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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. K.D.M., 2017 ONCA 510

DATE: 20170619

DOCKET: C61035

Feldman, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.D.M.

Appellant

K.D.M., appearing in person

Ingrid Grant, duty counsel

Alison Wheeler, for the respondent

Heard: May 11, 2017

On appeal from the conviction entered by Justice Brian W.
    Abrams of the Superior Court of Justice, sitting with a jury, on December 2,
    2014 and from the sentence imposed on August 10, 2015.

Benotto J.A.:

A.

Overview

[1]

The appellant was charged with sexual assault, sexual
    interference and invitation to sexual touching in connection with his daughter
    who was under the age of 16. A jury convicted him of sexual interference and
    invitation to sexual touching, but found him not guilty of sexual assault. He
    was sentenced to four years imprisonment on the count of invitation to sexual
    touching and one year imprisonment (concurrent) on the count of sexual
    interference.

[2]

The appellant appeals his conviction on the basis that,
    having been acquitted of sexual assault, it was inconsistent for the jury to
    convict him of sexual interference. He seeks an acquittal. The appellant also seeks
    leave to appeal his sentence for the count of invitation to sexual touching and
    seeks a reduction in sentence on that count. He submits a four-year sentence
    for invitation to sexual touching is inconsistent with the acquittal on the
    count of sexual assault.

[3]

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

B.

Background Facts

[4]

The appellant is the complainants father. The
    appellant was not involved in the complainants life until she was 13 or 14.

[5]

She testified that, on a daily basis, she was required
    to give her father
ups
. This involved stimulating his
    penis with her hands and her nose. She also touched his testicles. She did this
    every day and testified that she had a daily quota of 40 ups. In order to meet
    the quota, she would be required to do this before and after school and before
    and after dinner. He ejaculated about half of the time. On her 16
th
birthday, the complainant told her father that she did not want to do the ups
    anymore. He kicked her out of the house.

[6]

The complainant also testified about
rubs
 that the appellant would give her. These involved him touching her
    pubic area and her buttocks.

[7]

These facts were the basis for the charges of sexual
    assault, sexual interference and invitation to sexual touching. A jury found the
    appellant not guilty of sexual assault, but guilty of sexual interference and
    invitation to sexual touching.
[1]

C.

Issues

[8]

The issue on the conviction appeal is whether the jurys verdict
    of guilty
on count three
(sexual
    interference) is
inconsistent
with its
    verdict of not guilty
on count one
(sexual
    assault). On the sentence appeal, the issue is whether a sentence of four years
    for invitation to sexual touching is inconsistent with the jurys verdict of
    not guilty on the count of sexual assault.

D.

Positions of the Parties

[9]

On the conviction appeal, the appellant submits
the
    fact that the jury found the appellant not guilty of sexual assault means the
    jury could not have found that the elements of sexual interference were proven
    beyond a reasonable doubt.

[10]

With respect to the sentence appeal, the appellant
    submits the sentencing judge failed to consider the acquittal on the sexual
    assault in sentencing the appellant for invitation to sexual touching. Without
    a finding of guilt on the count of sexual assault, the appellant argues it was
    improper for the sentencing judge to consider the ups and submits a sentence of
    four years imprisonment is therefore unfit.

[11]

The Crown submits it is possible to reconcile the jurys
    finding of not guilty of sexual assault and guilty of sexual interference given
    the way the jury was instructed.

[12]

The Crowns position on the sentence appeal is that the four-year
    sentence for invitation to sexual touching is fit.
The Crown
    alleges it is clear from the record that the jury understood sexual assault to
    require the appellant to have touched the complainant, and not the other way
    around. Therefore, that the jury found the appellant not guilty of sexual
    assault does not mean the jury found the ups did not happen.
The
    sentencing judge was therefore permitted to consider the ups when sentencing
    the appellant for invitation to sexual touching.

E.

Analysis

(1)

Conviction

[13]

I have concluded that the jury verdicts are not
    inconsistent.

[14]

The legal test applicable when a reviewing court is faced with an
    allegation of inconsistent jury verdicts is whether the verdicts are
    supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge:
R. v. Pittiman
, 2006 SCC 9,
    [2006] 1 S.C.R. 381, at para. 7. Where, as here, the accused was tried on a
    multi-count indictment, the verdicts will be supportable if the trial judges
    instructions were proper legal instructions that could have led the jury to
    accept a theory of the evidence producing these verdicts:
R. v. L(S)
, 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5;
R.
    v. Tyler
, 2015 ONCA 599, [2015] O.J.
    No. 4653, at para. 8.

[15]

The jury instructions with respect to sexual assault,
    juxtaposed with the instructions on sexual interference and invitation to
    sexual touching would have led the jury to conclude that, to convict the
    appellant of sexual assault, it was the
appellant

who applied force of a sexual nature against the complainant.
    With respect to sexual interference and sexual touching, force by the appellant
    was not required.  To demonstrate this, I first review the elements of each
    offence and then consider the trial judges corresponding instructions to the
    jury.

(a)

Sexual assault and sexual interference

[16]

Assault is
defined in s. 265(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46:

A person commits an assault when

(a) without
the consent of another
    person, he applies force intentionally to that other person, directly or
    indirectly;

[17]

In
R. v. Chase
, [1987] 2 S.C.R. 293, at
p. 302, the court defined sexual assault as an assault committed in
    circumstances of a sexual nature, such that the sexual integrity of the victim
    is violated.

[18]

Sexual assault is charged as count one on the
    indictment. It is not particularized.

