



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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 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;
    2005, c. 43, s. 8(3)(b).

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. Mekonnen, 2013 ONCA 414

DATE: 20130621

DOCKET: C51878 and C51376

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yonatan Mekonnen

Appellant

Jonathan A. Shime, for the appellant

Kim Crosbie, for the respondent

Heard: February 11, 2013

On appeal from the conviction entered by Justice Joseph
    W. Bovard of the Ontario Court of Justice on September 14, 2009 (C51376), with
    reasons reported at 2009 ONCJ 643, and the conviction entered by Justice James
    J. Keaney of the Ontario Court of Justice on January 26, 2010 (C51878).

Cronk J.A.:

I.        Introduction
[1]

[1]

The appellant, Yonatan Mekonnen, is HIVpositive.  Following two
    separate trials in 2009, he was convicted of two counts of aggravated sexual
    assault in relation to two different women for not disclosing his HIVpositive status
    prior to sexual activity.  He appealed both convictions.  He has fully served
    the sentences imposed at his trials.

[2]

While the appellants conviction appeals were pending, the Supreme Court
    of Canada released its decision in
R. v. Mabior
, 2012 SCC 47, [2012] 2
    S.C.R. 584, together with its companion decision in
R. v. D.C.
, 2012
    SCC 48, [2012] 2 S.C.R. 626.  In
Mabior
, the Supreme Court revisited
    its approach in
R. v. Cuerrier
, [1998] 2 S.C.R. 371 to the
    determination whether fraud vitiates consent to sexual relations and whether
    the non-disclosure of HIVpositive  status prior to sexual relations can constitute
    fraud vitiating consent within the meaning of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[3]

The parties accept that
Mabior
has overtaken the original
    grounds of appeal advanced by the appellant and the Crowns responding
    positions on the appellants conviction appeals.

[4]

Although the appellant in his factum originally sought acquittals
    concerning his convictions, during oral argument he submitted that, based on
Mabior
,
    his appeals should be allowed and stay orders should be granted in respect of
    all proceedings on the charged offences.

[5]

The Crown initially argued in its post-
Mabior
factum that the
    appellants appeals should be allowed and new trials ordered in each case.  However,
    during oral argument, the Crown also altered its position.  The Crown now
    supports the appellants request that the appeals be allowed and stay orders
    granted in relation to each proceeding.

[6]

Given the significantly narrowed scope of the appeals, the task for this
    court is to apply the
Mabior
decision to the facts of these cases and,
    if the appeals are allowed, to fashion proper remedies in the circumstances.

[7]

For the reasons that follow, I agree that the appeals should be
    allowed.  I am also of the view that the Crowns position at the appeal hearing
    regarding suitable remedies was professional and appropriate.  I would accept
    the joint position of the parties, allow the appeals, set aside the convictions
    and grant a stay of each proceeding.  I would also alter the ancillary orders
    imposed at the appellants trials in the manner described below.

II.       Background Facts

[8]

The relevant background facts are essentially undisputed and may be set
    out in brief compass.

(1)

The First Trial  Complainant L.L. (C51376)

[9]

On September 26, 2008, the appellant was charged with one count of aggravated
    sexual assault involving the complainant, L.L.  It was alleged that between
    November 2007 and January 2008, the appellant had vaginal intercourse with L.L.
    on three separate occasions without disclosing his HIVpositive status.

[10]

The
    appellant was tried before Bovard J. of the Ontario Court of Justice in September
    of 2009.  At trial, the complainant testified that during each of the three
    sexual encounters, the appellant wore a condom prior to intercourse.  On one
    occasion, the complainant performed fellatio on the appellant.  The complainant
    said that the appellant may have worn a condom when she fellated him, but she
    could not recall.  She testified that he probably did not ejaculate in her
    mouth.

