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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Phung, 2016 ONCA 170

DATE: 20160229

DOCKET: C59147

Before: Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Phung

Appellant

Counsel:

Setu Purohit, for the appellant

Lisa Henderson, for the respondent

Heard and released orally: February 26, 2016

On appeal from the conviction entered on May 8, 2014 and the sentence imposed on May 8, 2014 by Justice A. McFadyen of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions for possession of controlled drugs and Criminal Code and Customs Act offences involving child pornography.

[2] The appellant testified to deny the charges but the trial judge rejected his evidence and found that Crown had proved guilt on each count beyond a reasonable doubt.

[3] With respect to the child pornography counts, the Crown concedes that the trial judge misapprehended the evidence of the computer expert that there was a “Sort Needed” folder in the main “Pictures” folder as well as in the “Guy Pics” folder.

[4] We agree with the Crown’s submissions that this error did not fatally infect the convictions on the child pornography counts. In her reasons, the trial judge identified other similarities between the structures of the files and folders the appellant acknowledged creating. The appellant also admitted accessing the “Guy Pics” subfolder which contained several folders containing sexually explicit materials including the “Text Reading” subfolder that contained the contraband material. When he opened the “Guy Pics” subfolder, the “Text Reading” subfolder would have been apparent.

[5] We do not accept the submission that the trial judge could only convict if there was concrete evidence that the appellant had looked at the contents of the “Text Reading” subfolder. The trial judge rejected the appellant’s explanation for how the contraband found its way on to the computer. That finding, combined with the evidence of the organisation and nature of the folder files and subfolders and the evidence that the “Text Reading” subfolder was obvious when the “Guy Pics” folder was opened, was sufficient to justify the trial judge’s inference that the appellant had knowledge of the contents of the “Text Reading” subfolder.

[6] With respect to the controlled drugs count, the trial judge carefully reviewed the appellant’s explanation for the drugs in his possession. She found that the appellant was unable to provide either a prescription or a coherent explanation for the quantity of the controlled drugs that he possessed. In our view, that finding was readily available to her on the evidence.

[7] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”