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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.P., 2020 ONCA 162

DATE: 20200302

DOCKET: C65242

Lauwers, Trotter and Fairburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

Mark C. Halfyard, for the appellant

Eric W. Taylor, for the respondent

Heard: February 11, 2020

On appeal
    from the conviction entered on January 4, 2018 by Justice J. Christopher
    Corkery of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of assault, assault
    with a weapon, uttering a threat, unlawful confinement, choking, and sexual
    assault. He received a six month and three day sentence, concurrent on each
    count.

[2]

The appellant had been in an on-again/off-again
    relationship with the complainant. On the night the offences occurred, the
    appellant insisted that the complainant meet him to discuss her previous
    involvement with another man. It was clear from the appellants text messages
    that he was angry with the complainant.

[3]

The trial judge reviewed the evidence in detail.
    The complainant went to her friend L.A.s home on September 17, 2015. She later
    left L.A.s home to meet the appellant at a nearby park. As she approached him,
    he threw a lacrosse ball toward her head. He then insisted that they go to his
    mothers house where he lived. The complainant testified that the appellant
    repeatedly struck her on the legs with his lacrosse stick as they were walking
    to the house. She suffered bruises to the back of her legs.

[4]

The complainant testified that, when they
    arrived at the appellants house, they went to his basement bedroom, where a
    further altercation occurred. According to the complainant, among other things,
    the appellant broke her electronic devices against the wall of his bedroom, threw
    her on the bed, slapped her face, pinned her to the bed with his knees, broke
    her bracelet, grabbed her hip piercing, jabbed her in the vagina with a
    television remote, and spit in her face. He would not let her leave over the
    course of the entire night. The complainant did not leave the appellants home
    until mid-afternoon the next day. She then proceeded to L.A.s home, told L.A.
    what had happened and then went to the police.

[5]

The appellant denied striking the complainant
    with his lacrosse stick, grabbing her hair and smashing her electronics. He
    denied hitting her, assaulting her with the remote and throwing her on the bed.
    He had a very different version of events. He attributed the bruises on her
    arms to an episode of consensual rough sex earlier in the week. While he agreed
    that he sent certain incriminating text messages to the complainant, such as
    [d]ont make me drag you, he explained that they were sent in frustration and
    he knew the complainant would not take them seriously.

[6]

The trial judge
    made these findings:

In considering just the evidence of [the
    appellant] there is no explanation provided by him for the bruises of [the
    complainant], apart from her arms. [The complainants] evidence, on the other
    hand, is corroborated first by the existence of these bruises and by the
    evidence of [the witness] that the bruises were not present the evening before.
    The only reasonable explanation is that these bruises occurred between the
    departure from [the witnesss] house, when [the complainant] went to meet [the
    appellant], and when she returned to [the witnesss] house the next day. The
    bruises are wholly consistent with what [the complainant] says occurred and I
    accept that they did occur as a result of her being assaulted by [the
    appellant].

[7]

The indictment
    charged assault, without specifying the details, and assault with a weapon,
    being the lacrosse stick. In light of the nature of the charges, it was open to
    the trial judge to convict the appellant of assault and assault with a weapon
    based on the bruising to the complainants legs and arms.

[8]

The appellant challenges the trial judges credibility
    findings on two grounds.

[9]

First, he submits that the trial judge
    failed to address a material conflict in the evidence: t
he actions and assaults in the bedroom alleged by the complainant
    could not possibly have
occurred
without being
    heard by his mother and her partner. These included his destruction of her electronic
    devices against the wall, several physical assaults including choking her, pinning
    her to the bed with his knees on her arms, her allegation that she cried out
    for the appellants mother, followed by 20 or more blows to her face with the
    heel of his palm which she described as hard strikes.

[10]

The disputed events took place in a small
    bungalow in which the quarters were very close and sound carried easily. The appellants
    bedroom was immediately below the kitchen. The appellants mother and her
    partner were in the kitchen for at least some of the time, particularly at the
    outset, when the encounter in the bedroom between the appellant and the
    complainant appeared to be the most heated and physical.

[11]

The trial judge
    was alive to the noise issue. He said in an exchange with counsel: I can
    anticipate much will turn on my determination of what was heard by the
    appellants mother and her partner. Being alive to the issue, the trial judge
    specifically invited submissions on this point.

[12]

The defence submitted
    at trial that in order to find the appellant guilty of the assaults in the
    house, the trial judge would have to reject outright the couples evidence
    specifically, that they heard nothing. Quite simply, according to the defence,
    the house was too small for the events as described by the complainant to have
    occurred without anyone hearing something.

[13]

The trial Crown
    submitted that the complainant, who said things were not loud in the bedroom,
    should be believed. Even the appellant testified that the tone was a conversational
    one, not loud while they were arguing.

[14]

The trial judge
    summarized the defence position during the Crowns submissions: The defence is
    saying when I look at this as a whole all of the different things that are
    happening here including her statement to the police that theres no way that [the
    appellants mother] could not have heard. I must infer that it didnt happen
    because had it happened [she] would have heard something. The trial judge later
    repeated what he understood to be the Crowns argument, that its just one
    factor I take into account.  The Crown is trying to say, well, no, its not as
    favourable to the defence, is that its simply a neutral factor.

[15]

In
his
reasons, the trial judge
found
    the appellants mother and her partner to be credible and reliable, and
    summarized their testimony:

Simply put, they both testified that they
    would not have hesitated to respond to any noise or shout coming from [the
    appellants] room that was out of the ordinary. But they heard nothing that
    evening that concerned them.

[16]

The trial judge
    did not further address the noise issue. The appellant argues that the trial
    judge was duty bound to address and reconcile the issue, particularly in light
    of the fact that he found the appellants mother and her partner credible.

[17]

The appellants
    second credibility argument relates to the complainants evidence that the appellant
    struck her in the face 20 times. The appellant asserts that this should have
    resulted in bruising, but there was nothing more on her face than a small
    scratch the complainant said the appellant inflicted. The trial judge did not
    address this argument in his reasons.

[18]

The appellant
    argues that the failure to address and reconcile these clear concerns over the
    complainants credibility constitutes reversible error. While he acknowledges
    that the trial judge could accept the complainants evidence despite these
    clear concerns for credibility, he argues that they were so fundamental to the
    resolution of her credibility that a failure to address them leaves the
    appellant without any ability to assess the basis upon which he was convicted.

[19]

We do not find
    these omissions in the trial judges reasons to be fatal to the convictions. The
    case turned on the credibility assessments of the complainant and the appellant.
    The most significant findings leading to the convictions were that the appellant
    caused the complainants bruises by striking her with the lacrosse stick and by
    pinning her arms down with his knees. The presence of these bruises was capable
    of confirming the complainants account. As the trial judge noted, L.A.s
    evidence provided powerful corroboration of the complainants version of
    events. In particular, L.A. saw the complainant in shorts and a tank top just
    before she departed to see the appellant. She was not bruised at that time.
    L.A. saw the complainant just after she left the appellants residence, dressed
    in the same clothing, and showing bruising to a portion of her body. L.A.s
    evidence was not challenged. As she said: I do remember just being overwhelmed
    by the little marks that were on her body at the time. The ones I do remember
    were the big bruises on her legs and those ones lasted for a while.

[20]

Moreover, there
    were all manner of reasons why the complainant may not have experienced serious
    bruising to her face, including how and where she was struck in the face. While
    the exhibits with photos of the complainants face do not show obvious bruising,
    they reveal scratch marks consistent with her account. In these circumstances,
    we do not accept that the trial judges failure to deal with this issue and how
    it impacted on the complainants credibility is fatal to the conclusion reached
    by him.

[21]

In any event,
    the trial judge did not rest the assault and assault with a weapon conviction
    on the blows to the complainants face. Those charges were sustained simply on
    the basis of the walk toward the house and the bruising on the complainants
    legs.

[22]

In addition, we
    agree with the observation made by the trial judge during submissions that the
    noise issue was just one factor in the credibility analysis. The evidence of
    both the complainant and the appellant was that their arguing was not loud. The
    mother and her partners failure to hear anything did not mean that nothing
    happened. It means that they did not hear anything. In these circumstances, the
    failure to address the issue does not constitute reversible error.

