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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. Kandic, 2014 ONCA 817

Date: 2014-11-18

Docket: C57074

Before: Laskin, van Rensburg and Benotto JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Andrija Kandic

Appellant

Counsel:

Russell Silverstein, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: October 31, 2014

On appeal from the convictions entered on January 13, 2012 and the sentence imposed on February 23, 2012 by Justice Casimir N. Herold of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted of three counts related to child prostitution and sentenced to four and a half years in prison. He appeals both his convictions and his sentence.

[2] On his conviction appeal, the appellant makes two submissions. First, the trial judge committed a reviewable error in the exercise of his discretion by refusing the defence an adjournment to call a witness. Second, the trial judge's conduct of the trial created a reasonable apprehension of bias. We did not call on the Crown to respond to either submission.

[3] On the appellant's first submission, to interfere with the trial judge's refusal of an adjournment, we must be persuaded that the trial judge's discretion was not exercised in a judicial way or caused a miscarriage of justice. The appellant cannot meet this test. We think that the trial judge was right that the witness could have and should have been called earlier if she was as important to the defence as the appellant himself claimed. But more important, we agree with the trial judge that she had no material evidence to give. The trial judge explored the potential materiality of her evidence in his discussion with counsel and for the reasons set out in his ruling, found that the witness could not offer any material evidence on the counts relating to P.P. We agree with his finding.

[4] On the appellant's second submission, viewing the trial record as a whole, a reasonable observer would conclude that the trial judge conducted the trial impartially and that the appellant had a fair trial. Accordingly, the conviction appeal is dismissed.

[5] On the sentence appeal both parties acknowledge that if consecutive sentences were imposed for each complainant, then the sentence must be four years at a minimum. The trial judge addressed the issues of whether concurrent sentences would have been appropriate and whether consecutive sentences would offend the principle of totality. His reasons and conclusions on these issues are entitled to deference. The trial judge also applied the factors in Tang and we see no error in his application of these factors. The overall sentence of four and a half years is fit.

[6] We have considered the fresh evidence. Although the appellant's wish to care for his father is commendable, the fresh evidence cannot affect the length of the sentence. Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

"John Laskin J.A"

"K. van Rensburg J.A."

"M.L. Benotto J.A."