[11]

Based
    on an agreed statement of facts filed at trial, it was established that the
    appellant knew he was HIVpositive before he met the complainant.  The
    complainant said that the appellant did not disclose his HIVpositive status to
    her.  She claimed that she would not have engaged in sexual activity with the
    appellant if she had known he was HIVpositive.

[12]

The
    complainant discovered that the appellant had HIV when a friend told her that
    she had seen his picture in the newspaper.  The complainant then saw her doctor
    and was tested for HIV.  She testified that she was in agony during the
    ensuing month as she awaited her test results.  She said that she was scared,
    devastated, cried daily, and thought that she was going to die.  Fortunately, the
    complainants test results eventually revealed that she had not contracted HIV.

[13]

The
    appellant testified in his own defence.  He denied having any sexual contact
    with the complainant.

[14]

No
    medical or expert evidence was called by the Crown to quantify the risk
    associated with the three acts of protected sexual intercourse described by the
    complainant. Although the agreed statement of facts contained an acknowledgment
    that HIV can be transmitted through the exchange of any bodily fluid, there
    was no evidence that bodily fluids, in fact, were exchanged on any of the three
    occasions of sexual intercourse.

[15]

Defence
    counsel at trial (not counsel on appeal) conceded that if the trial judge found
    that the appellant and the complainant had engaged in either sexual intercourse
    or oral sex and that the appellant had not disclosed his HIVpositive status to
    the complainant, a conviction for aggravated sexual assault should follow.

[16]

The
    trial judge rejected the appellants claim that he had not engaged in sexual
    activity with the complainant.  He accepted the complainants account of
    protected sexual activity without disclosure by the appellant that he was
    HIVpositive.

[17]

Accordingly,
    and in light of defence counsels concession, the appellant was convicted on
    September 14, 2009, of aggravated sexual assault.  On December 15, 2009, he was
    sentenced to 12 months incarceration, plus three years probation.  A ten-year
    weapons prohibition order, a lifetime order under the
Sex Offender
    Information Registration Act
, S.C. 2004, c. 10 (SOIRA), and a DNA data
    bank order were also imposed.

(2)

The Second Trial  Complainant K.S. (C51878)

[18]

In
    a separate information dated June 20, 2008, as amended on July 14, 2009, the appellant
    was charged with two counts of aggravated sexual assault involving the
    complainant, K.S.  In respect of these charges, it was alleged that the
    appellant had sexual relations with the complainant during the months of
    January and February 2008, without disclosing his HIVpositive status.  Justice
    James J. Keaney of the Ontario Court of Justice presided over this trial.

[19]

At
    trial, it was established that the complainant met the appellant in December
    2007, one month after he learned that he had HIV.  The complainant testified
    that she began to date the appellant and first had sex with him in January of 2008. 
    She said that during their first sexual encounter, the appellant performed oral
    sex on her and they then had vaginal intercourse, without the protection of a
    condom.  The complainant claimed that immediately afterwards, she and the
    appellant discussed the possibility of contracting sexually transmitted
    diseases.  She said that the appellant lied to her, claiming that he was free
    of infection.

[20]

The
    complainants relationship with the appellant continued over the next few
    months, during which they had sexual intercourse, on a protected and
    unprotected basis, on numerous occasions.

[21]

In
    about February 2008, the appellant began living with the complainant and her
    mother.  Towards the end of February or early March, the complainant and the
    appellant decided to rent their own apartment together.  The complainant
    maintained that on the day before they were scheduled to move, the appellant
    told her that he had just learned that he was HIVpositive.

[22]

The
    complainant was shocked and upset.  The next day, she broke down at work and her
    boss arranged for her to attend a public health clinic where she was tested for
    HIV.  Fortunately, she later learned that she had not contracted the disease.

[23]

Notwithstanding
    these events, the complainant and the appellant moved into their own apartment together
    and continued to have sex, using a condom.  The complainant said that, on occasion,
    the use of a condom was delayed.  Their relationship ended in April or May 2008.

