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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 2024-01-04 Docket: COA-23-CR-0881 & COA-22-CR-0241

Before: Paciocco J.A. (Motion Judge)

Between: His Majesty the King, Applicant and C.P., Respondent

Counsel: Rebecca De Filippis, for the applicant Colleen McKeown and Julia Kirby, for the respondent

Heard: December 12, 2023 by teleconference, with further submissions filed in writing.

Reasons for Decision

[1] C.P., the respondent in this application, was convicted of sexual assault on August 24, 2022, and sentenced on July 10, 2023. He appealed his conviction without delay (COA-22-CR-0241). After C.P. was sentenced, the Crown promptly initiated an application for leave to appeal the conditional sentence he received as unfit (COA-23-CR-0881).

[2] Although conviction and sentence appeals are generally heard together for efficiency and to avoid possible contradictory outcomes, the Crown submits that there are compelling reasons to bifurcate the conviction and sentence appeals so that the sentence appeal, which was perfected on November 30, 2023, can be heard without the delay that will arise awaiting the perfection of the conviction appeal and the assignment of a date for a joined appeal. The Crown’s application is predicated on the delay that is expected in the perfection of C.P.’s conviction appeal. His counsel on appeal have acknowledged that they cannot meet the perfection deadline of January 13, 2024. The Crown is concerned that even if it succeeds with its sentence appeal, C.P. is apt to be given the benefit of the time he spends serving the conditional sentence during this delay, which may reduce the Crown’s efforts to secure a lengthy deterrent and denunciatory in-custody sentence.

[3] Notwithstanding these considerations, it is not in the interests of justice to hear the appeals separately. The delay that is expected will not be undue. C. P.’s counsel on appeal have undertaken to perfect his conviction appeal by February 29, 2024, and have provided strong assurances that this can be achieved. That being so, the non-inherent delay in hearing this appeal is expected to be relatively brief, just over 6 weeks. Moreover, an appeal court’s task in determining the influence that a partially served sentence will have on the outcome of a sentence appeal is to consider the “overarching issue [which] is whether re-incarceration is in the interests of justice”: R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50. As a result, C.P. will only benefit from the non-inherent delay caused by his late perfection if it is in the interests of justice to give him that benefit.

[4] I am not persuaded that, in these circumstances, there is compelling reason to forego the benefits that hearing the conviction and sentence appeals together will offer. The Crown application is dismissed. I am available to conduct a case conference to hear proposals for expending the appeal, should the Crown request it.

“David M. Paciocco J.A.”