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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Damassia, 2017 ONCA 954

DATE: 20171207

DOCKET: C61874

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Stefano Damassia

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Mabel Lai, for the respondent

Heard and released orally: November 29, 2017

On appeal from the conviction entered on July 31, 2015 by
    Justice Fletcher Dawson of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant raises three grounds of appeal from his conviction for
    sexual assault. We called on the Crown only on the first ground.

[2]

The appellant submits that the trial judge erred by failing to find a
    breach of s. 10(b) of the
Charter
. He contends that in advising him of
    his s. 10(b) rights the police officer did not tell him that he had a right to
    consult counsel in private. He concedes that under our current law s. 10(b)
    does not impose a free-standing obligation on the police to give this advice to
    a person who is detained. But relying on this courts judgment in
R. v.
    Jackson
(1993) 86 CCC (3d) 233 (Ont. C.A.) at 241, he says the obligation
    arises where detained persons do not fully understand their rights. The
    appellant says that he was not fully aware of his s. 10(b) rights and the
    officers advice fell short of what was required.

[3]

We do not agree with appellants submission. The trial judge was well
    aware that the informational component of s. 10(b) required the officer to make
    sure the appellant fully understood his right to counsel. And, as the trial
    judge found, the officer went to some length to ensure that the appellant
    understood his rights. The appellant then made an informed decision to speak to
    the police without a lawyer. The trial judge expressly found at para. 33 of his
    ruling that the appellant knew his rights, and the trial judge rejected the
    appellants assertion he did not appreciate he had a right to consult counsel
    in private. This ground of appeal fails.

[4]

We deal briefly with the other two grounds of appeal. On the second
    ground, we accept that the trial judge misstated the evidence when he said the
    complainant was not tested for the presence of any of the common date rape
    drugs. The statement of facts agreed to by the parties stipulated that the
    complainants blood and urine were sent for analysis the day after the party,
    and the analysis showed no positive findings for the presence of drugs.

[5]

But there simply was no evidence whether she was tested for drugs or, if
    she was, what drugs she was tested for. The misstatement, however, was
    immaterial. The trial judge was concerned with the complainants state of
    intoxication not with what caused it. And he found the evidence was
    overwhelming that the complainant was so intoxicated she lacked the capacity to
    consent.

[6]

On the third ground, the appellant argues that one of the reasons for
    the trial judges adverse credibility finding was illogical. The trial judge
    found that the appellant fabricated his evidence about drinking one third of a
    bottle of Jägermeister to explain his intoxication after he had sex with the
    complainant. We think this finding was open to the trial judge. But, even if it
    was not, the trial judge had other unimpeachable reasons to reject the
    appellants evidence.

[7]

The appeal is therefore dismissed.

John
    Laskin J.A.

S.E.
    Pepall J.A.

Arthur Gans
    J.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Enotie, 2017 ONCA 966

DATE: 20171207

DOCKET: C61068

Laskin, Pepall JJ.A., and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Osamwonyi Enotie

Appellant

Thomas Arbogast, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: November 29, 2017

On appeal from the conviction entered on April 19, 2013
    and the sentence imposed on June 24, 2013 by Justice Robert A. Clark of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted in 2013 of a number of charges arising from
    five carjackings. He was directly implicated in the last of these carjackings.
    Specifically he was pursued by police in a stolen vehicle from which he was
    caught fleeing. He was also charged and convicted on four other carjackings on
    the basis of similar fact evidence, all of which incidents took place between
    November 2 and 11, 2010.

[2]

There were significant similarities between the carjacking in respect of
    which he was apprehended and the other four incidents. There was also
    circumstantial evidence linking him personally to the other carjackings in the
    form of cell phone localization evidence.

[3]

The appellant appeals his conviction on two grounds relating to the
    trial judges charge to the jury.

[4]

It is his position that the trial judge erred by improperly instructing
    the jury on how to assess the similar fact evidence. The trial judge further
    erred by improperly instructing the jury on how to assess group membership in
    the context of similar fact evidence because:

(a) he did
    not specifically instruct the jury that it could not employ similar fact
    evidence to establish Mr. Enoties membership in the group; and

(b) his
    instructions stated that the jury could use similar fact evidence to determine
    membership of the group.

[5]

The appellant asks for a new trial.

[6]

The trial judge ruled on the Crowns application to permit the
    introduction of this form of evidence on April 5, 2013, for which he provided
    full reasons on April 19, the day upon which he also gave his charge to the
    jury.  No appeal is taken from his decision to admit the similar fact evidence.
    Indeed appellants counsel concedes that that judgment is unassailable.

[7]

It is worth noting that the trial judge conducted pre-charge conferences
    which ran for almost two days. The charge itself apparently went through eight
    drafts with defence and Crown counsel signing off on it the night before it was
    delivered. A review of the transcripts of the pre-charge conferences indicates
    that the form of charge went through a detailed line-by-line review by both
    counsel and the court.

[8]

Furthermore, following his instructions the trial judge solicited
    comments from counsel. Although not dispositive of the issue, we note that
    counsel did not object to any part of the charge, including that which was
    devoted to the similar fact instruction.

[9]

In argument, appellants counsel directed the court to but very few
    paragraphs in the charge with which he took exception. The charge itself ran to
    more than 130 pages.

[10]

We
    have concluded from a plain reading of the ten pages that deal with similar
    fact evidence, that the charge faithfully follows the two-step process set out
    by the Supreme Court of Canada in
R. v. Perrier
, [2004] 3 S.C.R. 228. In
    our view, the instructions are sufficient to ensure that the jury did not use
    the group activity to identify the appellant in relation to the groups acts
    unless he was specifically linked to those acts, namely the four other acts of
    carjacking.

[11]

Reading
    the charge as a whole, we are satisfied that the jury would not be confused by
    the instructions so given.

[12]

For
    these reasons, the conviction appeal is dismissed. The sentence appeal is
    dismissed as abandoned.

John
    Laskin J.A.

S.E.
    Pepall J.A.

Arthur
    M. Gans J.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2017 ONCA 970

DATE: 20171208

DOCKET: M48419 (C61095, C61185)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Chiheb Esseghaier and Raed Jaser

Appellants (Responding Parties)

Canadian Broadcasting Corporation

Moving Party

Iain MacKinnon, for the moving party, Canadian
    Broadcasting Corporation

Erin Dann,
amicus curiae
in relation to the
    responding party, Chiheb Esseghaier, and agent for the responding party, Raed
    Jaser

Nicholas Devlin, for the responding party, Attorney General of Canada

Heard: November 9, 2017

Motion by the Canadian Broadcasting
    Corporation for access to certain DVD audio recordings filed as exhibits made
    the subject of a sealing order at the appellants trial before the Honourable
    Justice Michael Code, sitting with a jury.

ENDORSEMENT

[1]

Chiheb Esseghaier and Raed Jaser (the appellants) were tried jointly
    on an indictment alleging various terrorism offences. At their trial, several
    DVDs containing audio recordings were filed as exhibits. The recordings were of
    conversations between two undercover police operatives, in particular one who
    went by the name of Tamer El Noury, and either or both Esseghaier and Jaser. In
    some circumstances, transcripts of the recordings were also filed as exhibits.

[2]

In advance of jury selection the Crown sought several orders, the
    purpose of which were to ensure the anonymity or, put another way, to prevent
    disclosure of any information that could reveal the true identity of the
    undercover operatives.

[3]

Counsel for Jaser did not oppose the application by the Crown.
    Esseghaier was self-represented. He suggested that the undercover operatives
    had no reason to fear disclosure of their true identity.

[4]

Notice of the Crowns application was provided to various media outlets.
    None responded.

The Background Facts

The Sealing Order

[5]

Relying on affidavits from senior police officials in Canada and the
    United States describing:

i.

ongoing or anticipated undercover work of the operatives in both
    countries in terrorism investigations; and

ii.

ongoing efforts of terrorist groups and individual operators of internet
    websites to identify potential undercover operatives,

the trial judge granted an omnibus order, invoking the
    statutory authority of s. 486.5 of the
Criminal Code
and the inherent
    jurisdiction of a superior court of criminal jurisdiction to control the
    process of the court to do so. Among the terms of the order were these:

i.

Any audio recording of the two undercover officers that may be filed as
    an exhibit during the course of the trial shall be sealed and prohibited from
    access to the public, subject to further order of this Court.

ii.

Any official audio recording of the testimony of the two undercover
    officers shall be sealed, subject to further order of this Court. Furthermore,
    any official audio recording shall not be accessed except by the court reporter
    (including at the request of counsel for the accused or for the Crown) for the
    purpose of creating official transcripts of the proceedings. Upon completion of
    the transcripts, the official audio recording must be re-sealed.

iii.

