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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Brar, 2016 ONCA 724

DATE: 20161005

DOCKET: C61285

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Majinder Singh Brar

Applicant/Appellant

Anna Cooper and Erin Dann, for the appellant

Lisa Henderson, for the respondent

Heard: July 8, 2016

On appeal from the sentence imposed on June 26, 2015 by
    Justice Jane A. Milanetti of the Superior Court of Justice, sitting without a
    jury.

Rouleau J.A.:

[1]

On May 20, 2015, Mr. Brar was convicted of sexual assault,
    prostitution of a person less than 18 years of age, two counts of failure to
    comply with a recognizance and three counts of child luring. Mr. Brar was
    sentenced to six years aggregate less 39 months of pre-trial custody. In
    addition to other corollary orders, prohibition orders were imposed under ss.
    161(1)(b), (c) and (d) of the
Criminal Code
.

[2]

Mr. Brar is 35 years old, married and has no children. He pleaded
    guilty, expressed remorse and took full responsibility for the offences. He had
    no prior criminal record.

[3]

On his sentence appeal, Mr. Brar argued that the sentencing judge
    erred in failing to grant enhanced credit for pre-sentence custody. He also challenged
    both the fitness of the ss. 161(1)(c) and (d) orders and the constitutionality
    of the retrospective operation of those subsections as they came into force
    after the offences were committed but before the sentence was imposed
.

[4]

At the time of oral argument in this appeal, the issue of the
    retrospective operation of ss. 161(1)(c) and (d) was under reserve before the
    Supreme Court of Canada. Submissions were made on the fitness of the s. 161
    orders and the panel agreed to reserve judgment on this ground of appeal
pending release of the Supreme Courts decision.
The remainder of the sentence appeal was dismissed.

[5]

The Supreme Court released its
    decision on July 21, 2016:
R. v. K.R.J.
, 2016 SCC 31, [2016] S.C.J. No. 31. The parties have provided the court
    with written submissions as to the impact
K.R.J.
has on the sentence and the panel is now prepared to
    issue judgment on the s. 161 issue.

A.

Position of the Parties Following the
R.
v
. K.R.J.
Decision

[6]

In
K.R.J.
, the majority of the Supreme Court, per Karakatsanis
    J., held that the retrospective operation of ss. 161(1)(c) and (d) constitutes
    a violation of an offenders right to the benefit of the lesser punishment
    under s. 11(
i
) of the
Canadian
    Charter of Rights and Freedoms
. It further
    held that while the retrospective operation of the no contact prohibition in s.
    161(1)(c) is
not
a reasonable limit under s. 1 of the
Charter
, the retrospective operation of the Internet
    prohibition in s. 161(1)(d)
does
constitute a reasonable limit and is saved by s. 1.

[7]

In their submissions made subsequent to the Supreme Courts ruling in
K.R.J.
,
    the parties jointly submitted that the condition in the order imposed under the
    current version of s. 161(1)(c) should be struck and an order under the former version
    of that subsection be made in its place.

[8]

When the appellant committed the offences, s. 161(1)(c) of the
Criminal
    Code
read as follows:

161. (1) When an offender is convicted, or is discharged on the
    conditions prescribed in a probation order under section 730, of an offence
    referred to in subsection (1.1) in respect of a person who is under the age of
    16 years, the court that sentences the offender or directs that the accused be
    discharged, as the case may be, in addition to any other punishment that may be
    imposed for that offence or any other condition prescribed in the order of
    discharge, shall consider making and may make, subject to the conditions or
    exemptions that the court directs, an order prohibiting the offender from: []

(c) using a computer system within the meaning of subsection
    342.1(2) for the purpose of communicating with a person under the age of 16
    years.

[9]

The parties relied on their earlier oral and written submissions as well
    as the
K.R.J.
decision with respect to the appropriateness of the s.
    161(1)(d) order. That issue, therefore, remains in dispute. Section 161(1)(d)
    provides that a sentencing judge can prohibit an offender from:

(d) using the Internet or other digital network, unless the
    offender does so in accordance with conditions set by the court.

B.

Fitness of the Internet Prohibition Order

[10]

The
    sentencing judges order under s. 161(1)(d) consisted of a 20-year prohibition
    on Internet use except when the appellant is at employment and prohibited the
    appellant from owning and/or using any mobile device with Internet
    capabilities.

