WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22, 48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.G., 2019 ONCA 926

DATE: 20191126

DOCKET: C65181

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.G.

Appellant

Dano Sahulka, D. Lea Scardicchio and Efstathios
    Balopoulos, for the appellant

Michael Perlin, for the respondent

Heard: November 15, 2019

On appeal from the convictions
    entered by Justice Jon-Jo Douglas of the Ontario Court of Justice on December
    1, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of child pornography
    offences and offences associated with the sexual touching of the victim (his
    daughter) in relation to three series of photographs that were found on the
    Internet depicting his daughter and parts of her body in a manner that amounted
    to child pornography. He was sentenced to four years in custody. He appealed
    his conviction alone.

[2]

We dismissed his appeal from conviction, with
    reasons to follow. These are those reasons.

[3]

Upon searching the pornographic photographs
    found on the Internet for their exchangeable image file format data (EXIFF data),
    police discovered that the photographs were taken at the appellants residence,
    the appellants former partners residence, and two other locations accessible
    to the appellant. The appellant admitted to taking many of the innocent
    photographs of the victim that were found on the Internet, but denied taking
    the more egregious pornographic ones, and denied that he willfully distributed
    any of the photographs. He suggested that the victims mother and new boyfriend
    also had an opportunity to commit the offences.

[4]

The trial judge rejected the appellants
    evidence. He accepted that the appellant did not have an exclusive opportunity
    to take the photographs. However, he reasoned that the appellants contention
    that he had not taken all the photos depended on an improbable series of events
    being true: the innocent photos he admitted having taken having somehow being
    hacked from among the thousands of photos on his system before he deleted them
    becoming intermingled with a series of pornographic images of the same victim,
    taken in the same timeframe, by someone else who had access to the victim, his
    residence, the mothers residence, and the aquatic centre he frequented with
    the victim. Applying
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, he concluded that the circumstances were consistent with the appellant
    having committed the offences, and there [were] no other reasonable,
    alternative inferences that either support the innocence of the [appellant], or
    more importantly, raise a reasonable doubt.

[5]

On appeal, the appellant advanced two arguments.

[6]

First, he argued that the trial judge took
    improper judicial notice of the EXIFF data contained within the photographs to
    conclude that the photographs had not been cropped. He testified that he did not
    crop the photographs. He argues that, if some of the photographs were cropped, it
    suggests that the photos might have been taken by someone else.

[7]

We reject this argument. The trial judge did not
    err in rejecting the appellants trial counsels submission that some of the
    photos were cropped. There was no evidence that the photos had been cropped.
    With respect to the EXIFF data, the trial judge simply noted that it suggests
    support for Police Constable Redgates tentative view that there was no
    cropping of the original iPhone pictures in issue. Moreover, even if the photos
    were cropped, there was no evidence, and it was not argued, that only the
    person who takes a photograph can crop it.

[8]

Second, the appellant submits that the only
    concrete, relevant evidence in this almost exclusively circumstantial case was
    that the left adult-male hand that held the victims underwear aside in order
    to take a picture of the victims vagina that appeared in two of the sexually
    explicit photos had a mole on it, and the appellant did not have a mole on his
    left hand. A reasonable inference was that the adult with a mole on his hand,
    and not the appellant, took all the photos. The appellant submits that the
    trial judge erred by treating the evidence of the mole as neutral, and, in
    the result, erred in his application of
Villaroman
.

[9]

We reject this argument. The evidence on whether
    the appellant had a mole or spot on his hand at the time of the offences was
    equivocal.

[10]

Officer Power testified about the left adult-male
    hand depicted in the two photographs and indicated she saw a dark spot she
    believed to be a mole. She also observed that some photos from the appellants
    Facebook page depicted what she believed to be the appellants hand bearing the
    same mole. However, when she interviewed him, she did not see the dark mark.
    Rather, she observed a white mark on his hand in roughly the same location as
    the mole in the pictures. She explained that in her experience as a victim
    identification officer, marks on hands can change. Dark moles can lose
    pigmentation and become white.

[11]

The appellant accepted in cross-examination that
    one of the photos from his Facebook page depicted his hand and showed a mole on
    his hand. He also testified that the hand depicted in another photo from his
    Facebook account was not his, because mine does not have a mole. However, in
    his police statement, the appellant had admitted that that photo depicted his
    hand.

[12]

The trial judge considered the Facebook
    photographs of the appellants hand and the hand that appeared in the two
    sexually explicit photos. He noted that the appellants answers were quite
    contradictory.  He concluded that, based on the photos, he was not able to
    form any sort of opinion as to similarity. Further, he concluded it would be
    inappropriate to allow in the evidence of the police officer as to finger
    similarity.  Accordingly, he placed no reliance on any similarity that may or
    may not exist either to support a finding that the hand was that of the
    appellant or of someone else.

[13]

The assessment of what the photographs showed
    was a question of fact for the trial judge. It was open to him to find that the
    evidence was not sufficiently cogent to support any conclusion on identity.
    There is no basis to interfere with his conclusion.

[14]

Accordingly, the appeal was dismissed.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chang, 2019 ONCA 924

DATE: 20191125

DOCKET: C65349

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yen (Alec) Chang

Appellant

David Butt and David M. Reeve, for the appellant

Katie Doherty, for the respondent

Heard: November 19, 2019

On appeal from the conviction entered on January 29, 2018,
    and the sentence imposed on May 9, 2018, by Justice John McInnes of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts arising from his attempt to
    purchase sexual services from a young person. The offences came to light
    through Project Raphael, an undercover York Regional police investigation aimed
    at combatting juvenile prostitution by means of a sting operation. He was sentenced
    to eight months in jail, two years of probation, and a series of orders. He
    appeals against conviction and seeks leave to appeal against sentence.

[2]

The court announced at the close of oral argument that the appeal
    against conviction would be dismissed, leave to appeal sentence would be
    granted, the sentence appeal allowed and the sentence reduced to six months
    less one day, with reasons to follow.  These are the reasons.

The Conviction Appeal

[3]

At trial, the appellant argued that the police had breached ss. 8 and 9
    of the
Charter of Rights and Freedoms
by arresting him without grounds
    and conducting a search incident to arrest. He applied to have the evidence
    arising out of the arrest excluded under s. 24(2). The appellant conceded that the
    arresting officers had the necessary subjective belief to arrest him. The issue
    was whether their subjective belief was objectively reasonable. The trial judge
    found that it was.

[4]

On appeal, the appellant submits that, in reaching this determination, the
    trial judge failed to consider exculpatory factors that pointed away from the
    appellant as the person communicating with the undercover agent who was posing
    as the underage girl. He points to two such factors. First, in the
    communications between the undercover agent and the target, the girl told the
    target to attend at a particular McDonalds restaurant. The appellant was told to
    purchase a Happy Meal when he arrived. However, the appellant bought a drink
    when he arrived, not a Happy Meal. Second, the appellant left the McDonalds before
    the girl had arrived.

[5]

We do not accept this submission. The trial judge applied the correct
    legal test and principles and considered the evidence. We see no basis to
    interfere with his conclusion that the arresting officers subjective belief that
    there were grounds to arrest was objectively reasonable.

[6]

While the undercover agent originally told the target to purchase a
    Happy Meal, the target responded that he had purchased a drink, not a Happy
    Meal. The information that was communicated to the arresting officers on the
    scene at the McDonalds was that the target had purchased a drink. The
    appellant in fact had purchased a drink while he was inside the McDonalds.
    Thus, the fact he bought a drink rather than a Happy Meal is not exculpatory
    evidence.

[7]

The fact that the appellant walked out of the McDonalds before the
    girl arrived does not undermine the probative value of the evidence before
    the trial judge. The appellant attended at the McDonalds, as directed by the girl
    he was there to have sex with, either inside the washroom (which the girl
    said she did not want) or in his car; he arrived at the specific McDonalds
    where the meet had been set, at the time the police expected the target to
    arrive; he was driving a car, as anticipated; he was observed on his cellphone
    as he approached the McDonalds (the target had been corresponding through text
    messages with the undercover agent); and he exited the McDonalds after buying
    a drink there, just as the target indicated he had done, by way of a text
    communication to the undercover agent.