[23]

The trial
    judges credibility findings are entitled to deference; he made no palpable and
    overriding errors.

[24]

The appeal is
    dismissed.

P.
    Lauwers J.A.

Gary
    Trotter J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kamal, 2020 ONCA 213

DATE: 20200316

DOCKET: C61628

Watt, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kendall Kamal

Appellant

Kendall Kamal, appearing via videoconference

Jessica Smith Joy, for the respondent

Joseph Wilkinson, duty counsel

Heard and released orally: March 11, 2020

On appeal from the conviction entered on November 18,
    2015 by Justice Ian V.B. Nordheimer of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions on two counts of robbery entered
    after a trial before a judge of the Superior Court of Justice sitting with a
    jury.

The Background Facts

[2]

The appellant was alleged to have been the driver of the getaway car in
    two robberies of commercial premises about ten days apart. The principal
    evidence against him consisted of a videotaped interview of him by members of
    the Hold-Up Squad of the Toronto Police Service. The admissibility of this
    interview was challenged at trial on both voluntariness and constitutional
    grounds. The trial judge rejected the arguments and admitted the interview as
    evidence at trial.

The Grounds of Appeal

[3]

Assisted by duty counsel, the appellant contends that the trial judge
    erred in admitting the interview as evidence. To be more specific, the
    appellant says that the trial judge erred in failing to hold that the police
    were required to give the appellant a
Prosper
warning.

[4]

In our view, as this court held in
R. v. Fountain
, 2017 ONCA
    596, 136 O.R. (3d) 625 (C.A.), at para. 27 a
Prosper
warning is needed
    only if a detainee has asserted the right [to counsel] and then apparently
    change[s] his mind after reasonable efforts to contact counsel have been
    frustrated, citing
R. v. Smith
(1999), 44 O.R. (3d) 373 (C.A.), at p.
    384.

[5]

The trial judge came to a factual determination that the appellant had
    not asserted his right to counsel. That finding of fact was available to the
    trial judge on the record at trial. It is a finding of fact to which we owe and
    give deference.

[6]

The appeal from conviction is dismissed.

David Watt J.A.

David M. Paciocco J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ling, 2020 ONCA 203

DATE: 20200311

DOCKET: C67623

Nordheimer, Harvison Young and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joe Ling

Appellant

Joe Ling, acting in person

Ronald A. Sabo, for the respondent

Heard: March 11, 2020

On appeal from the conviction entered on March 22, 2019
    by Justice of Peace Linda Crawford of the Provincial Offences Office (Hamilton).

APPEAL BOOK ENDORSEMENT

[1]

The respondent consents to the appeal being allowed and the conviction being
    set aside.

[2]

The respondent also acknowledges that the charge is withdrawn as
    a consequence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2020 ONCA 163

DATE: 20200302

DOCKET: C67285

Miller, Fairburn and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Hamza Badrujaman Mohamed

Respondent

Gregory Furmaniuk, for the appellant

Catriona Verner, for the respondent

Heard: January 31, 2020

On appeal from the sentence imposed on July
    8, 2019 by Justice Heather L. Katarynych of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1]

The complainant stayed at the respondents residence
    for a few days and noticed that he had a gun. The respondent later accused the
    complainant of stealing money from his home. He intimated that if she did not
    give the money back, then he would harm her boyfriend. The complainant became
    fearful and decided to report the matter to the police.

[2]

The respondent was charged on two separate
    Informations with numerous offences. While he was prepared to enter a plea to
    whatever counts the Crown [was] seeking he plead to, the parties could not
    agree upon a joint disposition. After the respondent entered guilty pleas to
    ten offences, including weapon and drug trafficking offences, the Crown asked
    for a global penitentiary sentence of four years custody less enhanced credit
    of 437 days for presentence custody. The respondent asked for a global reformatory
    sentence of two years less a day, less 437 days credit.  He asked that he be
    permitted to serve his sentence under a conditional sentence order.

[3]

The sentencing judge agreed with the defence
    position. The respondent was credited with the equivalent of 437 days of
    presentence custody (291 real days credited on a 1.5:1 basis.) This left a net
    sentence of 292 days to serve under a conditional sentence order, followed by two
    years of probation.

[4]

The Crown seeks leave to appeal from sentence
    and asks that this court impose a global four-year sentence. The Crown accepts
    that two periods of time should be removed from that sentence: (a) the 437 days
    of presentence custody; and (b) the period of time that has already been served
    under the conditional sentence order, 207 days as of the date this matter was
    argued. The Crown argues that the sentencing judge erred by:

(a)

granting a conditional sentence for possessing cocaine
    for the purpose of trafficking;

(b)

imposing a demonstrably unfit sentence; and

(c)

overemphasizing the respondents rehabilitative
    prospects in subordination of the sentencing principles of denunciation and
    deterrence.

[5]

For the reasons that follow, I would dismiss the
    appeal in substance. I would allow the appeal only to the extent necessary to
    render the sentence imposed a legal one. The length of the sentence remains the
    same.

Was an illegal sentence imposed?

[6]

While the sentencing judge erred in law by
    imposing a conditional sentence for the offence of possessing cocaine for the
    purpose of trafficking, the error did not have an impact on the overall sentence.

[7]

The respondent was arrested while driving his
    car. A search incident to arrest revealed a loaded revolver in the vehicle, a
    few bullets in his pocket and $337 cash. Search warrants were then executed on
    his car and home, revealing around 40 grams of cocaine, over 400 grams of
    marijuana, two grams of hashish, drug paraphernalia, brass knuckles, and other
    ammunition (both live and spent).

[8]

There were two Informations before the court.
    The first Information, what I will refer to as the
Criminal Code

Information,
    contained numerous counts. The respondent pled guilty to six of those counts:
    uttering a death threat, unauthorized possession of a firearm, possession of a
    loaded firearm, two counts of careless storage of ammunition, and possession of
    brass knuckles. The second Information, what I will refer to as the
CDSA

Information, also contained numerous counts. The respondent pled guilty to
    four possession-related counts: possession of the proceeds of crime, and
    possession of cocaine, marijuana, and hashish for the purpose of trafficking.

[9]

The appellants first argument focuses upon the
    suggestion that the sentencing judge erred by imposing a conditional sentence on
    the possession of cocaine for the purpose of trafficking count. The appellant
    argues that this is an illegal sentence. I agree that a conditional sentence is
    not available for this offence.

[10]

Section 742.1(c) of the
Criminal Code,
R.S.C.
    1985, c. C-46, precludes a conditional sentence for offences that are
    prosecuted by way of indictment and for which the maximum term of imprisonment
    is 14 years or life:

742.1 If a person is convicted of an
    offence and the court imposes a sentence of imprisonment of less than two
    years, the court may, for the purpose of supervising the offenders behaviour
    in the community, order that the offender serve the sentence in the community,
    subject to the conditions imposed under section 742.3, if

(c) the offence is not an
    offence, prosecuted by way of indictment,
for which the maximum term of
    imprisonment is 14 years or life
[emphasis added].

[11]

Possession of cocaine for the purpose of
    trafficking is a straight indictable offence and is punishable by up to life
    imprisonment:
Controlled Drugs and Substances Act
,
S.C. 1996,
    c. 19, s. 5(3)(a). Accordingly, there is no dispute that the maximum punishment
    available for the cocaine offence precluded the imposition of a conditional
    sentence.

[12]

The dispute here is whether the sentencing judge
    did as the appellant suggests. The appellant argues that it is clear on the
    record that the respondent received a conditional sentence in relation to what
    I refer to as the cocaine count.  The appellant contends that this error means
    that the sentencing judges decision is owed no deference and it falls to this
    court to determine the appropriate sentence.

[13]

The respondent argues that it was not the
    intention of the sentencing judge to impose a conditional sentence in relation
    to the cocaine count. While it may appear from the conditional sentence order
    that one was imposed on all counts, including the cocaine count, this reflects nothing
    more than an administrative error by the person filling out the paperwork after
    sentence was imposed. The respondent points to a handwritten endorsement found on
    the
CDSA

Information in support of this argument: 291 days of
    real custody @ 1.5 = 436.5 (437 days). The respondent suggests that this
    endorsement makes clear that, while the presentence custody was not
    specifically distributed across counts, at least a portion of it was assigned
    to the cocaine count.

