why individuals have a somewhat diminished reasonable expectation
    of privacy in a work computer are that a work computer is not actually owned by
    the employee who uses it, and the employees use of the work computer is often
    subject to terms and conditions imposed by the employer:
R. v. Cole
, 2012
    SCC 53 (CanLII), [2012] 3 S.C.R. 34, at paras. 49-52 and 92. Neither
    of these considerations apply to personal digital storage devices like USB key.

[38]

Here, the USB key was found in the appellants
    pocket. That fact, combined with the potential personal contents of such a
    device, is sufficient to establish that the appellant had a reasonable expectation
    of privacy in the USB key:
R. v. Mann
, 2004
    SCC 52, [2004] 3 S.C.R. 59, at para. 56. It is not necessary for the purposes
    of this appeal to define the level or intensity of that interest relative to
    other such devices with any further precision.

(2)

Was the search of the USB key reasonable?

[39]

Having found that the appellant did have a reasonable
    expectation of privacy in the contents of the USB key, I turn now to the
    question of whether Sgt. Humbers search of the key on the evening of the
    appellants arrest was reasonable as a search incident to arrest.

[40]

The Supreme Court of Canada reviewed the law
    applicable to the scope of searches incident to arrest in the context of cell
    phones in
R. v. Fearon,
2014 SCC 77,
[2014] 3
    S.C.R. 621. Cromwell J., writing for the majority, wrote of the need to
    recognize, on the one hand, the high potential invasion of privacy inherent in
    the search of a cell phone, and, on the other, the importance that cell phones
    may play with respect to law enforcement objectives. At para. 83, Cromwell J.
    set out four conditions with which a search of a cell phone incident to arrest
    should comply in order to be lawful:

1.

The arrest itself must be lawful;

2.

The search must be truly incidental to arrest,
    and have a valid law enforcement purpose in (a) protecting the police, the
    accused or the public; (b) preserving evidence; or (c) discovering evidence,
    including locating additional suspects, in situations in which the
    investigation will be stymied or significantly hampered absent the ability to promptly
    search the cell phone incident to arrest;

3.

The nature and extent of the search must be
    tailored to the purpose of the search; and

4.

The police must take detailed notes of what they
    have examined on the device and how it was searched.

[41]

The three valid law enforcement purposes
    identified by Cromwell J. are drawn from the Supreme Courts previous decisions
    in
Cloutier v. Langlois
, [1990] 1 S.C.R. 158,
    and

R. v. Caslake
,
    [1998] 1 S.C.R. 51. In
Caslake
, the Court

clarified, with respect to the discovering
    evidence purpose, that if the justification for the search is to find
    evidence, there must be some reasonable prospect of securing evidence
of the offence for which the accused is being arrested
: at para. 22 (emphasis in original).

[42]

This restrictive approach to the discovering evidence
    purpose was affirmed by Cromwell J. in
Fearon
,
    though he added three additional restrictions in the context of cell phone
    searches. First, where the purpose of the search is to discover evidence, it
    will only be lawful if the investigation will be stymied or significantly
    hampered absent the ability to promptly search the cell phone incident to
    arrest.
The rationale for this restriction is that it strikes the proper
    balance between law enforcement objectives and privacy interests, in light of
    the nature and vast range of personal information that a cell phone might hold.
    Second, where a search is conducted for any valid purpose, both the nature and
    extent of the search must be tailored
to that purpose. Finally,
    officers must take detailed notes of what they have examined on a cell phone,
    in order to help them focus their search and to permit effective after-the-fact
    judicial review. See
R. v. Tsekouras
, 2017
    ONCA 290,

353 C.C.C. (3d) 349,
    at paras. 89-94.

[43]

The appellant argues that the March 13 search
    was not truly incidental to arrest, and that the trial judge erred in stating
    that the test was met because in searching for evidence, albeit relating to the
    impersonation investigation, the police were acting for a valid purpose
    connected to the arrest. The trial judge found that the Crown had established
    that the warrantless search was reasonable because it was, in all the
    circumstances, incident to the appellants arrest, and that a more restrictive
    interpretation of truly incidental would unduly affect law enforcement.

[44]

With respect, I agree with the appellant that
    the trial judge erred on this point. It is clear from
Caslake
and
Fearon
that the requirement
    that the search be truly incidental to the charge for which an accused has
    been arrested is to be strictly interpreted. At para. 76 of
Fearon
, Cromwell J., having stated that the requirement that the search of
    a cell phone be truly incidental to arrest should be strictly applied,
    continued:

it is not enough that a cell phone search in
    general terms is truly incidental to the arrest. Both the nature and the extent
    of the search performed on the cell phone must be truly incidental to the
particular
arrest for the
particular
offence. [Emphasis added.]