No person, except for the court reporter, shall make any audio recording
    of the testimony of the undercover officers.

iv.

All members of the public shall be prohibited from carrying or using any
    electronic devices capable of making an audio or video recording inside the two
    courtrooms during the testimony of the two undercover officers, subject to
    further order of this Court. This paragraph does not apply to counsel for the
    respondent, counsel for the applicant, or
amicus
.

v.

No person shall publish or otherwise disseminate any information tending
    to reveal the true identity of the two undercover officers, including a
    description of the officers physical appearance.

The Verdict at Trial

[6]

The jury found the appellants guilty as charged. The trial judge imposed
    lengthy terms of imprisonment on each appellant.

The Appeals

[7]

The appellants have filed notices of appeal from conviction and
    sentence. Counsel who represented Jaser at trial also represent him on appeal. Esseghaier
    remains self-represented. He has the assistance of
amicus
to make
    representations in connection with grounds of appeal that relate to him.

[8]

To facilitate completion of the appeal record and supervise perfection
    of the appeal, counsel,
amicus
and I have participated in various case
    management conferences. With their consent, I have agreed to hear any motions
    associated with the appeal that can be heard and determined by a single judge,
    rather than by a panel of the court.

The Motion for Unsealing and Release

[9]

Some time ago, a representative of the Canadian Broadcasting Corporation
    (the CBC) attended at the court office to review the exhibits filed at trial
    and forwarded to this court for appeal purposes. She noticed that some
    exhibits, which were subject to the sealing order made by the trial judge, had
    been commingled with others which were not subject to any sealing order. With
    commendable restraint, she notified court staff of this error. As a result, all
    the materials forwarded by the trial court were ordered sealed pending
    identification of the material subject to the sealing order. Those materials
    were then separated out, the temporary sealing order was lifted and the
    journalist notified of the availability of the remainder for review.

[10]

By
    Notice of Motion the CBC asks for an order varying the sealing order made by
    the trial judge to allow them access to the DVDs containing audio and video
    recordings of the undercover agent, Tamer El Noury, for journalistic purposes.
[1]
The CBC undertakes to ensure that the speech and, if necessary, physical
    appearance of Mr. El Noury is altered to such an extent so as not to reveal his
    true identity.

[11]

The
    Crown opposes the request. Counsel for Jaser and
amicus
take no
    position on the motion.

The Post-Trial Events

[12]

After
    the appellants trial concluded, Tamer El Noury wrote a book,
American
    Radical
. The book describes some of his activities as an undercover
    operative in counter-terrorism. The publisher is actively promoting its sale.

[13]

In
    addition to  or in support of  his publishing venture, Mr. El Noury has
    appeared and been interviewed on two network television news programs  60
    Minutes and The Fifth Estate. For each televised appearance, his facial
    features and voice were altered to prevent disclosure of his true identity. He
    insisted on these alterations because he feared for his own safety and that of
    his family and did not want to diminish his ability to continue to work as an
    undercover operative in counter-terrorism.

The Arguments on the Motion

[14]

The
    CBC invokes the open court principle and summons the freedoms of expression
    and the press in s. 2(b) of the
Charter
in support of its claim for
    access to the DVDs. I am reminded that access to trial exhibits, including
    recordings, is a corollary to the open court principle and, further, that broadcasting
    official audio recordings of court hearings falls within the sweep of s. 2(b)
    of the
Charter.

[15]

In
    the absence of a governing statutory provision, the CBCs argument continues,
    it falls to the presiding judge, whether at trial or on appeal, to determine,
    in accordance with the principles settled in
Dagenais v. Canadian
    Broadcasting Corp.
,

[1994] 3 S.C.R. 835 and
R. v. Mentuck
,

2001 SCC 76, [2001] 3 S.C.R. 442, how exhibits such as audio recordings
    can be used by accredited media.

[16]

In
    this case, the CBC says, the circumstances have changed since the sealing order
    was made prior to jury selection. Mr. El Noury, using the pseudonym under which
    he befriended the appellants and testified at trial, has written a book
    describing his activities as an undercover agent investigating alleged
    terrorist activities. He has been interviewed twice on network news programs in
    Canada and the United States. As those appearances demonstrate, modern
    technology can be enlisted to mask his distinguishing features, thus ensuring
    his anonymity. The agency for whom he works, the Federal Bureau of
    Investigation, has no objection to a television interview about his book,
American
    Radical
,

provided the operative is willing to participate.

[17]

In
    the result, the CBC urges, the underpinnings of the original sealing order fall
    away. To leave it in place in its present incarnation cannot be justified on a
    reasoned application of the
Dagenais/Mentuck
analysis
.
A
    reasonably available alternative, akin to what was put in place at the
    operatives request for the network television interviews, affords adequate
    protection without compromise of the constitutional principles at play.

[18]

The
    Crown resists the motion. It submits that the circumstances that underpinned
    the original order continue to this day. The safety of the undercover operative
    and his family. The public interest in ensuring his continued viability as an
    undercover operative in counter-terrorism investigations. No other reasonably
    available alternatives can ensure his safety and continued viability as an
    undercover operative. But other reasonably available alternatives exist for the
    CBC, such as having an actor read transcripts of the relevant communications.

[19]

When
    the balancing required under
Dagenais/Mentuck
is done, the Crown says,
    the potential harm likely to ensue by disclosure continues to outweigh the
    benefits claimed by the CBC. The sealing order should remain in place.

The Governing Principles

[20]

The
    principles that control the decision in this case are largely uncontroversial.
    But, as is often so, the parties differ on the result the application of those
    principles should yield here.

[21]

Broadcasting
    a recording is an expressive activity to which the protection of s. 2(b) of the
Charter
might apply:
Canadian Broadcasting Corp. v. Canada
,

2011 SCC 3, [2011] 1 S.C.R. 65, at para. 10. See also,
Irwin Toy Ltd.
    v. Quebec (Attorney General)
,

[1989] 1 S.C.R. 927.

[22]

Access
    to exhibits is a corollary to the open court principle. As a result, in the
    absence of an applicable statutory provision, it is for the court in which the
    exhibits are lodged to determine the extent to which and the manner in which
    the exhibits may be used:
Canadian Broadcasting Corp.
,

at
    para. 12;
MacIntyre v. Nova Scotia (Attorney General)
,

[1982]
    1 S.C.R. 175, at p. 189. Access to exhibits may include the imposition of
    conditions that must be satisfied before access is granted:
Canadian
    Broadcasting Corp.
,

at para. 14.

[23]

Orders
    relating to access to exhibits do not issue as of right, rather involve the
    exercise of judicial discretion. Since these decisions are at once
    discretionary and affect the openness of proceedings, the analytical approach
    developed in
Dagenais
and
Mentuck
applies:
Canadian
    Broadcasting Corp.
,

at para. 13;
Vancouver Sun (Re)
,

2004 SCC 43, [2004] 2 S.C.R. 332, at para. 31.

[24]

The
    exercise of judicial discretion involves the balancing of several factors often
    at odds with one another. The weighing involved in the analysis required by
Dagenais/Mentuck
,

which includes the factors listed in
Vickery v. Nova Scotia Supreme
    Court (Prothonotary)
, [1991] 1 S.C.R. 671, is based on considerations that
    include the specific context of the case at hand:
Canadian Broadcasting
    Corp.
, at paras. 13 and 16.

[25]

What
    must be considered under
Dagenais/Mentuck
is not only the objectives
    of a restriction, but also the proportionality of the restriction to its effect
    on
Charter-
protected rights or freedoms.
Dagenais
teaches
    that a publication ban should only be ordered when:

i.

the ban is necessary to prevent a real and substantial risk of harm,
    because reasonably available alternative measures will not prevent the risk;
    and

ii.

the salutary effects of the ban outweigh the deleterious effects to the
    free expression of those affected by the ban.

See,
Dagenais
,

at para. 73.

[26]

To
    assess the validity (or continued vitality) of the order in this case, it is
    necessary:

i.

to consider the objectives of the order;

ii.

to examine the availability of reasonable alternative measures that
    could achieve those objectives; and

iii.

to consider whether the salutary effects of the order outweigh the
    deleterious impact the order has on freedom of expression.

See,
Dagenais
,

at para. 74.

[27]

It
    is worthy of reminder that the objective of the order is to prevent real and
    substantial risk to a defined interest, not remote and speculative dangers:
Dagenais
,

at para. 76.

[28]

An
    additional point concerns the authority of a single judge of this court to make
    the order the CBC seeks.

