



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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25,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).

(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.

(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    the victim shall not be published in any document or broadcast or transmitted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.

(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.

(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); 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.

(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. A.R., 2019 ONCA 671

DATE: 20190826

DOCKET: C64265

Watt, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. A. R.

Appellant

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 complainants 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 appellants 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.