[45]

Here, Sgt. Humber candidly acknowledged in his
    evidence on the
voir dire

that he looked at
    the USB key because he thought that it could have evidence relating to the
    developing impersonation investigation, and not because he expected to find any
    evidence in relation to the careless driving or possession of stolen property
    charges that had been laid. The appellant had not been charged with anything
    relating to credit card fraud or impersonation at that point.

[46]

The test for determining whether a search is
    incidental to arrest has both a subjective and an objective component. While
    Sgt. Humber subjectively believed his look at the USB key was incident to the
    appellants arrest, this belief was not objectively reasonable because the
    officer was not looking for information relating to the stolen van charge but
    rather to the investigation that was superseding it with respect to which no
    charges had yet been laid. Put another way, he was not (subjectively) aware
    that the initial arrest did not (objectively) authorize him to look at the USB
    key in order to find evidence of impersonation or fraud.

[47]

This is very similar to the facts in
Caslake
. In that case, the officer would objectively have had a lawful
    basis for a search incident to arrest that led to the discovery of a nine-pound
    bag of marijuana in the appellants car. However, subjectively, the officer had
    not been searching for evidence incident to the arrest, but rather was doing so
    in compliance with an RCMP policy requiring that the contents of an impounded
    car be inventoried. As a result, the Supreme Court found that the search did
    not fall within the bounds of a search incident to arrest, although it admitted
    the evidence pursuant to s. 24(2) of the
Charter
.

[48]

The other issue with the search conducted by Sgt.
    Humber on March 13 is that there was no evidence that the investigation would
    be stymied or significantly hampered absent the ability to search the USB key
    incident to arrest. To the contrary, both the appellant and Mr. Pidliskovyy had
    been arrested and placed in police custody. The USB key and the van had also been
    seized and secured. In contrast to computers and cell phones, there was no risk
    of the USB key being accessed or otherwise tampered with remotely. As Cromwell
    J. put it in
Fearon
, at para. 80, if all
    suspects a
re in custody and any firearms and stolen property have been
    recovered, it is hard to see how police could show that the prompt search of a
    suspects cell phone could be considered truly incidental to the arrest as it
    serves no immediate investigative purpose. The same reasoning applies to the
    search of the USB key in this case.

[49]

In short, I find that the first search of the
    USB key was not objectively reasonable because it was not conducted to find
    evidence of the particular offences for which the appellant had been arrested. Had
    it been related to those offences, the search would still not be justified
    because the investigation would not have been stymied or significantly hampered
    absent the search incident to arrest.

[50]

The fact that the search was not objectively
    incidental to arrest is sufficient to address its reasonableness on those
    grounds. However, I disagree with the appellants argument that the search
    could not have been valid because it was conducted a number of hours after his
    arrest. While there are temporal limits to a search incident to arrest, there
    is no firm deadline that defines this limit. Rather, as Lamer C.J. stated in
Caslake
, at para. 24:

As a general rule, searches that are truly
    incidental to arrest will usually occur within a reasonable period of time
    after that arrest. A substantial delay does not mean that the search is
    automatically unlawful, but it may cause the court to draw an inference that
    the search is not sufficiently connected to the arrest.

[51]

Here, Sgt. Humber inserted the USB key into a
    computer later during the same day, and during the same shift. This was within
    a reasonable period of time after the arrest. There was no problem with the
    temporal nexus to the arrest in itself in the circumstances of this case.

[52]

I would also not attach great weight in the
    circumstances of this case to Sgt. Humbers failure to take detailed notes when
    he first looked at the contents of the USB key on March 13. He spent about 10-30
    minutes looking at it and determined that it contained a long list of credit
    card numbers, a drivers licence template, and the image of a drivers license
    with a photograph of an unidentified person. In these circumstances, the need
    for detailed notes does not appear to be as strong as was the case of the cell
    phone at issue in
Fearon
. Cell phones
    frequently have many apps and icons, and one may see a great deal of categories
    of information whose contents range across a wide number of subjects. In this
    case, the USB key contents were narrower in range and it is clear that while
    Sgt. Humber did not take notes, he remembered the nature of what he saw.

The search of the van on March 14, 2013

[53]

The appellant argues that he had a reasonable expectation
    of privacy in the van because he had care and control of the van by virtue of
    driving it. I disagree.

[54]

Sgt. Humber searched the van which the appellant
    had been driving and found, among other things, a bag containing 16 credit
    cards hidden behind a loose ceiling compartment. The trial judge found that the
    appellant had not established a reasonable expectation of privacy in the van,
    noting that this was not a case, such as
R. v. Belnavis
, [1997] 3 S.C.R. 341, where the driver had the apparent consent of
    the owner to operate the vehicle. Here, Sgt. Humber testified that the van had
    been registered as a stolen vehicle. The appellant offered no contradictory
    evidence regarding his ownership of the van, or regarding any authorization
    given by the registered owner to operate the vehicle. In short, as the trial
    judge found, there was no evidence to establish that the appellant had any
    ability to regulate access to the van or any legitimate privacy interest with
    respect to it.