[8]

The appellant also submits that he was convicted under an
    unconstitutional presumption of law which relieved the Crown of the burden of
    proving his guilt beyond a reasonable doubt. The presumption provision had been
    struck as unconstitutional before the trial and played no part in the
    proceedings.

[9]

At trial, the appellant conceded his substantive guilt on the charges, if
    the evidence were admitted. This includes his belief that the person he was
    corresponding with was under the age of 16. The text messages made it abundantly
    clear that the person with whom he was communicating was 15 years of age. In
    the face of this clear messaging, he persisted, actively communicating with her
    and arranging to meet up with her for sex.

The Sentence Appeal

[10]

The appellant submits that the sentencing judge erred in principle by
    failing to consider the serious immigration consequences to the appellant of imposing
    a sentence of over six months imprisonment.

[11]

There was a very brief exchange during sentencing submissions which
    touched on the fact that a sentence of over six months imprisonment
might
result in the appellant losing his appeal rights and being deported. However,
    that matter was not pursued. The focus of the submissions on the appellants
    status related to the potential effects on his citizenship.

[12]

When the reasons for sentence were delivered some weeks later, imposing
    an eight month sentence followed by probation, there was no mention of the
    potential immigration consequences to the appellant. We are satisfied that through
    inadvertence, this relevant factor was not considered. In the circumstances,
    appellate intervention is warranted:
R. v. Pham
,
2013 SCC 15,
    [2013] 1 S.C.R. 739,

at para. 24.

[13]

Because the appellant is a permanent resident and a prison sentence of
    longer than six months was imposed, on the fresh evidence, if he is found
    inadmissible to Canada on the grounds of serious criminality, he will have no right
    of appeal to the Immigration Appeal Division (IAD) and, almost certainly, be
    deported:
Immigration and Refugee Protection Act
, S.C. 2001, c. 27,
    ss. 36(1)(a), 64. If deported, the appellant will be returned to Taiwan, where
    he has no connection and has not lived since he was a very young child. He has
    lived in Canada for virtually his whole life. His family, employment and
    support systems are here in Canada.

[14]

Reducing the sentence from eight months to six months less a day will
    preserve the appellants right to appeal to the IAD for consideration of the
    humanitarian and compassionate grounds of his case. It will not render the
    sentence demonstrably unfit, having regard to all the circumstances of the
    offence and this youthful first offender.

Disposition

[15]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted and the sentence appeal is allowed. A prison sentence of six months
    less a day is substituted for the eight-month jail sentence; all other
    conditions and orders in the sentence imposed remain unchanged. The victim fine
    surcharge order is set aside.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2019 ONCA 986

DATE: 20191216

DOCKET: C65015

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Codina

Appellant

Alan D. Gold and Laura J. Metcalfe, for the appellant

Kevin R. Wilson and Vanita Goela, for the respondent

Heard: December 10, 2019

On appeal from the sentence imposed by Justice Anne M.
    Molloy of the Superior Court of Justice, on May 29, 2018, with reasons reported
    at 2018 ONSC 2180.

REASONS FOR DECISION

[1]

Angelina Codina appeals the sentence of seven years (before credit for
    pre-sentence custody) imposed on her by the trial judge. She was convicted by a
    jury on four counts of providing advice to persons on immigration matters
    without being licensed to do so, contrary to s. 91(1) of the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27, (
IRPA
), and one
    count of counselling a person to make a misrepresentation in an immigration
    application, contrary to s. 126 of the
IRPA
.
[1]

[2]

In accordance with the principles laid down in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: [E]xcept where a sentencing
    judge makes an error of law or an error in principle that has an impact on the
    sentence, an appellate court may not vary the sentence unless it is
    demonstrably unfit.

[3]

With respect to that test, the appellant advances five errors that she
    says the trial judge committed in determining the sentence. First, the
    appellant asserts that the trial judge erred in relying on delay in the
    proceedings, arising from various pre-trial steps that the appellant took, to
    deny her enhanced credit for pre-sentence custody. We do not agree. Delay
    caused by an accused person is a proper basis to deny enhanced credit for the
    time spent in pre-sentence custody or on stringent bail terms. It constitutes
    wrongful conduct (para. 48) or bad conduct (para. 71) which was identified,
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, as a basis for
    limiting enhanced credit for pre-sentence custody. The trial judge had
    available to her the many motions that the appellant had brought in advance of
    the trial, the vast majority of which were dismissed as being without merit.
    Further, the question of what credit to allow for pre-sentence custody was a
    matter entirely within the discretion of the trial judge.

[4]

Second, the appellant contends that the trial judge relied on victim
    impact statements to improperly increase the sentence. Again, we do not agree.
    A trial judge is entitled to factor the impact of the offenders conduct on the
    victim into her determination of an appropriate sentence. That is one of the
    purposes behind receiving victim impact statements. It only becomes an error if
    the trial judge relies on a victim impact statement to impose an unfit
    sentence:
R. v. A.G.,
2015 ONCA 159, 124 O.R. (3d) 758, at para. 72.
    That did not happen in this case.

[5]

Third, the appellant says that the trial judge improperly relied on a
    portion of one sentence in the pre-sentence report as an aggravating factor. On
    this point, the trial judge was concerned, on her own, about the potential for
    the appellant to commit future offences and, in doing so, to cause harm to a
    new victim pool. The trial judge noted that the author of the pre-sentence
    report had expressed the same concern. This was an entirely appropriate point
    for the trial judge to make, given the appellants past conduct and expressed
    future plans. It was not driven by the contents of the pre-sentence report and
    there was no improper reliance on this reference from it.

[6]

Fourth, the appellant complains both that the maximum sentence was
    imposed on the four counts of providing advice and that those counts were made
    consecutive as opposed to concurrent to each other. Given the criminal record
    of the appellant, including her convictions in the United States for
    essentially the same type of conduct, and the fact that the maximum sentence
    was only two years, we do not see any error in the trial judge concluding that
    a two-year sentence was appropriate. As the court said in
R. v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at para. 20, [I]f the circumstances warrant
    imposing the maximum sentence, the judge must impose it.

[7]

We also do not agree that the trial judge erred in imposing consecutive
    sentences on the four counts of providing advice. Each of those counts
    represented a separate act involving different individuals at different times
    over a four-year period. It was appropriate to impose consecutive sentences in those
    circumstances, subject to the totality principle, which the trial judge also
    applied. Indeed, a court is directed by the sentencing provisions of the
Criminal
    Code
to consider imposing consecutive sentences when sentencing a person
    for more than one offence that do not arise out of the same event or series of
    events: R.S.C. 1985, c. C-46, s. 718.3(4)(b)(i).

[8]

Fifth, the appellant says that the trial judge erred in failing to avert
    to, and give credit for, the period of time that she spent on bail pending her
    trial, in accordance with the principles set out in
R. v. Downes
(2006),
    79 O.R. (3d) 321 (C.A.). We cannot fault the trial judge for not mentioning
    this issue when trial counsel did not raise it in his sentencing submissions.
    Further, there was no evidence before the trial judge that the bail conditions prejudiced
    or imposed undue hardship on the appellant:
Downes
, at para. 37. Given
    that fact, and the failure of counsel to raise the issue, it cannot be said
    that the trial judge erred in principle in failing to address the terms of the
    appellant's pre-sentence release as a potential mitigating factor:
R. v.
    Pomanti
, 2017 ONCA 48, at para. 34. We would also observe that any credit
    that the trial judge might have given on this basis would have been more than
    compensated for by the sentence reduction that the trial judge granted based on
    the totality principle.

[9]

Lastly, we note that the appellant did not press the ground that the
    trial judge relied on aggravating facts that were not raised by the parties
    during the sentencing hearing. Consequently, we do not need to address that
    issue.

[10]

The trial judge gave detailed and careful reasons for imposing the
    sentences that she did. The appellant has failed to establish any error on the
    part of the trial judge, either in her analysis or in her conclusions. The
    appellant has also failed to establish that the sentences are demonstrably
    unfit.

[11]

While leave to appeal sentence is granted, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.
P. Lauwers J.A.
I.V.B. Nordheimer J.A.

