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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Mullins, 2016 ONCA 415 Date: 2016-05-27 Docket: C60200

Judges: Watt, Tulloch and Huscroft JJ.A.

Between: Her Majesty the Queen (Respondent) and Michael Mullins (Appellant)

Counsel: Michael Mullins, acting in person Erica Chozik, duty counsel Karen Papadopoulos, for the respondent

Heard and released orally: May 11, 2016

On appeal from the convictions entered on November 28, 2014 and the sentence imposed on March 24, 2015 by Justice Anne M. Molloy of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted after a judge alone trial in the Superior Court of Justice of counts of sexual assault and administering a stupefying drug for the purpose of committing that assault. The complainant, a sometime close friend of the appellant’s daughter, was eighteen. The appellant was forty-seven.

[2] The trial judge imposed a sentence of 9 years on the conviction of sexual assault. She deducted 9 months from that sentence to reflect time spent in pre-trial custody, time spent on judicial interim release that included house arrest, and time served between conviction and sentence.

[3] The appellant appeals both conviction and sentence.

[4] On the appeal against conviction, the appellant advances on his own behalf several grounds of appeal. He submits that the trial judge made a number of errors in reaching her conclusion that Crown counsel had proven his guilt of both offences beyond a reasonable doubt. Those errors, he submitted, included, but are not limited to:

i. a failure to properly apply the burden and standard of proof to the body of circumstantial evidence which comprised the entirety of the case for the Crown;

ii. a failure to properly assess the inconsistencies in the complainant’s testimony, and thus reaching conclusions about the credibility of the complainant and the reliability of her evidence that were unwarranted in the circumstances of this case;

iii. an unwarranted acceptance of evidence about alteration of a date in a photograph offered in defence; and

iv. an unjustified rejection of the evidence of the appellant’s daughter on the basis that she and the appellant had colluded on their testimony.

[5] The appellant also contends that the trial judge erred in failing to enter a stay of proceedings on two unrelated grounds:

i. loss of an audio and videorecorded statement of the complainant; and

ii. failure to conduct the appellant’s trial within a reasonable time.

[6] Leaving to one side for the moment the grounds that allege error in the failure to stay proceedings, the initial category of errors contests factual findings that were available to the trial judge on the evidence adduced at trial. It is not, indeed cannot, reasonably be suggested that these findings were not open to the trial judge. None are the product of legal error or any misapprehension of evidence. The conclusion of the trial judge was one that a reasonable jury, properly instructed, could reasonably have rendered. We are not entitled to re-try this or any case. And as it seems to us, this is precisely what we are being invited to do.

[7] The claims of constitutional infringement sufficient to warrant a stay of proceedings fall on barren ground. Among other things, an endorsement on the indictment reveals that the appellant abandoned any reliance on s. 11(b) at trial. The lost evidence complaint moves no freight. It does not appear that this complaint was advanced at trial. Even if it had been pursued there, it is not a claim that could sustain a finding of constitutional infringement, much less one that would warrant a stay of proceedings.

[8] On the appeal from sentence, we are satisfied that the sentence imposed falls within the range of sentence appropriate for these offences and the offender who committed them. Aggravating features predominated. Mitigating features were minimal. Even if we were to assume that the trial judge was wrong to characterize the offence as reflecting a breach of trust, we are not persuaded that if such a portrayal reflects error, that the error had any meaningful impact on the result. It did not take the sentence outside the appropriate range or mislocate it within the appropriate range.

[9] In a similar way, we are not persuaded that had the Gladue material been before the sentencing judge, the result would have been any different. The sentencing judge did give consideration to the appellant’s troubled childhood in determining the sentence she would impose.

[10] What does appear to us, however, is that the sentencing judge gave inadequate effect to the time spent in custody and on release in reaching her conclusion about the net sentence she would impose. In our view, the appropriate credit should be 373 days. That would leave, as a remanet, a sentence of 9 years less 373 days, or, by our reckoning, a net sentence of 8 years less 8 days, or put another way, 7 years, 357 days.

[11] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal allowed to the extent that the sentence is reduced to one of 8 years, less 8 days, or 7 years plus 357 days.

“David Watt J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”