[55]

As a result, the trial judge found that s. 8 was
    not engaged by Sgt. Humbers search of the van. I see no basis to interfere
    with this finding. The credit cards found inside the van were thus properly admitted
    into evidence at trial.

The second USB key search on March 19, 2013

[56]

On March 19, 2013, Sgt. Humber took another look
    at the USB key. His evidence was that he did not seek a warrant before he did
    so and that he merely printed the material he had seen the first time. This
    consisted of a list of about 2500 credit card numbers, the Ontario drivers licence
    that he believed to have been used as a template, and a drivers license with a
    photograph of an unidentified male. He did not seek a warrant because he
    believed he was lawfully in possession of the USB key, having already reviewed
    its contents on March 13. The trial judge held that this second look at the USB
    key was essentially a continuation of the first search and was therefore
    reasonable as a search incident to arrest.

[57]

The appellant submits that this second search
    was also unreasonable and a violation of his s. 8 rights. First, he submits
    that even if the March 13 search was reasonable as incident to the arrest, this
    one was not, especially because it failed the temporal connection test from
Caslake
as it took place six days after the arrest. In addition, he argues
    that the officers failure to take detailed notes, which Cromwell J. emphasized
    should be done as a constitutional imperative, should determine this issue. As
    Sgt. Humber testified, he conducted the second search in order to print out
    what he had seen the first time.

[58]

I agree with the appellant that the trial judge
    erred in treating the March 19 search as a continuation of the March 13 search.
    The two searches were factually and temporally distinct. In addition, the
    officer conducted the March 19 search with two purposes in mind which had
    crystallized since the first search.

[59]

First, he testified that he was intending to
    communicate with banks to determine whether the cards listed had been
    compromised, which he did do. Second, he testified that he was preparing an ITO
    so that a more thorough search could be performed on the USB key such as the
    retrieval of deleted items and procedures requiring more technical skills. As I
    have already mentioned, however, there was no exigency because the USB key had
    been seized and its contents, unlike those of a cell phone or computer, could
    not have been remotely affected. In addition, it would appear that Sgt. Humber would
    already have had ample grounds, on the basis of what had been lawfully found on
    the appellant and Mr. Pidliskovyy, along with the fruits of the search of the van
    and the results of the investigation, to obtain a warrant for the search of the
    USB key, which was ultimately obtained. No additional evidence was found on the
    key. As with the first search of the USB key, this second search was not
    reasonable as it was not truly incidental to the appellants arrest for
    possession of stolen property.

[60]

In conclusion, the two searches of the USB key
    were unreasonable. The fact that Sgt. Humber honestly believed that he was
    entitled to view the contents of the key incident to the appellants arrest is,
    as I will discuss below, a consideration that may bear on whether the evidence
    should be excluded, but it is not one which bears on the question of whether
    the appellants s. 8 rights were breached to begin with.

Should the evidence found on the USB key be excluded?

[61]

Section 24(2) of the
Charter
provides
    that evidence obtained in a manner that infringes the accuseds rights shall
    be excluded if it is established that, having regard to all the circumstances,
    the admission of it in the proceedings would bring the administration of
    justice into disrepute. This requires courts to assess and balance the effect
    of admitting the evidence in light of three factors:
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The party seeking to have the
    evidence excluded bears the burden of proving its exclusion is required.

[62]

Because the trial judge did not find any breach
    of the appellants rights under s. 8, she did not conduct an analysis under s.
    24(2). However, the application record is sufficient to permit this court to
    conduct a fresh s. 24(2) analysis on appeal:
R. v. Herta
, 2018 ONCA 927. I provide that analysis below.

(1)

The seriousness of the breach

[63]

The first factor to consider is the seriousness
    of the
Charter
-infringing state conduct in
    issue. The question is whether admission of the evidence would bring the
    administration of justice into disrepute by sending a message to the public
    that the courtseffectively condone state deviation from the rule of law by
    failing to dissociate themselves from the fruits of that unlawful conduct:
Grant,
at para. 72.

[64]

Here, in my view, the police conduct lies along
    the middle to more serious end of the spectrum. Sgt. Humber testified that he
    searched the USB key to find evidence of impersonation. Yet as Sgt. Humber was
    aware, the appellant had not been arrested for impersonation. The search thus
    infringed the clear legal rule established in
Caslake
,
which holds that where a search incident to arrest is
    conducted to find evidence, it must be for evidence of the offence for which
    the person was arrested:
Caslake,
at para. 22.