(1)

Position of the parties

[11]

The
    appellant argues that the s. 161(1)(d) order was demonstrably unfit and
    therefore justifies this courts intervention pursuant to s. 687 of the
Criminal
    Code
:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at p. 565. First,
    he submits that s. 161(1)(d) does not permit a court to impose a
    prohibition on
owning
a mobile device with Internet
    capabilities. Further, he maintains that the prohibition on Internet use is
    overbroad and not adequately tailored to his circumstances.

[12]

According
    to the appellant, banning a young adult from using the Internet and from owning
    Internet capable devices for 20 years is tantamount to banning an individual
    from meaningful participation in modern life. The Internet is the dominant
    medium through which events are planned, services are accessed and directions
    are found. The appellant argues that such a blanket prohibition will rarely be
    warranted and that orders pursuant to this provision must be carefully tailored
    to the individuals particular circumstances and to the nature of the impugned
    conduct.

[13]

In
    response, the Crown maintains that the prohibition is appropriate in the
    circumstances and consistent with the public protection purpose of s. 161 as
    expressed in
R. v. DAngelo
, [2002] O.J. No. 4312 (C.A.), at paras.
    19-20. Should the conditions imposed later prove to be unnecessary or
    inappropriate due to a change in circumstances, the court, on application by
    the offender or the prosecutor, has the authority under s. 161(3) to vary the
    conditions prescribed in the order.

[14]

In
    the Crowns submission, the restrictions are appropriate at the present time
    and are required given the severity of the offences for which the appellant was
    convicted. Should the appellants circumstances change, he is at liberty to
    seek to vary the order.

[15]

The
    Crown further submits that the sentencing judges decision is entitled to
    deference. The sentencing judge noted the concern that the order should not be
    unduly limiting [to] ones employment opportunities and recognized that the
    sentence imposed would present a significant lifestyle limitation, particularly
    to a young person. Taking all of the factors into account, she nonetheless
    concluded that the limitation was warranted given the nature of the offences.

(2)

Discussion

(a)

Sentencing principles

[16]

It
    is well established that, in cases of sexual crimes involving children, the principles
    of denunciation, deterrence and public safety must take precedence over other
    recognized objectives of sentencing, including rehabilitation:
R. v.
    Woodward
, 2011 ONCA 610, [2011] 107 O.R. (3d) 81, at para. 39; also see
Criminal Code
, s. 718.01. The necessary primary focus on denunciation,
    deterrence and public safety in such cases does not, however, mean that those
    objectives trump all other sentencing concerns: see
R. v. Branton
,
    2013 NLCA 61,341 Nfld. & P.E.I.R. 329, at paras. 24-25. The court must,
    nevertheless, remain cognizant of the need to avoid an order under s. 161(1)(d)
    that might unduly prevent a first time offender from making serious
    rehabilitative efforts in light of his particular circumstances: see
R. c. Perron
,
    2015 QCCA 601, 122 W.C.B. (2d) 421, at para. 36.

(b)

The Supreme Courts analysis in
R. v. K.R.J.

[17]

In
K.R.J.,
the majority of the Supreme Court confirmed that orders made
    under s. 161 have a predominantly protective purpose, that is, to shield
    children from sexual violence (at para. 44). In its analysis of s. 161(1)(d),
    the court addressed the need for such a provision. Section 161(1)(d) was
    enacted in 2012 to close a legislative gap created by rapid social and
    technological changes. Those changes have created a space for harmful behaviour
    not captured by the former iteration of s. 161, which allowed sentencing judges
    to prohibit offenders only from using computer systems to contact children
    directly. The new harmful behaviours now captured by s. 161(1)(d) include
    accessing and distributing child pornography and contacting other adults for
    the purposes of planning and facilitating criminal behaviour (
K.R.J.
,
    at para. 107). With the broadened powers under s. 161(1)(d), the court is better
    able to monitor offenders use of the Internet thereby limiting their
    opportunities to offend and preventing such behaviour (
K.R.J.
, at
    para. 108).