[19]

The trial judges instruction on sexual assault
    emphasized the force requirement throughout:

·

For you to find [the appellant] guilty of sexual assault, Crown
    counsel must prove each of these essential elements:

1.      that
[the appellant] intentionally applied force
to [the
    complainant]; and

2.      that the
force [the appellant] applied
took place in
    circumstances of a sexual nature.

·

Did [
the appellant
] intentionally
apply force

to
[the complainant]?

·

The application of
force
may be
    direct, for example, by
[the appellant] using part of his
    body
,
such as his hand
    or his penis.

·

The force applied may be violent, or even gentle. To be an
    assault, however,
[the appellant] must apply force
intentionally.

·

If you are not satisfied beyond a reasonable doubt that [
the appellant] intentionally applied force to [the complainant]
,
    you must find [him] not guilty. [Emphasis added.]

[20]

Contrast this to the instructions with respect
    to sexual interference.

[21]

Sexual interference is set out in s. 151 of the
Code
:

151. Every
person who, for a sexual
    purpose, touches, directly or indirectly, with a part of the body or with an
    object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is
    liable to imprisonment
for a term of not more than 14 years
    and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary
    conviction and is liable
to imprisonment for a term of not
    more than two years less a day and to a minimum punishment of imprisonment for
    a term of 90 days.

[22]

Sexual interference is charged as count three on the
    indictment. Unlike the charge in count one, the indictment with respect to this
    count is specific. It charges the appellant as follows:

[The appellant]  did for a sexual purpose
    touch [the complainant]  with a part of his body, to wit his hands, by rubbing
    her buttocks and pubic area.

[23]

In his charge to the jury on count three, the
    trial judge said:

·

Touching involves intentional physical contact.

·

Force is not required.

[24]

In convicting the appellant of sexual interference, the
    jury clearly concluded the rubs happened. But, on the facts of this case, the
    jurys conclusion that the rubs happened does not inevitably lead to a finding
    of guilt on the count of sexual assault. This is because of the requirement for
    there to be force to convict on sexual assault, as compared to sexual
    interference, which requires only touching.

[25]

In my view, the reasonable inference from these
    instructions as a whole is that the jury understood that force was necessary to
    convict on sexual assault but not required to convict on sexual interference.

[26]

The misunderstanding that arises when these charges are
    explained is not unique to this case. In
R. v. Tremblay
, 2016 ABCA 30, 334 C.C.C. (3d) 520,
the distinction between the colloquial concept and the legal
    concept of force was explained. There, a jury convicted the appellant of sexual
    interference but acquitted him of sexual assault. Fraser C.J.A. noted, at para.
    10, while lawyers and judges realize that
force
 as a
    legal term of art under s. 265 includes touching, the question is whether that
    was made clear to this jury. We conclude it was not.

[27]

This court has also considered the issue. In
L(S)
,

referenced above, the
    appellant was similarly convicted of sexual interference but acquitted of
    sexual assault. The appellant submitted the verdicts were inconsistent.

Having reviewed similar jury instructions,
    Laskin J.A. said, at para 43:

[T]hough proper, the instructions were not as
    complete as they could have been. The jury was given correct instructions on
    sexual interference juxtaposed with correct instructions on sexual assault.
    Placing the components of these two offences side by side created a contrast between
    the former
s

touch

    requirement and the latter
s

force
 requirement. More complete instructions could have explained the
    relationship between touch and force  that force includes any touching. But
    the trial judge did not clearly tell the jury that the force component of
    sexual assault was satisfied if the appellant intentionally touched the
    complainant. [Citations omitted.]

[28]

Although the jury instruction was legally correct, here, as in
L(S)
,
    the trial judge did not clearly explain that the force component of sexual
    assault was satisfied if the jury found the rubs happened. The verdicts are
    further explained by the fact that the trial judge instructed the jury to
    consider each charge separately:
L(S)
, at para. 42. Accordingly, I
    conclude the jurys verdicts on the counts of sexual assault and sexual
    interference are not inconsistent.

[29]

I turn now to demonstrate similar reasoning with respect to the counts
    of sexual assault and invitation to sexual touching.

(b)

Sexual
assault
and invitation to sexual touching

[30]

Sectio
n
152 of the
Code
prescribes the elements of invitation to sexual touching:

152. Every person who, for a sexual purpose, invites,
    counsels or incites a person under the age of 16 years to touch, directly or
    indirectly, with a part of the body or with an object, the body of any person,
    including the body of the person who so invites, counsels or incites and the
    body of the person under the age of 16 years,

(a) is guil
ty of an indictable
    offence and is liable to imprisonment for a term of not more than 14 years and
    to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty
of an offence
    punishable on summary conviction and is liable to imprisonment for a term of
    not more than two years less a day and to a minimum punishment of imprisonment
    for a term of 90 days.

[31]

Invitation to sexual touching is charged as count four.
    Again, the indictment is particularized as follows:

[The appellant]  did for a sexual purpose
    counsel [the complainant]  to touch directly with her hands, mouth and nose,
    his penis.

[32]

Clearly, this count refers to the ups, and the trial
    judge confirmed this by referring to the complainants evidence about the ups
    in his jury instruction. The charge with respect to this count focused on the
    evidence that the appellant counselled, suggested or recommended the ups.

[33]

As outlined above, the trial judges instruction to the
    jury on sexual assault explained the need to find that the appellant applied
    force to the complainant in circumstances of a sexual nature. The instruction
    did not, however, explain that the elements of sexual assault could be
    satisfied if the jury believed that the ups had occurred. Instead, the trial
    judges instructions to the jury, reproduced in part above, would have led the
    jury to infer that to convict on sexual assault, it must be
the appellant
who applied force to the
    complainant by touching her, not the other way around.