[14]

As any period of presentence custody could have
    fulfilled the need for a custodial disposition on the cocaine count, the
    respondent says that this endorsement should assuage any concern over whether a
    conditional sentence was imposed on that count.

[15]

Four things are clear from the reasons for
    sentence and dialogue between the sentencing judge and counsel in this case.
    First, the sentencing judge was intent on imposing a global sentence of two
    years less a day. Second, she was also intent on removing 437 days of enhanced
    presentence custody from that total. Third, she was intent on ordering that the
    292 remaining days be served as part of a conditional sentence order. And,
    fourth, she was intent on placing the respondent on two years of probation
    after he completed his conditional sentence.

[16]

The transcript of proceedings demonstrates that
    the sentencing judge struggled with how to distribute the sentence across
    counts. She repeatedly asked for the assistance of counsel on this point. In
    discussing the matter, no one adverted to the fact that a conditional sentence
    was not available for the cocaine count.

[17]

I do not agree with the respondents suggestion
    that the endorsement, assigning all presentence custody to the counts on the
CDSA

Information, answers the concern raised by the appellant on appeal. While
    that endorsement seems to suggest that the entire 437 days of presentence
    custody was assigned to those counts, the
CDSA

Information is
    equally clear that a 292-day conditional sentence was imposed on the cocaine
    count.

[18]

I agree with the appellant that the sentencing
    judge erred by imposing a conditional sentence on the cocaine count. I disagree,
    though, that it makes any difference to the overall disposition of this appeal.

[19]

Sentencing judges are to be granted a wide berth
    when it comes to determining an appropriate disposition. They enjoy a benefit
    that appeal judges do not. They sit in an especially privileged position from which
    to observe the dynamics of any given case, placing them in the best position to
    come to factual conclusions and consider those conclusions against the relevant
    objectives and principles of sentencing.

[20]

Accordingly, deference is appropriately given to
    sentencing judges, even where they deviate from a range of sentence. Unless the
    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:
R. v. Lacasse
,
2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 11 (emphasis added), see also para. 44.

[21]

The sentencing judge made a clear error of law
    by imposing a conditional sentence in relation to the cocaine count. The
    question is whether the error of law had an impact on the sentence. It did
    not.

[22]

At the sentencing hearing, the parties were agreed
    that a six-month sentence would properly accommodate the drug offences,
    including the cocaine count. As the respondent had already served the
    equivalent of 437 days of presentence custody, he had well outstripped the six
    months that both parties had agreed upon.

[23]

The sentencing judge could have stayed true to
    her stated objectives and adhered to the joint position of a six-month sentence
    on the cocaine count by simply imposing a sentence of 180 days of presentence custody
    plus two years probation on the cocaine count. By approaching the matter in
    that way, all illegality would have been avoided and, for all practical
    purposes, the sentence would have remained the same.

[24]

Accordingly, in my view, the error had no impact
    on the sentence imposed. Although I would correct the illegality arising from
    the issue raised on appeal, I would not use the error as a basis upon which to set
    aside the principle of deference.

Is
    the sentence demonstrably unfit?

[25]

The appellant also argues that the two-years
    less a day sentence, conditional or otherwise, was demonstrably unfit. I
    disagree.

[26]

The appellant points to numerous aggravating
    factors in this case that render the sentence unfit. The appellant stresses the
    inherently and indisputably dangerous nature of loaded firearms and the need
    for exemplary sentences. The appellant also correctly points to the toxic
    combination of guns and drug trafficking:
R. v. Wong
, 2012 ONCA 767,
    at paras. 11-13. The appellant further points to the fact of a death threat in
    this case, the presence of multiple drugs, the victim impact, the drug
    paraphernalia and the fact that the respondents young child was living in the
    home where he kept his drugs and where his firearm had been seen.

[27]

These are undoubtedly serious aggravating
    factors that would normally attract a much higher sentence than the one imposed
    in this case, certainly into the penitentiary range. Indeed, in my view, when
    all of the respondents conduct is considered as a whole, the sentence imposed
    in this case falls below the range. Even so, I would not interfere with the
    sentence imposed.

[28]

Sentencing is not a purely mathematical exercise
    with floors below which and ceilings above which the sentence cannot go.
    Sentencing ranges are guidelines, but not hard and fast rules:
Lacasse
,
    at para. 60;
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para.
    44. As Wagner J. (as he then was) noted in
Lacasse
, at para. 58, there
    will always be situations that call for a sentence outside a particular range.
    Those situations will sometimes arise from the sentencing judges impressions
    and findings regarding the unique circumstances of the case, including the
    uniqueness of the individual who is being sentenced.

[29]

I would defer to the sentencing judges careful exercise
    of discretion in this case. She was fully aware of the range of sentence,
    specifically noting that most cases involving possession of a loaded restricted
    firearm would attract a sentence in the three- to five-year range. She went to great
    lengths to explain why it was appropriate to depart from the range in this
    case.

[30]

The reasons for sentence are detailed and
    lengthy, spanning over 300 paragraphs. The sentencing judge had careful regard
    to the seriousness of the respondents crimes. At the same time, she emphasized
    that he was a youthful first offender (25 years old at the time he committed
    the offences), had pled guilty and expressed deep remorse for his actions.

[31]

Most importantly in the sentencing judges view,
    the respondent had demonstrated his keen desire to rehabilitate himself.
    According to the sentencing judge, during his almost ten months in presentence custody,
    the respondent had engaged in a sustained effort to better himself. Among other
    things, she pointed to the certificates of achievement obtained by the respondent
    in the following programs and courses, which he completed during his time in
    custody leading up to the guilty pleas:

(a)

a creative writing program with over ten weeks
    dedicated to restorative themes, including writing about parenting, mental
    health, forgiveness and accountability;

(b)

effective parenting lessons;

(c)

a five-week course on music production;

(d)

different drug-related courses; and

(e)

an anger management rehabilitative group session
    entitled Change is a Choice.

[32]

The respondent had no disciplinary problems in
    the institution and, in fact, had gained so much respect from the custodial
    institution that he was granted specific privileges to have contact with his spouse.
    As noted by the Acting Program Leader in the education program at the Toronto
    South Detention Centre, the respondent had shown that he is a determined,
    capable and engaging participant, attends program regularly, completes
    assignments, takes initiative in his learning and asks for help when needed. The
    respondent had written an eight-hour exam toward earning his high school
    equivalency certificate. The Acting Program Leader stated in a letter, it is a
    pleasure to work with Hamza and I wish him continued success as he pursues his
    educational goals.

[33]

These are only some examples of what the
    sentencing judge reviewed in her reasons for why she held out great hope for
    the respondents future prospects. While she did not diminish the seriousness
    of the offences or the victim impact in this case, the sentencing judge balanced
    those factors against the clear rehabilitative prospects of this relatively
    young, first-time offender. The sentencing judge saw that the respondent had
    taken unusual steps to turn his life around and she was prepared to accept that
    he had good prospects for continuing on that path. The strong community support
    for the respondent only strengthened the sentencing judges conclusion in this
    regard. There was nothing wrong with sending a message to this young man, who
    had clearly demonstrated that he was trying to right his wrong and alter his
    path, that those steps had not gone unnoticed and were to be encouraged:
R.
    v. Ghadban
,
2015 ONCA 760, at para. 23.

[34]

In light of all of the circumstances in this
    case, I do not agree that the sentence is demonstrably unfit.

Did
    the sentencing judge err by overemphasizing the respondents mitigating
    circumstances?

[35]

The appellant also argues that the sentencing judge
    erred in principle by overemphasizing the respondents rehabilitative prospects.
    The appellant points to two main problems with the sentencing judges approach.

[36]

First, the appellant argues that the sentencing
    judge subordinated denunciation and deterrence contrary to law, making these
    sentencing principles ancillary benefits to a sentence that was geared toward
    rehabilitation.