[18]

The
    Supreme Court emphasized that these orders are discretionary and flexible, as
    s. 161 was designed to empower courts to craft tailored orders to address the
    nature and degree of risk that a sexual offender poses to children once
    released into the community (at para. 47). Because these orders can have a
    significant impact on the liberty and security of offenders and can attract a
    considerable degree of stigma, they will be justified where the court is
    satisfied that the specific terms of the order are a reasonable attempt to
    minimize the risk the offender poses to children (
K.R.J.
, at paras. 48,
    54). The terms of such orders must, therefore, carefully respond to an
    offenders specific circumstances (at para. 48).

(c)

Application to this appeal

[19]

In
    the present case, it is apparent that some form of s. 161(1)(d) order was
    appropriate. Mr. Brars conduct was predatory and egregious, particularly when
    viewed in combination with his breach of recognizance conditions. It warrants both
    a significant term of imprisonment for the purposes of denunciation and
    deterrence, as well as strict community supervision measures upon his release for
    the purpose of protecting the public. Still, this court must consider whether
    the prohibition imposed by the sentencing judge under s. 161(1)(d) is reasonably
    tailored to Mr. Brars specific circumstances.

[20]

In
    her reasons for imposing such a broad s. 161(1)(d) order, the sentencing judge
    acknowledged the hardship the order would cause to the appellant and also noted
    that it would impose a limit on his employment opportunities. She did not,
    however, seek to tailor the order to carefully respond to Mr. Brars specific
    circumstances, nor to relate the terms of the order to the type of risk Mr.
    Brar poses. In fairness to the sentencing judge, she did not have the benefit
    of the Supreme Courts decision in
K.R.J.

[21]

Mr.
    Brars offending conduct consisted of contacting teenaged children via social
    networks on the Internet for the purpose of luring them into having sexual relations
    with him in purported exchange for payment. A prohibition on any further
    contact with youth via the Internet, for any purpose, is captured by the
    prohibition order imposed under the former version of s. 161(1)(c). The parties
    agree that such an order should be put in place in substitution for the s.
    161(1)(c) order imposed by the sentencing judge that has been found to be
    unconstitutional in
K.R.J.

[22]

The
    record, however, does not indicate that Mr. Brar posed many of the risks that
    s. 161(1)(d) was enacted to prevent. There is no allegation that he possessed
    or distributed child pornography, nor that he communicated or collaborated with
    other adults online to facilitate or plan his offences.

[23]

The
    sentencing judges prohibition on Internet use except when at employment
    assumes that he can seek and obtain employment upon release without the need to
    access the Internet. Although the sentencing judge noted that the appellant has
    employment to which he can return, this position may not be available upon
    release and, in any event, he may also wish to advance his career and seek
    alternative employment. Increasingly, applying for employment requires access
    and use of the Internet and many positions require use and access of the
    Internet even when not at the employers premises. Moreover, given the
    appellants age, education and occupational history as a computer science
    specialist and IT technician, the dangers of inhibiting his search for
    employment and rehabilitation by way of such a broad Internet prohibition
    appear particularly acute.

[24]

In
    modern life, at least some form of access to the Internet is simply unavoidable
    for innocent purposes such as accessing services and finding directions. In many
    homes the telephone operates using the Internet, rather than traditional
    telephone wires. Simply placing a phone call from one such residence would put
    the appellant in breach of the s. 161(1)(d) order. Further, as Karakatsanis J.
    stated in
K.R.J.
, at para. 54, depriving an offender under s. 161(1)(d)
    of access to the Internet is tantamount to severing that person from an
    increasingly indispensable component of everyday life. Internet is used for
    such commonplace activities as shopping, corresponding with friends and family,
    transacting business, finding employment, banking, reading the news, watching
    movies, attending classes and so on.

[25]

While
    I acknowledge, as noted by the Crown, that the court has the power to vary a s.
    161 order on application of the offender or prosecutor, such a variation
    requires a change of circumstance and imposes a significant burden on the
    offender. Variation of prohibition orders under s. 161(3) is not a matter of
    course but requires a full hearing. The fact that s. 161 orders may later be
    varied does not justify imposing orders that create overbroad or unreasonable
    restrictions on an individuals liberty.