[65]

The fact that the search infringed a clear legal standard renders
    the breach more serious than it might otherwise have been. In
Grant,
at
    para. 75, the Supreme Court cautioned that ignorance of
Charter
standards on the part of the police must not be encouraged or rewarded by
    treating such breaches as less serious. Even where a breach is not deliberate,
    it may still be reckless, and therefore serious, if the police show insufficient
    regard for
Charter
rights:
R. v. Harrison
, 2009 SCC 34,
    [2009] 2 S.C.R. 494, at para. 24. Indeed, as the Supreme Court observed in
R.
    v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, in some cases
    the exclusion of evidence may be warranted solely on the basis of clear
    violations of well-established rules governing state conduct.

[66]

This is not to suggest that Sgt. Humber blithely
    or recklessly disregarded the appellants
Charter
rights, as was the case with the officer in
Harrison
. To the contrary, Sgt. Humber testified that he genuinely believed
    that he could search the USB key on the night of the arrest, as part of an
    evolving criminal investigation that was still in its early stages. There is no
    reason to doubt his sincerity on this point, particularly in light of the trial
    judges finding that Sgt. Humber presented as a candid, credible witness.

[67]

However, the fact that Sgt. Humber believed his
    search of the USB key was
Charter
-compliant
    does not necessarily diminish the seriousness of the breach. In
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59, the
    Supreme Court held that an officers subjective belief that the appellants
    rights were not affected does not make the violation less serious, unless his
    belief was reasonable.
Buhay
was applied by
    this court in
R. v. Davidson
, 2017 ONCA 257,
352
    C.C.C. (3d) 420, where Laskin J.A. noted, at para. 48, that
a
    finding of good faith police conduct was unavailable when the polices breach
    of s. 8 was committed in ignorance of the scope of their constitutional
    authority.

[68]

In my view, the principle in
Buhay
applies to this case. Sgt. Humber searched the USB key to find
    evidence of impersonation, 15 years after
Caslake
made it clear that he could not have done so without a warrant. The
    search thus fell squarely outside the scope of a valid search incident to
    arrest. In these circumstances, Sgt. Humbers belief that the search was
Charter
-compliant was unreasonable. It follows that the breach was serious.

[69]

As a result, I find that this factor weighs in favour
    of excluding the evidence.

(2)

The impact of the breach on the appellant

[70]

The second factor to consider is the impact of
    the
Charter
breach on the
Charter
-protected interests of the appellant. The court should consider
    whether admission of the evidence may signal to the public that
Charter
rights, however high-sounding, are of little actual avail to the
    citizen, breeding public cynicism and bringing the administration of justice
    into disrepute:
Grant,
at para. 76.

[71]

As Cromwell J. observed in
Fearon
, at para. 96, any search of a cell phone has the potential to be a
    very significant invasion of a persons informational privacy interests. However,
    there, the actual infringement of the appellants rights were found not to have
    been particularly grave. In the circumstances, as in the present appeal, the
    appellant had not challenged the search warrant that had ultimately issued,
    which strongly suggested that, even if the findings of the unreasonable search
    had been excised from the ITO, reasonable and probable grounds would still have
    been made out.

[72]

On the facts of this case, while the contents of
    a USB key clearly have the potential to contain a great deal of personal
    information, this USB key contained only data relating to other people. The
    appellants privacy interest was diminished for that reason: see
R.
    v Jarvis
, 2017 ONCA 778, 139 O.R. (3d) 754, at paras.
    77-78
,
appeal as of right to S.C.C. heard and
    reserved April 20, 2018
.

[73]

While there were, as I have found, two unreasonable
    searches of the USB key rather than one, I would not find that this exacerbated
    the impact on the appellants rights because no new evidence was sought or
    obtained.

[74]

On balance, I conclude that this factor weighs
    in favour of admitting the evidence.

(3)

Societys interest in the adjudication of the
    case on its merits

[75]

The third factor to consider, societys
    adjudication of the case on its merits, requires the court to consider whether
    the truth-seeking function of the criminal trial process would be better served
    by admission of the evidence, or by its exclusion:
Grant,
at para. 79.

[76]

This factor strongly favours admission of the
    evidence. The evidence found was reliable and cogent. Credit card fraud and
    related offences are serious and can have devastating effects on their victims.
    Society had a strong interest in the adjudication of this case on its merits.

[77]

Balancing the three
Grant
factors, I conclude that the evidence found on the USB key should
    not have been excluded as the appellant argues it should have been. Though Sgt.
    Humbers search constituted a serious breach of the appellants s. 8 rights,
    the actual impact of the breach on the appellant was minimal, given both the
    content of the information found on the USB key and the fact that a warrant was
    ultimately obtained which authorized its search. The evidence was, moreover, wholly
    reliable and central to the Crowns case. For these reasons, I conclude that
    the admission of the evidence at trial would not bring the administration of
    justice into disrepute.