[34]

The jurys impression on this issue is demonstrated by
    the question posed during deliberations:

[R]egarding Count 1, sexual assault with
    respect to application of force may be direct, must the force be exclusively
    physical or does psychological or emotional force to manipulate the victim
    qualify as force?

[35]

Clearly, the jury was considering whether the force or
    touching had to be by the appellant upon the complainant. Regrettably, the trial
    judge did not address this implied concern. Instead, he answered as follows:

Force includes any touching, no matter the
    degree of strength of power applied. Thus if [the appellant] intentionally
    touched [the complainant] in circumstances of a sexual nature, the intentional
    application of force would be implied.

Thus, to answer your question, does
    psychological or emotional force to manipulate the victim qualify as force? The
    answer is no.

[36]

A more accurate response would have been to explain the
    relationship between force and touching and also to explain that the touching
    by the complainant in response to the appellants invitation to do so constituted
    sexual assault.

[37]

This court dealt with a similar situation in
Tyler
,

referenced above, where
    the appellant had been convicted of invitation to sexual touching and acquitted
    of sexual assault. In concluding the verdicts were reconcilable, Pardu J.A.
    said, at paras. 10 and 12:

It is more likely that the jury did not
    understand that participation by the appellant in physical contact of a sexual
    nature between the complainant and the appellant amounted to an assault, even
    if it resulted from the complainant complying with the appellants invitation.
    They may not have understood that the requirement that the Crown prove that he
    intentionally touched the complainant with his penis included this kind of
    physical contact.

Had the trial judge expressly told the jury
    that compliance with the invitation to sexual touching amounted to a sexual
    assault by the appellant, this would have likely enlarged the instances of
    conduct potentially forming the basis for conviction on the sexual assault
    count.

[38]

At the conclusion of the charge, the jury would have
    been left with the instructions that: (i) sexual assault involved the appellant
    applying force to the complainant; (ii) sexual interference involved the rubs;
    and (iii) invitation to sexual touching involved the request for the ups. It is
    not inconsistent that the jury would conclude  based on these instructions
    that the appellant did not apply force to the complainant for the ups,
    performed the rubs and requested the ups.

[39]

The judges charge to the jury on count one (sexual
    assault) created the impression that the appellant had to exert force on the
    complainant, and it was he who had to have touched her. This impression was
    further entrenched by the contrast in the particulars of the indictment and the
    jury instructions on counts three (sexual interference) and four (invitation to
    sexual touching). Consequently, the acquittal on count one is not inconsistent
    with the convictions on counts three and four.

[40]

I would therefore dismiss the appeal as to conviction. I
    now turn to the sentence appeal.

(2)

Sentence

[41]

The appellant submits the trial judge erred by relying
    on the ups to sentence him to four years on the invitation to sexual touching
    conviction. Again, it is submitted that the acquittal on sexual assault meant
    that the jury was not satisfied that the ups took place. Following my reasoning
    set out above, I do not agree.

[42]

On sentencing, a judge is bound by the express and implied factual
    implications of the jurys verdict:
R. v. Brown
, [1991] 2 S.C.R. 518,
    at p. 523. This requirement has been codified in s. 724(2) of the
Code
.
    Where the factual basis of a jury verdict is unclear, however, the sentencing
    judge is entitled to make his or her own determination of the facts, so long as
    that view is consistent with the jurys verdict:
Brown
; and
R. v.
    Roncaioli
, 2011 ONCA 378, 278 C.C.C. 117. A sentencing judge must not
    accept as fact any evidence consistent only with a verdict rejected by the
    jury:
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17; and
R. v. Nelson
, 2014 ONCA 853, 318 C.C.C. (3d) 476, at paras. 55-59.

[43]

There was evidence at trial to support a finding that the ups occurred.
As explained above, a finding that the ups occurred is not inconsistent
    with the acquittal on sexual assault. It was therefore open to the trial judge
    to rely on the ups in sentencing the appellant for invitation to sexual
    touching. Accordingly, I would not interfere with the sentence.

F.

Disposition

[44]

I would dismiss the appellants conviction appeal. I would grant leave
    to appeal the sentence but dismiss the sentence appeal.

Released: KF JUN 19 2017

M.L. Benotto J.A.

I agree. K. Feldman
    J.A.

I agree. J.C.
    MacPherson J.A.

[1]
The appellant was also charged and convicted of assault in connection with an
    incident where he pushed and choked the complainant outside of the house. This
    conviction is not at issue on appeal.


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. K.M., 2017 ONCA 457

DATE: 20170605

DOCKET: C61366

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. M.

Appellant

Setu Purohit, for the appellant

Kathleen Farrell, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on February 7, 2014
    by Justice S. ONeill of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions of sexual assault, sexual
    interference, incest and breach of probation. The victim of the sexual offences
    was his teenage daughter, born October 1996, from whom he had been estranged
    for many years. They reconnected in 2010 when she was in grade 8. The victim
    first disclosed the sexual assaults in 2012. Upon his convictions in 2014, the
    appellant was sentenced to a custodial term of 2 years less a day.

[2]

The appellant submits the trial judge erred in his credibility
    assessments and his appreciation of the evidence. He submits the trial judge
    failed to address and resolve what he characterized as major inconsistencies in
    the victims testimony, that the trial judge mischaracterized evidence, and applied
    a much lower and more forgiving standard of scrutiny to the victims evidence
    compared with the higher standard of scrutiny he placed on the appellants
    evidence.