[26]

In
    the present case, I agree that because of the nature of the offences and Mr.
    Brars conduct, the imposition of a s. 161(1)(d) order is warranted to minimize
    the risk Mr. Brar poses to children. Imposing strict limits on Mr. Brars
    Internet use will reduce the likelihood of his offensive conduct occurring again
    in the future. However, given the myriad of innocent and perhaps unavoidable
    activities for which some Internet use may be required, the virtually
    unconditional prohibition on any Internet use imposed by the sentencing judge
    for a period of 20 years is, in my view, demonstrably unfit and unreasonable in
    the circumstances. I do not view a total prohibition on all Internet use other
    than at employment as being necessary to advance the objective of protecting
    children, nor will it meaningfully assist in preventing the conduct already
    captured by the order imposed under the former s. 161(1)(c). This court is
    reluctant to impose a prohibition so harsh as to unreasonably hinder Mr. Brars
    rehabilitation efforts and so broad as to make a breach almost inevitable with
    the attendant criminal consequences under s. 161(4).

[27]

Further,
    I agree with the appellants submissions that the sentencing judge erred in
    imposing a prohibition on owning or using a smart phone, tablet or any mobile
    device with Internet capabilities. Section 161(1)(d) permits the courts to
    prohibit Internet
use
but does not provide the
    court with the power to restrict ownership of such Internet capable devices.
    Nor should such a power be inferred.

[28]

As
    a result, I would substitute the sentencing judges s. 161(1)(d) order with an
    order which imposes restrictions on Mr. Brars use of the Internet tailored
    along the lines of the order imposed in
R. c. Perron.
Specifically,
    Mr. Brar will be prohibited from accessing any illegal content and from participating
    in any manner in any social network, online forums or chat rooms.

C.

Disposition

[29]

For
    these reasons, I would allow the sentence appeal in part and strike the
    prohibition order made by the sentencing judge under ss. 161(1)(c) and (d) and
    substitute the following:

1)

Pursuant to s. 161(1)(c) of the
Criminal Code
, for a period of
    20 years following his release from custody Mr. Brar will not use a computer
    system within the meaning of s. 342.1(2) for the purpose of communicating with
    a person under the age of 16 years, except for immediate family members.

2)

Pursuant to s. 161(1)(d) of the
Criminal Code
, for a period of
    20 years following his release from custody Mr. Brar will not use the Internet
    or any similar communication service to:

a)

access any content that violates the law;

b)

directly or indirectly access any social media sites, social network,
    Internet discussion forum or chat room, or maintain a personal profile on any
    such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or
    similar service).

Released: (GP) October 5, 2016

Paul Rouleau J.A.

I agree C.W.
    Hourigan J.A.

I agree G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Conteh, 2016 ONCA 808

DATE: 20161031

DOCKET: C55348

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ishmail Conteh

Appellant

Mark Halfyard and Breanna Vandebeek, for the appellant

Gillian Roberts, for the respondent

Heard and released orally: October 27, 2016

On appeal from the finding of guilt entered on December 3, 2009 and the disposition imposed on June 16, 2010 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals both his conviction and his sentence. On his
    conviction appeal the appellant submits that the trial judge erred in his
    charge in two respects:

(1)

He made comments that unfairly denigrated the defence; and

(2)

He did not properly caution the jury on inferences they could draw about
    the appellants age and, in addition, he did not expressly refer to the
    probation officers evidence.

[2]

We did not call on the Crown on these two submissions. Read as a whole,
    we are satisfied the trial judges charge was fair. He did point out matters
    the jury could consider in assessing the evidence of the ten year old girl who
    was the defences main witness, but he did not inappropriately express his
    opinion on her evidence. In his charge on age we are satisfied the trial judge
    adequately equipped the jury to consider whether the appellants age had any
    bearing on his likelihood of having participated in the murder of the victim.

[3]

We therefore dismiss the conviction appeal.

[4]

On the sentence appeal the appellant submits that the trial judges
    ruling on age was unreasonable. We do not agree with this submission. The trial
    judge gave thorough reasons for finding that the appellant was at least 16 and
    a half years old. We agree with the Crown that the trial judge correctly
    approached the issue of assessing the appellants evidence. He did not examine
    that evidence piece meal but looked at it cumulatively or holistically over a
    period of time. The evidence he had to consider was in part documentary, in
    part direct, and in part circumstantial. All the considerations the trial judge
    discussed were relevant.