[1]

A separate conviction appeal is outstanding.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coutts, 2019 ONCA 885

DATE: 20191107

DOCKET: C66828

Lauwers, van Rensburg and
    Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Coutts

Appellant

Philip Norton, for the appellant

Luke Schwalm, for the respondent

Heard: November 4, 2019

On appeal
    from the sentence imposed on March 6, 2019 by Justice Andrew J. Goodman of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appeal has been abandoned and is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deeb, 2019 ONCA 875

DATE: 20191107

DOCKET: C58915

Feldman, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bilal Deeb

Appellant

James Lockyer and Jack Gemmell, for the appellant

Robin Flumerfelt, for the respondent

Heard: October 15, 2019

On appeal from the conviction entered by Justice Jane E.
    Kelly of the Superior Court of Justice, sitting without a jury, on July 18,
    2013, and from the sentence imposed on December 20, 2013, with reasons reported
    at 2013 ONSC 4852 and 2013 ONSC 7870.

REASONS FOR DECISION

[1]

Around midday on November 12, 2011, Jesse Kay was shot three times at
    close range. The shooting occurred at a busy intersection in Toronto shortly
    after Mr. Kay got off a TTC bus. One of the bullets entered Mr. Kays spinal
    cord rendering him a quadriplegic, paralyzing him from the neck down and
    confining him to a wheelchair.

[2]

Mr. Kay identified the appellant, whom he had known in high school but
    had not seen for about 5 years, as the person who shot him. He had recognized
    the appellant when the appellant boarded the bus Mr. Kay was on, together with
    another man Mr. Kay did not know. Mr. Kay testified that after he got off the
    bus he heard footsteps behind him. When he turned, he saw the appellant
    pointing a gun at his head just before he was shot.

[3]

The appellant appeals his conviction for attempted murder and the life
    sentence the trial judge imposed.

[4]

On the conviction appeal, the appellant argues that the trial judge
    failed to approach the evidence with the necessary caution given that this was
    an eyewitness identification case. In particular, the appellant argues that: (i)
    the trial judge failed to place appropriate significance on the failure of the
    police to obtain the security camera footage from the TTC bus (the bus video),
    which could have confirmed whether the appellant had boarded the bus as Mr. Kay
    claimed; (ii) the trial judge overemphasized the honesty and confidence of Mr. Kay
    in his identification of the appellant, when that had little relationship to
    the real issue, whether the identification was reliable; (iii) the trial judge
    did not appreciate the significance of the factors that undermined the
    reliability of Mr. Kays identification, such as the five year gap since Mr.
    Kay had last seen the appellant; and (iv) the trial judge overemphasized the
    ability of Mr. Kay to recognize the appellant when he turned to see someone pointing
    a gun at him. Related to the last point, the appellant seeks to introduce as
    fresh evidence certain surveillance videos of the area taken on the date of the
    shooting.

[5]

We reject these arguments.

[6]

With respect to the bus video, this was not a case of the loss or
    destruction of evidence in the possession or control of the police arising from
    unacceptable police negligence, as occurred in
R. v. Bero
(2000), 137
    O.A.C. 335 (C.A.). The appellants argument that the trial judge should have
    instructed herself, as contemplated by
Bero
at p. 350, is therefore off
    point. The police never had possession of the bus video. They made efforts to
    obtain it. Those efforts began almost immediately after the shooting, when the
    police asked the TTC supervisor they had called to the scene to identify and
    preserve the videos from all buses travelling on the route for a period
    surrounding the shooting, and were told this would be done. The efforts continued
    without break, resulting in the police being supplied with some bus videos, but
    not the relevant one, which had been taped over by the TTC. Defence counsel at
    trial conceded that in light of the police efforts to obtain the bus video, no
    lost evidence application had been brought as any such application would not
    have been successful.

[7]

The appellant argued the police could have done more and that evidence
    from the TTC should have been called. There is no basis to suggest that any
    additional efforts by the police would have yielded a different result or that
    evidence of the TTC would have shown that the police efforts fell so below what
    was expected as to amount to unacceptable police negligence. The trial
    judges observation that it was speculative whether the video would have shown
    anything favourable to the appellant was not, in the circumstances, indicative
    of any error on her part. We reject this ground of appeal.

[8]

We also reject the argument that the trial judge put misplaced reliance
    on the honesty and confidence of Mr. Kays identification, rather than its
    reliability. The trial judge was acutely alive to the issue of the reliability
    of the identification, even though this was a recognition case. She
    appropriately considered whether Mr. Kay was credible and sincere in his identification
    of the appellant. During cross-examination, it was suggested to Mr. Kay that he
    had not been able to remember who had shot him when first shown a photo line-up,
    and that it was important to Mr. Kay that his son would be able to put an
    identity, a face, to the person, a name to the person who caused this. The
    trial judge treated this as a suggestion that Mr. Kay was intent on falsely
    identifying [the appellant] as the shooter to give his son knowledge. She
    rejected the suggestion. But after finding Mr. Kay credible and sincere, she
    went on to caution herself that such factors were a poor measure of the
    accuracy of the identification. And she further noted that even though a
    recognition witness may be in a better position than someone identifying a
    stranger, the need for caution still applied.

[9]

A review of the trial judges reasons shows that she found the
    identification reliable based on: Mr. Kays past history with the appellant and
    the opportunity he had to see the appellant on the day of the shooting; the
    evidence of a witness who testified that he saw the shooter, who was wearing a
    hoodie and a blue bandanna, sit beside him on the bus, get off at the same stop
    as Mr. Kay, and point what he believed to be a firearm at a person on the
    street; certain circumstantial evidence that linked the appellant to the area
    of the shooting around the relevant time; and evidence that hoodies and bandannas
    were found in an apartment linked to the appellant when it was searched. The
    trial judge appropriately concluded that: I find that Mr. Kay was not only a
    credible witness but more importantly a reliable one  there is no danger of an
    honest but inaccurate identification of [the appellant] as the shooter.

[10]

In oral argument, the appellant submitted that the trial judge gave
    insufficient attention to the five year gap between Mr. Kay having last seen
    the appellant and the day of the shooting. We disagree.

[11]

The trial judge was alive to and expressly referenced the five year gap.
    But she found that the quality and quantity of Mr. Kays past interactions with
    the appellant rendered his ability to recognize the appellant on the day of the
    shooting, for example, as a passenger on the bus, highly reliable. We add, as
    Crown counsel pointed out, that there was no suggestion of a change in
    appearance sufficient to undermine Mr. Kays ability to identify the appellant.
    Mr. Kay identified the appellants obviously adult photo as that of the shooter
    from a photo line-up shortly after the shooting.

[12]

We also reject the argument that the trial judge overstated Mr. Kays
    opportunity to identify the shooter on the street. The trial judge noted that Mr.
    Kays identification of the appellant as the shooter on the street was made in
    a very short period of time and under extremely stressful circumstances; Mr.
    Kay had just turned around, saw his attacker pointing a gun, raised his hands
    to protect himself, and was shot within seconds. She evaluated this evidence
    together with Mr. Kays excellent opportunity to recognize the appellant on the
    bus, the evidence of the other witnesses, and the circumstantial evidence, to
    find the overall identification reliable.

[13]

The fresh evidence  video clips of the intersection where the shooting
    occurred from surveillance cameras of two nearby businesses  is sought to be tendered
    to show the length of time Mr. Kay would have had to view the shooter on the
    street before being shot. The video was available at trial and defence counsel
    at trial chose not to introduce it. The appellant argues that the due diligence
    requirement for fresh evidence should not be determinative here because in her
    reasons, the trial judge appears to have approached the matter on the basis
    that Mr. Kay had a ten second opportunity to observe the shooter between
    turning around and being shot, something unexpected as the Crown had not
    contended at trial that the time period was that long.

[14]

The trial judge in her reasons referred to the time period between when Mr.
    Kay turned and when he was shot as within seconds. Elsewhere in her reasons
    she finds that Mr. Kay observed the appellant for a number of seconds before
    he was shot and that it was not a fleeting glimpse. She does add that it was
    described by Mr. Kay as lasting about 10 seconds. The Crown does not contend
    that there was admissible evidence on which the trial judge could find that the
    time interval was ten seconds, if that is what the trial judge intended by that
    reference. Accordingly, we do not reject the fresh evidence on the due
    diligence ground.

