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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

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 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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

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); 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.

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: 2017-12-15

Docket: C60636

Panel: Hoy A.C.J.O., Doherty and Feldman JJ.A.

Between

Her Majesty the Queen Respondent

and

R.O. Appellant

Counsel: Richard Diniz, for the appellant Craig Harper, for the respondent

Heard and released orally: December 7, 2017

On appeal from: the conviction entered by Justice R.C. Gates of the Superior Court of Justice, dated November 26, 2014, and the sentence imposed on June 23, 2015.

Reasons for Decision

[1] This case arises within the context of an acrimonious divorce and custody/access battle between the appellant and the complainant, his ex-wife. After a trial where the evidence unfolded over 30 days, the appellant was convicted of criminal harassment and sentenced to 18 months in prison. He appeals his conviction and seeks leave to appeal the sentence imposed.

[2] The appellant argues that the trial judge demonstrated a reasonable apprehension of bias by improperly intervening during the trial, applying a higher level of scrutiny to the defence evidence, and imposing a sentence significantly longer than that requested by the Crown.

[3] We are not persuaded that a reasonable informed observer, fully aware of all relevant aspects of the case, would conclude that the trial was unfair. The appellant takes issue with a few interventions made in the course of his trial counsel's seventh day of cross-examination of the complainant. In our view, those interventions, which attempted to limit appellant's counsel to relevant matters, were fully warranted.

[4] Nor do we view the fact that the trial judge's reasons for rejecting the appellant's evidence exceeded the length of his reasons for accepting the evidence of the complainant, a CAS worker, a neighbour, and the police officers who attended at the complainant's home on approximately 37 occasions, as an indication that he reviewed the defence evidence more stringently than the Crown's evidence. In our view, the trial judge simply detailed the multiple reasons why he found the appellant incredible and the appellant asks this court to reassess the trial judge's credibility determination. The trial judge's credibility findings are entitled to deference and there is no basis for the court to interfere with them.

[5] While we do not agree with the appellant that a reasonable and informed observer would conclude that the trial was unfair because the trial judge significantly exceeded the sentence proposed by the Crown, we do agree that he erred in doing so, without first indicating to the parties that he was inclined to do so and giving the parties the opportunity to make further submissions: R. v. Hagen, 2011 ONCA 749, at para. 5; R. v. Gamble, 2017 ONCA 610.

[6] We agree with the trial judge that a sentence longer than that proposed by the Crown at trial is required. The harassment, although not physical or violent, was egregious and continued over four years. The appellant showed no remorse. Denunciation and deterrence are paramount. However, the appellant has been on bail in relation to these offences since 2009 without incident. There is an indication that the appellant has mental health issues. He has no other criminal record and has other positive antecedents.

[7] In our view, in all the circumstances, a fit sentence is 12 months, to be followed by three years' probation on the terms imposed by the trial judge.

[8] Accordingly, the appellant's appeal against conviction is dismissed. Leave to appeal sentence is granted. The sentence imposed by the trial judge is set aside and the appellant's sentence is varied as provided above. The other ancillary orders imposed by the trial judge shall remain in place.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"K. Feldman J.A."