The appeal from sentence

[78]

In seeking a reduction of his sentence of four
    years imprisonment, the appellant argues that the trial judge erred in
    principle by failing to consider rehabilitation as a relevant factor. I
    disagree. The trial judge expressly considered rehabilitation as a factor, but placed
    greater weight on the objectives of deterrence and denunciation in light of the
    appellants lengthy criminal record. That record dated back to 2001 and
    encompassed multiple prior convictions, including one conviction in 2009 for
    possession of a forged credit card, for which the appellant was sentenced to 15
    months in jail. As the trial judge stated, based on [the appellants] criminal
    recordthe focus of the sentence cannot be on rehabilitation. Both the record
    and his recent convictions require a penitentiary sentence in order to meet the
    overriding objectives of specific and general deterrence and denunciation. It
    was open to the trial judge on the record before her to take this approach.

[79]

Given the gravity of the offences and the
    appellants lengthy criminal record, I find that the sentence of 4 years
    imprisonment, while on the high end of the range, was not demonstrably unfit.

CONCLUSION

[80]

For the foregoing reasons, I would dismiss the
    appeal from conviction, grant leave to appeal from sentence but dismiss the sentence
    appeal.

Released: GP Jan 30, 2019

A. Harvison Young
    J.A.

I agree. C.W.
    Hourigan J.A.
I agree.
G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benjamin, 2019 ONCA 10

DATE: 20190114

DOCKET: C63692

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Benjamin

Appellant

Anthony Moustacalis, for the appellant

Brian Puddington and Kelvin Ramchand, for the
    respondent

Heard: January 8, 2019

On appeal from the conviction entered by Justice Michael
    Code of the Superior Court of Justice on February 3, 2017.

REASONS FOR DECISION

[1]

Three accused, Courtney Benjamin, Everald Brissett and Gary Morris, were
    charged with various drug related offences. Their joint trial proceeded before
    Code J. of the Superior Court of Justice over nine days in January 2017.

[2]

At the conclusion of the trial, the trial judge convicted the appellant
    of possession of cocaine for the purpose of trafficking and possession of
    marijuana for the purpose of trafficking. Brissett was convicted of possession
    of cocaine for the purpose of trafficking and acquitted of possession of
    proceeds of crime. Morris was acquitted of possession of cocaine for the
    purpose of trafficking.

[3]

The appellant appeals the conviction on a single ground. He contends
    that the trial judge erred by dismissing his
Charter
s. 11(b)
    application.

[4]

The appellants submissions on this issue are virtually identical to
    those made by the appellant Brissett. The two appeals were heard together. In
    separate reasons, we have dismissed Brissetts appeal. Those reasons apply to
    the appellant and govern the result in this appeal.

[5]

It is true that there is a slight difference in the positions advanced
    by the appellant and Brissett. The respondent says that the net delay was 27
    months; the appellant says that the proper number was 35 months. Brissett says
    that the proper number was 33 months.

[6]

Nothing turns on this slight difference in the appellants positions. In
Brissett
, we agreed with the trial judges conclusion that the period
    of net delay was 27 months and that this period did not amount to unreasonable
    delay. We reach the same conclusion in this appeal.

[7]

The appeal is dismissed.

J.C.
    MacPherson J.A.

L.B.
    Roberts J.A.

David
    M. Paciocco 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boast, 2019 ONCA 19

DATE: 20190114

DOCKET: C65460

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Boast

Appellant

Ian Carter, for the appellant

E. Nicole Rivers, for the respondent

Heard: January 10, 2019

On appeal from the convictions entered by Justice
    Catherine D. Aitken of the Superior Court of Justice on December 21, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of repeatedly communicating by way of
    telecommunication with intent to harass contrary to s. 372(4) of the
Criminal
    Code
, breach of recognizance, and breach of probation. He received a
    sentence of 20 months imprisonment.

[2]

The appellant appeals the convictions. His principal submission is that
    the conviction for the communicating offence is unreasonable. Hence the appeal
    should be allowed, the conviction set aside, and an acquittal entered.

[3]

On Saturday, January 30, 2016, four Carleton University students,
    including the complainant, L.M., and her friend, S.C., went to a bar in
    Gatineau called Mardi Gras. While at Mardi Gras, L.M. spoke to S.C. about her
    interest in another student, Brandon, who was also at Mardi Gras. According to
    S.C., a man whom she identified at trial as the appellant overheard the
    conversation and offered to assist in hooking L.M. up with Brandon. The man
    introduced himself to S.C. as Cody. S.C. and Cody chatted briefly.