[15]

However, we dismiss the fresh evidence application on the basis that the
    evidence, which we viewed, could not reasonably be expected to have affected
    the verdict. The trial judges conclusion was not dependent on there having
    been a ten second period; it was dependent on there having been more than a fleeting
    glimpse, a period long enough for Mr. Kay to look at [the shooters] face,
    notice that his eyebrows were furrowed, look at the gun and look back at his
    face before he was shot. The trial judges conclusion that that occurred could
    not be displaced by the videos given what they do and do not show.

[16]

The conviction appeal is dismissed.

[17]

The appellant argues that the sentence imposed by the trial judge was
    demonstrably unfit, given his age at the time of the offence. The trial judge,
    however, expressly noted the appellants youth, as well as his supportive
    family, as mitigating factors. She declined to accede to the Crowns request
    for delayed parole eligibility for ten years. But she properly noted the
    existence of significant aggravating factors, and that the totality of the
    circumstances justified the maximum sentence. There was no error in principle.
    As was the case in
R. v. Brown
, 2009 ONCA 563, 251 O.A.C. 264, at para.
    30, in which a life sentence was imposed, this was an unprovoked attempted
    murder involving the use of a gun in a busy, public place, drastically altering
    Mr. Kays life which the appellant intended to end. As noted in
Brown
,
    the serious concern of growing gun violence in Toronto is a legitimate
    consideration, and one the trial judge properly took into account. Accordingly,
    we grant leave to appeal sentence but dismiss the sentence appeal.

K.
    Feldman J.A.

G.T.
    Trotter J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Domanska, 2019 ONCA 893

DATE: 20191112

DOCKET: C66738

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Anna Domanska

Respondent

Davin Michael Garg, for the appellant

James Brennan Smart, for the respondent

Heard and released orally: November 5, 2019

On appeal from the acquittal entered on March 8, 2019 by
    Justice Malcolm McLeod of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The respondent, Anna Domanska, was charged with three counts each of
    criminal negligence causing bodily harm (
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 221); dangerous driving causing bodily harm (s. 249(3)); impaired
    driving causing bodily harm (s. 255(2)); and causing bodily harm while being
    over 80 (s. 255(2.1)).

[2]

The respondent was driving her car westbound along Lakeshore Boulevard
    in Toronto when she approached a curve in the road veering north. Instead of
    negotiating this curve in the road, the respondent continued to drive straight
    and collided with a car traveling in the opposite direction causing serious
    injuries to its three occupants. The respondent also suffered a serious injury
    herself.

[3]

At the scene, the respondent told paramedics that she had consumed two
    glasses of wine. The respondent was taken to hospital where blood was taken,
    however, due to continuity concerns, the trial judge ruled that the blood
    alcohol level that was derived from this sample was unavailable to the Crown at
    trial. Moreover, the breathalyzer machine that was taken to the hospital to
    obtain a sample from the respondent malfunctioned and breath samples were not
    taken. Accordingly, there was no evidence as to the respondents alcohol
    consumption other than her own statements to paramedics at the scene.

[4]

The appellant was acquitted on all counts.

[5]

The Crown appeals. It does not challenge the trial judges continuity
    ruling with respect to the blood that was taken from the respondent. Instead,
    the Crown asserts that the trial judge erred by failing to consider all of the
    evidence as it related to:

i.

whether the respondent was impaired; and

ii.

whether her driving constituted a marked departure.

[6]

We disagree. The trial judges reasons reveal a thorough consideration
    of all of the evidence. We acknowledge that the trial judge may have erred in
    his analysis on the dangerous driving charges by operating on the assumption
    that only consumption leading to impairment could be considered. However, in
    the circumstances of this case, we are not persuaded that it had any impact on
    the trial judges ultimate conclusion that the Crown had failed to prove a
    marked departure beyond a reasonable doubt.

[7]

Accordingly, and despite Mr. Gargs able submissions, the appeal is
    dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durston, 2019 ONCA 883

DATE: 20191107

DOCKET: C67327

Lauwers, van Rensburg and
    Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Durston

Appellant

Jeffrey Langevin, for the appellant

Michael Fawcett, for the respondent

Heard: November 4, 2019

On appeal
    from the sentence imposed on July 11, 2019 by Justice Alison J. Wheeler of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The parties agree that the sentencing judge
    proceeded on a joint submission intended to result in a penitentiary sentence,
    in order for the appellant to access treatment programs.

[2]

The parties miscalculated, resulting in a
    sentence that is practically too long.

[3]

The appellant argues that a fit sentence was 150
    days. The Crown acknowledges that a sentence in the range of four to six months
    would have been appropriate.

[4]

We allow the sentence appeal and substitute 150
    days for the 307 days sentence originally imposed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durston, 2019 ONCA 896

DATE: 20191114

DOCKET: C67327

Lauwers, van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Durston

Appellant

Jeffrey Langevin, for the appellant

Michael Fawcett, for the respondent

Heard: November 4, 2019

On appeal from the sentence
    imposed on July 11, 2019 by Justice Alison J. Wheeler of the Ontario Court of
    Justice, sitting without a jury.

ADDENDUM

[1]

The courts intention was that Mr. Durston would be freed on November 4,
    2019, not later. This was quite clear in open court. The sentences were deemed
    by the court to be concurrent, and therefore complete, as the order provides.

P. Lauwers J.A.

K. van Rensburg J.A.

C.W. Hourigan 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. Essel, 2019 ONCA 918

DATE: 20191121

DOCKET: C63917

Hourigan, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samuel Essel

Appellant

Marianne Salih, for the appellant

Philippe G. Cowle, for the respondent

Heard: September 19, 2019

On appeal from the conviction entered on July 8, 2016 and
    the sentence imposed on April 20, 2017 by Justice Stephen Bale of the Superior
    Court of Justice, sitting with a jury.

BROWN J.A.:

PART I: OVERVIEW

[1]

Following a trial before a judge and jury, the appellant was convicted
    of sexual assault, sexual interference, and uttering threats to cause death.
    His conviction for sexual assault was stayed pursuant to the principle in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. The appellant was sentenced to three
    years incarceration.

[2]

The appellant appeals his conviction and
    seeks leave to appeal his sentence.

[3]

At the hearing, we dismissed the appeal,
    with reasons to follow. These are those reasons.

PART II: CONVICTION
    APPEAL

THE APPEAL

[4]

At the time of the sexual offences, the appellant was 26 years old and
    the complainant was 14 years of age. The complainant alleged that the appellant
    had sexual intercourse with her at her home while her parents were away and, on
    another occasion, kissed her in her bedroom for about five minutes. The
    complainant testified that she and the appellant were dating when he committed
    the offences.

[5]

The appellant testified at trial and
    denied the allegations.

[6]

The jury convicted the appellant.

[7]

The appellants single ground of appeal
    from conviction concerns the sequence in which the trial judge disposed of two
    of the applications he brought at trial: (i) a constitutional challenge to s.
    119(4) of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (the
YCJA
), which limits access to records concerning extrajudicial measures taken
    in respect of a young person; and (ii) a third party records application
    pursuant to s. 278.3 of the
Criminal Code
.

[8]

The appellant submits that the trial
    judge erred by failing to first dispose of his constitutional challenge.
    Instead, the trial judge wrongly first dealt with and dismissed his s. 278.3
    third party records application and then treated his constitutional application
    as moot: 2016 ONSC 3825. The appellants argument centres on the manner in
    which the trial judge dealt with his request for disclosure of a record of
    extrajudicial measures (EJM) kept by the Durham Regional Police Service (the
    Durham Police) pursuant to s. 115(1.1) of the
YCJA.

[9]

Some background is required to put this
    ground of appeal in context.

THE EARLY STAGES OF THE APPELLANTS s. 278.3 APPLICATION

[10]

The
    appellant was charged in January 2013 and, following a preliminary inquiry,
    committed in March 2014 to stand trial. The appellants trial originally was
    scheduled to commence in June 2015.

[11]

As part of his defence, the appellant intended to
    challenge the complainants credibility on the basis that, on an earlier
    occasion, she had falsely accused a fellow student, whom I will call X, of
    sexual assault.

[12]

At an April 2015 appearance in the Superior Court of
    Justice, defence counsel advised that the appellant intended to make a s. 278.3
    third party records application and undertook to serve subpoenas on three third
    parties: the Durham Police; the school board in which the complainant was a
    student; and the local Childrens Aid Society. Although copies of the subpoenas
    were not in the appeal record, it appears they used language that sought
    documents and records relating to an investigation involving the complainant
    and allegations of inappropriate sexual activity with X.