[37]

Largely for the reasons already given, I do not
    agree with this characterization of the sentencing judges reasons. She was
    alive to the importance of denunciation and deterrence as critical principles to
    be applied in this sentencing context, even noting at one point that in
    general incarceration is preferable where denunciation and deterrence are
    especially important. On another occasion, she explicitly noted that specific
    and general deterrence were core consideration[s] in this case.

[38]

Given the respondents age, his guilty plea, the
    absence of a criminal record and the strong evidence of his motivation to
    become a law-abiding member of the community, and a good father and partner, there
    was nothing wrong with the attention the sentencing judge paid to
    rehabilitation, particularly given that she did not lose sight of the
    importance of the principles of deterrence and denunciation.

[39]

Second, the appellant contends that, even if it
    were permissible to emphasize rehabilitation in this case, the sentencing judge
    was wrong to view the respondents rehabilitative prospects in such a positive
    light. As the appellant put it, good behaviour under the watchful eye of the
    justice system should be viewed with caution.

[40]

It was for the sentencing judge to make a
    determination as to the genuineness of the respondents desire to improve
    himself. It is not for this court to reconsider her findings of fact in that
    regard.

[41]

I see no basis upon which to interfere with the
    sentence on this ground.

Conclusion

[42]

I would grant leave to appeal and grant the
    appeal, but only to the extent of making the sentence a legal one, which
    requires attribution of the presentence custody to specific counts.  I would do
    this in a way that remains true to the global sentence imposed by the
    sentencing judge.

[43]

I would amend the sentence as follows:

(a)

I would set aside the general endorsement on the
CDSA
Information that says: 291 days of real custody @ 1.5 = 436.5
    (437 days).

(b)

On count 1 of the
CDSA
Information,
    possession of cocaine for the purpose of trafficking, I would set aside the
    conditional sentence and impose a sentence of 120 days of presentence custody,
    to be credited at 180 days, plus two years probation on the same terms as
    previously set out.

(c)

On count 5 of the
Criminal Code
Information, the possession of a loaded firearm count, in addition to the 292-day
    conditional sentence already imposed, I would note an additional 171 days of
    presentence custody to be credited at 257 days.

[44]

The sentence, including all ancillary orders, will
    remain the same in all other respects.

Released: B.W.M. March 2, 2020

Fairburn J.A.

I agree. B.W. Miller J.A.

I agree. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Norris, 2020 ONCA 174

DATE: 20200305

DOCKET: C65438

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Norris

Appellant

Amy Ohler, for the appellant

No one appearing for the respondent

Heard: February 12, 2020

APPEAL BOOK ENDORSEMENT

[1]

Mr. Norris abandons his appeal against
    conviction.


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. R.C., 2020 ONCA 159

DATE: 20200302

DOCKET: C65379

Feldman, Harvison Young and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.C.

Appellant

Jeffery Couse and Marianne Salih, for
    the appellant

Lorna Bolton, for the respondent

Heard: November 27, 2019

On appeal from the convictions entered
    by Justice Carole J. Brown of the Superior Court of Justice, sitting with a
    jury, on December 14, 2016, and from the sentence imposed on September 5, 2017,
    with reasons reported at 2017 ONSC 5089.

Jamal J.A.:

A.

INTRODUCTION

[1]

The appellant, a former fashion photographer,
    was charged with six counts of sexual assault and one count of sexual
    exploitation of four young women whom he had photographed, namely, C.K., A.R.,
    C.A., and N.H.

[2]

Before trial, the appellant applied to sever the
    charges and have them tried separately. The application judge severed only the
    charge involving N.H., which alleged the appellant had briefly touched N.H.s
    breasts without her consent during a photography session. He permitted a joint
    trial of the more serious allegations involving the other complainants, which alleged
    non-consensual vaginal touching, digital penetration, and penile penetration:
    see
R. v. R.C.
, 2016 ONSC 6593.

[3]

The trial judge later allowed the Crown to adduce
    similar fact evidence across the counts involving C.K., A.R., and C.A.: see
R.
    v. R.C.
, 2016 ONSC 7575.

[4]

The jury acquitted the appellant of the charge
    involving C.A., but convicted him of those involving C.K. and A.R. He was
    sentenced to 51-months imprisonment.

[5]

The appellant now appeals against his conviction
    and sentence. He raises four grounds of appeal:

1.

The application judge erred in refusing to sever
    the charges involving C.A., C.K., and A.R.

2.

The trial judge erred in granting the Crowns
    cross-count similar fact evidence application.

3.

The trial judges jury charge failed to relate
    the evidence to the issues and to provide a proper instruction on the
    principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

4.

The 51-month sentence imposed for a first-time
    offender violated the totality and parity principles and was demonstrably
    unfit. The trial judge also erred by relying on an aggravating factor that had
    not been proven beyond a reasonable doubt.

[6]

For the reasons that follow, I would dismiss both
    the conviction and sentence appeals.

B.

BACKGROUND

(a)

The allegations involving C.K.

[7]

C.K. moved to Toronto in 2009 at the age of 18
    to pursue a modelling career. She met the appellant, who was 34 at the time, through
    K.R., a more experienced model who had worked with the appellant.

[8]

C.K. attended several photoshoots at the
    appellants studio in 2009 and 2010. At the first shoot, K.R. was initially present,
    as was another photographer, S.L., who shared the appellants studio at the
    time. C.K. testified that after K.R. and S.L. left, the appellant persuaded her
    to pose in a so-called Calvin Klein implied-nude style, in which the model
    poses topless but covers her breasts with her arms or hands. She testified that
    the appellant said that all the best models pose topless, even though C.K.s
    modelling agency did not require such shots. C.K. posed topless at several photoshoots.
    The appellant told her to undress and wear a robe while at the studio to avoid clothing
    impressions on her skin.

[9]

C.K. claimed that the appellant sexually
    assaulted her three times.

[10]

First, during a photoshoot in 2010, the
    appellant told her to think about sex, placed his hand under her robe, and
    digitally penetrated her vagina. C.K. testified that she did not want to be
    touched like this, but she did not object because she was concerned about how
    the appellant might react and whether he would hurt her career.

[11]

Second, a few weeks later, during another
    photoshoot, the appellant grabbed C.K. and fondled her breasts.

[12]

Third, in April 2010, during her final
    photoshoot with the appellant, the appellant approached C.K. from behind,
    pushed her over a table, and had vaginal intercourse with her without her
    consent. Afraid that he would hurt her if she resisted, C.K. just closed her
    eyes and tried not to cry. After this, C.K. never worked with the appellant
    again.

[13]

C.K. testified that some time later she sent the
    appellant an angry email, saying that she had trusted him and he should not
    have done that to her. She testified that the appellant wrote back something like,
    I thought that you wanted it; she responded, Are you kidding? C.K. stated
    that she had deleted the emails as it had never occurred to her that she would
    require them for anything.

[14]

A year or so later, C.K. saw the appellant at a
    fashion show and told her boyfriend that the appellant had sexually assaulted
    her. Her boyfriend encouraged her to go to the police, but she was not ready to
    do so. A week later, she read a newspaper article about several other models
    who had made allegations against the appellant. She was contacted by S.L., the
    photographer who had shared the appellants studio, who suggested that if
    something had happened she should tell the police. C.K. then went to the
    police.

[15]

In his testimony, the appellant admitted some of
    the sexual touching and the sexual intercourse, but insisted that everything was
    consensual and he always asked for permission before touching C.K. He also
    testified that C.K. had initiated the sexual contact. He saw nothing wrong in
    touching his much younger client and did not consider 15 years to be a
    significant age difference. He also denied ever receiving an angry email from her.

(b)

The allegations involving A.R.

[16]

A.R. was a 21-year-old university student with
    no professional modelling experience when she met the appellant. On March 6,
    2011, he messaged her through a website where she had a modelling profile and
    offered her a modelling opportunity. She was flattered that someone so
    experienced had contacted her.

[17]

A.R. testified that S.L. was leaving when she
    arrived at the appellants studio with her boyfriend. The appellant told her
    that the modelling opportunity was no longer available but said he saw
    potential in her and would like to help. He offered to take some headshots and
    asked her boyfriend to leave. He then gave her a robe and told her to remove
    her top and bra. He had already told her that he required models to remove
    their clothes and put on a robe to avoid visible clothing lines. He then asked
    her to pose topless. A.R. was uncomfortable, but did as she was told. She assumed
    that the appellant knew what he was doing. The appellant then proposed a
    Calvin Klein implied-nude shot and asked her to pose topless again. Once more,
    A.R. felt uncomfortable, but complied.