[3]

We would not give effect to any of these submissions. Appellants
    counsel acknowledges he cannot ask this court to retry the case but it seems to
    us his submissions do seek to have us revisit the credibility assessments, the weighing
    of the evidence, and findings of the trial judge.

[4]

The record, considered as a whole, provided ample support for the trial
    judges conclusion that this was a case of incremental disclosure by a young
    person who was almost throughout or at different times between the fall of 2010
    and December, 2013, afraid, confused, fearful of hurting her father, and
    embarrassed.

[5]

Moreover, the trial judge set out an ample basis in his reasons for
    disbelieving the appellant including his lengthy criminal record for crimes of
    dishonesty, his drug and alcohol use which he acknowledged in his own testimony
    had screwed up his memory. The appellants own testimony confirmed many
    details in the victims testimony and went a long way in establishing the
    existence of an inappropriate sexual relationship with her. The testimony of
    the appellants former common law partner and that of another friend of the appellant
    provided additional support for the existence of this inappropriate sexual
    relationship.

[6]

As we said, the appellant is attempting to have this court retry the
    case. The trial judges conclusions are entitled to deference. He engaged in a
    thorough assessment of the evidence and the credibility of the witnesses. We see
    no reason to interfere.

[7]

The appeal is dismissed.

[8]

The appellants appeal of sentence is also dismissed as abandoned.

R.G. Juriansz J.A.

S.E. Pepall J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kraus, 2017 ONCA 458

DATE: 20170605

DOCKET: C61725

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Janina Kraus

Appellant

Richard Litkowski, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally: May 29, 2017

On appeal from the conviction entered on July 27, 2015 by
    Justice Deena Baltman of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals her convictions of impaired driving and dangerous
    driving causing bodily harm. She had driven across 3 lanes of oncoming traffic
    at high speed on a major highway and collided with another vehicle before
    crashing into the median.

[2]

The appellant submits that there was evidence upon which it could be
    found that the accident was a result of her falling asleep at the wheel. The
    question upon appeal, however, is whether there was evidence to support the
    trial judges finding that the appellant was guilty. We see no merit in the
    appellants argument that the trial judge erred by failing to deal with the
    possibility that the appellant had fallen asleep. Her own testimony and the
    defence position at trial was that she had not fallen asleep. Given the finding
    that the appellant had recently consumed alcohol, the inference she had fallen
    asleep would not have helped the defence in the circumstances of the case.

[3]

Nor do we see any merit in the appellants argument attacking the trial
    judges finding the appellant was impaired by alcohol. Counsel, it seems to us,
    attempts to reargue the case and have us reweigh the evidence. There is ample
    evidence supporting the finding. While the trial judge posed rhetorical
    questions not put to the appellant, we are not persuaded that the trial judge
    erred by considering the implausibility of the appellant having kept open
    bottles of alcohol in her car for several days. This is a matter the judge
    could well consider particularly in light of the finding the appellant admitted
    drinking several coolers that day.

[4]

The Crown concedes that the trial judge erred by taking judicial notice
    of the evaporation rate of alcohol.  The concession is appropriate.  However,
    we would apply the proviso. The appellants driving was extreme. There were
    numerous bottles of open and consumed alcohol in her vehicle. A cab driver and
    arresting officer smelled alcohol on her breath and noted her slurred speech.
    The breath technician, whose personal observations are admissible, made the
    same observations. The appellant told the treating nurse she had drunk 3
    coolers that day.  Absent the judicial notice of the evaporation rate taken by
    the trial judge, the only conclusion on the overwhelming evidence is that the
    verdict would have been the same regardless.

[5]

The appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Li, 2017 ONCA 509

DATE: 20170619

DOCKET: C62687

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chun Mei Li

Appellant

Chun Mei Li, in person

Scott Latimer, for the respondent

Paula Rochman,
amicus curiae

Heard: May 19, 2017

On appeal from the conviction entered by Justice Anne
    Molloy of the Superior Court of Justice, sitting with jury, on January 12, 2016,
    and from the sentence imposed on July 5, 2016, with reasons reported at 2016
    ONSC 4406.

Trotter J.A.:

A.

overview

[1]

Chun Mei Li and Seyed Rezadoust had a child together  a girl, known in
    these proceedings as M. In December of 2010, when M. was seven years old, Ms.
    Li took her to China. Ms. Li returned to Canada without M. To this day, M.s
    whereabouts are unknown because Ms. Li refuses to tell anyone where she is.

[2]

Ms. Li was convicted of child abduction, contrary to s. 282 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. She was sentenced to seven years
    imprisonment, less some credit for pre-sentence custody (PSC). She appeals
    against both her conviction and sentence. For the reasons that follow, the appeal
    from conviction is dismissed. The sentence appeal is allowed, but only as it
    relates to credit for PSC.

B.

the facts

(1)

Introduction

[3]

Ms. Li and Mr. Rezadoust were in a common law relationship when M. was
    born. They separated, but Mr. Rezadoust was actively involved in M.s life.
    Arrangements to care for M. seemed to have worked satisfactorily until a
    dispute arose about Mr. Rezadoust taking on a greater caregiving role to
    accommodate Ms. Lis newly altered work schedule. When Mr. Rezadoust failed to
    react as rapidly as suited Ms. Li, the events leading to this case unfolded.

