



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    that could identify the complainant or a witness shall not be published in any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. K. E., 2014 ONCA 186

DATE: 20140310

DOCKET: C56120

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. E.

Appellant

H. John Kalina, for the appellant

Roger Shallow, for the respondent

Heard and released orally: March 7, 2014

On appeal from the convictions entered on May 20, 2012 and
    the sentence imposed on October 16, 2012 by Justice J. Fragomeni of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted of
    assault, sexual assault and uttering death threats against his girlfriend.  He
    was sentenced to four years imprisonment.  He appeals from his convictions and
    seeks leave to appeal against sentence.

A.      Conviction Appeal

[2]

The appellants sole ground of appeal on his conviction appeal is a
    claim of ineffective assistance of counsel.  He contends that his counsel
    failed to follow his instructions to oppose the admission at trial of the complainants
    evidence at the preliminary inquiry and that, but for his counsels ineffective
    assistance in this regard, the evidence in question would not have been
    admitted because the appellant was denied the opportunity to cross-examine the
    complainant at the preliminary inquiry.

[3]

In our view, the conviction appeal must be dismissed.

[4]

The date of the preliminary inquiry was advanced when it was learned
    that the complainant was suffering from a terminal illness and was not expected
    to survive for very long.  In the result, the complainant did testify at the
    preliminary inquiry.  The record establishes that the court appointed counsel
    for the appellant in respect of the preliminary inquiry, for the purpose of
    cross-examining the complainant.  The preliminary inquiry judge offered to
    adjourn the inquiry to permit the appellants appointed counsel or the
    appellant himself, presumably alone or with the assistance of other counsel, to
    prepare for the cross-examination of the complainant.  At that time, it was made
    it clear to the appellant that he would not likely have another opportunity to
    cross-examine the complainant.  However, the appellant objected to the counsel
    appointed by the court and stated that he did not wish any cross-examination.

[5]

By the time of trial, the complainant had died.    It was anticipated
    that the Crown would seek the admission at trial of her preliminary inquiry
    evidence under s. 715(1) of the
Criminal Code
.

[6]

The appellant claims that he instructed his trial counsel to oppose the
    admission of the complainants inquiry evidence on the ground that he did not
    have full opportunity to cross-examine the complainant at the preliminary
    inquiry and that his trial counsel refused to follow his instructions.  The
    resulting admission of the complainants evidence at trial, the appellant says,
    arose from the ineffective assistance of his counsel and resulted in a
    miscarriage of justice.

[7]

The record before this court belies these claims.  First, as we have
    said, the appellant was afforded an opportunity to cross-examine the
    complainant at the preliminary inquiry and declined that opportunity.  Second,
    the appellants trial counsel stated in his sworn affidavit that he advised the
    appellant to concede the admissibility of the complainants inquiry evidence at
    trial, because, in his view, the evidence would be admitted under s. 715(1) of
    the
Criminal Code
, and the appellant accepted his advice. 
    Importantly, the appellant himself admitted on cross-examination on his
    affidavit that in the end [he] agreed with his counsel and conceded to his
    counsels advice.

[8]

The test for establishing an ineffective assistance of counsel claim is
    an exacting one.  On the facts of this case, simply put, there is no foundation
    for the appellants ineffective assistance claim.  It is entirely contradicted
    by the record.  The complainants inquiry evidence was clearly both necessary
    and reliable evidence.  It was therefore admissible at trial under s. 715(1) of
    the
Criminal Code
since the appellant had not been denied the
    opportunity to cross-examine the complainant.  Further, the appellant accepted
    his trial counsels advice not to oppose the admission of the complainants
    evidence at trial.

[9]

The appellant cannot now be heard to complain about a situation of his
    own making.  Certainly, on the record before us, there is no basis for
    criticism of his trial counsels performance in the manner asserted by the
    appellant.  Nor is there any merit to his claim that the events described above
    led to a miscarriage of justice.

[10]

The
    conviction appeal is therefore dismissed.

B.      Sentence Appeal

[11]

We
    also see no merit to the appellants sentence appeal.

[12]

The
    appellant does not assert that the sentence imposed is outside the appropriate
    range for his offences.  The single error alleged by him is that the sentencing
    judge failed to consider the appellants prospects for rehabilitation and
    relied solely on the principles of denunciation and deterrence when fashioning
    a fit sentence.

[13]

We
    disagree.  Once again, the record does not support this claim.

[14]

The
    pre-sentence report filed at the appellants sentencing hearing, which was
    considered by the sentencing judge, indicated that: (1) the appellant did not
    express any remorse and did not admit his guilt for any of the offences of
    which he was convicted; (2) to the contrary, the appellant expressed shock that
    he was found guilty and took no responsibility for his actions.  Moreover,
    after interviewing the appellant, the author of the pre-sentence report learned
    that the appellant had a prior conviction in the United States for sexual
    battery which led to his deportation to Canada.

[15]

In
    light of these considerations, we agree with the Crown that rehabilitation
    could not have played any significant role at the appellants sentencing
    hearing.

[16]

The
    sentencing judge expressly considered the applicable sentencing principles set
    out in the
Criminal Code
, including the principle of rehabilitation,
    as well as the circumstances of the offences and of the offender at the time of
    sentencing.  As we have said, he also took account of the contents of the
    pre-sentence report, in addition to various letters filed on behalf of the
    appellant.  We see no basis for any suggestion that the sentencing judge
    overemphasized deterrence and denunciation on the facts of this serious case.

[17]

The
    sentencing judges reasons reflect no error in principle and the sentence
    imposed was fit.  Leave to appeal sentence is therefore granted and the
    sentence appeal is dismissed.

E.A. Cronk
    J.A.

Gloria Epstein
    J.A.

M.L. Benotto J.A.


