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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 Information
Court of Appeal for Ontario
Date: 2018-09-18
Docket: C63561
Panel: Hoy A.C.J.O., Watt J.A. and Then J. (ad hoc)
Parties
Between
Her Majesty the Queen Respondent
and
Nenad Korof Appellant
Counsel
Ravin Pillay, for the appellant
Elena Middelkamp, for the respondent
Hearing and Appeal
Heard and released orally: September 10, 2018
On appeal from: the conviction entered by Justice Joseph M. Fragomeni of the Superior Court of Justice on February 7, 2017, with reasons reported at 2017 ONSC 865, and from the sentence imposed on May 30, 2017.
Reasons for Decision
[1] The appellant was convicted of two charges in relation to the complainant, F.E.: 1) procuring F.E. to become a prostitute, contrary to s. 212(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46; and 2) exercising control, direction or influence over the movements of F.E. to aid, abet or compel her to engage in prostitution, contrary to s. 212(1)(h) of the Criminal Code. The appellant was acquitted of a charge of procuring a second person, complainant M.G-B., to become a prostitute.
[2] After providing the appellant six-months' credit for pre-trial custody, the trial judge imposed a sentence of two years' incarceration on each charge, to be served concurrently.
[3] The appellant seeks an order: 1) quashing his conviction and ordering a new trial, pursuant to s. 686 of the Criminal Code; and 2) in the alternative, granting leave to appeal the sentence imposed, allowing the appeal, and substituting a conditional sentence.
[4] The appellant challenges the trial judge's assessment of F.E.'s credibility. He argues that the trial judge failed to give proper consideration and proper effect to inconsistencies in F.E.'s evidence. He says this resulted in a misapprehension of the evidence, and verdicts on the charges against F.E. that are unreasonable and inconsistent with the verdict in respect of M.G-B.
[5] We reject these arguments.
[6] Effectively, the appellant seeks to re-argue the same issues raised at the trial on this appeal. It was open to the trial judge to reach the conclusion that any inconsistencies or discrepancies in F.E.'s evidence were minor, and did not detract from her credibility. The verdicts reached by the trial judge in respect of F.E. are ones that a properly instructed jury or judge sitting alone, acting judicially, could reasonably have reached. Finally, the verdicts with respect to the allegations relating to F.E. and M.G-B. are not inconsistent, and are explained by the body of evidence with respect to each count and the differing relationships between the appellant and F.E. and M.G-B., respectively.
[7] With respect to sentence, the appellant argues that the trial judge gave undue weight to the degree of influence and control that he had over F.E., and insufficient weight to the positive changes that he has made in his life and the numerous letters attesting to his positive character. He submits that this resulted in a sentence that is demonstrably unfit and that he should be given a conditional sentence.
[8] We reject this argument.
[9] The trial judge's decision on sentence is entitled to deference, and there is no basis for this court to interfere with it. The trial judge did not err in principle. He correctly identified and applied the applicable sentencing principles and considered the applicable aggravating and mitigating factors. The sentence imposed is not demonstrably unfit.
[10] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.
Signatures
"Alexandra Hoy A.C.J.O."
"David Watt J.A."
"Edward Then J. (ad hoc)"
Footnote
[1] It should be noted that ss. 212(1)(d) and 212(1)(h) have been repealed and replaced by s. 286.3 of the Criminal Code: S.C. 2014, c. 25. Section 286.3(1) of the Criminal Code provides: "Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years."