[18]

A.R. testified that, at a later photoshoot on
    March 10, 2011, the appellant sexually assaulted her. He first encouraged her
    to change in the open and tried to talk to her about sex. She alleged that he
    touched her vagina and digitally penetrated her. She testified, I was scared
    for my life. It shocked me. I didnt know what was happening. She said the
    appellant told her he could help her succeed, just as he had helped K.R., whom
    he said he had also touched sexually. A.R. thought about trying to leave, but
    was afraid the appellant might hurt her or assault her again. She testified
    that the shoot ended when the appellant encouraged her to touch herself but she
    refused. He then forced open her legs and touched her where her pelvis and leg
    join. A.R. insisted that the appellant never asked if he could touch her
    sexually and she never consented to him doing so.

[19]

Later that night, A.R. told one of her female
    friends and her boyfriend about what had happened. Soon afterwards, she
    contacted S.L. and told him.

[20]

In his testimony, S.L. confirmed that A.R. had
    contacted him and had told him that the appellant had sexually assaulted her. S.L.
    gave A.R. the phone numbers of C.A. and K.R., whom she called later that year,
    but she claimed she did not discuss the details of the alleged assault with
    them.

[21]

On March 16, 2011, S.L. moved his photography
    equipment out of the appellants studio and told him that he had done so
    because he had learned that the appellant was doing inappropriate things with
    models. S.L. testified that the appellant said nothing in reply.

[22]

A.R. ultimately went to the police in May 2012.

[23]

In his testimony, the appellant admitted some of
    the sexual touching, but insisted that it was all consensual.

(c)

The allegations involving C.A.

[24]

C.A. met the appellant in 2009 through the model
    K.R., who had also introduced C.K. to the appellant. C.A. was 18 and new to
    professional modelling.

[25]

At their first photoshoot, the appellant
    encouraged C.A. to pose topless in the Calvin Klein or implied-nude style.
    She complied but was uncomfortable.

[26]

At their second photoshoot, C.A.s evidence was
    that the appellant encouraged her to lie down on a bench. He then touched her
    breasts, vagina and clitoris, and digitally penetrated her, all without her
    consent. She testified that the appellant said that K.R. had done sexual things
    with him and that it had made her a better model. The appellant denied both the
    alleged sexual contact and the comments about K.R.

[27]

Some time later, the appellant offered to let
    C.A. sleep at his studio (where he was living at the time) because she had a
    casting at a nearby location the next morning. She accepted. C.A.s evidence
    was that the appellant had sexual intercourse with her that night without her
    consent. After this, she stopped working with him. The appellant denied any
    sexual contact that night but stated that later he and C.A. had a consensual
    sexual relationship for a time.

[28]

On December 14, 2016, the jury acquitted the
    appellant of the charge involving C.A., but convicted him of the charges
    involving C.K. and A.R.

C.

ANALYSIS

(1)

Did the application judge err in refusing to
    sever the charges involving three of the complainants?

(a)

Background

[29]

Before trial, the appellant applied to sever the
    charges involving each of the four complainants on the basis that a joint trial
    would prejudice his right to a fair trial, particularly since he intended to
    testify in defence to the allegations of C.K., A.R., and C.A., but not to those
    of N.H.

[30]

The application judge severed the charge involving
    N.H. He noted that the factual allegations involving N.H. were not at the same
    level of severity as those involving the other complainants and there was no
    suggestion that N.H. had been in contact with them or S.L. Accordingly, the
    application judge concluded that it would be very prejudicial to try the less
    serious allegations made by N.H. with the very severe allegations made by the
    other three complainants. The application judge also reasoned that the
    appellants announced intention to testify in defence to the charges involving
    all the complainants except N.H. would potentially be read by a jury as an
    acknowledgement of guilt in the one silent case.

[31]

However, the application judge refused to sever
    the other charges. He reasoned that there was a viable similar fact argument for
    them, and there would be nothing unduly prejudicial in trying them together.
    The appellant argues that the application judge erred in so ruling.

(b)

Applicable principles of severance

[32]

Section 591(3)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, gives the court broad discretion to sever counts in an
    indictment where it is satisfied that the interests of justice so require.
    The accused bears the onus of justifying severance on the balance of
    probabilities:
R. v. Jeanvenne
, 2010 ONCA 706, 261 C.C.C. (3d) 462, at
    para. 26.

[33]

In exercising this discretion, the court
    balances the accuseds right to be tried on the evidence admissible against the
    accused with societys interest in seeing that justice is done in a reasonably
    efficient and cost-effective manner, mindful of the risk that evidence
    admissible on one count could influence the verdict on an unrelated count:
R.
    v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-17;
R. v.
    Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 72.

[34]

The interests of justice under s. 591(3)(a) of
    the
Criminal Code
have been interpreted as including several
    non-exhaustive factors to be weighed in the balance. These were summarized in
Durant
,
    at para. 73, as including:

i.

general prejudice to the accused as a result of
    the influence of the volume of evidence adduced and the effect of verdicts
    across counts;

ii.

the legal and factual nexus between or among
    counts;

iii.

the complexity of the evidence;

iv.

the desire of the accused to testify on one or more counts but not on
    another or others;

v.

the possibility of inconsistent verdicts;

vi.

the desire to avoid a multiplicity of proceedings;

vii.

the use of evidence of similar acts;

viii.

the
    length of trial;

ix.

prejudice to the accuseds right to be tried within a reasonable
    time; and

x.

the existence or likelihood of antagonistic
    defences.

See also
Last
,
    at para. 18;
Jeanvenne
, at para. 29.

[35]

Considerable deference is owed to a lower
    courts exercise of discretion as to severance. An appellate court may
    intervene only if the lower court acted unjudicially or the ruling resulted
    in an injustice:
Last
, at paras. 14, 21;
Jeanvenne
, at para.
    26; and
Durant
, at para. 79. These are distinct inquiries. A lower
    court acts unjudicially if, based on the circumstances at the time the ruling
    was made, the court errs on a question of law or principle or makes an
    unreasonable decision. A lower courts ruling results in an injustice based on
    how the entire trial and the verdicts unfold, including the potential
    prejudicial effect of the evidence, the closing addresses of counsel, the
    judges jury instructions, and any inference that may be drawn from the jurys
    ultimate verdicts:
Last
, at para. 15;
Jeanvenne
, at para. 27;
    and
Durant
, at para. 79.

(c)

Application to this case

[36]

The appellant asserts that the application judge
    acted unjudicially because he erred in concluding that: (i) the Crown had a
    viable similar fact argument; and (ii) the prejudice arising from trying the
    allegations pertaining to C.A., A.R., and C.K. together was low. The appellant
    also asserts (iii) that the severance ruling caused an injustice based on how
    the trial unfolded.

(i)

Viability of the similar fact application

[37]

The Crown is not required to bring a similar
    fact application at the time of the severance application  it is entitled to
    defer the argument of the admissibility across counts of the evidence of
    similar acts until all the Crowns evidence has been tendered:
Last
,
    at para. 34.

[38]

Where the Crown intends to argue the
    admissibility of the similar fact evidence later in the trial, the trial judge
    should consider the similar fact evidence carefully in the context of the
    severance application:
Last
, at para. 33;
R v. Waudby
, 2011
    ONCA 707, at para. 4. As stated in
R. v. Sahdev
, 2017 ONCA 900, 356
    C.C.C. (3d) 137, at para. 49:

[A]ssessing the viability of a similar fact
    application on a severance application can be tricky, given that the burden to
    achieve severance is on the defence, while the burden to admit similar fact
    evidence is on the Crown. The exercise must be approached with great care[.]