[13]

On a June 8, 2015 attendance, counsel for the Durham
    Police informed the court of the results of its searches made in response to
    the subpoena. The Durham Police filed with the court in a sealed envelope
    certain records and advised that it also possessed a record kept pursuant to
    the
YCJA
.

[14]

The Crown advised that it did not have possession of
    the
YCJA
record nor had it been
    asked by the defence to inquire about the existence of any youth record.

[15]

The defence indicated it would apply to the Youth
    Court for production of the youth record, and the trial date was adjourned.

APPLICATION BEFORE THE YOUTH COURT

[16]

On
    October 23, 2015, Felix J. of the Ontario Court of Justice, sitting as a Youth
    Court judge, heard the appellants application. The police had advised that
    they possessed a record maintained under s. 115(1.1) of the
YCJA
and
    the matter had been resolved by way of extrajudicial measures. Section 115(1.1)
    of the
YCJA

states: The police force
    shall keep a record of any extrajudicial measures that they use to deal with
    young persons.

[17]

Section 2(1) of the
YCJA
defines extrajudicial measures as measures other
    than judicial proceedings under [the
YCJA
] used to deal with a young person alleged to have
    committed an offence and includes extrajudicial sanctions. Brock Jones, Emma
    Rhodes, and Mary Birdsell, in
Prosecuting and Defending Youth
    Criminal Justice Cases
, 2nd ed
(Toronto:
    Emond Montgomery Publications, 2019), at p. 135, describe the wide variety of
    EJM options available for police and prosecutors, including: making a simple
    decision to take no further action; giving the young person a warning; giving a
    more formal police or Crown caution to the young person; referring the young
    person to community resources or agencies; and, on a post-charge basis,
    allowing the young person to complete extrajudicial sanctions.

[18]

By the time of the application to the Youth Court,
    defence counsel had spoken to X and understood that X had never been charged in
    respect of a matter involving the complainant.

[19]

The Crown and the Durham Police took the position that
    s. 119(4) of the
YCJA
prevented
    disclosure of the EJM record to the appellant. Section 119(4) of the
YCJA
states:

119 (4)
Access to a record kept under section 115 or 116 in respect of extrajudicial
    measures, other than extrajudicial sanctions, used in respect of a young person
    shall be given only to the following persons for the following purposes:

(a)
a peace officer
    or the Attorney General, in order to make a decision whether to again use
    extrajudicial measures in respect of the young person;

(b)
a person
    participating in a conference, in order to decide on the appropriate
    extrajudicial measure;

(c)
a peace officer,
    the Attorney General or a person participating in a conference, if access is
    required for the administration of the case to which the record relates; and

(d)
a peace officer
    for the purpose of investigating an offence.

[20]

The Youth Court judge dismissed the appellants
    application, holding that he lacked the jurisdiction to order police to provide
    the record to the court and could not interpret s. 119(4) in a manner that
    would require production of the requested record.

THE CONTINUATION OF THE s. 278.3 APPLICATION

[21]

The
    appellants trial was re-scheduled to commence in June 2016.

[22]

In April 2016, the trial judge dealt with three
    pre-trial applications brought by the appellant: the application under s. 278.3
    of the
Criminal Code
initiated
    the previous year and a related s. 276 application, as well as a new
    application advancing a constitutional challenge to s. 119(4) of the
YCJA
. In that application, the appellant contended that
    the limits placed on the production of EJM records by
YCJA
s. 119(4) were unconstitutional because they
    infringed his rights under ss. 7 and 11(d) of the
Canadian Charter
    of Rights and Freedom
. The appellant sought
    a declaration that s. 119(4) of the
YCJA
was of no force and effect.

[23]

The appellant requested that the trial judge first
    dispose of his constitutional application before dealing with the third party
    records application
because he had not been successful
    in obtaining the EJM record from the Youth Court.
The appellant took the
    position that he did not know what was in the EJM record. But, if it turned out
    to contain information about a prior false allegation by the complainant, that
    would provide the appellant with a better evidentiary foundation for his s.
    278.3 application. Defence counsel wanted to marshal the best evidence in
    advance of arguing the s. 278.3 application.

[24]

The applications were heard over three days. The trial
    judge first heard argument on the appellants constitutional application. For
    the first day and one-half, the appellant made his submissions based on the
    assumption that the EJM record in the hands of the police possibly involved a
    disposition using extrajudicial measures against the complainant for some
    discreditable conduct on her part, such as making a false allegation.

[25]

Only towards the end of the second day of the hearing
    did the issue arise as to whom the EJM record related. The complainants
    counsel thereupon made inquiries of the Durham Police pursuant to
YCJA
s. 124, which states: A young person to whom a
    record relates and his or her counsel may have access to the record at any
    time. Complainants counsel informed the court that the Durham Police advised
    there were no records concerning extrajudicial measures used against the
    complainant. The record identified by the Durham Police in response to the appellants
    subpoena was in respect to someone other than the complainant but contained a
    reference to her.

[26]

Durham Police provided no information regarding whom
    the record concerned. Proceeding on the assumption that the record concerned
    extrajudicial measures used to deal with X, appellants counsel acknowledged
    that he had not properly served X with his s. 278.3 application. In the result,
    that lack of service did not matter. The trial judge heard the appellants
    third party records submissions on the assumption that the EJM record was a
    record dealing with X, not the complainant, and the trial judge determined the
    issue notwithstanding the lack of proper service on X: at para. 11.

THE TRIAL JUDGES REASONS

[27]

The
    trial judge disposed of both applications in one set of reasons. He described
    the theory of the defence regarding the relevance of the EJM record as follows,
    at para. 21:

The defence theory with respect to the relevance of the records
    sought is as follows:

·

that there is evidence of some sort of sexual activity between
    the complainant and a male youth;

·

that that sexual activity came to the attention of school
    authorities, the children's aid society and the police;

·

that because of the strict religious convictions of the
    complainants family, she had a motive to deny that the sexual activity was
    consensual, when in fact it was;

·

that no charges were laid against the male youth;

·

that the failure of the police to lay charges against the male
    youth may have been because the complainant recanted, or because her denial
    that the sexual activity was consensual had been shown to be demonstrably
    false; and

·

that therefore, the records sought are likely relevant, and their
    production is necessary in the interests of justice, and to allow the accused
    to make full answer and defence.

[28]

The
    trial judge then began to apply the first stage of the regime in
R. v.
    Mills
, [1999] 3 S.C.R. 668, governing the production of records pursuant
    to
Criminal Code
ss. 278.3 to 278.91. He summarized, at paras. 22 to
    27, the evidence that was before the court on both applications:

In order to satisfy the likely relevant test, the accused
    must persuade the court that there is an evidentiary foundation demonstrating a
    reasonable possibility that the document will contain relevant information.

The sources of evidence referred to by counsel on the hearing
    of the third party records application in this case are:

·

excerpts from the transcript of the evidence given at the
    preliminary inquiry, by the complainant and her parents;

·

the affidavit of Marcia Collins sworn May 28, 2015, filed in
    support of the application; and

·

the affidavit of Marcia Collins sworn September 24, 2015, filed
    in support of the accused's application in youth justice court.

The evidence given at the preliminary inquiry amounts to:

·

that the complainant had a strict upbringing and that premarital
    anything sexual was not something that she should be involved in;

·

that something with a boy had happened in the past, but she did
    not get in trouble because it was not something that she wanted to do; and

·

that her father spoke to the school and the police about some
    little, uh, thing, something that happened in the school which was not that
    serious.

Marcia Collins is a secretary working in defence counsels
    office. In her affidavit sworn May 28, 2015:

·

she swears that she was advised (by whom, she does not say, but
    presumably by Mr. Rippell [trial counsel for the appellant]) that the young man
    who was the subject of the something with a boy referred to in the
    preliminary transcript was never charged in relation to the something;

·

she swears that she understands (the basis of her understanding
    is not stated) that the accused was aware of the name of the young man;

·

she says that she was advised (again, by whom, she does not say)
    that the accused had spoken to an unnamed friend of the unnamed young man;

·

she says that she was advised (again by whom, she does not say)
    that the young man was accused of forcing the complainant to perform oral sex
    on him; and

·

she states as a fact that the accused party has always
    maintained that [the complainant's] allegations were untrue (presumably based
    upon information given by the young man to the friend of the young man, who
    gave it to the accused, who gave it to Mr. Rippell, who gave it to her).