[24]

The
    Crown also called Dr. David Richardson, the appellants HIV doctor.  He testified
    that the use of condoms substantially reduces, but does not eliminate, the risk
    of HIV transmission.  However, he provided no evidence concerning the specific
    level of risk associated with unprotected sex or the reduction in that risk to
    be gained with condom use.

[25]

Dr.
    Richardsons clinical notes were filed as an exhibit at trial.  In one of his
    notes, dated April 2, 2008, Dr. Richardson recorded that he had explained to
    the appellant that his viral load is low.  It appears that the issue of the
    appellants viral load was not addressed at the trial.

[26]

The
    appellant testified that he was in denial about being HIVpositive when he
    first met the complainant.  He said that he and the complainant had intercourse
    once  on Valentines Day in February 2008  before moving into their own place
    together.  He claimed that they used a condom on that occasion but acknowledged
    that he did not disclose his HIVpositive status to the complainant.  According
    to the appellant, the couple used a condom on each subsequent occasion when
    they had sex together.

[27]

The
    trial judge held, on the authority of
Cuerrier
, that because the
    appellant admitted to having had sex with the complainant without first
    disclosing his HIVpositive status, the appellants own evidence established fraud
    vitiating the complainants consent to sex regardless of whether a condom had
    been used.  He found that condom use, in any event, is not absolutely safe and
    that the appellant had endangered the complainants life when he knowingly
    failed to disclose his HIVpositive to her on their first sexual encounter.

[28]

However,
    the trial judge was unable to conclude that the complainant and the appellant
    had sex in January of 2008.  Accordingly, he convicted the appellant on the
    count of aggravated sexual assault pertaining to the events of February 2008
    and acquitted him of the like count relating to the alleged events of January
    2008.  The appellant was subsequently sentenced to nine months incarceration,
    plus three years probation.  He was also ordered to provide a sample of his
    DNA and to register, for life, under the SOIRA.  A lifetime weapons prohibition
    order was also made under s. 109 of the Code.

III.      The
Cuerrier
Decision

[29]

In
Cuerrier
, the Supreme Court held that the failure to inform a sexual
    partner of ones HIV status may constitute fraud vitiating consent.  The
    Supreme Court emphasized that the essential elements of fraud are dishonesty
    and deprivation or risk of deprivation.  Justice Cory, writing for the
    majority, described the proof of dishonesty requirement of fraud in part in
    this fashion, at paras. 125127:

Persons knowing that they are HIVpositive who engage in sexual
    intercourse without advising their partner of the disease may be found to
    fulfil the traditional requirements for fraud namely dishonesty and depri-vation. 
    That fraud may vitiate a partners consent to engage in sexual intercourse.

[T]he dishonest action or behaviour must be related to the
    obtaining of consent to engage in sexual intercourse, in this case unprotected
    intercourse.  The actions of the accused must be assessed objectively to
    determine whether a reasonable person would find them to be dishonest.  The
    dishonest act consists of either deliberate deceit respecting HIV status or non-disclosure
    of that status.

Without disclosure of HIV status there cannot be a true
    consent.  The consent cannot simply be to have sexual intercourse.  Rather it
    must be consent to have intercourse with a partner who is HIVpositive.  True
    consent cannot be given if there has not been a disclosure by the accused of
    his HIVpositive status.  A consent that is not based upon knowledge of the
    significant relevant factors is not a valid consent.

[30]

Justice
    Cory then turned to the second requirement of fraud  that the dishonesty result
    in deprivation or risk of deprivation.  He said, at para. 128:

[The deprivation or risk of deprivation] may consist of actual
    harm or simply a risk of harm.  Yet it cannot be any trivial harm or risk of
    harm that will satisfy this requirement in sexual assault cases where the
    activity would have been consensual if the consent had not been obtained by
    fraud.  For example, the risk of minor scratches or of catching cold would not
    suffice to establish deprivation.  What then should be required?
In my
    view, the Crown will have to establish that the dishonest act (either
    falsehoods or failure to disclose) had the effect of exposing the person
    consenting to a significant risk of serious bodily harm.  The risk of
    contracting AIDS as a result of engaging in unprotected intercourse would
    clearly meet that test.
[Emphasis added.]