[39]

Where a judge carefully considers the viability
    of an anticipated similar fact application at the time of the severance
    application and concludes that it appears to have sufficient merit, it will be
    difficult to establish that the judge erred by refusing to sever:
Waudby
,
    at paras. 3-4. The severance application judge need only assess whether the
    anticipated similar fact application has some possibility of success, or
    whether it is reasonable to consider that it might succeed:
R. v. Blacklaws
,
    2012 BCCA 217, 285 C.C.C. (3d) 132, at paras. 43-44,
per
Finch
    C.J.B.C. (dissenting), affd at 2013 SCC 8, [2013] 1 S.C.R. 403. This threshold
    is considerably lower than the test for admitting similar fact evidence:
Blacklaws
,
    at para. 42.

[40]

Here, in my view, the application judge
    correctly weighed the relevant considerations at the time of the severance
    application in evaluating whether the Crown had a viable similar fact
    application. He considered the appellants arguments that the cases had no
    unifying threads and that trying them together would come perilously close to
    saying that he is the type of person to take advantage of his position.
    Nevertheless, the application judge reasonably concluded that the Crown had a
    viable similar fact application because all the offences alleged very similar
    conduct in very similar circumstances. He was also entitled to conclude that
    there was nothing unduly prejudicial about trying the C.K., A.R., and C.A.
    cases together. It was not necessary for the application judge to go into
    further specifics about the sources of prejudice, and it is clear from reading
    his reasons as a whole that he was alive to the risk of prejudice and considered
    it in the course of his analysis: see
Blacklaws
, at para. 52. Deference
    is owed to his ultimate conclusion.

[41]

Finally, I do not agree with the appellant that
    the application judge relied on evidence of alleged collusion to support the
    viability of the Crowns similar fact application. Rather, when the application
    judges reasons are read in context, it is clear that he relied on the allegation
    of collusion among C.A., A.R., and C.K. as a characteristic distinguishing those
    charges from the charges in respect of N.H., where there was no allegation of collusion.
    The application judge used this distinction to support severing that charge
    from the others.

[42]

Therefore, in my view, the application judge did
    not err in concluding that the Crown had a viable similar fact application at
    the time of the severance application.

(ii)

Prejudice

[43]

The appellant submits that the application judge
    erred in his assessment of prejudice on the severance application in three
    ways.

[44]

First, the appellant submits that the
    application judge erred in relying on the similarity of the allegations in
    concluding that there is nothing unduly prejudicial about trying the [three]
    cases together. The appellant asserts that the similarity of the allegation
    is precisely what creates prejudice in the circumstances.

[45]

I disagree with the contention that the
    application judge erred in considering the similarity of the allegations. In
    this case, that similarity supported the viability of the similar fact
    application. Such an application, if ultimately granted at trial, would
    specifically permit the jury to consider the evidence of all three complainants
    across counts. Where a proposed similar fact application is viable at the time
    of the severance application, this may provide a sufficient reason for deciding
    to deal with potential prejudice at a later stage of the proceedings, including
    through appropriate jury instructions: see
Waudby
, at para. 8.

[46]

Second, the appellant submits that the
    application judge erred in his assessment of prejudice because he did not
    address any of the specific types of prejudice discussed by the Supreme Court
    in
Last
i.e., the risk that the complainants credibility would be
    impermissibly bolstered, the risk that the appellants credibility would be
    impermissibly undermined, and the risk that the jury would engage in propensity
    reasoning. The appellant makes the same argument in relation to the application
    judges conclusion about the viability of the similar fact application.

[47]

As I stated above, it was not necessary for the
    application judge to go into further specifics about the sources of prejudice. He
    explicitly mentioned the risk of propensity reasoning and it is clear from his
    reasons that he was alive to the risk of prejudice generally and considered it
    in the course of his analysis. Deference is owed to his ultimate conclusion.

[48]

Third, the appellant submits that the
    application judge erred in his assessment of prejudice because he
    misapprehended the evidence about the differences between the three cases.
    Specifically, the appellant takes issue with the application judges statement
    that the three complainants were looking to the [appellant] for professional guidance
    and an initiation into their modelling careers, but what they got was an
    initiation into coerced
sex
 (emphasis added). The appellant submits
    that this statement reveals a misapprehension of the evidence, because only
    C.A. and C.K. alleged non-consensual sexual intercourse.

[49]

I disagree with this assertion. When read in the
    context of the severance decision as a whole, the reference here to coerced
sex

    included both sexual intercourse and vaginal touching. The application judge
    was well aware that only two complainants alleged sexual intercourse
.

[50]

I therefore conclude that the application judge
    did not act unjudicially in refusing severance. He did not err in concluding
    that the Crown had a viable similar fact argument or in concluding that trying
    the allegations pertaining to C.A., A.R., and C.K. together was not unduly
    prejudicial.

(iii)

Alleged injustice based on how the trial
    unfolded

[51]

Finally, the appellant asserts that the
    severance ruling caused an injustice based on how the trial unfolded. He claims
    that he was forced to testify against all complainants, such that [a]ny
    impairment of his credibility against one complainant inevitably tainted his
    credibility against the other.

[52]

I would reject this claim. At the severance
    application, the appellant himself submitted that he planned to testify in
    defence to the charges involving C.K., A.R., and C.A., and argued that this was
    a reason to sever the charge involving N.H. The application judge severed that
    charge but refused to sever what remained. At trial, the appellant unsuccessfully
    opposed the similar fact application. Then, he chose to testify. In the
    circumstances, it cannot be said that he was forced to testify in his own
    defence, when he had previously announced that he planned to testify and then decided
    to do so based on how the trial unfolded. Moreover, the jury acquitted the
    appellant of the charge involving C.A., despite the admission of the similar
    fact evidence of C.K. and A.R., which suggests that the jury did not engage in
    forbidden propensity reasoning, and did not assume that the appellant was
    unbelievable with respect to all of the allegations just because he was
    unbelievable with respect to some of them.

[53]

In conclusion, I see no basis to impugn any
    aspect of the severance ruling.

(2)

Did the trial judge err in granting the Crowns
    cross-count similar fact evidence application?

(a)

Applicable principles for admitting cross-count similar
    fact evidence

[54]

Similar fact evidence is presumptively
    inadmissible. To make it admissible, the Crown bears the burden of showing on a
    balance of probabilities that the probative value of the similar fact evidence
    in relation to a particular issue at trial outweighs its potential prejudicial
    effect:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[55]

An aspect of the presumptive rule against admitting
    similar fact evidence is that evidence on one count cannot be used to prove
    guilt on another count where the counts do not arise out of the same events:
R.
    v. T.C.
, 2019 ONCA 898, at para. 42. This rule aims to prevent the jury from
    either: (1) placing more weight than is justified on the evidence of similar
    facts (known as reasoning prejudice); or (2) finding the accused guilty based
    on forbidden propensity reasoning (known as moral prejudice), that is, reasoning
    that a person who has engaged in disreputable conduct alleged in one count has
    a propensity or disposition to do the type of act charged in another count:
T.C.
,
    at para. 43; see also
Handy
, at para. 31.

[56]

Absent an error of law, an unreasonable
    analysis, or a misapprehension of material evidence, a trial judges decision
    to admit similar fact evidence is entitled to substantial appellate deference:
Handy
,
    at para. 153;
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 42; and
R.
    v. J.H.
, 2018 ONCA 245, at para. 11.

(b)

The trial judges similar fact evidence ruling

[57]

At the close of its case, the Crown applied to have
    the similar fact evidence admissible across counts. The trial judge found that
    the acts sought to be used as similar fact evidence were similar for the
    following reasons:

The relationship of the respondent and
    complainants was one of professional fashion photographer and aspiring models.
    As the Crown has argued and the evidence supports, the complainants were all
    young (ages 18 to 21) and relatively inexperienced in modelling. The respondent
    portrayed himself and the complainants all viewed him as a significant fashion
    photographer in the industry, who had connections. The respondent, in all three
    cases, attempted to instill a sense of trust in the complainants such that they
    would be able to perform in front of the camera, attempted to relax them,
    again so that they would be able to pose as he wanted in front of the camera,
    began to raise sexual comments and continued to do so throughout, used sexual
    touching, purportedly for purposes of relaxing them prior to shoots, and told
    them that all models in the industry did that and/or that [K.R.] had done that
    and had become a good model. He touched them all in similar ways, caressing
    breasts with his fingers and touching their vaginal areas. He had all of them
    remove all of their clothing and wear robes, which he supplied, in order that
    there would be no clothing lines showing in photographs taken subsequently,
    then reached through robes to caress the models. He photographed them posed in
    the CK look, implied topless and topless.