[5]

In particular the trial judge was statutorily entitled to consider the
    appellants appearance. As this was not an identification case, no concerns
    arose about any cross-racial identification. Moreover, contrary to the
    appellants contention, we do not think that the trial judge gave his
    assessment of the appellants appearance too much weight. The appellants
    appearance was one of the list of considerations that bore on the appellants
    age.

[6]

Also the case law shows that a young persons criminal record and the
    young persons peer group are relevant considerations. Indeed the trial judge
    could have buttressed his reliance on the appellants criminal record by
    pointing out that in his numerous court appearances the appellant confirmed his
    birthdate as either August 28, 1989 or 1990.

[7]

Taken as a whole, in our opinion the evidence from when the appellant
    came to Canada overwhelmingly shows that he was over 16. The trial judges
    ruling was not unreasonable.

[8]

Accordingly, the sentence appeal is dismissed.

John
    Laskin J.A.

Robert J.
    Sharpe J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2016 ONCA 794

DATE: 20161026

DOCKET: C58355

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Cook

Appellant

Boris Bytensky, for the appellant

Craig Harper, for the respondent

Heard and released orally: October 21, 2016

On appeal from the conviction entered on February 9, 2011
    by Justice J.S. ONeill of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

After a 45 day trial before a judge sitting without a jury, the
    appellant was found guilty of three offences. The trial judge entered
    convictions on counts of impaired operation of a motor vehicle causing death
    and driving while disqualified and a stay on the count of causing death by operating
    a motor vehicle when his blood alcohol concentration exceeded the prohibited
    limit.

[2]

The single issue litigated at trial was the identity of the driver of
    the snowmobile involved in the accident that killed the deceased, a fifteen
    year old boy. The Crown alleged that the appellant, who was 27 years old at the
    time of the incident, and had only purchased the snowmobile days earlier, was
    the driver. The defence position, unsupported by the testimony of the
    appellant, was that the 15 year old deceased was the driver.

[3]

The appellant advances four grounds of appeal against conviction. He
    submits that the trial judge erred in law:

i.

in
    failing to consider the exculpatory portions of statements made by the appellant;

ii.

in
    misapplying the burden of proof, in particular, the principles enunciated in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742;

iii.

in permitting the
    Crown to split its case by calling a witness in reply; and

iv.

by reaching an unreasonable
    conclusion of guilt on the count of driving while disqualified.

[4]

We would not give effect to any of these grounds.

[5]

To take first the ground of appeal relating to the failure to consider
    the exculpatory parts of the appellants 911 call and his statement to Sergeant
    Alexander at the hospital. As I have said, the single issue before the trial
    judge was the identity of the driver. These utterances were relevant evidence
    on that issue. Like any item of evidence in a criminal trial, the trial judge
    was entitled to accept or reject this evidence in whole or in part. He did so.
    We are not persuaded that in accepting an inculpatory portion of the 911 call,
    it can reasonably be said that he ignored or failed to consider exculpatory
    aspects of that call or those in the statement made to Sgt. Alexander at the
    hospital. Indeed, he recited these exculpatory parts in paragraphs 9; 17; 44;
    53 and 379-382 of his reasons.

[6]

Second, in reading the reasons as a whole, we are not persuaded that the
    trial judge founded his conviction on some lesser standard than proof beyond a
    reasonable doubt. That burden applies to the evidence as a whole, which is
    often greater than the sum of its individual parts. The trial judge proceeded
    to consider the many strands of circumstantial evidence and then assessed their
    cumulative effect. These individual strands are not subject to the criminal
    standard of proof, and the piecemeal analysis invited by the appellant is
    inconsistent with the approach to circumstantial evidence required by the
    authorities.

[7]

Third, the complaint about reply evidence is equally unavailing. The
    evidence did not exceed what the law permits. It is also significant that this
    was a judge alone trial, not a jury trial where reply evidence, as the last
    evidence heard by the trier of fact, is thought to have a greater impact on the
    ultimate verdict. Further, it was open to the appellant to seek to call surrebuttal
    evidence, but no such application was advanced.

[8]

The appellant concedes that if the convictions on impaired operation are
    sustained, the conviction of driving while disqualified cannot be impeached as
    unreasonable. We agree.