In the affidavit of Marcia Collins sworn September 24, 2015,
    she swears that Mr. Rippell advised her:

·

that he had spoken to the young man who was accused by [the
    complainant] of sexual impropriety on a previous occasion;

·

that the young man had told Mr. Rippell that the Durham Regional
    Police had spoken to him, and to his father, and that the young man was never
    charged; and

·

that the young man had told Mr. Rippell that the allegations
    against him were false.

In the absence of any explanation as to why the evidence
    contained in the Collins affidavits could not have been given by the young man,
    it is inadmissible hearsay. However, even if it were to be accepted as evidence
    on this application, and putting it at its highest, it says no more than that
    the male youth denied either that the incident had occurred, or that the sexual
    activity had been non-consensual  a wholly unremarkable response.

[29]

In
    his reasons, the trial judge first dealt with and dismissed the third party
    records application, holding that the appellant had not satisfied
the first stage of the
Mills
regime test

    that is, the appellant had not established the records sought were likely
    relevant to an issue at trial. He wrote, at para. 32:

The evidence is that something with a boy had happened in the
    past, some little, uh, thing, something that happened in the school which was
    not that serious. There are any number of reasons why charges might not be
    laid in such circumstances. The police may simply have been unsure as to what actually
    took place, or may have concluded that what did take place was not particularly
    serious. And, under sections 4, 5 and 6 of the
YCJA
, a police officer
    is required to consider whether it would be sufficient to take no further
    action, warn the young person, administer a caution, or with the consent of the
    young person, refer him to a program or agency in the community that may assist
    him not to commit offences. The suggestion that the reason why no charges were
    laid against the male youth was that the complainant recanted amounts to
    nothing more than unfounded speculation.

[30]

The
    trial judge then considered and dismissed the constitutional application,
    holding, in part, that the application was moot in light of his dismissal of
    the third party records application: at paras. 38-46.

[31]

On appeal, the appellant does not challenge the trial
    judges first stage
Mills
analysis,
    except to the extent that the analysis could have proceeded differently
    following a successful constitutional challenge to
YCJA
s. 119(4).

REVISITING THE ISSUE DURING THE TRIAL

[32]

The
    defence returned to the issue of the EJM record twice during trial.

[33]

First, during her cross-examination, the complainant
    testified that her contact with the police in relation to the appellant was the
    first time she had ever talked to a police officer. The defence sought to
    impeach the complainant using the earlier matter involving X because, according
    to the complainants preliminary inquiry testimony, she appeared to have had
    some contact with the police at that time. In the ensuing argument about the
    permissible scope of the impeachment given the trial judges prior rulings
    about the EJM record, defence counsel repeated the arguments made on the
    constitutional application, but now in support of the position that questioning
    the complainant on her contact with the police in relation to the X matter
    would not violate
Criminal Code
s. 276, which limits the scope of questioning on a complainants prior sexual
    history.

[34]

Defence counsel also informed the court that he was in
    contact with Xs father, had left a subpoena for X at his residence, and could
    get an affidavit from Xs father.

[35]

The trial judge ruled that the defence could attempt
    to impeach the complainant on certain evidence she gave at the preliminary
    inquiry but he could not ask her to describe the incident concerning X.

[36]

The second occasion occurred when the defence
    cross-examined the complainant about how the intercourse she alleged the
    appellant had initiated came to an end. The complainant testified that the
    appellant had ejaculated. She went on to state that she had never had sex
    before and did not know the signs of ejaculation. That prompted defence counsel
    to advise he intended to bring a s. 276 application on the basis that
    information he had about the event with X indicated it involved ejaculation.
    The defence did not proffer any new evidence that was not before the court at
    the time of the April applications, but offered to seek an affidavit from X.

[37]

The trial judge denied the defences request to bring a
    s. 276 application, stating that it was no more than a fishing expedition
    and, therefore, the renewed request for a constitutional exemption to look at
    the EJM record was moot.

ISSUE ON APPEAL

[38]

On
    appeal, the appellant does not challenge the trial judges analysis on the
    first stage of the third party records application under the
Mills
regime. Instead, the appellant submits that the trial judge erred by first
    dealing with his s. 278.3 application and then dismissing his constitutional
    application as moot.

[39]

The appellant argues that had the trial judge first
    dealt with his constitutional application, the evidence showed that the record
    contained information potentially relevant to the Crowns prosecution of the
    appellant. As a result, the Crown was under a duty to obtain information about
    the relevance of the EJM record from the police for its consideration and
    disclosure to the appellant. Since
YCJA
s. 119(4) prevented the Crown from doing so, it violated the appellants
    s. 7 and s. 11(d)
Charter
rights
    and was unconstitutional.

ANALYSIS

[40]

Given
    the state of the record that was before the trial judge, I am not persuaded
    that the trial judges analysis was tainted by reversible error. At the heart
    of the appellants argument lies the assertion that the sequence in which the
    trial judge determined the constitutional challenge to
YCJA
s. 119(4)
    and the
Criminal Code
s. 278.3 application improperly relieved the
    Crown of a legal obligation it otherwise bore to disclose or inquire into
    information. Neither the jurisprudence nor the evidence before the trial judge
    supports that assertion.

The Crowns duty to disclose

[41]

Under
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, the Crown is obliged to
    disclose to the accused the fruits of the investigation, namely all relevant
    information in its possession relating to the investigation against an accused:
    at pp. 345-46; see also
R. v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at
    para. 22. Relevant information for this purpose includes any information in
    respect of which there is a reasonable possibility that it may assist the
    accused:
McNeil
, at paras. 17 and 44.

[42]

In the present case, the Crown did not possess the EJM
    record identified by the Durham Police in response to the appellants subpoena.

[43]

Further, the appellants argument before the trial
    judge proceeded on the basis that the EJM record was a record within the meaning
    of
Criminal Code
s. 278.1, in
    that it contained personal information for which there was a reasonable
    expectation of privacy. Given that the charges against the appellant were
    sexual offences listed in s. 278.2(1)(a), even if the EJM record was in the
    Crowns possession or control, s. 278.2(3) would limit the Crowns obligation
    to one of notice, not disclosure: In the case of a record in respect of which
    this section applies that is in the possession or control of the prosecutor,
    the prosecutor shall notify the accused that the record is in the prosecutors
    possession but, in doing so, the prosecutor shall not disclose the records
    contents; see also
McNeil
, at
    para. 21.

[44]

Although the police also have a corollary duty to
    disclose to the Crown the fruits of the investigation, in this case it was not
    suggested that the EJM record was part of the material pertaining to the police
    investigation of the appellant:
McNeil
, paras. 14 and 24.
[1]

The Crowns duty to inquire

[45]

The
    appellant submits that even if the Crown was not under a duty to disclose the
    EJM record, it owed a duty to inquire into and disclose information about that
    record.

[46]

In
McNeil,
at para. 49, the Supreme Court of Canada adopted as an apt description
    of the Crowns obligation to make reasonable inquiries about evidence the
    following passage from the decision of Ryan J.A. in
R. v. Arsenault
(1994), 153 N.B.R. (2d) 81 (C.A.), where he stated,
    at para. 15:

When disclosure is demanded or requested, Crown counsel have a
    duty to make reasonable inquiries of other Crown agencies or departments that
    could reasonably be considered to be in possession of evidence.  Counsel cannot
    be excused for any failure to make reasonable inquiries when to the knowledge
    of the prosecutor or the police there has been another Crown agency involved in
    the investigation. Relevancy cannot be left to be determined by the
    uninitiated.
If Crown counsel is denied access to another
    agencys file, then this should be disclosed to the defence so that the defence
    may pursue whatever course is deemed to be in the best interests of the
    accused.
This also applies to cases where the accused or defendant, as
    the case may be, is unrepresented[.] [Emphasis added.]

[47]

The
    Supreme Court went on to state that [t]he same duty to inquire applies when
    the Crown is informed of potentially relevant evidence pertaining to the
    credibility or reliability of the witnesses in a case:
McNeil
, at
    para. 50.