[29]

Neither
    the CBC nor the Crown took issue with the authority of a single judge, as
    opposed to a panel of judges, to make the order sought. Nothing in Part XXI
    incorporates by reference s. 486.5 of the
Criminal Code.
There, the
    term judge is used, but not defined in or for the purposes of the section.
    Nor does Part XXI contain a specific provision relating to management of
    exhibits within the custody and control of the court.

[30]

In
    the absence of controversy, I need not determine the precise authority that can
    serve as a juridical source for the order sought. I leave for another day
    whether it can be exercised by a single judge or only by a panel of the court.
    See,
R. v. Morin
(1997), 32 O.R. (3d) 265 (C.A.);
R. v. Derbyshire
,

2016 NSCA 67, 340 C.C.C. (3d) 1; and
R. v. Canada (Attorney General)
,

2014 ABCA 330 (in Chambers).

The Principles Applied

[31]

As
    I will explain, subject to certain conditions about which I will hear further
    submissions at the convenience of counsel, I am satisfied that the CBC is
    entitled to the access to the audio recordings it seeks.

[32]

The
    recordings are now subject to a sealing order granted by the trial judge on a
    pre-trial application by the Crown. Subject to inclusion of a condition not
    material to this application, the order sought was not opposed at trial.
    Invited to participate there, the CBC did not appear.

[33]

The
    juridical basis upon which the trial judge relied was twofold: s. 486.5 of the
Criminal
    Code
and the common law authority of a superior court of criminal
    jurisdiction to control its own process, which in turn required consideration
    and application of the
Dagenais/Mentuck
test
.
The order did
    not contain an expiry date, but was subject to being revisited at a future
    date and being subject to further order of the court.

[34]

In
    their submissions, the parties have treated this application as a matter of
    first instance based on a material change in circumstance, rather than a review
    of the order made by the trial judge. As it would appear to me, their approach
    is sound since it is this court that now has custody of the recordings which
    were entered as exhibits at trial and to which access is now sought.

[35]

The
    test I will apply is that of
Dagenais/Mentuck
,

rather than
    the statutory mandate s. 486.5 of the
Criminal Code
provides. Section
    486.5 is in Part XV of the
Criminal Code
 Special Procedure and
    Powers. It is a section and a Part which is not incorporated in or by Part XXI
     Appeals  Indictable Offences. Absent a definition of the term judge in the
    section, nothing there suggests the jurisdiction it confers may be exercised by
    a single judge or by a panel of a court of appeal.

[36]

As
    a corollary to the open court principle, access to exhibits follows, subject to
    the authority of the court as custodian to determine the extent to which and
    the manner in which the exhibits may be used.

[37]

In
    this case, the sealing order is the functional equivalent of a publication ban.
    Each displaces the presumption of openness and requires justification by the
    Crown under the
Dagenais/Mentuck
standard or regime.

[38]

I
    consider first whether the sealing order is necessary to prevent a serious risk
    to the proper administration of justice, because reasonable alternative
    measures will not prevent the risk.

[39]

It
    is difficult to gainsay that an order that directly or indirectly prohibits
    publication of information tending to identify operatives involved in an
    undercover operation, including such identifiers as likeness and voice, can be
    regarded as necessary to further the proper administration of justice. Current
    investigations would be compromised and the future utility of the operative
    arrested.

[40]

It
    is not every risk to the administration of justice that satisfies the necessity
    requirement under
Dagenais/Mentuck
that justifies a publication ban or
    its functional equivalent, a sealing order. The risk must be
serious
and
    it must not be preventable by reasonable alternative measures.

[41]

In
    this case, I have no evidence upon which I can reach a reasoned conclusion about
    the seriousness of the risk to the administration of justice. Not in terms of
    the likelihood that the risk will become reality. Nor as to the gravity of the
    consequences, whether in terms of the compromise of ongoing or future
    investigations or the life or safety of the operative. On the other hand, it
    would seem self-evident that disclosure of his identity or identifiers could jeopardize
    an ongoing investigation and compromise the safety or security of the
    operative. In addition, it would seem a reasonable inference that operatives
    with the necessary language facility and other attributes to successfully
    insinuate themselves into closely-knit alleged terrorist organizations are not
    numerous. Compromise of one reduces the pool even further.

[42]

A
    publication ban or its functional equivalent, a sealing order, is necessary to
    prevent a serious risk to the administration of justice only where reasonable
    alternative measures will not prevent the risk. Put somewhat differently, the
    case for a publication ban or sealing order fails where reasonable alternative
    measures will achieve the same purpose.

[43]

In
    this case, Mr. El Noury has written a book about his work as an undercover
    operative. He used the same name he assumed in the investigation in this case
    and under which he testified. He has appeared twice on national network news
    programs, once in the United States and once in Canada. In each case, his voice
    and physical appearance were altered. The irresistible inference from these appearances
    is that Mr. El Noury considers these disguises adequate to protect a serious
    risk to himself, his family and current and future investigations. It follows
    that the Crown cannot satisfy the necessity requirement under
Dagenais/Mentuck
.

[44]

Further,
    although it may not be necessary to conduct this balancing, I am satisfied that
    the salutary effects of the ban on the efficacy of police operations and the
    safety of undercover operatives are outweighed by the deleterious effects on
    other
Charter-
protected interests, such as freedom of expression and
    of the press.

Conclusion

[45]

In
    the result, the CBC shall have access to the DVD audio recordings it seeks,
    subject to the terms and conditions for the alteration of the recordings to
    disguise Mr. El Noury that will be settled after counsel make further
    submissions.

David Watt J.A.

[1]
The CBCs motion is limited to the recordings of Mr. El Noury; it does not seek
    access to the recordings involving the second undercover agent.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frickey, 2017 ONCA 1024

DATE: 20171228

DOCKET: C60977

Sharpe, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tabitha Frickey

Appellant

Erec Rolfe, for the appellant

Jennifer McKee, for the respondent

Heard: December 21, 2017

On appeal from the sentence imposed on February 13, 2015
    by Justice Robert Reilly of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of dangerous operation of a motor vehicle
    causing bodily harm under s. 249(3) of the
Criminal Code
, which
    provides for a maximum term of imprisonment of ten years. She was sentenced to
    six months in custody, six months of probation, and a ten-year driving
    prohibition order. She has served her custodial sentence and completed
    probation. She appeals from the ten-year driving prohibition order.

[2]

The appellant submits that the ten-year driving prohibition was
    manifestly unfit and seeks a five-year driving prohibition. She contends that
    the trial judge erred in treating general deterrence and denunciation as the
    primary sentencing objectives when she was a young, first-time offender.

[3]

We disagree.

[4]

The principles of denunciation and deterrence are particularly relevant
    to dangerous driving offences that are often committed by first-time offenders
    and otherwise law-abiding citizens. In these circumstances, the driving
    prohibition serves as the most practical means to ensure the protection of the
    public.

[5]

Notwithstanding the appellants youth and lack of a criminal record, the
    sentencing objectives of general deterrence and denunciation were paramount
    because of the seriousness of the appellants offence and the aggravating
    factors of her previous poor driving record and the devastating harm caused to
    the victims of the accident.

[6]

The appellant had amassed three speeding convictions on her driving
    record prior to her commission of the index offence when she was 18 years old.
    These convictions did not serve as a deterrent. The circumstances of this offence
    were egregious: the appellants vehicle hurtled across three lanes of traffic
    at an enormous speed, smashed into crash attenuation barrels, became airborne
    and landed on top of the victims car. The impact almost killed one of the
    victims, who remains severely disabled by his injuries. We also note that the
    appellant committed a fourth speeding offence, as well as a distracted driving
    offence, following the present offence.

[7]

Against these aggravating factors, the trial judge carefully considered
    the mitigating circumstances of the appellants youth, her sincere remorse, her
    otherwise unblemished character, her excellent academic and work record, and
    her pregnancy.

[8]

Crown counsel submitted that a custodial sentence of 18 months, plus
    probation, and a five-year driving prohibition order would be appropriate. Defence
    counsel argued that a custodial sentence capped at nine months and a five-year
    driving prohibition should be considered.

[9]

The trial judge indicated to the parties that he was considering
    imposing a longer driving prohibition, up to the ten-year maximum under s.
    259(2)(b) of the
Criminal Code
, and asked for submissions.  Defence
    counsel urged the trial judge to impose a shorter custodial sentence and a
    longer driving prohibition, in order to meet the objectives of deterrence and
    denunciation, and to facilitate the appellants rehabilitation and avoid her
    baby being born in custody. The trial judge followed the approach suggested by
    the defence.