[4]

At some point, Cody chatted with L.M. During this conversation, Cody
    and L.M. discussed how they would work out at the Carleton University gym and
    how L.M. liked to do squats. They agreed to work out together at the gym at
    some point. They also exchanged cell phone numbers.

[5]

L.M. spent most of the time at Mardi Gras dancing with Brandon, while
    Cody danced with her friend Lindsay. After about an hour at Mardi Gras, L.M.,
    Brandon, Cody, Lindsay and S.C. went to another bar, Le Pub. S.C. stayed at
    Le Pub until closing time. At approximately midnight, L.M., Brandon, Cody and
    Lindsay decided to go to the Gatineau casino. Prior to leaving, Cody made a
    comment to L.M. that she could either go home with Brandon or with him.

[6]

Cody drove everyone to the casino. The couples (Brandon and L.M. and
    Cody and Lindsay) separated at the casino but met up less than an hour later
    to go home. Cody drove everyone back to his place. Brandon and L.M. stayed
    there for approximately ten minutes then went home.

[7]

At some point the next day, Sunday, January 31, 2016, L.M. began
    receiving text messages from the cell phone number she had assigned to Cody
    in her cell phone. Cody referred to L.M. as squat girl, discussed working
    out with her in the future, mentioned that he was hungover, and asked her if
    she had fun with Brandon the other night. Cody also made suggestive remarks
    and attempted to arrange a meeting with L.M. Eventually the conversation took a
    negative turn and Cody started sending aggressive, insulting, and belittling
    messages to L.M.

[8]

Upset, L.M. showed the messages to S.C. S.C. then began exchanging
    messages with Cody. The messages sent by Cody continued to be aggressive,
    insulting, and belittling. Later, L.M. and S.C. received insulting and
    belittling messages from an email address they did not recognize.

[9]

On Tuesday, February 2, 2016, L.M. and S.C. met with Carleton University
    security. They then contacted the police to report the messages. The appellant
    was arrested and charged with repeatedly communicating with L.M. by means of
    telecommunication, with intent to harass L.M., contrary to s. 372(4) of the
Criminal
    Code
. He was also charged with breaching two probation orders and one
    recognizance applying to him at the time.

[10]

The
    key issue at trial was identification: was the appellant, Cody Boast, the
    Cody who met the complainant and then, a day later, sent her harassing
    messages?

[11]

The
    landscape on this appeal is the same. The sole issue is identification. The
    appellant submits that the testimony of the complainant and her friend S.C. was
    insufficient to conclusively establish that the appellant was the person who
    sent the harassing messages to the complainant, either directly or through S.C.

[12]

We
    do not accept this submission. In our view, the trial judges analysis of, and
    conclusion about, the identification evidence were error-free. The trial judge
    properly considered the complainants evidence to be recognition evidence.  Her
    identification of the appellant was unquestionably based on their prior
    acquaintance.  The evidence established that the complainant and the appellant
    were together for several hours on the night of January 30-31, 2016. Although
    they had never met before, by the end of the evening they had been in close
    proximity for several hours in two or three bars and casinos, outside when the
    appellant suggested to the complainant that she could go home with him or
    Brandon in the appellants car, and in his home. They had also exchanged cell
    phone numbers and agreed to meet again at a university gymnasium.

[13]

Moreover,
    the trial judges approach to the complainants description to police contained
    no error. It was a detailed and accurate description.

[14]

Similarly,
    the trial judge did not err in relying on the complainants out-of-court
    Internet identification. Both this identification and the complainants
    in-court identification of the appellant were, at bottom, anchored in the
    lengthy contact, in close quarters and across several locations, between the
    complainant and the appellant.

[15]

In
    the end, the complainants identification of the appellant was not based on a
    fleeting glance at a person in a stressful situation (the context for many
    identifications in criminal trials). It was not an identification of a
    stranger. The trial judge said:

I am satisfied that, after the interactions with Cody on
    Saturday night and early Sunday morning, both [the appellant] and [S.C.] had a
    clear image of him. I am satisfied beyond a reasonable doubt that Cody Boast is
    the Cody whom [S.C.] and [the appellant] met at Mardi Gras on January 30, 2016.
    I am also satisfied beyond a reasonable doubt that 613-240-7551 was the cell
    phone number that Mr. Boast gave [the appellant] on January 30, 2016 so that
    she could contact him from her cell phone number.

[16]

We
    can see no basis for interfering with this analysis and conclusion.

[17]

The
    appeal is dismissed.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brissett, 2019 ONCA 11

DATE: 20190114

DOCKET: C63691

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Everald Brissett

Appellant

Peter Thorning and Deepa Negandhi, for the appellant

Brian Puddington and Kelvin Ramchand, for the respondent

Heard: January 8, 2019

On appeal from the conviction entered by Justice Michael
    Code of the Superior Court of Justice on February 3, 2017, and from the
    sentence imposed on March 31, 2017.