[48]

In
    the present case, knowledge about the existence of a document was not the
    issue. The defence came to know about the existence of an EJM record as a
    result of the subpoena it served on the Durham Police as part of its
    application under s. 278.3. However,
the appellant
    argues that the Crowns duty to inquire goes further than ascertaining the mere
    existence of a document. He points to the decision of the Supreme Court of
    Canada in
R. v. Quesnelle
, 2014
    SCC 46, [2014] 2 S.C.R. 390, where the court observed that the
Mills
regime does not displace the Crowns duty to inquire and
    assess potentially relevant material, stating, at para. 18:

The Crowns
McNeil
duty to make reasonable inquiries
    and the corresponding police duty to supply relevant information and evidence
    to the Crown apply notwithstanding the
Mills
regime. The
Mills
regime governs the
disclosure
of records in sexual offence trials,
    but does not displace the Crowns duty to make reasonable inquiries and
obtain
potentially relevant material (or the police duty to pass on material to the
    Crown) under
McNeil
. As an officer of the court and Minister of
    Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid
    wrongful convictions, in the prosecutions of all offences, including sexual
    offences. The
Mills
regime simply replaces the obligation to
produce
relevant records directly with an obligation to
give notice
of their
    existence:
Criminal Code
, s. 278.2(3). [Emphasis in original.]

[49]

The
    court stated that although s. 278.2(3) prevents the Crown from disclosing a s.
    278.1 record in its possession to the accused, it should in appropriate
    circumstances give an assessment of the likely relevance of a record in its
    possession, as well as indicate the basis of its relevance and whether it
    intends to use any information contained in the records protected by
Mills
as part of its case against an accused: at para. 16. As well, [t]he Crowns
    assessment that the record is relevant for a specific reason will likely
    establish a basis for the judge to order production to the court: at para. 16.
    This court stated in
York (Regional Municipality) v. McGuigan
, 2018
    ONCA 1062, 144 O.R. (3d) 81, at para. 90, that the Crown owes this duty unless
    the notice it receives about material or information appears unfounded.

[50]

The appellant submits that
YCJA
s. 119(4) prevents the Crown from discharging that
    aspect of its duty to inquire and assess potentially relevant material. As a
    result, the trial judge should have first dealt with the constitutionality of
    the limit imposed by statute on the Crowns duty to inquire and assess.

[51]

I am not persuaded that, in the circumstances of this case,
the operation of
YCJA
s. 119(4) deprived the
    appellant of an assessment of the relevance of the record by the Crown.
As
    applied to the circumstances raised by the present case, the Crowns duty to
    inquire about and assess material is triggered when the Crown is informed of
    potentially relevant evidence pertaining to the credibility or reliability of
    the witnesses in a case:
McNeil
, at para. 50.

[52]

I accept the Crowns submission
that nothing in
Mills
,
McNeil
or
Quesnelle
requires the Crown to
    obtain and review the contents of records that do not fall within the ambit of
    first party disclosure and that have not been shown to be potentially relevant.
    As the Crown points out, in
Quesnelle
the Supreme Court stated that
    the mere fact that a police occurrence report concerns a complainant or
    witness is not enough to make the report relevant to an otherwise unrelated
    prosecution and, as well, the fact that a complainant has reported sexual
    violence in the recent or distant past [] is not, without more, enough to
    render a police occurrence report relevant: at para. 17.

[53]

The
    Crown submits that the appellant failed to demonstrate, on the evidence, that
    the EJM record was potentially relevant to an issue at the trial. Specifically,
    at paras. 27 and 28 of its factum, the Crown submits that:

With or without s. 119(4) the Crown would not have obtained and
    reviewed the youth record in this case because the appellants claim of
    relevance was unfounded.  Most of the evidence he produced amounted to
    nothing more than vague and unreliable hearsay.  The appellant had access to
    multiple sources of information.  His application failed because none [of]
    those sources revealed any relevant records.  The appellant received notice of
    the existence of the record.  He knew that it was not part of the case to
    meet.  He had access to the boy against whom he believed an allegation had been
    made.  That boy said nothing to suggest that his contact with police terminated
    because of recantation or proven falsehood.  The appellant had access to the
    complainant and her parents at the preliminary inquiry.  Their evidence did not
    suggest that the complainant had made a complaint to the police at all, let
    alone a demonstrably false or recanted one.

The only reliable evidence revealed nothing more than a father
    who had found out about something that was not that serious and had
    brought it to the attention of the police.

[54]

I accept, as accurate, that description by the Crown
    of the state of the record before the trial judge. I would add
that the
    trial record also discloses that as
the argument
    of the applications unfolded, it became apparent that the EJM record was in
    respect of someone whom the defence believed to be X, not the complainant as
    the appellant initially submitted. Given the state of the record, it was open
    to the trial judge to not first dispose of the appellants constitutional
    challenge to
YCJA
s. 119(4). The
    appellant failed to demonstrate that the EJM record contained potentially
    relevant material. The Crowns duty to inquire and assess the material for
    relevance was not triggered. In those circumstances,
YCJA
s. 119(4) did not operate to deprive
the
    appellant of an assessment of the relevance of the record by the Crown, so the
    trial judge did not err by proceeding to first consider the production remedy
    sought by the appellant under the
Mills
regime, instead of determining
    the appellants constitutional challenge.

[55]

As mentioned, the appellant does not challenge the
    trial judges first-stage
Mills
regime analysis. In that analysis, the trial judge considered the sufficiency
    of the evidentiary foundation laid by the appellant in support of his assertion
    that the reason no charges were laid against X was because the complainant had
    recanted her allegations. The trial judge concluded that suggestion was
    nothing more than unfounded speculation: at para. 32.

[56]

On the facts of this case, the trial judges sequence
    of decision-making was not unfair to the appellant. As the trial judge pointed
    out, the evidence filed by the appellant on his s. 278.3 application disclosed
    that defence counsel had communicated with X, and it was open to the defence to
    obtain evidence from X regarding the details of the event that may have
    involved the complainant and then use that evidence in support of the third party
    records application: at paras. 35 and 36. In those circumstances, the appellant
    was not put in a catch-22 situation.

Conclusion

[57]

Accordingly, given the specific facts of this case,
    the trial judge did not commit reversible error by first determining the appellants
    s. 278.3 application. As that is sufficient to dispose of the conviction
    appeal, it is not necessary to consider the appellants constitutional
    challenge to
YCJA
s. 119(4) and
    the interpretation of that section proffered by the Crown as
Charter
-compliant.
[2]

PART III: SENTENCE
    APPEAL

[58]

The
    trial judge imposed a global sentence of three years imprisonment, apportioned
    2.5 years to the sexual interference conviction and six months to the uttering
    death threats conviction.

[59]

The appellant submits that the sentence was based on three
    errors.

[60]

First, the appellant argues that the trial judge erred
    in concluding that the appellant was in a position of trust and authority by
    virtue of his position at the church and treating that circumstance as an aggravating
    factor.

[61]

I see no error. The appellant was the son of the
    pastor of the church attended by the complainant and her parents, where he was involved
    in some activities involving the youth of the congregation. The complainant got
    to know the appellant through church activities. As the trial judge noted, the
    appellant groomed the complainant  who was 12 years his junior  by letting
    her think that he was her boyfriend, sent her sexually explicit text messages,
    and took advantage of her crush on him to obtain sexual gratification. In
    those circumstances, the trial judge made no error in characterizing the
    relationship as one of trust within the meaning of s. 718.2(a)(iii) of the
Criminal
    Code
.

[62]

Second, the appellant submits that at para. 28 of his reasons
    for sentence, the trial judge erroneously treated as an aggravating factor the
    lack of any evidence that the appellant was suffering from a psychological
    disorder. I do not read that part of the reasons for sentence as making that
    suggestion. Instead, the trial judge merely observed, quite accurately, that in
R. v. D. (D.)
(2002), 58 O.R.
    (3d) 788 (C.A.) this court stated, at para. 40, that the absence of evidence
    that an accused was suffering from some psycho-sexual disorder did not
    translate into a mitigating factor in his favour.

[63]

Finally, the appellant contends that the trial judge
    erred by imposing a six-month custodial sentence on his conviction for uttering
    death threats. Instead, a fit sentence would have been a suspended sentence of
    one year, given the appellants youth and lack of a prior record.