[10]

In
    considering whether the sentence is manifestly unfit, the sentence must be
    considered as a whole. While the driving prohibition may have been longer than
    in the precedents provided by the parties, the custodial sentence was shorter.
    In reducing the custodial sentence and lengthening the driving prohibition, the
    trial judge exercised the principle of restraint and took into consideration
    all available sanctions, other than imprisonment, that are reasonable in the
    circumstances, in accordance with s. 718.2(e) of the
Criminal Code
.
    The longer driving prohibition was necessary for the protection of the public. We
    see no error in the trial judges decision.

[11]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe
    J.A.

David Watt J.A.

L.B. Roberts
    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. G.H., 2017 ONCA 965

DATE: 20171208

DOCKET: C58684

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. H.

Appellant

Anthony Moustacalis, for the Appellant, G. H.

Mabel Lai, for the Respondent

Heard: September 8, 2017

On appeal from the conviction entered on August 22, 2013
    by Justice Mary Jo Nolan of the Superior Court of Justice.

BROWN J.A.:

I.

OVERVIEW

[1]

The appellant, G. H., appeals from his conviction on one count of sexual
    assault contrary to s. 271 of the
Criminal Code
.

[2]

The appellant had been charged on
    a sixteen-count indictment alleging a variety of sexual offences against three teenage
    girls under the age of 16: M.F.,  M.Z., and S.B. The appellant pleaded not
    guilty to all counts. He testified, denying the allegations.

[3]

At the conclusion of the evidence,
    the Crown invited the trial judge to dismiss the 13 counts concerning M.F. and
    M.Z. on the basis the evidence did not allow the Crown to meet the requisite
    standard of proof. The trial judge did so.

[4]

The appellant also requested a
    directed verdict dismissing a charge of sexual exploitation in respect of S.B.
    In her reasons delivered August 22, 2013, the trial judge found the appellant
    not guilty on that count because she could not find he was in a position of
    authority or trust in relation to S.B. The remaining two counts involved
    allegations of sexual assault and sexual interference against S.B. occurring on
    the same day at the appellants house. The trial judge acquitted the appellant
    of sexual assault, but found him guilty of sexual interference.

[5]

On March 24, 2014, some seven
    months after convicting the appellant of sexual interference and following submissions
    from the Crown and the defence, the trial judge set aside the finding of guilt
    on the count of sexual interference and substituted a finding of guilt on the
    count of sexual assault. She imposed a suspended sentence and two years
    probation. The appellant appeals his conviction.

II.

THE EVIDENCE

[6]

S.B. was 15 years old in the summer of 2010, when the alleged events
    occurred.  At the time, S.B.s best friend was M.Z. S.B. also knew the other
    complainant, M.F., but at the time of the trial, they had not been friends for
    a few years.

[7]

The events giving rise to the sexual assault and sexual interference
    counts were alleged to have taken place one day in August, 2010 at the
    appellants home. On that day, S.B., M.Z., and the appellants young son were
    swimming and boating with the appellant. The events underpinning the sexual
    interference count preceded those on which the sexual assault charge was based.

The sexual interference count: the kiss

[8]

S.B. testified that as they were getting ready to eat outside, she went
    into the kitchen to get some salt and pepper. The appellant was there.
    According to S.B., the appellant hugged her tightly for a bit and, as she
    backed away, kissed her on the lips. S.B. said nothing and walked back outside.

[9]

S.B. acknowledged the appellant had hugged her before, which she had
    treated as innocent signs of affection. However, this hug was tighter, and she
    said it felt like he had invaded her space. S.B. testified the appellant had
    not kissed her before.

[10]

The
    appellant stated he may have been alone with S.B. in the kitchen in passing,
    but he denied kissing her on the lips.

The sexual assault count: the whipped cream

[11]

S.B.
    also testified that following the dinner, she was in the kitchen with M.Z., the
    appellants son, and the appellant, who was making sundaes. The appellant
    sprayed some whipped cream from a can into his sons mouth. According to S.B.,
    the appellant then sprayed some on her chest, covering an area about six inches
    long above her breasts.

[12]

S.B.
    stated she went into the bathroom to wipe off the whipped cream. The appellant
    gave her a face cloth and then allegedly said, Why dont you let me lick it
    off instead? S.B. testified the appellant moved towards her. S.B. told him no.
    She wiped off the cream with the face cloth and left the bathroom.

[13]

S.B.
    testified the appellant deliberately sprayed her with the whipped cream.
    Although everyone laughed at the time, when the appellant made the comment in
    the bathroom about licking the whipped cream off her chest she thought it was a
    sexual thing.

[14]

The
    appellant acknowledged that following dinner, they went into the kitchen to
    make sundaes for dessert. His son asked him to squirt some whipped cream into
    his mouth, which he did. Everyone laughed. The appellant then asked S.B. if she
    wanted some. She said she did. The appellant reached over to spray the cream in
    her mouth, but missed. He testified about a tablespoon of whipped cream landed
    six to eight inches above her breasts. He apologized and everybody laughed.

[15]

The
    appellant told S.B. to use the washroom and gave her a face cloth from the
    linen closet. He was at the entrance to the bathroom. The appellant denied
    offering to lick off the whipped cream. He said the squirting of the whipped cream
    on S.B.s chest was accidental.

III.

THE TRIAL JUDGES REASONS

[16]

The
    trial judge commenced her analysis by reviewing the general principles
    concerning the burden of proof, reasonable doubt, and the assessment of
    credibility and reliability. As well, the trial judge charged herself on the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[17]

The
    trial judge first dealt with the sexual exploitation charge. On the facts of
    the case, she could not find the appellant was in a position of authority or
    trust in relation to S.B. Accordingly, she found the appellant not guilty of
    sexual exploitation.

[18]

The
    trial judge then turned to events of August 2010. She first considered the
    sexual assault count involving the whipped cream. While not necessarily
    believing the appellants version of events regarding the whipped cream, the
    trial judge concluded his explanation left her with a reasonable doubt as to
    whether the act was intentional and had taken place in circumstances of a
    sexual nature. She therefore found the appellant not guilty.

[19]

As
    to the sexual interference count - the kiss on the lips - the trial judge did
    not believe the appellants evidence. She concluded it did not raise a
    reasonable doubt. Looking at the totality of the Crowns evidence regarding the
    count, the trial judge found S.B. to be a credible and believable witness and
    her evidence compelling. Consequently, the trial judge was satisfied beyond a
    reasonable doubt that the appellant kissed S.B. on her lips with his lips, and
    she convicted him of sexual interference.

IV.

ISSUES ON APPEAL

[20]

The
    appellant advances three grounds of appeal:

(i)

The trial judge improperly relied on the evidence of Ms. L.A., a witness
    called to testify about events involving M.F., to convict the appellant on a
    count involving S.B.;

(ii)

The trial judge misapplied the burden of
    proof; and

(iii)

The trial judge gave inadequate reasons
    for rejecting the evidence of the appellant on one count, while accepting it raised
    a reasonable doubt on another.

V.

FIRST
    ISSUE: DID THE TRIAL JUDGE IMPROPERLY USE L.AS EVIDENCE?

The issue stated

[21]

At
    trial, the Crown called L.A. as a witness. Her evidence dealt with the events
    surrounding a July 2010 barbecue hosted by the appellant at his house.

[22]

M.F.
    testified that she attended the barbecue with her parents. L.A. was also
    present. According to M.F., the appellant had asked her parents whether she
    could babysit as he planned to go out with friends.  M.F.s mother also
    testified the appellant had asked if M.F. could babysit because he was going
    out with his then-girlfriend, L.A.  M.F. alleged that after her parents left
    the appellants house, the appellant sexually assaulted her

[23]

L.A.
    testified she left the appellants house around 11 p.m. and went home.  L.A.
    did not recall receiving a call from the appellant that evening inviting her to
    go to the casino.  She did recall receiving such an invitation from the
    appellant at a later date.

[24]

The
    appellant agreed in his examination-in-chief that he had asked M.F. to babysit
    on the evening of the July barbecue. He planned to go to the casino with
    friends. On the way to the casino, he called L.A. to ask whether she wanted to
    join him. She declined, and the appellant returned home. He denied assaulting
    M.F. that evening.

[25]

During
    the course of the trial judges review of the evidence, she briefly summarized
    the appellants evidence about the events leading up to his arrest.  She
    referred to the appellants attendance at M.F.s home, his discussion with
    M.F.s mother and father, and a subsequent email from M.F.s father:

[W]ho asked [the appellant] where he was the night [M.F] said
    the rape occurred and [the appellant] told [M.F.s father] that he was at [L.A.s]
    house just off Banwell Road. When she testified, [L.A.] denied being with [the
    appellant] that night.