REASONS FOR DECISION

[1]

Three accused, Everald Brissett, Courtney Benjamin and Gary Morris, were
    charged with various drug related offences. Their joint trial proceeded before
    Code J. of the Superior Court of Justice over nine days in January 2017.

[2]

At the conclusion of the trial, the trial judge convicted the appellant
    of possession of cocaine for the purpose of trafficking and acquitted him of
    possession of proceeds of crime. Benjamin was convicted of possession of
    cocaine for the purpose of trafficking and possession of marijuana for the
    purpose of trafficking. Morris was acquitted of possession of cocaine for the
    purpose of trafficking.

[3]

The appellant received a sentence of ten years imprisonment.

[4]

The appellant appeals the conviction and the sentence.

Conviction appeal

[5]

The appellant appeals the conviction on two grounds.

[6]

First, the appellant contends that his conviction was unreasonable. The
    basis for this submission is the alleged inconsistency between the appellants
    conviction and Morris acquittal given the proximity, in time and location, of
    their involvement with the large drug stash found in apartment 1004 at 3101
    Weston Road.  He emphasized that it was unreasonable for the trial judge to
    rely on the appellants possession of a key to an apartment containing drugs
    with a street value close to a million dollars to assist in proving his
    possession while disregarding the fact that Morris used a key to enter the
    apartment while carrying seven kilograms of cocaine.

[7]

We do not accept this submission. As the Supreme Court of Canada noted
    in
R. v. Sinclair
, 2011 SCC 40, at para. 22, unreasonable verdicts are
    exceedingly rare. In our view, this appeal is far removed from deserving this
    label.

[8]

Although the appellant and Morris were reasonably closely connected, in
    time and place, to the events that led to the charges against them (they were
    not together when they were arrested), and although they both possessed keys
    and had access to a stash house holding valuable drugs, there is a crucial
    difference in their situations.

[9]

Morris testified at the trial and gave an innocent explanation for his
    conduct and for his possession of the key.  The trial judge believed his
    testimony. Morris was described as an unsophisticated witness.  According to
    the trial judge, his testimony was not only plausible. It had the ring of
    truth. Accordingly, the trial judge concluded that he was a blind courier
    and, therefore, the essential element of knowledge has not been proved.

[10]

The
    appellant did not testify at the trial. He called a witness  Ervin Malcolm,
    who was with him at the door of the stash apartment when they were both
    arrested  who testified that only he had the directions and key to the apartment
    and that the appellant was just coming along for the ride. The trial judge
    pointed out that Malcolms evidence was contradicted by the video surveillance
    cameras in the apartment building and by the police evidence that it was the
    appellant who had the key to the apartment. In the end, the trial judge
    described Malcolm and his testimony in this fashion:

My reasons for completely rejecting Ervin Malcolms exculpatory
    account are both its internal improbability and the external contradiction of
    that account. It is hard to imagine a more complicated and improbable story.

I am satisfied that Ervin Malcolm was not a truthful witness. I
    completely reject his account.

[11]

In
    conclusion, the trial judge believed the testimony of an accused who testified.
    He acquitted that accused, as he was bound to do. The trial judge rejected the
    evidence of a witness called by the defence and accepted the Crown evidence
    against the accused. He convicted that accused. There is nothing unreasonable
    about the trial judges conclusion relating to the appellants conviction.

[12]

Second,
    the appellant submits that the trial judge erred by dismissing his
Charter
s. 11(b) application.

[13]

The
    time from the indictment to the trial was 36 months. The trial judge deducted
    one month as conceded defence delay, four months for other defence delay, and
    four months as exceptional circumstances, for a net delay of 27 months. This
    delay was inside the 30-month presumptive ceiling for trials in superior courts
    fixed in
R. v. Jordan
, 2016 SCC 27, at para. 46. The appellant asserts
    that the trial judge erred with respect to both four-month subtractions.

[14]

The
    appellant challenges the four-month defence delay attribution on the basis that
    this delay was caused by the unavailability of a different co-accuseds counsel
    to start the trial four months before it actually commenced. The appellant says
    that he should not be penalized, when he was ready, because of a delay caused
    by a co-accused.

