



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. R.O., 2017 ONCA 987

DATE: 20171215

DOCKET: C60636

Hoy A.C.J.O., Doherty
and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.O.

Appellant

Richard Diniz, for the appellant

Craig Harper, for the respondent

Heard and released orally: December 7, 2017

On appeal from the conviction entered by Justice R.C.
    Gates of the Superior Court of Justice, dated November 26, 2014, and the
    sentence imposed on June 23, 2015.

REASONS FOR DECISION

[1]

This case arises within the context of an acrimonious divorce and custody/
    access battle between the appellant and the complainant, his ex-wife.  After a
    trial where the evidence unfolded over 30 days, the appellant was convicted of
    criminal harassment and sentenced to 18 months in prison. He appeals his
    conviction and seeks leave to appeal the sentence imposed.

[2]

The appellant argues that the trial judge demonstrated a reasonable
    apprehension of bias by improperly intervening during the trial, applying a
    higher level of scrutiny to the defence evidence, and imposing a sentence
    significantly longer than that requested by the Crown.

[3]

We are not persuaded that a reasonable informed observer, fully aware of
    all relevant aspects of the case, would conclude that the trial was unfair.  The
    appellant takes issue with a few interventions made in the course of his trial
    counsels seventh day of cross-examination of the complainant. In our view,
    those interventions, which attempted to limit appellants counsel to relevant
    matters, were fully warranted.

[4]

Nor do we view the fact that the trial judges reasons for rejecting the
    appellants evidence exceeded the length of his reasons for accepting the
    evidence of the complainant, a CAS worker, a neighbour, and the police officers
    who attended at the complainants home on approximately 37 occasions, as an
    indication that he reviewed the defence evidence more stringently than the Crowns
    evidence.  In our view, the trial judge simply detailed the multiple reasons
    why he found the appellant incredible and the appellant asks this court to
    reassess the trial judges credibility determination.  The trial judges
    credibility findings are entitled to deference and there is no basis for the
    court to interfere with them.

[5]

While we do not agree with the appellant that a reasonable and informed
    observer would conclude that the trial was unfair because the trial judge
    significantly exceeded the sentence proposed by the Crown, we do agree that he
    erred in doing so, without first indicating to the parties that he was inclined
    to do so and giving the parties the opportunity to make further submissions:
R.
    v. Hagen
, 2011 ONCA 749, at para. 5
;
R. v. Gamble
, 2017 ONCA 610
.

[6]

We agree with the trial judge that a sentence longer than that proposed
    by the Crown at trial is required. The harassment, although not physical or
    violent, was egregious and continued over four years. The appellant showed no
    remorse. Denunciation and deterrence are paramount. However, the appellant has
    been on bail in relation to these offences since 2009 without incident. There
    is an indication that the appellant has mental health issues. He has no other
    criminal record and has other positive antecedents.

[7]

In our view, in all the circumstances, a fit sentence is 12 months, to
    be followed by three years probation on the terms imposed by the trial judge.

[8]

Accordingly, the appellants appeal against conviction is dismissed.
    Leave to appeal sentence is granted. The sentence imposed by the trial judge is
    set aside and the appellants sentence is varied as provided above. The other
    ancillary orders imposed by the trial judge shall remain in place.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

K. Feldman J.A.