[26]

The
    appellant submits two errors resulted from the trial judges reference to L.A.s
    evidence. First, L.A. was called by the Crown to give evidence in respect of a
    count concerning the appellants conduct toward M.F. By the time the trial
    judge came to consider the counts involving S.B., she had dismissed, at the
    Crowns invitation, the counts involving M.F. Therefore, the appellant submits,
    the trial judge relied on inadmissible evidence of a collateral fact in
    convicting the appellant.

[27]

Second,
    the Crown had pointed to the evidence of L.A. in support of its submission the
    trial judge should find the appellant had fabricated an alibi with respect to
    M.F.s allegation. Since the trial judge did not find that the appellant had
    fabricated or concocted an alibi to escape criminal liability, the appellant
    argues she was not permitted to consider L.A.s evidence.

[28]

In
    response, the Crown contends the trial judges single sentence reference to L.A.s
    evidence constituted no more than a description of the events leading to the
    appellants arrest. Moreover, although a credibility finding on one count could
    properly inform the trial judges credibility assessment on another, in the
    result the trial judge made no finding in respect of L.A.s evidence and did
    not rely on it to convict the appellant.

Analysis

[29]

When
    the trial judges reasons are read in their entirety, it is apparent her
    reference to L.A.s evidence merely formed part of her recitation of the background
    narrative. Her subsequent analysis of the evidence leading to her credibility
    findings on the two counts concerning S.B. does not contain any reference to L.A.s
    evidence. The reasons do not disclose any reliance by the trial judge on that
    evidence.

[30]

Further,
    the record does not support the appellants submission to the effect the trial
    judge should not have made any reference to L.A.s evidence because the charges
    involving M.F. had been dismissed at the invitation of the Crown. That
    submission ignores how the trial unfolded and how his trial counsel used that
    evidence in closing submissions.

[31]

After
    the conclusion of the evidence, the Crown invited the trial judge to dismiss
    the charges involving M.F. Final submissions then ensued. Crown counsel limited
    his submissions to the remaining counts concerning S.B. Nevertheless, in his
    closings in chief and in reply, appellants trial counsel referred to L.A.s
    evidence, submitting the appellant had adequately explained inconsistencies
    between his statement to the police and his evidence at trial concerning his
    contact with L.A. following the barbecue.

[32]

In
    those circumstances, I would not give effect to this ground of appeal.

VI.     SECOND ISSUE: DID THE TRIAL
    JUDGE MISAPPLY THE BURDEN OF PROOF?

[33]

In
    his factum, the appellant submitted the trial judge misapplied the burden of
    proof and effectively shifted the burden onto the defence to disprove guilt. He
    argued the sequence in which the trial judge examined the evidence disclosed a
    misapplication of the
W.(D.)
principles. The appellant did not address
    this issue in oral argument.

[34]

I
    am not persuaded by this submission. The trial judge correctly instructed
    herself on the
W.(D.)
principles. Several times during her analysis
    she repeated that the Crown bore the onus to prove each count beyond a
    reasonable doubt.

[35]

On
    the sexual assault count involving the whipped cream, the appellant does not
    dispute that the trial judges reasons disclose a proper application of the
W.(D.)
principles. However, the appellant takes issue with how the trial judge
    conducted her credibility analysis on the sexual interference charge  the
    alleged kiss on the lips. He argues the trial judge committed a classic
W.(D.)
error by focusing on whether or not the appellant could provide an explanation
    that disproved the charge, instead of on whether the totality of the evidence
    supported guilt beyond a reasonable doubt.

[36]

I
    would not give effect to this argument. The trial judge first found she did not
    believe the appellants evidence; nor did it raise a reasonable doubt. She then
    considered the totality of the evidence presented by the Crown with respect to
    that count, keeping in mind that the onus is always on the Crown to prove each
    element of the offence beyond a reasonable doubt. She examined the
    complainants evidence from that perspective and found it compelling. That
    led her to conclude the Crown had established beyond a reasonable doubt that
    the appellant kissed S.B. on her lips for a sexual purpose.

[37]

Having
    reached that conclusion, the trial judge went on to state that her chain of
    reasoning should not be taken to have reversed the onus of proof. After
    reiterating that the burden of proof remained on the Crown throughout, the
    trial judge stated:

I have not rejected [the appellants] evidence because of
    [S.B.s] evidence. I have rejected [the appellants] evidence because it is not
    credible. However, my belief in [S.B.s] evidence is an additional factor which
    strengthens my conclusion that [the appellants] denial does not raise a reasonable
    doubt.

[38]

When
    the trial judges reasons are read in their entirety, they disclose she did not
    lose sight of the key issue: whether the evidence as a whole established the
    accuseds guilt beyond a reasonable doubt:
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 23. She did not misapply the principles in
W.(D.)
.
    I would not give effect to this ground of appeal.

VII.    THIRD ISSUE: WERE THE TRIAL JUDGES REASONS INSUFFICIENT?

The issue stated

[39]

Although
    the appellant acknowledges that the credibility findings of a trial judge are
    entitled to a high degree of deference, he submits the trial judge failed to
    explain sufficiently why she rejected his denial of kissing S.B, while finding
    that his explanation about the whipped cream incident raised a reasonable
    doubt. He submits the trial judge offered no reasons for her abrupt finding
    not to believe the appellants denial of kissing S.B.
[1]

[40]

Those
    circumstances, he argues, resemble the situation in
R. v. Wright
, 2013
    MBCA 109, (2013) 305 C.C.C. (3d) 556 where, at para. 45, the Manitoba Court of
    Appeal stated: Fundamentally, the trial judges reasons are inadequate because
    they do not explain how he could disbelieve the complainant with respect to
    whether the sexual activity was consensual, but believe her with respect to the
    issue of revocation of consent. The appellant submits this court should find
    the trial judge failed to provide sufficient reasons for her credibility
    findings.

[41]

The
    Crown argues the trial judge provided considered reasons for accepting S.B.s
    evidence in its entirety. Doing so provided a reasonable basis for rejecting
    the appellants denial.

Analysis

[42]

An
    appellate court assesses the sufficiency of a trial judges reasons in a
    criminal case by employing the functional approach set out in
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3. In that case, the Supreme Court summarized, at
    paras. 55 and 56, an appellate courts basic task when assessing the
    sufficiency of a trial judges reasons:

The appellate court, proceeding with deference, must ask itself
    whether the reasons, considered with the evidentiary record, the submissions of
    counsel and the live issues at the trial, reveals the basis for the verdict
    reached.  It must look at the reasons in their entire context.  It must
    ask itself whether, viewed thus, the trial judge appears to have seized the
    substance of the critical issues on the trial.  If the evidence is
    contradictory or confusing, the appellate court should ask whether the trial
    judge appears to have recognized and dealt with the contradictions.  If
    there is a difficult or novel question of law, it should ask itself if the
    trial judge has recognized and dealt with that issue.

If the answers to these questions are affirmative, the reasons
    are not deficient, notwithstanding lack of detail and notwithstanding the fact
    that they are less than ideal.

[43]

Applying
    those questions to the review of the trial judges reasons in the present case,
    I conclude the reasons are not deficient, notwithstanding the fact they are
    less than ideal.

[44]

Dealing
    first with their sufficiency. In her reasons, the trial judge acquitted the
    appellant of sexual assault in respect of the whipped cream incident because
    the appellants explanation leaves me with a reasonable doubt as to whether
    the act was intentional and whether it took place in circumstances of a sexual
    nature. She explained that even if the appellant made the licking-off comment,
    this could not constitute as [sic] sexual assault in the absence of a finding
    that the squirting of the whipped cream was intentional and constituted a
    sexual act.

[45]

It
    is apparent from her reasons that the trial judge reached her decision to
    acquit on the sexual assault count without rejecting or disbelieving the
    evidence of the complainant. Indeed, the complainants evidence appeared to
    buttress the reasonable doubt the trial judge had about whether the squirting
    of the whipped cream was an act of a sexual nature. Although S.B. insisted the
    appellant did not miss when he squirted whipped cream at her, the trial judge noted
    that S.B. agreed that everyone laughed and she agreed that it was funny. She
    did not think at that point it was a sexual thing. In those circumstances, the
    trial judge was satisfied the appellants explanation raised a reasonable
    doubt.

[46]

The
    trial judge then turned to consider the sexual interference charge  the alleged
    kiss on the lips prior to the whipped cream incident. She first considered the
    appellants denial, stating simply:

[The appellant] denied kissing [S.B.] on the lips after hugging
    her when they were alone in the kitchen. I do not believe [the appellants]
    evidence and it does not raise a reasonable doubt.

