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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-08-26

Docket: C64265

Judges: Watt, Huscroft and Jamal JJ.A.

Between

Her Majesty the Queen Respondent

and

A.A.R. Appellant

Counsel:

• Esmaeil Mehrabi, for the appellant
• Christopher Webb, for the respondent

Heard and released orally: August 21, 2019

On appeal from: the conviction entered on November 15, 2016 by Justice Giovanna Toscano Roccamo of the Superior Court of Justice, sitting without a jury, and the sentence imposed on September 21, 2017 by Justice Kevin B. Phillips of the Superior Court of Justice.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of a count of sexual interference and sentenced to a term of imprisonment of 10 months. He appeals both conviction and sentence.

[2] The offence was alleged to have occurred in a hotel room in Ottawa where the parties were housed for the night in anticipation of attending an event in the city the following day.

The Appeal from Conviction

[3] On the appeal from conviction, the appellant advances three related grounds of appeal. He says that the trial judge erred:

i. in misapplying the rule in Browne v. Dunn, (1893) 6 R. 67, H.L., and in failing properly to analyze the complainant's motive to fabricate her account of the incident;

ii. in engaging in uneven scrutiny of the evidence of the principal witnesses, the appellant and the complainant; and

iii. in failing to properly apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 in light of the two prior errors.

[4] In our review of the reasons of the trial judge, taken as a whole, we are unable to conclude that the errors alleged have been established.

[5] The core of the appellant's submissions focus on findings of fact made by the trial judge. The findings made were open to the trial judge on the evidence adduced at trial. We are not satisfied that those findings are contaminated by misapprehensions of evidence or by the application of uneven scrutiny to the evidence of the principal witnesses. The latter complaint, as this court has frequently observed, is a difficult argument to advance since inherent in it is an invitation to re-try the case. That is an authority not open to us.

[6] The complaint about the failure to adhere to the regimen of W.(D.) is largely dependent on success on either or both of the first two grounds of appeal. Failure on those grounds leaves little left for the complaint about W.(D.). That said, we are nonetheless of the view that, read as a whole, the reasons of the trial judge reflect no misapprehension of the burden or the standard of proof.

[7] It follows that the appeal from conviction is dismissed.

The Appeal from Sentence

[8] As to sentence, the appellant concedes that the sentence imposed falls within the range of sentence applicable in cases involving sexual interference with a young person and a breach of trust.

[9] As R. v. Lacasse, 2015 SCC 54 makes clear, where the complaint made is that the sentencing judge should have located the sentence elsewhere in the appropriate range, no case for appellate review is made out. Nor are we able to find any other error of law; or of principle; an overemphasis on or failure to consider a relevant factor; or a sentence that is otherwise demonstrably unfit.

Conclusion

[10] In the result, the appeal from conviction is dismissed. While we grant leave to appeal sentence, the appeal from sentence is dismissed, except that the victim surcharge is set aside.

"David Watt J.A."

"Grant Huscroft J.A."

"M. Jamal J.A."