



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C.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    the victim shall not be published in any document or broadcast or transmitted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. Ma, 2020 ONCA 358

DATE: 20200609

DOCKET: C64625

Hoy A.C.J.O., MacPherson and
    Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Min Feng Ma

Appellant

Min Feng Ma, acting in person

Michael Fawcett, for the respondent

Heard: June 1, 2020 by
    Videoconference

On appeal from the convictions entered
    by
Justice Shaun S. Nakatsuru
of
    the Superior Court of Justice on
August 18, 2017.

REASONS FOR DECISION

[1]

The appellants request for an adjournment is
    denied.

[2]

The appellant was charged with 13 sexual and
    related offences. He pleaded guilty to five of the charges relating to two
    complainants. He was acquitted of four charges relating to one of the
    complainants. He was convicted of five charges relating to the second
    complainant. He appeals the convictions.

[3]

The appellant contends that when he was arrested
    he was denied access to counsel for more than ten hours.

[4]

There is nothing in the record to support this
    contention or that it is relevant. This issue was not raised at trial.

[5]

The appellant submits that the trial judge did
    not take his case seriously and played games with him.

[6]

There is no basis for this submission,
    especially in light of the trial judges acquittal of the appellant on several
    serious charges.

[7]

The appellant asserts that those who accused him
    were lying.

[8]

The trial judge was scrupulous and detailed in
    his assessment of the credibility of the two complainants. Indeed, his
    reservations about the credibility of the first complainant led to acquittals
    on several charges relating to that complainant. With respect to the second
    complainant, the trial judge was entitled to find that she was an impressive
    witness  candid  measured [and] fair.

[9]

The appellant contends that the trial judge
    erred by concluding that the sexual activity with the second complainant was
    not consensual.

[10]

We disagree. The second complainant was a sex
    trade worker. She and the appellant had consensual sex early in the evening.
    The appellant used a condom. The trial judge found that this complainant is
    adamant that every client use a condom, no exception. Later the appellant
    insisted on having unprotected sex with the complainant. She refused but the
    appellant penetrated her anyway. After a comprehensive review of the evidence,
    the trial judge concluded: I accept [the complainant] did not consent to this
    sexual assault. In our view, the appellants refusal to use a condom and his subsequent
    use of a boxcutter to stroke the neck of the second complainant as he kissed
    her entitled the trial judge to conclude that sexual activity that started as
    consensual evolved later into a non-consensual sexual assault.

[11]

The conviction appeal is dismissed. We do not
    reach the sentence appeal as the appellant has served the totality of his
    sentence and it is therefore moot.

Alexandra
    Hoy A.C.J.O.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