[47]

The
    trial judge then looked at the totality of the evidence presented by the Crown
    with respect to that count. She reasoned:

[S.B.] gave her evidence in a straightforward manner. She did
    not attempt to embellish or exaggerate what happened with respect to the kiss
    and the hug that preceded it. It was done out of the view of others, which I
    find adds to my finding that it was for a sexual purpose. [S.B.] acknowledged
    as did [the appellant] that she never returned to [the appellants] home after
    that day.

[S.B.] gave her evidence in a straightforward manner, not
    embellishing the facts as she went along, nor was her evidence undermined in
    any material way on cross-examination. I found [S.B.] to be a credible and
    believable witness and her evidence compelling. I find that [the appellants]
    denial is not to be believed. I am satisfied beyond a reasonable doubt that
    [the appellant] kissed [S.B.] on her lips with his lips. It was a deliberate
    act and could be for no other than a sexual purpose. A kiss on the forehead or
    the cheek might be able to be construed as not sexual. This was not such a
    kiss. [The appellants] denial did not displace my firm belief that [S.B.] told
    the truth when she was providing her evidence.

[48]

Although
    the trial judges treatment of the appellants evidence was brief,  the
    articulation of her reasoning meets the minimum threshold for avoiding
    appellate interference established in
R.E.M.
where the Supreme Court stated,
    at para. 66:

[
T]he
trial judges failure to explain why he
    rejected the accuseds plausible denial of the charges provides no ground for
    finding the reasons deficient.  The trial judges reasons made it clear
    that in general, where the complainants evidence and the accuseds evidence
    conflicted, he accepted the evidence of the complainant.  This explains
    why he rejected the accuseds denial.  He gave reasons for accepting the
    complainants evidence, finding her generally truthful and a very credible
    witness, and concluding that her testimony on specific events was not
    seriously challenged   It followed of necessity that he rejected the
    accuseds evidence where it conflicted with evidence of the complainant that he
    accepted.  No further explanation for rejecting the accuseds evidence was
    required.  In this context, the convictions themselves raise a reasonable
    inference that the accuseds denial of the charges failed to raise a reasonable
    doubt. [Citation omitted.]

[49]

This
    is not a case where the trial judge accepted the complainants evidence on one
    count, but rejected it on another, such as in
R. v. Wright
, or where
    the trial judge expressed concerns about the complainants evidence on all counts,
    such as in
R. v. Schiefer
, 2015 ONSC 2373. Here, the reasons disclose
    the trial judge accepted the complainants evidence about the kiss and used
    some of the complainants evidence about the whipped cream events to conclude
    the appellants evidence raised a reasonable doubt on the sexual assault count.

[50]

Further,
    when read as a whole the trial judges reasons do explain why the trial judge
    concluded the appellants evidence raised a reasonable doubt on the whipped
    cream count, but not on the kiss. To repeat: the reasons disclose the
    complainants evidence appeared to buttress the reasonable doubt the trial
    judge had about whether the squirting of the whipped cream was an act of a
    sexual nature. The evidence, considered in its totality, did not raise a similar
    reasonable doubt on the sexual interference count.

[51]

Accordingly,
    I would not give effect to this ground of appeal.

[52]

That
    said, although the trial judges reasons met the minimum threshold set down in
R.E.M.
to avoid appellate interference, she could have developed them more fully. One
    could read her reasons as expressing the view that the decisions of the Supreme
    Court of Canada in
R.E.M.
and
R. v. Vuradin
, 2013 SCC 38,
    [2013] 2 S.C.R. 639, stand for the proposition that a trial judge need not
    explain why she rejects an accuseds plausible denial of the charges as long as
    she explains why she accepts the conflicting evidence of the complainant.

[53]

A
    minimum threshold for avoiding appellate interference, such as that set out in
R.E.M.
,
    should not be confused with the higher goal of full reasons trial judges should
    strive to achieve in each case. Binnie J. put the matter succinctly in
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, where he stated, at para.
    21:

The task is not so much to extol
the virtues of giving full
    reasons, which no one doubts
, but to isolate those situations where
    deficiencies in the trial reasons will justify appellate intervention and
    either an acquittal or a new trial. [emphasis added]

[54]

Full
    reasons justifying and explaining the result in a criminal trial remains the quality
    standard trial judges should strive to achieve in every case. I do not read
    either
R.E.M.
or
Vuradin
as diminishing the virtues of
    giving full reasons.

VIII.   DISPOSITION

[55]

For
    the reasons set out above, I would dismiss the appeal.

Released: DW Dec 8 2017

David Brown J.A.
I agree. David Watt J.A.
I agree. Gloria Epstein J.A.

[1]
The reasons given on August 22, 2013 resulted in a conviction on the count of
    sexual interference (the kiss) and an acquittal on the count of sexual assault
    (the whipped cream). On March 24, 2014, after submissions by both parties, the
    trial judge set aside the finding of guilt on sexual interference and replaced
    it with a finding of guilt on the count of sexual assault.
Notwithstanding
    this substitution, the argument on this ground of appeal proceeded on the basis
    of reasons delivered by the trial judge on August 22, 2013.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hassan, 2017 ONCA 1008

DATE: 20171220

DOCKET: M48530 (C64589)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Mustafa Hassan

Appellant (Applicant)

Colin Wood, for the applicant

Jeanette Gevikoglu, for the respondent

Heard: December 11, 2017

ENDORSEMENT

[1]

On February 21, 2014, the applicant was arrested on suspicion of
    trafficking cocaine and marijuana. A search of the applicant incident to his
    arrest yielded, among other things, 88 grams of cocaine. The applicant was
    subsequently convicted of possession of cocaine for the purpose of trafficking
    and sentenced to two years in custody, less five months pre-sentence credit.

[2]

The applicant has appealed his sentence. On this application, he seeks
    bail pending his sentence appeal pursuant to s. 679(4) of the
Criminal Code
.

[3]

The Crown opposes bail. In its view, the applicant has not demonstrated
    that his appeal has sufficient merit such that his detention would cause
    unnecessary hardship.

[4]

For the reasons that follow, the application is dismissed.

THE APPLICANTS BACKGROUND

[5]

The applicant is a permanent resident of Canada. He was born in Iraq in
    1991 and immigrated to Canada with his family in 2005. In the words of the
    sentencing judge, after arriving in Canada as a teenager, the applicant
    experienced difficulties as he faced integration into a free society with a
    new language, radically different cultural norms and educational challenges.
    In 2009, the applicant was convicted, as a youth, of breaking and entering,
    theft (x2) and failure to comply with a recognizance (x3). He was sentenced to
    time served of 4 days and 15 months probation. The applicants adult record
    consists of convictions for assault in 2010 (for which he received a suspended
    sentence and 12 months probation) and failure to comply with a recognizance in
    2011 (for which he was sentenced to one day in custody, along with credit for
    one day of pre-sentence custody).

[6]

In spite of these difficulties, the applicant has much going for him. He
    has the support of his father, an engineer employed in the aviation industry,
    and of his mother, a professor at the University of Waterloo. The applicant has
    a long-term romantic relationship with a woman he hopes to marry. He is
    self-employed as a personal trainer and runs his own business.

REASONS FOR SENTENCE

[7]

In comprehensive and thoughtful reasons, the sentencing judge reviewed
    the background of the applicant and his family and noted the importance of
    considering the applicant in [the] context of achievement, hard work and
    commitment by his immediate family members not only to themselves but to this
    country.

[8]

The sentencing judge also noted the numerous letters of support filed on
    behalf of the applicant in which he was generally described as a kind, caring
    and supportive person. The sentencing judge accepted this description of the
    applicant, but, in the light of the applicants having been caught with a
    considerable amount of cocaine in his possession, found him also to be a
    sophisticated and knowledgeable young man prepared to accept the risks of
    participating in serious criminality.

[9]

After noting the devastating effects of drugs such as cocaine on
    individuals and communities, the sentencing judge turned to the submissions of
    counsel. The Crown took the position that the appropriate range of sentence was
    12 months to 4 years. The defence submitted that the appropriate range was 9 to
    12 months, but sought a reduced sentence between 2 months to 6 months less a
    day, on three grounds:

(1)

credit for the applicants
    restrictive pre-sentence bail conditions for a bail that extended over 28.5
    months;

(2)

sentence reduction for a proven
    breach of the applicants
Charter
rights (the installation of cameras
    in the common areas of the applicants apartment building without permission);
    and

(3)

consideration of collateral
    immigration consequences stemming from the applicants conviction.

