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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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).

486.4(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.

486.4(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.

486.4(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).

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.

486.6(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

Date: 2017-09-18

Docket: C60076

Panel: Watt, Epstein and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Quen Hao Cho Appellant

Counsel

For the Appellant: Janani Shanmuganathan

For the Respondent: Hannah Freeman

Hearing and Release

Heard and released orally: September 7, 2017

On appeal from: The conviction entered on December 29, 2014 and the sentence imposed on February 2, 2015 by Justice Thomas P. Cleary of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] After a single witness trial the appellant was convicted of assault with a weapon and two counts of sexual assault. Each count related to the same complainant, a person with whom the appellant had an intermittent relationship.

[2] The day following the second sexual assault, the complainant went to a police station. At first, she complained of sexual harassment and sought a no contact order against the appellant. Over time, she returned to the police station with a more fulsome account of her allegations, including two instances of forced sexual intercourse, several months apart.

[3] The appellant appeals his convictions and seeks leave to appeal the sentence of 51 months in the penitentiary imposed by the trial judge.

[4] The appellant advances a single ground of appeal against conviction. He says that the trial judge erred by reversing the onus of proof by finding guilt established on the basis of his rejection of the defence submissions without going on to consider whether the evidence as a whole established the appellant's guilt beyond a reasonable doubt.

[5] We do not give effect to this ground of appeal.

[6] In our view, when the reasons for judgment are read as a whole, as they must be, they reveal no reversal of the burden of proof.

[7] This was a one witness case. The relevant issue for the trial judge to decide was whether the whole of the complainant's evidence met the standard of proof required of the Crown in a criminal case or fell short of the mark. The trial judge outlined and rejected the defence attacks on the credibility of the complainant and the reliability of her evidence.

[8] Without more, addressing and rejecting defence submissions about the credibility of the complainant and the reliability of her evidence does not amount to reversal of the burden of proof. Further, the reasons demonstrate the trial judge's correct understanding of the presumption of innocence and the burden and standard of proof. While the reasons could have been clearer and better delivered in one piece rather than in two instalments, we are satisfied that they sufficiently explain why the trial judge decided the case as he did.

[9] We are further satisfied that the trial judge did not err in rejecting the defence submissions that the manner in which the complainant disclosed the offences to the police undermined her credibility and the reliability of her evidence. These findings represent inferences that the trial judge drew from primary facts. They were inferences that were available for him to draw. That he might have drawn other inferences is beside the point. He didn't. And that he didn't does not make the inferences he drew unavailable or wrong. They were available and are entitled to deference in this court.

[10] While we do not agree that the failure to embellish her account of the instances of which she testified was a factor that enhanced the complainant's credibility or the reliability of her evidence, we prefer to view this comment as more a characterization of the straight forward manner in which the complainant testified at trial.

[11] The appeal from conviction is dismissed.

Sentence Appeal

[12] On the appeal from sentence, the appellant says that the sentence imposed by the trial judge violates the principles of totality and restraint.

[13] The appellant acknowledges that the individual sentences imposed by the trial judge on the convictions of sexual assault fall at the lower end of the range of fit sentences for their offences. Further, the appellant takes no issue that consecutive sentences were appropriate in this case.

[14] This case bristles with aggravating factors. The number of sexual assaults committed. Their demeaning and degrading nature. The fact that the parties were in a domestic relationship. The extent of the physical violence, the evidence of planning. And the significant impact of the offences on the complainant.

[15] In our view, the sentences imposed reflect no error in principle; no improper emphasis on any relevant factor; and no failure to consider any relevant or consideration of an irrelevant factor. The total sentence imposed in our view was fit.

[16] Leave to appeal sentence is granted but the appeal from sentence is dismissed.

David Watt J.A.

Gloria Epstein J.A.

David Brown J.A.