[58]

The trial judge found the similar fact evidence
    relevant and probative to prove the
actus reus
, to support the
    credibility of the complainants, to demonstrate a pattern of behaviour, to
    negate a defence that the complainants were fabricating, and to defy
    coincidence with respect to the offences alleged. She also found that the
    evidence was not being admitted to show bad character and that it was not
    tainted by collusion among the complainants. She therefore concluded that its probative
    value outweighed any potential prejudice and admitted it across counts.

(c)

Application to this case

[59]

The appellant asserts that the trial judge erred
    in her similar fact evidence ruling in three respects.

[60]

First, the appellant contends that the trial
    judge relied on generic factors to establish the probative value of the
    similar fact evidence. He says that it is not surprising that the complainants
    were young and inexperienced in modelling given that they were aspiring models,
    nor is it surprising that [he] attempted to instill trust in the complainants
    and relax them so that they would pose better.

[61]

I do not accept this submission. In my view, it
    was open to the trial judge to conclude that the similarities alleged here were
    more than merely generic. Her task was not to add up similarities and
    dissimilarities and then, like an accountant, derive a net balance, but rather
    to determine whether there was a persuasive degree of connection between the
    similar fact evidence and the offence charged:
R. v. Shearing
, 2002
    SCC 58, [2002] 3 S.C.R. 33, at paras. 48, 60;
J.H.
, at para. 20. That
    is exactly what the trial judge did.

[62]

Here, the alleged similar facts involved a
    consistent
modus operandi
of grooming young, vulnerable, and trusting
    women to normalize the sexual assaults for which the appellant was charged.
    While some of the similar facts alleged could perhaps be described as generic
     that the models were all young and inexperienced and needed to relax before
    photoshoots  others were not, including the appellants alleged sexual
    touching to relax the complainants, his references to K.R. as a model who had
    succeeded under his guidance, and his encouraging topless implied-nude shots,
    even when not required.

[63]

A trial judges conclusion that alleged similar
    facts are sufficiently similar rather than impermissibly generic is entitled to
    substantial deference, absent an error of law or principle or a misapprehension
    of the evidence. I see no such error.

[64]

Second, the appellant asserts that the trial
    judge failed to assess the probative value of the similar fact evidence in
    relation to the specific issues in question at trial. He says that the only
    issue at trial was consent, and that the alleged similar touching with all
    three complainants was neither logically probative of that issue nor logically
    supportive of their credibility.

[65]

I do not agree that the trial judge failed to
    assess the probative value of the similar fact evidence in relation to the
    issues at play at trial. Apart from being relevant to and probative of the
actus
    reus
, the trial judge permitted the similar fact evidence to support the
    credibility of the complainants, to demonstrate a pattern of behaviour, to
    negate a defence that the complainants were fabricating, and to defy
    coincidence with respect to the offences alleged. These were all live issues at
    trial.

[66]

With respect to credibility in particular, the
    trial judge cited the admonition in
Handy
, at para. 115, that [c]are
    must be taken not to allow too broad a gateway for the admission of propensity
    evidence, because [c]redibility is an issue that pervades most trials, and at
    its broadest may amount to a decision on guilt or innocence. The trial judge
    went on to note that [t]he probative value of similar fact evidence in a
    credibility case lies in the improbability of witnesses giving similar accounts
    of incidents unless the witnesses are telling the truth, and as such, the
    probative value of the evidence depends upon the similarity between the
    incidents. She found, in this case, that the similar facts were significantly
    similar to justify admission across counts. Again, I see no error in the trial
    judges analysis or conclusion.

[67]

Third, the appellant asserts that the trial
    judge erred in finding that there was no air of reality to the appellants
    allegation of collusion among the complainants. He notes that there was a delay
    of one to four years in reporting each of the allegations, and that before doing
    so each complainant was contacted by S.L., the appellants former photography
    colleague. The appellant asserts that this finding was also inconsistent with the
    trial judges jury charge, which left the theory of collusion with the jury.

[68]

I disagree that the trial judge erred in how she
    dealt with the collusion allegation. Although the trial judge found evidence of
    opportunity for collusion, she concluded that there was no evidence of actual
    collusion. This conclusion was supported by the evidence on the application. I
    see no reason to disturb it.

[69]

It is true that the trial judge stated in her
    reasons on the similar fact application that she found no air of reality
    regarding actual collusion. However, she then added that if she was wrong about
    this the evidence of collusion was insufficient to taint the evidence of similar
    facts, and collusion was ultimately an issue of fact for the jury to decide on
    the evidence:

If I am wrong as regards there being no air
    of reality, I nevertheless find that there is, on the evidence before the
    Court, no sufficient evidence of collusion for this Court to find that the
    similar fact evidence sought to be used among the five counts was tainted by
    collusion. Based on the foregoing, I find, on a balance of probabilities, that
    the evidence of similar facts is not tainted with collusion.

For purposes of the trial, whether or not
    there was collusion, is ultimately a matter for the decision of the jury in
    this case, as with all findings of fact.

[70]

Thus, the trial judges initial conclusion that
    there was no air of reality to the collusion theory, if read out of context, may
    seem inconsistent with her ultimately leaving this issue for the jury. I do
    not, however, read her reasons that way. She appears to have left collusion to
    the jury because she considered it in the alternative as having an air of
    reality in addressing the similar fact application. In any event, any error
    occasioned by this, if indeed there was one, inured to the appellants benefit,
    because collusion was ultimately left to the jury.

[71]

For these reasons, I conclude that the trial
    judge did not err in granting the Crowns cross-count similar fact evidence
    application.

(3)

Did the trial judge err in her jury charge?

(a)

Applicable principles for evaluating a jury
    charge

[72]

An appellate court reviews the adequacy of a
    jury charge through a functional assessment. The court asks whether the
    charge, read as a whole in the context of the specific case, properly equipped
    the jury to decide the case based on the application of the applicable legal
    principles to the evidence:
R. v. Badgerow
, 2019 ONCA 374, 146 O.R.
    (3d) 35, at para. 17;
R. v. Calnen
, 2019 SCC 6, 430 D.L.R. (4th) 471,
    at para. 8.

[73]

Such a functional assessment gives significant
    weight to the position advanced by counsel at trial, and [t]o the extent the
    instruction tracks that position, it is likely to properly serve its functional
    purpose:
Badgerow
, at paras. 18-19. The jury instruction must be
    legally correct and fair, not perfect:
Badgerow
, at para. 20;
Calnen
,
    at para. 9.

(b)

Application to this case

[74]

The appellant argues that the trial judge erred
    in her jury charge in three respects. While not determinative, it bears noting that
    at trial the appellants trial counsel (who was not appeal counsel) did not
    object to the jury charge.

[75]

First, the appellant claims that the trial judge
    failed to explain that the real issue was consent, not whether the sexual
    encounters occurred. He highlights the trial judges jury instruction that
    [t]he real issue for you to decide in this case is whether
the offences
alleged by each complainant or any of them actually took place (emphasis
    added). He claims that the reference to the offences left the jury with the
    misunderstanding that he disputed sexual contact, when his position was that all
    sexual contact was consensual.

[76]

I see no error here. The trial judge referred to
    sexual offences, not encounters  which highlighted that the issue was
    whether the offences occurred, not whether there were sexual encounters. Elsewhere
    in the charge, the trial judge explained the essential elements of the offence
    of sexual assault as including intentional touching, of a sexual nature,
    without consent, by an accused who knew that the complainant did not consent.
    Thus, the jury was left with no confusion about the appellants position.

[77]

Second, the appellant contends that the trial
    judge failed to relate the evidence to the issues, especially to the issue of
    consent, and instead offered a witness-by-witness recitation of the evidence.

[78]

I do not agree with this submission. I
    acknowledge that this court has observed that a witness-by-witness recitation
    of the evidence is almost always ineffective, because it tends to be
    unnecessarily detailed and, as a summary of the evidence, often bears no
    relationship to the issues in dispute: see
R. v. Newton
, 2017 ONCA
    496, 349 C.C.C. (3d) 508, at paras. 15-16.