[10]

In
    support of argument (3), the defence filed an immigration opinion letter to the
    effect that the applicant would be at risk of being deported to Iraq without a
    right of appeal if he received a custodial sentence of six months or greater.
    The author of the letter observed that due to the applicants conviction, an
    officer at the Canada Border Services Agency (CBSA) would have discretion to
    commence inadmissibility proceedings against him by referring his matter to a
    ministers delegate. The delegate, in turn, could refer the matter to an
    inadmissibility hearing at the Immigration Division of the Immigration and
    Refugee Board, where a removal order would be issued. The author noted that a
    sentence of less than six months will allow [the applicant] to appeal his
    removal order. However, if a sentence of six months or greater were imposed,
    the applicant would lose his right of appeal.

[11]

The
    sentencing judge imposed a sentence of 24 months, less 5 months credit for the
    applicants restrictive bail terms, to be followed by two years probation. The
    sentencing judge credited the applicant for one months custody on account of a
    curfew imposed as part of his bail conditions, and four months custody on
    account of the applicants extended period of house arrest. The sentencing
    judge did not reduce the applicants sentence on the basis of the
Charter
breach, given her finding that the breach did not seriously undermine the
    applicants
Charter
-protected interests.

[12]

The
    sentencing judge carefully considered the applicants submissions regarding
    immigration consequences. She noted that she had discretion to take collateral
    immigration consequences into account when determining an appropriate sentence,
    provided that the sentence ultimately imposed remained proportionate to the
    gravity of the offence and the degree of responsibility of the offender. The
    first step in this inquiry, in the sentencing judges view, was to determine
    whether the sentence that avoids the collateral consequences is even a
    possibility. The sentencing judge ultimately determined that a sentence
    between two months and six months less a day was not a possibility for the
    applicant. While she agreed with the defence that the applicant was well on the
    road to rehabilitation, the sentencing judge found that the gravity of the
    applicants offence and the principles of sentencing  particularly general
    deterrence  called for a significantly longer sentence than six months.

[13]

However,
    after the sentencing judge sentenced the applicant, she made the following
    comments about possible immigration consequences flowing from his conviction
    and sentence:

THE COURT: Now, heres what Im also going to order a
    transcript of this part. All right? There is no doubt in my mind that youve
    seen the error of your ways. Theres no doubt in my mind that you have a
    supportive and loving family. Theres no doubt in my mind now, that you have
    ties to his community.
In my view, at this point in time, your departure
    from this country would not serve anybodys interests, back to Iraq. All right?
    Im going to order a transcript of that and just leave it in the file.

Having
    said all of that, you noticed I didnt say, Im not convinced you wont be
    back. I am convinced that you wont be back before this court. I will not go
    that far. There is still need for specific deterrence in this case, in my view,
    given your criminal history. All right? So, specific deterrence still plays a
    factor.
However, for the purpose of any consequences, Ill order a
    transcript to take it with you. I see no benefit to deporting you back to Iraq.
    I think you can and you have the potential to be a very valuable, contributing
    member of Canadian society.
All right? Thank youvery much. [Emphasis
    added.]

ANALYSIS

Leave to Appeal

[14]

Rule
    31 of the
Criminal Appeal Rules
, SI/93-169 directs that, before
    disposing of this bail application, I must first determine whether the
    applicant should be granted leave to appeal his sentence: see also
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
(March 1, 2017).

[15]

In
    my view, the applicant should be granted leave to appeal his sentence. While I
    have significant concerns regarding the merits of the pending appeal  and have
    factored those concerns into my below reasons for denying bail  I am satisfied
    the appeal is not so devoid of merit as to fail the low bar required to obtain
    leave to appeal sentence from this court.

[16]

Having
    been granted leave, the applicant is entitled to have his bail application
    considered on the merits:
Criminal Code
, s. 679(1)(b).

Bail Pending Appeal

[17]

To
    grant the applicant judicial interim release pending his sentence appeal, s.
    679(4) of the
Code
requires me to be satisfied that: (1) the
    applicants appeal has sufficient merit that, in the circumstances, it would
    cause unnecessary hardship if he were detained in custody; (2) he will
    surrender himself into custody in accordance with the terms of the order; and
    (3) his detention is not necessary in the public interest.

[18]

There
    is no real dispute that the second and third elements of s. 679(4) are
    satisfied. The main issue is whether the applicant has satisfied the first
    element, which calls for (1) a threshold inquiry into the merits of his pending
    appeal and (2) an assessment of the hardship the applicant would experience if
    bail were denied. After viewing those factors in conjunction, I have concluded
    this application should be dismissed.

The Merits of the Appeal

[19]

The
    threshold assessment of merit mandated by s. 679(4)(a) has been described by
    some courts as a search for arguable merit:
R. v. Ewanchuk
, 2000 ABCA 303
, 271
    A.R. 118 (Alta. C.A.), at paras. 5-6;
R. v. Figiel
, 2015 ABCA 19, 588
    A.R. 372, at para. 4. However the test is worded, I am of the view that the
    standard established in s. 679(4)(a) is more stringent than the test for leave
    to appeal sentence: The Honourable Justice Gary T. Trotter,
The Law of Bail
    in Canada
, 3rd ed. (Toronto: Carswell, 2010), at 10-38. I am not convinced
    the applicant has met this higher threshold.

[20]

The
    applicants sentence appeal relies on three alleged errors in the decision
    below. First, the applicant submits that the trial judge erred by refusing to
    grant sentence reduction for the s. 8
Charter
infringement in
    accordance with
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206.
    Second, the applicant argues that the trial judge erred in the limited credit
    she gave for the 28.5 months during which he was subject to a curfew while on
    bail. Third, the applicant submits the trial judge erred by failing to properly
    appreciate the collateral immigration consequences of the sentence she imposed.

[21]

The
    applicant argued his first two grounds of appeal in the proceedings below. They
    were expressly considered and rejected by the sentencing judge. The applicant
    has not, in my view, identified any error in principle with the sentencing
    judges analysis on either point and faces an uphill battle to do so on appeal.
    In any event, during oral argument, it became clear that the focus of the
    applicants sentence appeal is on his submission about collateral immigration
    consequences, which he also raised before the sentencing judge.

[22]

On
    that issue, the applicant submits the sentencing judge misunderstood the
    immigration opinion letter filed by the defence, and consequently failed to
    appreciate the actual consequences of her decision to impose a sentence of
    over six months.

[23]

The
    opinion letter set out that the applicants conviction for possession of
    cocaine for the purposes of trafficking would render him inadmissible to Canada
    due to serious criminality under s. 36(1) of
the Immigration and Refugee
    Protection Act,
S.C. 2001
, c. 27.
The following is the relevant
    passage from the letter:

At the admissibility hearing the Ministers delegate will
    likely attempt to advocate that a Removal Order should be issued and the
    Immigration Division would have no other option but to issue a deportation
    order.

The Immigration Division lacks jurisdiction to consider
    humanitarian or compassionate factors or to stay the removal order once it
    determines identity, the fact of the conviction and the fact of the status of
    the person concerned. The procedure at the Immigration Division, insofar as it
    relates to matters of crimes committed in Canada, is mostly pro forma in
    nature. It is important to emphasize that the removal order issued by the
    Immigration Division would be a deportation order. The person concerned would
    not be able to return to Canada at any time in the future until he received
    written permission to do so, which would be near impossible to obtain until he
    was no longer inadmissible.

[24]

The
    letter also explains why a sentence of six months less a day would provide the
    applicant with the opportunity to pursue an appeal to the Immigration Appeal
    Division should he be found inadmissible.

A permanent resident would, assuming he spent less than six (6)
    months in prison rising from a conviction, have recourse to an appeal at the
    Immigration Appeal Division. Permanent residents who have had little contact
    with their country of origin, who have been living in Canada for many years,
    who have strong ties to Canada and who have a possibility of rehabilitation may
    be able to stay their removal on humanitarian and compassionate grounds at the
    Immigration Appeal Division. This is often the only recourse which would allow
    permanent residents who have been inadmissible for serious criminality pursuant
    to section 26(1) of the
IRPA
to remain in Canada.

[25]

The
    applicant argues that the sentencing judge misapprehended the letter. As
    mentioned earlier in these reasons at para. 13, the sentencing judge ordered
    for the applicant a transcript of proceedings that included her comments
    advocating against the applicants deportation. These comments, in the
    applicants view, suggest that the sentencing judge mistakenly believed that the
    issuance of a removal order was a matter of discretion, one in which her
    opinion on the applicants suitability (or lack thereof) for deportation would
    carry some weight.