[15]

We
    are not persuaded by this submission. The trial judges reasoning on this point
    was:

The only other period of defence delay was the
    four months in this Court, from September 2016 to January 2017, when Mr.
    Rusonik was not available for trial. Once again, I did not attribute this
    period of delay personally to Mr. Rusoniks client Morris. I attributed it to
    the case as a whole, as defence delay under the
Jordan
framework.
    Mr. Rusonik and his client have acted responsibly throughout, asking to hear
    from only two witnesses at the preliminary inquiry, making numerous realistic
    admissions, and consenting to committal in a timely way. They then waited
    patiently in this Court until the other accused arrived after their somewhat
    slower committals. Furthermore, Mr. Rusonik was the only counsel who was
    retained and on the record from the beginning in this Court. When he needed
    four months of delay in this Court, in order to clear his calendar, the other
    accused acquiesced in this delay and did not raise s. 11(b) concerns,
    presumably because they needed the further delay in order to complete their own
    retainers and prepare for trial. In all these circumstances, it would have been
    inappropriate to treat this four months of defence delay as applying narrowly
    to the accused Morris, as opposed to the case as a whole.

[16]

We agree with this conclusion: see
R. v. Albinowski
, 2018 ONCA 1084, at paras. 37-39.

[17]

The trial judges second four-month subtraction was for the
    exceptional circumstance that the appellant sought, appropriately but quite
    late, the testimony of two additional police witnesses at the preliminary
    inquiry:
Jordan
, at paras. 69-75. We see no basis
    for interfering with the trial judges conclusion on this issue. In the face of
    a late request, scheduling was a real issue for these two officers because of
    prior commitments and the security detail required for the Pan American Games
    in Toronto. This was an unexpected discrete event that the Crown could not
    reasonably be expected to remedy:
Jordan
, at
    para. 69.  We do not accept the appellants submission that the Crown should
    have remedied the problem by severance.  This potential remedy was not
    requested and was not realistic at this juncture.

[18]

Ultimately, the trial judge reached this conclusion:

Having found that the total period of relevant
    delay in this case is 27 months and, therefore, below the 30 month presumptive
    ceiling in
Jordan
, it would be a rare case where a s. 11(b)
    violation could still be found. The present case is not that rare case, given
    that the only periods of unjustified delay were relatively short, as explained
    above. In these circumstances, the case did not take markedly longer than it
    reasonably should have.

[19]

We agree with this conclusion.

Sentence appeal

[20]

The appellant contends that a sentence of ten years imprisonment is
    unfit.

[21]

We disagree. The amount of cocaine involved in the appellants role in
    the drug operation was huge  15.6 kilograms. He had a previous conviction,
    albeit dated, for possession of cocaine for the purpose of trafficking.

Disposition

[22]

The conviction and sentence appeals are dismissed.

J.C.
    MacPherson J.A.

L.B.
    Roberts J.A.

David
    M. Paciocco 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hernandez-Mejia, 2019 ONCA 16

DATE: 20190111

DOCKET: C65489

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Isabel Hernandez-Mejia

Respondent

Elise Nakelsky, for the appellant

Eva Tache-Green, for the respondent

Heard and released orally: January 9, 2019

On appeal from the sentence imposed on May 14, 2018 by
    Justice Susan G. Himel of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The respondent was convicted of four counts of sexual interference and
    four counts of sexual assault after a trial by judge alone. The trial judge
    stayed the sexual assault charges and imposed sentences totaling 2 and a half
    years on the sexual offence charges. The Crown seeks leave to appeal from the
    sentences.

[2]

The facts relating to the offences and the respondents background are
    fully and clearly set out in trial judges reasons for sentence at 2018 ONSC
    2481. The Crown argues that the sentence is manifestly unfit. She does not
    allege any error in principle. She acknowledges, correctly in our view, that the
    reasons for sentence demonstrate that the trial judge fully appreciated the
    applicable principles. Crown counsel argues, however, that a sentence of 2 and
    a half years is woefully inadequate to properly reflect those principles. She
    asks the court to impose a sentence of 5 years.

[3]

Counsel for the respondent accepts that the offences are serious and
    have had a very negative impact on the victims. She acknowledges that the
    respondent deserves to go to the penitentiary. She contends that a sentence of
    2 and a half years imposed on the 70 year old, first offender, is a
    proportionate response having regard to the offence and the offender. More to
    the point, counsel for the respondent argues that the sentence imposed is not
    so inadequate as to warrant appellate intervention.

[4]

This court must defer to the trial judges assessment of the appropriate
    sentence. When, as here, there is no argument that the trial judge erred in
    principle, this court can interfere only if the sentence imposed is manifestly
    inadequate, in that it is outside of the range of sentences which could
    reasonably be imposed for this offence and this offender.

[5]

While we agree with the Crowns submissions, to the extent that we think
    the sentence could well have been higher, we agree with counsel for the
    respondent that the sentence cannot be characterized as manifestly unfit having
    regard to the totality of the circumstances.

[6]

Leave to appeal is granted, but the appeal is dismissed.

Doherty J.A.

C.W. Hourigan J.A.

Harvison Young J.A.