[31]

Justice
    Cory then added this important observation, at para. 129:

To have intercourse with a person who is HIVpositive will
    always present risks.  Absolutely safe sex may be impossible.  Yet the careful use
    of condoms might be found to so reduce the risk of harm that it could no longer
    be considered significant so that there might not be either deprivation or risk
    of deprivation.

[32]

The
    application of the
Cuerrier
test sometimes proved difficult and
    controversial.  The Crown fairly put it this way in its supplementary factum,
    at para. 26:

The test was viewed by many as vague, resulting in considerable
    uncertainty concerning the scope of disclosure obligations and the protection
    of the public.  Further, establishing a threshold for determining what a
    significant risk actually was had become a numbers game  and given the
    variable factors that impact on transmission rates, that assessment often proved
    difficult.  Triers of fact applied different thresholds to determine the
    significance of the risk, with inconsistent results across the country and
    within provinces.

[33]

Since
    HIV poses a risk of serious bodily harm, the operative offence under the Code
    is aggravated sexual assault.  Although
Cuerrier
established the requirements
    for this offence, the precise circumstances in which the failure to disclose
    HIV status would vitiate consent, thereby giving rise to criminal liability,
    remained unclear.  In
Mabior
, the Supreme Court was asked to clarify
    those circumstances and the
Cuerrier
test of significant risk of
    serious bodily harm.

IV.     The
Mabior
and
D.C.
Decisions

[34]

In
Mabior
, the accused was charged with nine counts of aggravated sexual
    assault for failing to disclose his HIVpositive status to nine complainants
    before they had sex with him.  None of the complainants contracted HIV.  At
    trial, the accused was convicted on six of the counts.  He was acquitted on the
    other three counts on the basis that protected intercourse  the use of a
    condom  when the HIVpositive persons viral loads are undetectable does not
    place a sexual partner at significant risk of serious bodily harm within the
    meaning of
Cuerrier
.

[35]

The
    Manitoba Court of Appeal varied the trial decision, holding that
either
a
    low viral load or condom use could negate significant risk of serious bodily
    harm.  The Court of Appeal upheld the convictions on two counts where neither
    was established and entered acquittals on the remaining four counts, based on
    proof of either condom use or a low viral load.

[36]

On
    a Crown appeal from the acquittals, the Supreme Court restored the convictions
    for the incidents in which the accused did not have a low viral load and use of
    a condom was not established.  The court confirmed the continuing validity of
    the
Cuerrier
test of a significant risk of serious bodily harm,
    commenting, at para. 58, that the tests approach to consent accepts the
    wisdom of the common law that not every deception that leads to sexual
    intercourse should be criminalized, while still according consent meaningful
    scope.

[37]

The
Mabior
court also sought to clarify the meaning of the significant
    risk of serious bodily harm test by indicating when the test is met in terms
    of principle and concrete situations:
Mabior
, at para. 81.  Chief Justice
    McLachlin, writing for a unanimous court, held at para. 84:

In my view, a significant risk of serious bodily harm
    connotes a position between the extremes of no risk (the trial judges test)
    and high risk (the Court of Appeals test).
Where there is a

realistic possibility of transmission of HIV
,
    a significant risk of serious bodily harm is established, and the deprivation
    element of the Cuerrier test is met.
[Underlined emphasis in original; italicized
    emphasis added.]

[38]

After
    reviewing various considerations that supported this approach, McLachlin C.J.
    indicated, at para. 91:

These considerations lead me to conclude that
the Cuerrier
    requirement
of significant risk of serious bodily harm
should be
    read as requiring disclosure of HIV status if there is a realistic possibility
    of transmission of HIV
.  If there is no realistic possibility of
    transmission of HIV, failure to disclose that one has HIV will not constitute
    fraud vitiating consent to sexual relations under s. 265(3)(
c
) [of the
    Code].  [Emphasis added.]

