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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(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: 2024-09-16 Docket: COA-22-CR-0352 & COA-23-CR-0686

Fairburn A.C.J.O., Gillese and Dawe JJ.A.

Docket: COA-22-CR-0352

BETWEEN

His Majesty the King Respondent

and

O.P.N. Appellant

Docket: COA-23-CR-0686

AND BETWEEN

His Majesty the King Appellant

and

O.P.N. Respondent

Counsel: Carter Martell, for the appellant (COA-22-CR-0352) and the respondent (COA-23-CR-0686), O.P.N. Eunwoo Lee, for the respondent (COA-22-CR-0352), His Majesty the King Rebecca De Filippis, for the appellant (COA-23-CR-0686), His Majesty the King

Heard and released orally: September 10, 2024

On appeal from the conviction entered on September 12, 2022 (COA-22-CR-0352) by Justice Michael J. Epstein of the Ontario Court of Justice, and from the sentence imposed on May 31, 2023 (COA-23-CR-0686).

Reasons for Decision

[1] This is an appeal from a conviction for sexual assault after a judge alone trial. The appellant challenges the verdict on the basis of alleged errors in the trial judge’s reasoning, including that the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.), was offended, that there was a misapprehension of DNA transfer evidence, and that the trial judge misapprehended, ignored and otherwise failed to appreciate the relevance of certain evidence.

[2] Lying at the heart of each alleged error is really the trial judge’s credibility findings. The verdict turned on those findings. In short, the trial judge found the complainant and her husband largely credible and rejected the appellant and his wife and daughter’s evidence as not credible. The reasons reflect a careful approach to all credibility issues. We see no error in the credibility determinations.

[3] The appellant was sentenced to a two year less a day conditional sentence order and one year of probation. The Crown appeals from that sentence, claiming that the sentencing judge made numerous errors in principle and imposed a demonstrably unfit sentence. The Crown asks that we set aside the conditional sentence order and probation and impose a three year sentence in its place.

[4] We need not address the alleged errors in principle.

[5] The trial judge specifically noted that, even if he made some of the errors in principle alleged by the Crown, this was an exceptional case where the circumstances of the offence and the offender called for a sentence that falls outside the usual and well-established range. In the highly unusual circumstances of this case, including the appellant’s clear expression of remorse, his proven commitment to ongoing rehabilitation, his insight into his conduct, and the devasting family consequences that would flow if the appellant were to be incarcerated now, well over halfway through the conditional sentence order, we would not interfere with the sentence imposed by the trial judge.

[6] The conviction appeal is dismissed.

[7] Leave to appeal sentence granted. The sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“J. Dawe J.A.”