[4]

In December of 2010, without Mr. Rezadousts knowledge, Ms. Li took M.
    to China, where Ms. Li was born, and where she still had family. Ms. Li returned
    to Canada without M. on February 2, 2011. When Mr. Rezadoust found out a few
    days later, he reported the matter to the police. Ms. Li responded by making
    allegations that Mr. Rezadoust had assaulted and threatened to kill her and M.
    Mr. Rezadoust was charged with multiple criminal offences.

(2)

The Family Court Proceedings

[5]

Ms. Li soon commenced proceedings in the Ontario Court of Justice (the Family
    Court) to obtain custody of M. At the time, she swore that M. was living in
    China with her grandparents and uncle. On April 11, 2011, Waldman J. ordered Ms.
    Li to return M. to Canada by April 30, 2011. She also made an interim order
    granting custody to Ms. Li, with no access to Mr. Rezadoust.

[6]

Ms. Li did not return M. to Canada. Mr. Rezadoust applied to have Ms. Li
    found in contempt. Ms. Li then made further allegations of criminality against Mr.
    Rezadoust, leading to more criminal charges.

[7]

On June 3, 2011, Waldman J. found Ms. Li to be in contempt of the
    previous order to return M. to Canada. She determined that 60 days
    imprisonment would be an appropriate sanction. However, Waldman J. adjourned
    the proceedings until July 21, 2011 to provide Ms. Li with an opportunity to
    return M. to Canada. That date came and went, with Ms. Li failing to attend
    court and failing to return M. to Canada. Consequently, Mr. Rezadoust was
    granted sole custody of M.

[8]

In the meantime, the charges against Mr. Rezadoust proceeded in the
    Ontario Court of Justice. When Ms. Li failed to attend court for the
    preliminary inquiry on March 12, 2012, the Crown stayed all charges.

[9]

Ms. Li was arrested on October 2013 and began serving her sentence for
    contempt. She appeared in Family Court again on December 18, 2013. She entered
    into an agreement with Mr. Rezadoust to make reasonable efforts to have M.
    returned to Toronto by January 20, 2014. She failed to honour this agreement
    and provided a good deal of false information about those who were taking care
    of M. Ms. Li was found in contempt again and sentenced to an additional 45 days
    in custody.

C.

The criminal proceedings

(1)

Proceedings Leading Up to the Trial

[10]

Ms. Li was charged with child abduction, contrary to s. 282 of the
Criminal
    Code
, and three counts of disobeying a court order (s. 127).

[11]

While her case was in the Ontario Court of Justice, Ms. Li had retained
    and discharged counsel twice. Legal Aid Ontario refused to permit her to hire a
    third lawyer. Counsel was appointed as
amicus curiae
.

[12]

Justice Fergus ODonnell of the Ontario Court of Justice managed the
    case. On his own motion, he ordered a fitness assessment of Ms. Li. A
    psychiatric report was prepared by Dr. Brian Day. He was of the opinion Ms. Li
    was unfit to stand trial. Justice ODonnell did not accept Dr. Dalys opinion
    and the fitness issue was not pursued further.

[13]

When Ms. Li appeared in court on June 4, 2015, she refused to answer any
    questions and declared that the proceedings against her were illegal, and that
    Mr. Rezadoust was a terrorist. She refused to elect a mode of trial. Further to
    ss. 536(4) and 565(1)(b) of the
Criminal Code
, Ms. Li was deemed to
    have elected trial by judge and jury. Given that neither Ms. Li nor the Crown
    requested a preliminary inquiry, Ms. Li was committed to stand trial in the
    Superior Court of Justice.

[14]

Ms. Li made her first appearance in the Superior Court on June 25, 2015.
    Justice John McMahon managed the case. Ms. Li repeatedly delayed the proceedings
    with disclosure requests and refused to retain a lawyer. Ultimately,
amicus
    curiae
was appointed, and Ms. Paula Rochman was to conduct the
    cross-examination of Mr. Rezadoust, pursuant to ss. 486.3(3) and (4) of the
Criminal
    Code
.

[15]

During his management of the case, McMahon J. expressed concern with Ms.
    Lis fitness. This was based largely on Ms. Lis repeated references to a
    conspiracy against her involving Mr. Rezadoust. McMahon J. also had access to Dr.
    Days report. Having inquired into the matter, and recognizing that Ms. Li
    faced some mental health challenges, McMahon J. nevertheless concluded that Ms.
    Li met the test for fitness set out in
R. v. Taylor
(1993), 11 O.R.
    (3d) 323 (C.A.).

(2)

The Trial

[16]

Ms. Lis trial commenced on January 4, 2016 on a single count under s.
    282 of the
Criminal Code
. The trial proved to be very challenging. In
    a decision released after trial, the trial judge explained her various
    pre-trial and mid-trial rulings:
R. v. C.M.L.
,

2016 ONSC 5332.
    Of importance, Ms. Li initially refused to participate in the trial. She then became
    very disruptive. As the trial judge said in paras. 36 and 37 of her reasons:

She refused to behave appropriately in the courtroom and
    persisted in making
ad hominen
comments about the Crown and the
amicus
and Mr. R. She was belligerent and could not be controlled. When others tried
    to talk, she simply talked over them. She was loud and abusive. It was
    virtually impossible for anyone else to be heard.

I warned Ms. L. several times that if she did not behave
    appropriately, I would have no choice but to remove her from the courtroom and
    she could watch the trial proceedings by live video-stream. This had no effect
    on her conduct.

[17]

Ultimately, Ms. Li was excluded from the courtroom for large portions of
    her trial under s. 650(2) of the
Code
and viewed the proceedings via
    closed-circuit television.

