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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-10-09

Docket: C65718

Panel: Rouleau, Trotter and Harvison Young JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

F.M. Appellant

Counsel

F.M., acting in person

Andreea Baiasu, for the respondent

Mark Halfyard, duty counsel

Hearing

Heard: October 3, 2019

On appeal from: the conviction entered by Justice Michael Quigley of the Superior Court of Justice on May 13, 2016 and the sentence imposed on August 25, 2016.

Appeal Book Endorsement

[1] The appellant was convicted of numerous sexual offences committed against various family members.

[2] The appellant challenges his convictions in relation to two victims – [J.J.] and [M.O.] He argues that the trial judge failed to address their reliability.

[3] We are not persuaded that the trial judge overlooked this issue in his analysis of the evidence. The issues of credibility and reliability were raised during counsel's submissions. While this is not a guarantee that the trial judge considered these issues, it provides important context for the consideration of his reasons. In his reasons, the trial judge explained why he found both witnesses to be trustworthy. His analysis encompassed both credibility and reliability considerations. Moreover, we observe that the trial judge pointed to other evidence that he believed confirmed the evidence of these two witnesses. Lastly, the appellant did not testify or lead evidence to contradict either witness. Accordingly, despite duty counsel Mr. Halfyard's able submissions, we dismiss this ground of appeal.

[4] Duty counsel on behalf of the appellant further argues that the trial judge erred in relation to one count of breaching his undertaking (Count 9) by considering the appellant's conduct that occurred before he entered the undertaking. The Crown concedes the error. We accept this reasonable concession, set aside this conviction and order a new trial. At the invitation of the Crown, we stay this charge.

[5] As for sentence, duty counsel on behalf of the appellant submits and the Crown concedes that the trial judge erred in failing to give the appellant credit for pre-sentence custody at a rate of 1.5:1. We accept this concession and credit the appellant with a further 503 days of pre-sentence custody, to be applied to Counts #4 and #6 on the Indictment dated January 5, 2015.