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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Tao, 2015 ONCA 127

DATE: 20150224

DOCKET: C57712

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Han Tao

Appellant

Robert H. Tanha, for the appellant

Hannah Freeman, for the respondent

Heard: February 11, 2015

On appeal from the convictions entered by Justice M. Pawagi of the Ontario Court of Justice, dated June 26, 2013.

Cronk J.A.:

[1] The appellant appealed his convictions on charges of sexual assault and sexual interference. After considering counsel for the appellant's submissions, the court indicated that it did not need to hear from the respondent and dismissed the appeal by way of brief oral reasons.

[2] In the course of oral submissions, the court had raised a "Kienapple" issue as the appellant had been convicted of both sexual interference and sexual assault. The Crown requested the lunch hour to examine relevant case law. When counsel returned, they informed the court that they had discovered for the first time that the Crown had proceeded summarily at trial, meaning that there was no jurisdiction in this court to hear the appeal.

[3] Normally, the court would simply quash the appeal and leave the appellant to pursue an appeal in the Summary Conviction Appeal Court. However, as the court publically dismissed the conviction appeal on its merits, that course of action seems inappropriate.

[4] Counsel have agreed that a judge of the panel can, if the appropriate authorizations are given under s. 13 of the Courts of Justice Act, R.S.O. 1990, c. 43, sit as a Superior Court justice and hear the appeal as a summary conviction appeal. Counsel further agree that the summary conviction appeal would be disposed of as follows:

• the appeal from conviction is dismissed save that the sexual assault count is stayed pursuant to R. v. Kienapple, [1974] (SCC), [1975] 1 S.C.R. 729; and
• the SOIRA order is varied to a 10-year order pursuant to s. 490.013(2)(a) of the Criminal Code.

[5] The appropriate authorizations have been given and, sitting as a Superior Court judge, I am prepared to make the order outlined above.

[6] Order to go in the terms set out above.

"E.A. Cronk J.A."