[18]

The Crowns case at trial consisted of the Family Court orders, as well
    as the testimony of a police officer and Mr. Rezadoust. No defence evidence was
    called. The jury found Ms. Li guilty on the single-count indictment.

(3)

The Sentencing Proceedings

[19]

At the outset of the sentencing proceedings, the Crown at trial (not Mr.
    Latimer) raised the issue of criminal responsibility under s. 16 of the
Criminal
    Code
. After a lengthy discussion with the Crown and
amicus
, the
    trial judge ordered an assessment under the
Mental Health Act
, R.S.O. 1990,
    c. M.7, but not for the purposes of s. 16; the order was premised on gathering
    evidence of Ms. Lis mental state for sentencing purposes, as well as her
    fitness.

[20]

Dr. Karen De Freitas conducted the assessment. Because Ms. Li refused to
    participate, Dr. De Freitas relied upon court transcripts and the input of
    counsel. Dr. De Freitas concluded that Ms. Li was unfit to proceed to
    sentencing.

[21]

The trial judge did not embark upon a formal fitness hearing. She
    recognized that Ms. Li suffered from mental illness and endorsed certain
    delusions. However, after reviewing Dr. De Freitas report, in the context of
    Ms. Lis conduct throughout the trial, the trial judge concluded that there
    were no reasonable grounds to believe that Ms. Li was unfit to stand trial. She
    concluded that Ms. Lis behaviour was intentional and likely tactical. The
    trial judge provided very detailed and careful reasons for her decision: see
R.
    v. C.M.L.
, 2016 ONSC 5499.

[22]

The trial judge sentenced Ms. Li to seven years imprisonment. Again,
    she gave detailed and extensive reasons: see
R. v. C.M.L.
, 2016 ONSC
    4406. In reaching her conclusion on the quantum of sentence, the trial judge
    was heavily influenced by the failure of Ms. Li to arrange M.s return to
    Canada. As she said at para. 53:

In light of all of the circumstances, the most
    significant aggravating circumstance being the continued absence of the child
    with no knowledge of her safety and well-being, in my view seven years is an
    appropriate sentence for this offender and this offence.

[23]

When Ms. Li was sentenced, she had been in custody for 982 days. The
    Crown submitted that she should receive credit on a 1.5:1 basis. The trial
    judge disagreed. As she said at para. 54 of her reasons:

Ms. [Li] is entitled to credit for the time
    she has already served. Assuming Ms. [Li] was telling the truth that she left M
    with her parents in China, it has always been within her ability to provide
    proper contact information so that M's well-being could be confirmed. Her
    continued stubborn refusal to provide this information means that every single
    day she has been in custody she has been continuing to hide this child from her
    father. I have a discretion as to whether an enhanced credit of 1.5:1 is
    appropriate. In these circumstances, I find that it is not. I am allowing the
    credit only on a straight 1:1 basis. [Footnote omitted]

[24]

The trial judge deducted 120 days
[1]
attributable to Ms. Lis
    contempt sentences, and credited her with 862 days, or 28.3 months, for PSC,
    which she rounded up to 29 months. She calculated the remaining time to be
    served as four years and seven months.

[25]

In concluding her reasons, the trial judge once
    again mentioned the ongoing nature of the offence and made the following
    comments at para. 56:

It is not up to me to decide when, or if, Ms. [Li]
    should be released on parole. However, I do have a recommendation which I would
    urge upon the authorities. In my view, as long as Ms. [Li] persists in
    concealing the whereabouts of her daughter, she should serve every day of her
    sentence. On the other hand, if at any time Ms. [Li] does provide accurate
    information as to the whereabouts of her daughter and signs the necessary
    consents to have M returned to Canada, I would consider that to warrant her
    early release.

D.

the appeal

[26]

Ms. Li filed her own Notice of Appeal on August 2, 2016, raising 14
    grounds of appeal. On August 24, 2016, Ms. Rochman filed a solicitors Notice
    of Appeal.

[27]

During an appearance before this court on March 6, 2017, Ms. Li
    maintained that she had never retained Ms. Rochman, wished to argue her own
    appeal, and objected to Ms. Rochmans further involvement in the case.
    Consequently, Ms. Rochman was removed from the record as counsel, but appointed
    as
amicus
.

[28]

In deciding this case, I have considered all grounds of appeal  those
    raised by Ms. Li, as well as those advanced by Ms. Rochman. I am not persuaded
    that any of the grounds of appeal against conviction should succeed. However,
    the sentence appeal must be allowed in part.

(1)

Grounds of Appeal Raised by Ms. Li

[29]

In her main Notice of Appeal, Ms. Li challenges the legality of the
    criminal proceedings. She pursues her theme about Mr. Rezadoust being a terrorist.
    Ms. Li also alleges perjury, judicial misconduct, obstruction of justice and a
    miscarriage of justice. In further correspondence forwarded to the court, Ms.
    Li elaborates on these grounds in more detail.

[30]

There is no merit in any of Ms. Lis claims that the proceedings, either
    in the Family Court, or before the trial judge, were tainted with illegality. There
    is no foundation for the allegation of perjury. There is no substance to any of
    the allegations of impropriety or misconduct on the part of any of the judges
    or lawyers involved in this case.

[31]

The experienced trial judge conducted this difficult jury trial with
    exemplary fairness. Ms. Li persisted in her attempts to frustrate the proceedings,
    both leading up to the trial, and after it began. Because of Ms. Lis
    disruptions, the trial judge had no realistic option but to exclude her from
    the courtroom. This step was not taken lightly. The trial judges reasons for
    taking this course of action are fully justified in her post-trial reasons for ruling,
    discussed above.