[79]

However, that is not a fair description of the
    trial judges jury charge in this case. For example, although the trial judge
    began with a detailed summary of the evidence of each of the five witnesses,
    including the three complainants, she went on to summarize again  though more
    succinctly  the relevant evidence as to consent. She stated:

The evidence as regards consent is as above
    set forth. The three complainants state that they did not consent to sexual
    touching by the accused. [The appellant] states that all complainants
    consented, and that he would never touch anyone without their consent. While he
    does not recall the words used by him to obtain consent, nor the words used by
    each complainant to give consent, he testified that he would not touch anyone
    without their consent.

[80]

The trial judge addressed consent again when she
    instructed the jury on whether the appellant had the
mens rea
for sexual
    assault and summarized the evidence respecting consent and honest but mistaken
    belief in consent.

[81]

Thus, in my view, read as a whole, the jury
    charge cannot be impugned for failing to relate the evidence to the issues.

[82]

Third, the appellant asserts that the trial
    judge failed to give a proper jury instruction in accordance with
W.(D.)
,
    at p. 758, namely:

(a)

First, if you believe the accuseds evidence, you
    must acquit;

(b)

Second, if you do not believe the accuseds evidence
    but are left in reasonable doubt about his guilt, you must acquit;

(c)

Third, even if you are not left in doubt by the accuseds
    evidence, you must ask whether, based on the evidence you do accept, you are
    convinced beyond a reasonable doubt by that evidence of the accuseds guilt.

[83]

The appellant acknowledges that the trial judge
    included the standard
W.(D.)
instruction at the beginning of the jury
    charge, but complains that she did not instruct the jury that the
W.(D.)
analysis was to be applied to every element of the offence and did not relate
    the evidence to the
W.(D.)
analysis to be applied.

[84]

I would not give effect to this submission. A court
    need not take a formulaic approach to the
W.(D.)
analysis, but
    rather must ensure that the burden of proof never shifts from the Crown:
R.
    v. Robinson
, 2009 ONCA 626, 254 O.A.C. 171, at para. 25. The key question
    is thus whether the jury charge made this clear.

[85]

In my view, the jury charge made this abundantly
    clear. As the appellant concedes, the trial judge did include a standard
W.(D.)
instruction at the beginning of her charge. She was not required to repeat that
    instruction when dealing with each and every element of the offence. The trial
    judge clearly instructed the jury that it could believe some, all, or none of
    each complainants evidence; repeatedly explained that the Crown bore the
    burden of proof and the appellant did not have to prove anything; and cautioned
    that the verdict must be based on all the evidence. Nothing more was required.

[86]

I therefore conclude that the jury charge, read
    as a whole, properly equipped the jury to decide the case. Thus, I conclude
    that the jury charge easily passes muster under a functional assessment.

[87]

For these reasons, I would dismiss the
    conviction appeal.

(4)

Did the trial judge err in sentencing?

[88]

After the jury found the appellant guilty of
    sexually assaulting C.K. and A.R., the trial judge sentenced the appellant to 51-months
    imprisonment, less credit for 13 days of pre-trial custody and three months for
    strict bail conditions during the first year.

[89]

This sentence consisted of three years and three
    months for assaulting C.K., and one year for assaulting A.R., to be served
    consecutively. The trial judge noted that the crimes against each of C.K. and
    A.R. were separate and distinct, and that as a general principle, assaults that
    are separate, unrelated transactions should receive separate, consecutive
    sentences. The sentence imposed was roughly midway between the parties
    submissions: the Crown had sought six years and three months, while the defence
    argued for two years plus a day.

[90]

The appellant claims that the trial judge erred
    in two respects.

[91]

First, the appellant asserts that the trial
    judge erred in sentencing with respect to the offences committed against A.R. by
    considering an aggravating factor  digital penetration  that had not been
    proven beyond a reasonable doubt. Specifically, the appellant says that there
    was a discrepancy in the evidence on the extent of sexual touching of A.R.: she
    testified that the touching included digital penetration; he testified that it
    did not. The appellant argues that the jurys verdict showed that it was
    satisfied that there was sexual touching without consent, but does not show
    what touching was proven beyond a reasonable doubt. The appellant submits that before
    the trial judge could rely on digital penetration as an aggravating sentencing
    factor, she should have made an independent determination of the facts:
Criminal
    Code
, ss. 724(3)(d) and (e);
R. v. Ferguson
, 2008 SCC 6, [2008] 1
    S.C.R. 96, at paras. 17-18.

[92]

I disagree with the appellants claim that the
    trial judge considered digital penetration as an aggravating factor. The issue
    of whether the non-consensual touching of A.R. specifically included digital
    penetration was not explored in the parties sentencing submissions, which
    suggests that neither party considered it especially material to sentence. The
    trial judges reasons mentioned the alleged digital penetration in passing, but
    did not treat it as an aggravating factor. The specific aggravating factors she
    considered were the power imbalance that the appellant exploited to take
    advantage of two young, inexperienced aspiring models who perceived him as
    experienced, trusted him as a professional and were deceived; and the ages of
    the victims, the fact that there were two victims and several incidents of
    sexual assault and further that the victims were significantly affected.

[93]

Second, the appellant claims that the trial
    judge violated the totality principle in imposing consecutive sentences,
    resulting in an unduly long or harsh combined sentence contrary to s.
    718.2(c) of the
Criminal Code
. The appellant submits that a total
    sentence of 51 months for a first-time offender was demonstrably unfit because he
    has excellent prospects for rehabilitation.

[94]

As is well known, trial judges have broad
    discretion in sentencing and are accorded significant deference on appeal. An
    appeal court can intervene only where the sentencing decision reveals an error
    of law or principle that has an impact on the sentence, or where the sentence
    imposed is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at paras. 11, 44.

[95]

In my view, the 51-month total sentence imposed for
    these offences was not demonstrably unfit. The appellant was found to have
    violated the trust of two complainants through serious sexual misconduct,
    including forced penile penetration in one case, with profound psychological
    consequences for both complainants. While the appellant had no prior record,
    there were few other mitigating factors. The sentence for this misconduct against
    two complainants fell within the range of sentences for similarly-situated
    offenders, which, while involving somewhat different circumstances of abuse of
    trust, confirm the fitness of the combined sentence imposed here: see, for
    example,
R. v. Bradley
, 2008 ONCA 179, 234 O.A.C. 363, at para. 18
    (three-year sentence for a single count of sexual assault by a police officer with
    no prior criminal record who vaginally and anally penetrated a mentee who
    aspired to become a police officer);
R. v. Wood
, 2015 ONCA 337, at
    para. 4 (six-year sentence for a pastor convicted of sexual offences against
    three parishioners); and
R. v. Clase
, 2017 ONSC 2484 (five-year
    sentence for sexual assault involving vaginal penetration and choking). I
    therefore see no basis to disturb the sentence imposed.

[96]

Accordingly, although I would grant leave to
    appeal sentence, I would dismiss the sentence appeal.

D.

conclusion

[97]

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

Released: March 3, 2020 (K.F.)

M.
    Jamal J.A.

I
    agree. K. Feldman J.A.

I
    agree. A. Harvison Young 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. Souter, 2020 ONCA 190

DATE: 20200309

DOCKET: C66942

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alastair Souter

Appellant

Amy Ohler, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: February 12, 2020

On appeal from the conviction entered by
    Justice E.A. Carlton of the Ontario Court of Justice, dated February 20, 2019
    and the sentence imposed on November 20, 2019.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that his conviction for sexual
    assault was unreasonable and the sentence imposed was unfit.

[2]

The trial judge found that the complainant was
    not capable of consenting to the sexual activity and the appellant knew or was
    reckless or wilfully blind to the absence of consent.

[3]

In our view, the elements of the offence of
    sexual assault were made out on the evidence and the sentence imposed was fit.

[4]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Summers, 2020 ONCA 175

DATE: 20200305

DOCKET: C67215

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Summers

Appellant

No one appearing for the appellant

Hannah Freeman, for the respondent

Heard: February 12, 2020

APPEAL BOOK ENDORSEMENT

[1]

This appeal is dismissed as abandoned.