[9]

The appeal from conviction is dismissed. The appeal from sentence is
    dismissed as an abandoned appeal.

David Watt J.A.

P. Lauwers J.A.

M.L. Benotto 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. Djuraev, 2016 ONCA 765

DATE: 20161019

DOCKET: C57168

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ravshan Djuraev

Appellant

Najma Jamaldin, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: October 5, 2016

On appeal from the conviction entered on December 18,
    2012 and the sentence imposed on May 13, 2013 by Justice Petra E. Newton of the
    Ontario Court of Justice.

ENDORSEMENT

The Conviction Appeal

[1]

There are several grounds of appeal arising from the trial record.
    Counsel also brings a fresh evidence application alleging that trial counsel
    provided ineffective assistance. We will deal first with the grounds of appeal
    arising from the trial record.

[2]

There was ample evidence upon which the trial judge could find that the
    injuries inflicted on the victim by appellant amounted to bodily harm as
    defined in the
Criminal Code
. The pictures speak for themselves. The
    point was conceded, in our view properly, at trial.

[3]

The trial judge considered the defence claim that the appellant had an
    honest belief that the victim was consenting to the sexual activity. While
    there was perhaps some basis in the evidence for that position, the trial judge
    rejected the claim in light of the findings of fact she made. Those findings
    included the following:

·

The victim repeatedly said no to the appellant during the
    sexual activity;

·

The victim physically resisted the activity;

·

The appellant used force to both restrain and demobilize the
    victim during the activity;

·

The appellant inflicted significant injuries on the victim during
    the activity.

[4]

There was no misapprehension of the evidence by the trial judge. On the
    view of the evidence she took, those findings of fact were open to her. Based
    on those findings of fact, there was indeed no air of reality to the defence
    of honest belief and consent. The trial judges use of the phrase no air of
    reality, a term more commonly used in a jury trial context, was simply an
    indication by the trial judge that based on her factual findings, there was no merit
    to the claim of an honest belief and consent.

[5]

The trial judge also made a finding that the victim did not consent to
    the sexual activity. Once again she outlined the findings of fact on which she
    based that conclusion. Those findings reveal no misapprehension of the evidence
    and were open to her.

[6]

Having found that the victim did not consent to the application of force
    and that the appellant did not have an honest belief in consent, it was not
    relevant whether the appellant intended to cause bodily harm. An intention to
    cause bodily harm is not an element of the offence of sexual assault causing
    bodily harm. The intention to cause bodily harm coupled with the actual causing
    of bodily harm may vitiate or negate a victims consent to the application of force.
    Where, as found in this case, there was no consent to the application of force,
    there was no need to consider whether consent was somehow vitiated: see
R.
    v. Nelson
, 2014 ONCA 853 at para. 25.

[7]

Turning to grounds of appeal based on the allegation that trial counsel
    did not provide effective assistance to the appellant, we have considered the
    appellants affidavit and his cross-examination as well as trial counsels
    affidavit and cross-examination.

[8]

We are not here to grade trial counsels performance. We also do not
    readily accept allegations made by convicted accused that they did not receive
    adequate assistance from their lawyers. Those kinds of allegations are very
    easy to make and because of the nature of the relationship between an accused
    and his trial lawyer, difficult for trial counsel to refute.

[9]

In our view, the appellants affidavit and his cross-examination reveal
    that he is not credible insofar as he purports to describe what went on between
    himself and his trial lawyer.  Many of the appellants answers during this
    cross-examination were confusing and contradictory. We decline to act on his
    version of events.

[10]

Most of the arguments alleging ineffective assistance depend on the
    acceptance of his evidence. Those few that do not, have no merit.

[11]

The appellant has not satisfied us that a miscarriage of justice
    occurred as a result of the ineffective assistance provided by his counsel.

[12]

The conviction appeal is dismissed.

Sentence Appeal

[13]

The trial judges reasons for sentence demonstrate a careful
    consideration of the facts relevant to both the offence and the offender. We
    agree that her determination that the circumstances of the offence, an
    attempted rape, required a significant period of incarceration in a reformatory
    despite the many positive things about the appellant. We defer to her
    determination that 13 months was the appropriate sentence.

[14]

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

Doherty J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.