[32]

The evidence overwhelmingly established Ms. Lis guilt for the offence
    under s. 282 of the
Criminal Code
. In the absence of any evidence to
    the contrary, it cannot be said that the jurys verdict was unreasonable.

[33]

In conclusion, I find no merit in any of the grounds of appeal raised by
    Ms. Li. She received a fair trial at which her guilt was established beyond a
    reasonable doubt.

(2)

The Fitness Issue

[34]

Ms. Rochman argues that, on a review of Ms. Lis conduct throughout the
    trial, Ms. Lis fitness was clearly in issue. She argues that the trial judge
    ought to have embarked on a fitness hearing under s. 672.23. I disagree.

[35]

Focusing on the trial as a whole, Ms. Rochman argues that the issue of
    fitness should have been addressed before verdict, when Ms. Lis conduct was
    already problematic. However, the issue never really crystallized before the
    trial judge until the Crown at trial requested a psychiatric assessment after
    the jury rendered its verdict.

[36]

Section 672.23(1) provides jurisdiction to conduct a fitness hearing
    before a verdict is rendered. Given my conclusion that the trial judge did
    not err in failing to conduct a formal fitness hearing, I need not consider
    whether there is jurisdiction to embark upon a fitness hearing after verdict.
    This issue has arisen in a number of trial decisions: see
R. v. Jaser
,
    2015 ONSC 4729;
R. v. Nehass
, 2016 YKSC 63; and
R. v. Morrison
,
    2016 SKQB 259, 31 C.R. (7th) 362. This jurisdictional issue was not argued in
    this case. I express no view on the matter.

[37]

Returning to the facts of this case, there were a number of occasions
    during the entirety of criminal proceedings when Ms. Lis potential unfitness
    surfaced. Every time the issue arose, the very experienced presiding judges (
i.e.
,
    ODonnell J., McMahon J., and the trial judge) properly inquired into the
    matter, short of embarking on formal fitness hearings.

[38]

As I note above, the trial judge provided extensive reasons for her
    decision not to conduct a fitness hearing. She applied the governing test for fitness
    to stand trial established in
Taylor
, and confirmed in
R. v.
    Morrissey
, 2007 ONCA 770, 87 O.R. (3d) 481, leave to appeal refused,
    [2008] S.C.C.A. No. 102. The trial judge acknowledged the presence of some
    disordered thinking on Ms. Lis part; however, she concluded that Ms. Lis was
    still fit to stand trial. The trial judge was in the best position to make both
    this determination, and whether the threshold for embarking on a fitness
    hearing had been established. I can find no error in her analysis and would
    reject this ground of appeal.

(3)

The Appeal Against Sentence

[39]

Ms. Li and Ms. Rochman submit that the sentence imposed was
    unfit. Ms. Rochman also argues that the trial judge erred by refusing to grant
    credit for PSC on a 1.5:1 basis. Mr. Latimer for the Crown argues that the
    sentence is fit and that the trial judge properly exercised her discretion in
    relation to PSC.

[40]

I am not persuaded that, in the circumstances of
    this case, the trial judge erred in imposing a sentence of seven years
    imprisonment. The trial judge found that the harm caused by Ms. Lis actions,
    when combined with her very high degree of moral blameworthiness, warranted a
    sentence that was more severe than in comparable cases. This was not an error.
    As Wagner J. wrote in
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11:

The fact that a judge deviates from the proper
    sentencing range does not in itself justify appellate intervention. Ultimately,
    except where a sentencing judge makes an error of law or an error in principle
    that has an impact on the sentence, an appellate court may not vary the
    sentence unless it is demonstrably unfit.

[41]

The trial judge made careful findings of fact,
    to which she applied the applicable principles of sentencing. She recognized
    that Ms. Lis cruel and reprehensible conduct has deprived M. of a life with
    her father. The crime is ongoing. Not only has Mr. Rezadoust been deprived of
    the right to parent his own child, he has been completely excluded from M.s
    life. He does not know where she is in the world, whether she is well, or
    whether she wishes to have contact with him. This case calls out for a sentence
    that emphasizes the objectives of denunciation and general deterrence: see
R.
    v. Pasdari
, [2003] O.J. No. 319 (C.A.); and
R.
    v. Mendez
(1997)
, 32 O.R. (3d) 67 (C.A.), leave to appeal
    refused,
[1997] S.C.C.A. No. 679,
at pp. 75-76. While
    severe, I cannot say that the sentence imposed by the trial judge was
    demonstrably unfit.

[42]

I respectfully take a different view of the
    trial judges conclusion on credit for PSC. T
he trial judge denied Ms.
    Li 1.5:1 credit by using the same aggravating factor (
i.e.
,
the
    ongoing nature of Ms. Lis offending) that was already reflected in the seven-year
    sentence she imposed. This amounted to impermissible double counting of an
    aggravating factor: see
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R.
    575, at paras. 81-83;
R. v. Codner
, 2013 ONCA 138, 303 O.A.C. 91, at
    paras. 21-22;

R. v. Nelson
,
2014 ONCA 853,
318
    C.C.C. (3d) 476, at para. 53; and
R. v. R.S.
,
    2017 ONCA 141, at para. 16.

[43]

I would allow the sentence appeal by crediting Ms. Lis 862 days of PSC at
    a rate of 1.5:1, for a total of 1293 days (or 43 months). I make no comment
    about how the Parole Board of Canada ought to administer Ms. Lis sentence.

