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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Hoy A.C.J.O., MacPherson and Tulloch JJ.A.
Between
Her Majesty the Queen
Respondent
and
Min Feng Ma
Appellant
Min Feng Ma, acting in person
Michael Fawcett, for the respondent
Heard: June 1, 2020 by Videoconference
On appeal from the convictions entered by Justice Shaun S. Nakatsuru of the Superior Court of Justice on August 18, 2017.
Reasons for Decision
1The appellant’s request for an adjournment is denied.
2The appellant was charged with 13 sexual and related offences. He pleaded guilty to five of the charges relating to two complainants. He was acquitted of four charges relating to one of the complainants. He was convicted of five charges relating to the second complainant. He appeals the convictions.
3The appellant contends that when he was arrested he was denied access to counsel for more than ten hours.
4There is nothing in the record to support this contention or that it is relevant. This issue was not raised at trial.
5The appellant submits that the trial judge “did not take his case seriously” and “played games” with him.
6There is no basis for this submission, especially in light of the trial judge’s acquittal of the appellant on several serious charges.
7The appellant asserts that those who accused him were lying.
8The trial judge was scrupulous and detailed in his assessment of the credibility of the two complainants. Indeed, his reservations about the credibility of the first complainant led to acquittals on several charges relating to that complainant. With respect to the second complainant, the trial judge was entitled to find that she was an “impressive witness … candid … measured [and] fair.”
9The appellant contends that the trial judge erred by concluding that the sexual activity with the second complainant was not consensual.
10We disagree. The second complainant was a sex trade worker. She and the appellant had consensual sex early in the evening. The appellant used a condom. The trial judge found that this complainant “is adamant that every client use a condom, no exception.” Later the appellant insisted on having unprotected sex with the complainant. She refused but the appellant penetrated her anyway. After a comprehensive review of the evidence, the trial judge concluded: “I accept [the complainant] did not consent to this sexual assault.” In our view, the appellant’s refusal to use a condom and his subsequent use of a boxcutter to stroke the neck of the second complainant as he kissed her entitled the trial judge to conclude that sexual activity that started as consensual evolved later into a non-consensual sexual assault.
11The conviction appeal is dismissed. We do not reach the sentence appeal as the appellant has served the totality of his sentence and it is therefore moot.
“Alexandra Hoy A.C.J.O.”
“J.C. MacPherson J.A.”
“M. Tulloch J.A.”