[26]

I
    see two significant difficulties with this position that, in my view, militate strongly
    against granting bail.

[27]

First,
    I am not convinced the sentencing judge misunderstood the immigration opinion
    letter. While the opinion letter states that
[a]t the admissibility hearing
the Immigration Division would have no other option but to issue a
    deportation order, the author also indicates that at an earlier stage of the
    removal process, a CBSA officer
has discretion
to issue a section 44
    Report and render the person-concerned inadmissible at the admissibility
    hearing (emphasis added in both quotations). The sentencing judge may simply
    have hoped that her comments would be included in the materials reviewed by a
    CBSA officer, who, according to the opinion letter, would have discretion over
    whether to commence inadmissibility proceedings against the applicant.
[1]

[28]

Second,
    even assuming the sentencing judge misapprehended the immigration lawyers
    opinion, the applicant would still need to demonstrate that this error had an
    impact on his sentence:
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at para. 11. I anticipate the applicant will face significant difficulty
    meeting this requirement on his sentence appeal. The sentencing judges
    comments  delivered after she had sentenced the applicant  do not detract
    from her central conclusion that a sentence of six months less a day was not
    appropriate given the gravity of the applicants offence and the need for
    general deterrence. The applicant must ultimately overcome that finding to
    succeed on appeal  unless he does so, this court will not have discretion to
    impose a sentence that preserves his appeal rights under s. 64(1) of the
IRPA
:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14.

[29]

I
    see little merit in the submission that the sentencing judge erred by finding
    that a sentence of six months less a day would have been inappropriate for the
    applicant. The sentencing judges conclusions on this point are owed deference
    and do not, in my view, disclose any error in principle.

[30]

These
    difficulties are compounded by the fact that, according to the immigration
    opinion letter, the length of sentence necessary to trigger the relevant
    provisions of the
IRPA
is measured
prior to any credit given for
    pre-sentence custody
 (emphasis added). This position is borne out by
    decisions of the Federal Court and this court: see
Brown v. Canada
    (Minister of Public Safety & Emergency Preparedness)
, 2009 FC 660, 81
    Imm. L.R. (3d) 90, at paras. 18-23;
Ariri v. Canada (Minister of Public
    Safety & Emergency Preparedness)
, 2009 FC 834, 83 Imm. L.R. (3d) 162,
    at para. 17-19;
R. v. McKenzie
, 2011 ONCA 42, 280 O.A.C. 175, at para.
    14;
R. v. Freckleton
, 2016 ONCA 130, 39 Imm. L.R. (4th) 158, at para.
    6. In other words, to avoid the collateral immigration consequences the
    applicant complains of, this court must vary his sentence to six months less a
    day before accounting for any pre-sentence credit. This outcome would
    contradict the defence position at sentencing that the appropriate range of
    sentence, not including pre-sentence credit, is between 9 and 12 months. It would
    also run counter to the position adopted in the applicants factum for these
    bail proceedings, in which he submits that [a] sentence of 11 to 12 months
    custody would have been fit and within the range of available sentences for
    [this] offence.

[31]

In
    my view, therefore, an assessment of the merits of the appeal weighs against
    granting bail.

Hardship

[32]

I
    am required under section 679(4)(a) to consider not only the merits of the
    applicants sentence appeal, but also whether denying the applicant bail
    pending appeal would cause unnecessary hardship. The two factors are
    inter-related: the weaker the merits of a pending appeal, the harder it will be
    for an applicant to show that hardship caused by continued incarceration is
    unnecessary. My above observations regarding the merits of this particular
    appeal therefore weigh strongly against a finding of unnecessary hardship.
    Even assuming the applicants sentence appeal has greater merit than I have
    recognized, however, I am still of the view that unnecessary hardship has not
    been made out.

[33]

Of
    course, incarceration is by its nature a hardship.
Unnecessary
hardship means something more:
The Law of
    Bail in Canada
, at 10-37-10-39. To show unnecessary hardship, an applicant
    must demonstrate that his appeal is sufficiently meritorious such that, if
    judicial interim release is not granted, he will have spent more time in
    custody than what is subsequently determined to be fit:
The Law of Bail in
    Canada
, at 10-39. Accordingly, I will also consider whether, even if the
    applicant is ultimately successful on appeal, it is likely that he will have
    served more time in custody than he ought to have spent.

[34]

The
    applicant has been in custody since his sentencing on November 16, 2017. He
    seeks to have his sentence varied to six months less a day. Assuming he is
    successful on appeal, he would be eligible for release by mid-March in 2018. I
    am confident the appeal can be disposed of on an expedited basis before then,
    even allowing for some delay for the decision to be reserved, written and
    released. Consequently, I do not think it is likely the applicant will have
    spent more time than necessary in custody even if he succeeds on appeal. In
    these circumstances, I am unable to find that the applicants continued
    detention would cause
unnecessary
hardship.
[2]
His bail application must therefore be denied.

DISPOSITION

[35]

This
    has not been an easy case for the determination of bail. As I have attempted to
    stress in these reasons, the applicants personal circumstances, including his
    immigration issues, are compelling. I share the sentencing judges view that
    the applicants deportation from Canada would not advance the public interest.
    That said, I am not satisfied that the applicant has met his onus under s.
    679(4) to obtain judicial interim release. The application is therefore
    dismissed.

[36]

I direct that the applicants sentence appeal be expedited to the
    first date available from the Registrar of this court. Counsel should contact
    the Registrar for this purpose on their receipt of these reasons.

Gloria Epstein J.A.

[1]
The opinion letter is silent on whether the materials reviewed by a CBSA
    officer would include the transcript of the decision below.

[2]
This analysis assumes the applicant is seeking an
effective
sentence of
    six months less a day. As mentioned above, in his factum, the applicant states
    the appropriate range of sentence is between 11-12 months, and only arrives at
    a six month sentence following deductions for pre-sentence credit (5 months)
    and the
Charter
breach (1 month). Had the applicant argued for a
formal
sentence of six months less a day (i.e. an effective sentence of one
    month), I would still have dismissed this bail application, on the grounds that
    the appeal does not have sufficient merit such that the risk of the applicant
    spending unnecessary time in custody amounts to unnecessary hardship.


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. L.C., 2017 ONCA 934

DATE: 20171201

DOCKET: C61728

Epstein, Paciocco, and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.C.

Appellant

Frank Miller, for the appellant

Andrew Cappell, for the respondent

Heard and released orally:  November 28, 2017

On appeal from the conviction entered on August 7, 2015
    by Justice George W. King of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

L.C. appeals from his convictions on sexual assault and sexual touching
    charges.  The convictions arise out of alleged improper contact between the
    appellant and a thirteen year old girl who was a cousin.

[2]

The main argument on the appeal is that the appellant received
    ineffective assistance from trial counsel.

[3]

What is important for our purposes is whether the alleged failings of
    trial counsel amount to incompetence that led to a miscarriage of justice.  The
    approach to this issue is set out in
R. v. G.D.B
., [2000] 1 SCR 520, 2000 SCC 22
,
where
    Major J. said, at para. 27:

The analysis proceeds upon a strong presumption that counsels
    conduct fell within the wide range of reasonable professional assistance. The
    onus is on the appellant to establish the acts or omissions of counsel that are
    alleged not to have been the result of reasonable professional judgment. The
    wisdom of hindsight has no place in this assessment.

[4]

In support of his ineffective assistance of counsel argument, the
    appellant relies primarily on trial counsels cross-examination of the
    complainant  a cross-examination that he says was either non-existent in many
    respects or ineffective in others.  We reject this submission.

[5]

We note that the trial judge observed that the complainant had been
    cross-examined extensively and that the cross-examination was rigorous.

[6]

Further, the trial judge gave detailed reasons for disbelieving the
    appellant and finding that his evidence did not give rise to a reasonable doubt
    and gave equally detailed reasons for accepting the evidence of the complainant
    including her consistency on core issues and the fair way she gave her
    evidence.  Counsel fairly acknowledged that there were no home runs in the
    material available to trial counsel.  He relies on the cumulative effect of
    potential areas of inconsistency relating to the narrative, but not to the core
    allegations, particularly given the complainants evidence that she had a vivid
    recollection of the events.

[7]

Notwithstanding counsels submissions, there is simply nothing in the
    record before us that would suggest that any different approach by trial
    counsel would have led to a different result.

[8]

While we would admit the fresh evidence, we would dismiss the appeal.

Gloria Epstein
    J.A.

David M.
    Paciocco J.A.

I.V.B.
    Nordheimer J.A.