[39]

As
    McLachlin C.J. noted, at para. 92,  significant risk depends both on the
    degree of harm and risk of transmission.  These two factors vary inversely. 
    With respect to when there is a realistic possibility of transmission of HIV,
    McLachlin C.J. made this central finding, at para. 94:

The evidence adduced here satisfies me that, as a general
    matter, a realistic possibility of transmission of HIV is negated if (i) the
    accuseds viral load at the time of sexual relations was low,
and
(ii)
    condom protection was used.  [Emphasis in original.]

[40]

Chief
    Justice McLachlin went on to add, at paras. 101 and 104:

[O]n the evidence before us, the ultimate percentage risk of
    transmission resulting from the combined effect of condom use
and
low
    viral load is clearly extremely low  so low that the risk is reduced to a
    speculative possibility rather than a realistic possibility.

.

[T]he general proposition that a low viral load combined with
    condom use negates a realistic possibility of transmission of HIV does not
    preclude the common law from adapting to future advances in treatment and to
    circumstances where risk factors other than those considered in the present
    case are at play.

[Emphasis in original.]

[41]

The
    Supreme Court summarized its findings in
Mabior
, at paras. 104-105, in
    these terms:

To summarize, to obtain a conviction under ss. 265(3)(
c
)
    and 273, the Crown must show that the complainants consent to sexual
    intercourse was vitiated by the accuseds fraud as to his HIV status.  Failure
    to disclose (
the dishonest act
) amounts to fraud where the complainant
    would not have consented had he or she known the accused was HIVpositive, and
    where sexual contact poses a significant risk of or causes actual serious
    bodily harm (
deprivation
).  A significant risk of serious bodily harm
    is established by a realistic possibility of transmission of HIV.  On the
    evidence before us, a realistic possibility of transmission is negated by
    evidence that the accuseds viral load was low at the time of intercourse and
    that condom protection was used.

The usual rules of evidence and proof apply.  The Crown bears
    the burden of establishing the elements of the offence  a dishonest act and
    deprivation  beyond a reasonable doubt.  Where the Crown has made a
prima
    facie
case of deception and deprivation as described in these reasons, a
    tactical burden may fall on the accused to raise a reasonable doubt, by calling
    evidence that he had a low viral load at the time and that condom protection
    was used. [Emphasis in original.]

[42]

The
    holdings in
Mabior
were directly applied in the companion case of
D.C.
In that case, the accused was charged with sexual assault and aggravated
    assault.  It was alleged that when the accused first engaged in vaginal
    intercourse with her male partner, she did not disclose her HIVpositive status. 
    At the time, the accuseds viral load was undetectable.  The critical issue,
    therefore, was whether the couple had used a condom.

[43]

Based
    on the accuseds and her partners evidence at trial, there was conflicting
    evidence regarding whether a condom had been used.  The trial judge, relying on
    a dated note in the accuseds medical records, inferred that no condom had been
    worn and convicted the accused of both charges.  Contrary to the standard
    subsequently set out in
Mabior
, the Quebec Court of Appeal set aside
    the convictions on the ground that even without condom use, the significant
    risk test established in
Cuerrier
had not been met, given the accuseds
    undetectable viral load.

[44]

The
    Supreme Court applied the
Mabior
significant risk standard, holding
    that condom use, in addition to a low viral load, was necessary in order for
    the accused to avoid criminal liability for failing to disclose her HIVpositive
    status.  In other words, in accordance with
Mabior
,
D.C.
also
    holds that condom use is required to preclude a realistic possibility of HIV
    transmission.  In the result, the Supreme Court dismissed the appeal but set
    aside the convictions based on the trial judges impermissible inference from
    the accuseds medical records that a condom had not been used.