E.

conclusion and disposition

[44]

The appeal from conviction is dismissed. The appeal from sentence is allowed
    in part, by crediting Ms. Lis PSC at a rate of 1.5:1. Accordingly, the
    seven-year sentence of imprisonment should be reduced by 43 months, instead of the
    29 months deducted by the trial judge.

[45]

I wish to express the courts appreciation
    to Ms. Rochman for her excellent assistance to the court on this appeal.

Released:

JUN 19 2017                                     G.T.
    Trotter J.A.

PR                                                     I
    agree Paul Rouleau J.A.

I
    agree David Paciocco J.A.

[1]
Two of Ms. Lis contempt sentences are referenced
at
    paragraphs 7 and 9 above. During submissions it was agreed that Ms. Li had
    received a further 15-day sentence, for a total of 120 days.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. M.A., 2017 ONCA 504

DATE: 20170615

DOCKET: C61519

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. A.

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

Megan Stephen, for the respondent

Heard: June 14, 2017

On appeal from the conviction entered on June 23, 2015
    and the sentence imposed on November 27, 2015 by Justice Jeanine E. Leroy of
    the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction and his sentence. On his conviction
    appeal he makes two submissions. First, the trial judge erred in her similar
    fact ruling when she dealt with the question of collusion. Second, the trial
    judge unevenly scrutinized the evidence of the complainants and the evidence of
    the appellant.

[2]

The appellants first submission has two branches: the trial judge did
    not advert to the possibility of innocent collusion; and the trial judge made a
    factual error when she found that the children did not discuss the details to
    any great extent. The appellant contends that the trial judge should have
    found the childrens evidence was tainted by collusion and should have dismissed
    the Crowns similar fact application.

[3]

We called on the Crown only on the second branch of the appellants
    submission.

[4]

On the first branch, the trial judge expressly referred to the
    possibility of innocent or accidental collusion, and her reasons for finding no
    tainting show that she considered the possibility of both intentional and
    accidental collusion.

[5]

On the second branch of the appellants submission, or our reading of
    the transcript references referred to by counsel, the trial judges findings on
    the extent of the discussions between the children, itemized at points 2 and 3
    at p. 52 in her reasons, are supported in the record. She made no palpable and
    overriding error in her findings.

[6]

Admittedly, the children did discuss some details. That they did so is
    implied in the trial judges findings by her use of the phrase to any great
    extent.

[7]

We agree with the Crown that the situation in this case is very much
    like the situation in
Shearing
. There, Justice Binnie recognized at
    para. 42-43 that some communication is inevitable but, as in that case, here it
    was not sufficient to trigger the trial judges gatekeeper role or interfere
    with her ruling. Thus the appellants first submission must fail.

[8]

So too must the appellants second submission. The appellants defence
    of shady business dealings defied credulity and was belied by the corporate documents.
    The trial judge was right to reject his evidence.

[9]

The trial judge did not ignore the inconsistencies in the male complainants
    evidence. She was of the view they did not affect the male complainants
    credibility. That was her call to make. For us to interfere would be to retry the
    case

[10]

We
    therefore dismiss the conviction appeal.

[11]

On
    the sentence appeal, for the reasons set out in the Crowns factum, the
    sentence was fit. The sentence appeal is therefore also dismissed.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. M.T., 2017 ONCA 505

DATE: 20170616

DOCKET: C61749

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.T.

Appellant

Mark Halfyard, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: June 14, 2017

On appeal from the conviction entered on September 15,
    2015 by Justice McKelvey of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for indecent assault, an historical
    sexual assault, on the ground that the verdict was unreasonable. The appellant
    contends that the verdict was unreasonable because the complainants evidence
    about when the assault occurred was unreliable.

[2]

The timeline is important. The count in the indictment was particularized
    as occurring between January 1, 1977 and December 1, 1983. The complainant was
    born on January 14, 1971. She gave evidence that the indecent assault occurred
    when she was between seven and nine years old, that is between January 1978 and
    January 1981. But she acknowledged that her memory of the timing was hazy.
    The offence of indecent assault was repealed by Parliament on January 4, 1983
    just before the complainants twelfth birthday. The appellant thus submits that
    a reasonable trier of fact could not be satisfied beyond a reasonable doubt
    that the offence did not occur in the eleven month period from January 1983 to
    December 1983, which would have rendered it a nullity.

[3]

We do not accept the appellants submission. The trial judge was alive
    to the reliability of the complainants evidence. And he concluded that the complainants
    acknowledgement of her hazy memory was reflected in her estimate that the
    incident occurred when she was between seven and nine years old. He wrote at
    para. 44 of his reasons:

I accept F.T.s evidence that the initial incident occurred
    when she was approximately seven to nine years old. While it is true that her
    recollection of the exact time is hazy, this is reflected already in the
    estimate she gave that the initial incident occurred between age seven and nine
    years old. The witness therefore has accounted for the lack of precision in her
    memory by giving the estimate she did at trial. She would have turned ten on
    January 14, 1981 and I do not accept that her estimate could have been out by
    almost two years so that the incident would have occurred at age twelve. This
    would conflict with her recollection that the second incident occurred at
    around age twelve.

[4]

We see no error in the trial judges
    analysis. We note as well that the defence never suggested to the complainant
    that the assault may have occurred when she was 12 years old. The verdict is
    reasonable. The appeal is therefore dismissed.

John Laskin J.A.

Janet Simmons J.A.

G. Pardu J.A.