



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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).

(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.

(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.

(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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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.

(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

CITATION: R. v. Hilan, 2015 ONCA 338

DATE: 20150512

DOCKET: C57944

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Racil Hilan

Appellant

Norman D. Boxall and Jon Doody, for the appellant

Roger Shallow, for the respondent

Heard and released orally: April 10, 2015

On appeal from the convictions entered on May 29, 2013 and
    the sentence imposed on November 19, 2013 by Justice H.L. Fraser of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

We reject the appellants submissions that the trial judge erred by
    improperly rejecting the appellants evidence as being illogical and by failing
    to assess the reliability of the complainants evidence.  We also reject the
    appellants submission that the finding of guilt on the sexual assault charge
    was unreasonable.

[2]

Although the complainant did not see the appellants hand moving her
    skirt, her evidence concerning what she felt and how her skirt moved up her leg
    created a compelling inference that the appellant touched her and moved her
    skirt while seated beside her on a bus. In our view, the appellants complaints
    concerning the bases on which the trial judge rejected his evidence are no more
    than an expression of disagreement with the trial judges reasons. The trial
    judge had the advantage of seeing and hearing the appellant testify. Reading his
     reasons as a whole, the trial judge provided an adequate explanation for
    rejecting the appellants evidence.

[3]

Further, while the trial judge did not specifically mention the word
    reliability, his reasons reflect a finding that the complainants evidence
    was reliable.

[4]

The appeal from conviction for sexual assault is therefore dismissed. We
    reserve our decision concerning the appeal from conviction for mischief by
    interference with the complainants lawful use and enjoyment of property
    pending receipt of written submissions.

[5]

We agree with the appellant that a sentence of six months imprisonment
    together with two years probation for the sexual assault charge was wholly
    disproportionate to the conduct at issue.  The appellant touched the
    complainant and raised her skirt while seated beside her on a public bus. 
    Albeit on a promise to appear in relation to another offence at the time the
    sexual assault was committed, the appellant was sentenced as a first offender. 
    Taking account of all of the circumstances of the offence and this offender and,
    particularly in light of 13 days of pre-sentence custody, a jail sentence was
    not warranted.

[6]

Leave to appeal sentence on the sexual assault conviction is granted,
    the sentence appeal concerning the sexual assault conviction is allowed and the
    sentence of imprisonment plus probation on the sexual assault conviction is
    varied to a suspended sentence plus two years probation on the same terms as
    imposed by the trial judge. All other terms of the sentence imposed by the
    trial judge for the sexual assault conviction shall remain the same.

[7]

The Crown does not dispute that if the sentence appeal on the sexual
    assault conviction is allowed, the concurrent sentence of two months
    imprisonment imposed on the mischief conviction, which arose from the same
    facts, should also be allowed. For the same reasons, leave to appeal sentence
    on the mischief conviction is granted, the sentence appeal concerning the
    mischief conviction is allowed and the sentence of imprisonment is varied to a
    suspended sentence plus two years probation on the same terms as imposed by
    the trial judge concurrent to the sentence on the sexual assault.

Janet Simmons
    J.A.

M. Tulloch
    J.A.

Grant Huscroft
    J.A.