V.      Application of
Mabior
and
D.C.
to
    the Facts of these Cases

[45]

The
    appellant argues that in light of
Mabior
and
D.C.
, these
    appeals must be allowed.  I agree.

[46]

First,
    and importantly, the Crown concedes that the appeals should be allowed.

[47]

Second,
    based on the
Mabior
courts clarification of the significant risk of serious
    bodily harm test enunciated in
Cuerrier
, the findings at both of the
    appellants trials are insufficient to support the convictions entered.

[48]

The
    conviction at the appellants first trial (involving L.L.) was grounded, at
    least in part, on defence counsels concession at that trial that the appellant
    should be convicted of aggravated sexual assault if sexual intercourse or oral
    sex was found to have occurred without disclosure by the appellant of his HIVpositive
    status.  I agree with Crown counsels submission before this court that a conviction
    on this basis alone does not meet the
Mabior
standard of a realistic
    possibility of HIV transmission.

[49]

The
    conviction entered at the appellants second trial (involving K.S.) is also
    unsustainable.  There was no evidence at this trial as to the risk associated
    with the sexual activity engaged in by the appellant.  Critically, the trial
    judge made no finding to resolve the conflicting evidence on whether a condom
    was actually used.  On the state of the law at the time, the trial judge
    regarded it as immaterial to resolve this issue.  However, under the
Mabior
standard, proof of condom use, while not always essential, may be highly
    material to the demonstration of a realistic possibility of transmission of
    HIV.  Without such a realistic possibility, a significant risk of serious
    bodily harm cannot be made out.

[50]

Accordingly,
    I would accept the parties joint position that the appeals must be allowed.

[51]

That
    leaves only the question of remedy.  Although originally contested, the parties
    now agree that stay orders should be granted in respect of both proceedings.

[52]

Generally,
    a stay of criminal proceedings is granted only in exceptional circumstances. 
    The high threshold for a stay recognizes that stayed charges may never be
    prosecuted or resolved by a trier of fact.  See for example,
R. v. Regan
,
    2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.   In the cases at bar, in my
    opinion, there is a basis on which the appellant could be convicted of the charges
    against him, in accordance with the
Mabior
standard, depending on how
    the evidence played out at new trials.  It is therefore not axiomatic that a
    stay of proceedings should be granted in cases of this kind.

[53]

That
    said, I am persuaded that several compelling factors justify a stay order in
    respect of both proceedings against the appellant.  First, the appellant has
    fully served and complied with all components of his sentences.  Second, the hearing
    of his appeals was twice adjourned pending the release of
Mabior
and
D.C.
As a result, the appellant has been engaged in the appeal process for about
    three years, with the ever-present stigma of his convictions throughout. 
    Finally, and importantly, the Crown now professionally and appropriately consents
    to the requested stay orders.  As I understood Crown counsels submissions, the
    Crown acknowledges that stay orders in these cases are warranted in the
    interests of the administration of justice.

[54]

In
    these specific circumstances, I would accede to the joint request of the Crown
    and the defence that stay orders be granted.  In my view, both fairness and the
    public interest are served by this outcome.

VI.     Disposition

[55]

Accordingly, for the reasons given, I would allow the appeals, set aside
    the appellants convictions and grant a stay of each proceeding.  As agreed by
    the parties, I would also direct that the appellants name be removed forthwith
    from the provincial sex offender registry (Christophers Law) and from SOIRA,
    that the sample of the appellants DNA previously provided be destroyed
    forthwith, and that the convictions and charges also be removed forthwith from
    the appellants vulnerable sector check.

Released:

JUN 21 2013                                    E.A.
    Cronk J.A.

EAC                                                I
    agree Gloria Epstein J.A.

I
    agree P. Lauwers J.A.





[1]
These appeals were heard together with a companion appeal in
R. v. Felix
,
    2013 ONCA 415.  This courts reasons in
Felix
are being released
    contemporaneously with these reasons.