[64]

I see no error. The appellant, who was 12 years older
    than the 14-year old complainant, sent private Facebook messages to her that
    contained death threats. When the complainant started to tell people at their
    church that she was dating the appellant, he repeatedly told her to stop doing
    so. Ultimately, the appellant sent the complainant a message on October 8, 2012
    at 21:46 that stated:

Doooo u have any idea how piss I am

I swear if u dont go back and fix it I will kill u will be
    dead and I will be jail for real

[65]

When
    the complainant replied that she had shown the appellants father their messages
    discussing sex, the appellant said:

We dont talk on hook [complainants name] I swear if u dont
    clear my name I will kill u and Im not joking cuss this is not funny seriously
    I dont no whats making u do this but I promise if u dont I will kill u

[66]

Against
    the gravity of that language, the trial judge gave proper consideration to
    mitigating factors: the appellants good prospects for rehabilitation; his lack
    of a prior record; and the complainants evidence that she did not take
    seriously the appellants threats that he would kill her if she told her parents
    what he had done.

[67]

The resulting sentence of six months for uttering
    death threats was not manifestly unfit in the circumstances. Nor was the global
    sentence of three years.

PART IV: DISPOSITION

[68]

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

Released: DB NOV 21 2019

David Brown J.A.

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

I agree. David M. Paciocco J.A.

[1]

By contrast, in
R. v. Bottineau
(2005), 32 C.R. (6th)
    70 (Ont. S.C.), a case relied upon by the appellant that involved charges of
    first degree murder, occurrence reports formed part of the investigation: at
    para. 71.

[2]

In the Crowns submission, s. 119(4)
    applies only to records that document the use of EJM in relation to an
    identified young person, but does not apply to parts of the investigative file
    that would not identify a young person as having been the subject of EJM:
    see
R. v. R.L.
, [2007] O.J. No. 5293. The Crown supported this
    interpretation by reference to: the plain language of the provision, which
    refers to records kept [] in respect of extrajudicial measures []
used
    in respect of a young person
 (emphasis added); the structure of the
YCJA
,
    in which s. 119 creates exceptions to the access provisions in s. 118 but does
    not apply to records which s. 118 would not capture; the purpose of the
YCJA
,
    which seeks to protect young offenders, not complainants or witnesses; the
    avoidance of absurd results that might flow from a more expansive
    interpretation of s. 119(4); the legislative history of the
YCJA
,
    as a successor to the
Young Offenders Act
, R.S.C., 1985, c. Y-1,
    repealed, 2002, c. 1, s. 199; and the principle that Parliament is presumed to
    pass legislation consistent with the
Charter
.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gulyas, 2019 ONCA 934

DATE: 20191126

DOCKET: C65078

Simmons, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Gulyas

Appellant

Philip B. Norton for the appellant

Karen Papadopoulos for the respondent

Heard and released orally: November 21, 2019

On appeal from the conviction entered on May 1, 2014 by
    Justice John McMahon of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for second degree murder. An
    appeal against sentence is to be heard in the inmate stream.

[2]

It is not disputed that the appellant strangled his neighbour and slit
    her throat and wrists. He called the police and sought to turn himself in
    shortly after he killed her. The issue at trial was his intention at the time
    of the killing.

[3]

The appellant, who lived in the unit above the victim, had on several
    occasions complained to the property manager, the building superintendent, and
    the City of Toronto about noise he said was coming from the victims unit. She,
    on the other hand, denied there was excessive noise. On the day of the killing,
    the appellant complained to the building superintendent again and the
    superintendent visited the victim at her unit. Shortly afterwards, the victim was
    seen yelling at the appellant from her balcony. She later arranged for a
    neighbour to watch her children while she went upstairs to confront the appellant
    and was seen waving her arms around outside his unit.  She was killed at the
    appellants unit a few minutes later.

[4]

The appellant says that he was prejudiced by the trial judges decision
    to admit evidence of prior discreditable conduct involving persons other than
    the victim. The Crown led evidence from the appellants neighbours, who lived
    in the unit directly above the appellant. They testified that the appellant had
    come to their apartment many times over the course of a year, sometimes in the middle
    of the night, to complain about noise  a problem that they denied. He would
    shout profanities at them and kick their door if they refused to answer. The
    neighbours testified that he was aggressive, demanding, and always angry. The
    appellant says that the trial judge erred in admitting this evidence.

[5]

We disagree.

[6]

The trial judge recognized that prior discreditable conduct evidence is
    presumptively inadmissible, and carefully considered its probative value and
    prejudicial effects. The live issues at trial were whether the accused had the
    requisite state of mind for murder and whether the Crown could prove that the
    appellant was not provoked. Self-defence was also a potential issue. Given the
    animus between the victim and the appellant concerning noise complaints, the
    evidence was relevant to what occurred at the door of the appellants unit. It also
    demonstrated the appellants state of mind and the importance he placed on the
    peaceful enjoyment of his property and was probative to provide context for his
    interaction with the victim, as well as his state of mind on the date in
    question. How the appellant had acted in regard to noise complaints involving
    another neighbour in the apartment building was also relevant to the subjective
    element of the provocation test.

[7]

The trial judge reviewed the considerations from
R. v. Handy
,
    [2002] 2 S.C.R. 908, 2002 SCC 56, and concluded that the proposed evidence was
    sufficiently connected to the case. His decision reveals no error and is
    entitled to deference.

[8]

We are satisfied that the trial judge properly balanced the probative
    value of the evidence against its prejudicial effect. He concluded that there
    was little risk of reasoning prejudice, but some risk of moral prejudice,
    arising from evidence that the appellant allegedly threatened to break the
    face of his 15-year-old upstairs neighbour. Accordingly, the trial judge
    excluded that evidence. We reject the appellants submission that any further
    editing of the evidence was necessary and note that none was requested at
    trial.

[9]

Finally, we note that the trial judge further minimized any risk of
    prejudice by providing mid-trial and final instructions limiting the use of the
    evidence, and specifically prohibiting its use to conclude that the appellant
    was a bad person or the type who would kill someone.

[10]

The appeal from conviction is dismissed.

Janet
    Simmons J.A.

Grant
    Huscroft J.A.

I.V.B.
    Nordheimer 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. J.A.S., 2019 ONCA 936

DATE: 20191127

DOCKET: C65013

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. A. S.

Appellant

Michael Dineen, for the appellant

Jamie Klukach, for the respondent

Heard and released orally: November 22, 2019

On appeal from the conviction entered on November 3, 2017
    by Justice Gregory Ellies of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of four counts of sexual abuse and one count
    of threaten bodily harm of his daughter. He raises two grounds of appeal
    against conviction.

[2]

The first is that the trial judge erred by allowing the jury to use the
    evidence of the appellants two convictions for assault of his wife on the
    issue whether the wife testified in favour of the appellant out of fear. He
    also ruled that the evidence of violence in the home could be used for the same
    purpose as well as to explain why the son resiled from his police statement at
    trial. The police statement was very important evidence that corroborated the
    complainants evidence that she showered with her father. She said that many of
    the sexual assaults took place in the shower.

[3]

We see no error in the trial judges ruling or in his instruction to the
    jury on this issue. The evidence of the two convictions and the violence in the
    home was clearly relevant to the issue. The appellant argues that the fact that
    no details of the circumstances of the convictions were given in evidence left
    the jury to speculate about them. However, defence counsel at trial could have
    sought to flesh out the details if that would have been helpful to minimize the
    impact of the assault evidence. That was a tactical decision. Also, the trial
    judge warned the jury in his charge about propensity reasoning and did not
    overemphasize the point about the assaults and the other evidence of violence.
    He explained it briefly but directly.

[4]

We see no error.

[5]

The second issue raised on appeal is that the judges review of the
    evidence of the appellant was brief and presented an unbalanced view for the
    jury.

[6]

Again, we do not agree.

[7]

The trial judge pointed out that the appellant denied all of the
    allegations. In defence counsels closing to the jury he said little more than
    that. More importantly, the trial judge fairly put in his charge the defence
    position challenging the complainants version of events and raising possible problems
    with it. This approach was fair and enured to the benefit of the appellant. It
    is also noteworthy that no objection to this part of the charge was taken by
    defence counsel at trial.

[8]

The appeal is therefore dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.