



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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an accused
shall be held in open court, but the presiding judge or justice may, on
application of the prosecutor or a witness or on his or her own motion, order
the exclusion of all or any members of the public from the court room for all
or part of the proceedings, or order that the witness testify behind a screen
or other device that would allow the witness not to be seen by members of the
public, if the judge or justice is of the opinion that such an order is in the
interest of public morals, the maintenance of order or the proper
administration of justice or is necessary to prevent injury to international
relations or national defence or national security.

(1.1) The application may be made, during
the proceedings, to the presiding judge or justice or, before the proceedings
begin, to the judge or the justice who will preside at the proceedings or, if
that judge or justice has not yet been determined, to any judge or justice
having jurisdiction in the judicial district where the proceedings will take
place.

(2)     In determining whether the order
is in the interest of the proper administration of judge, the judge or justice
shall consider

(a) societys interest in encouraging the
reporting of offences and the participation of victims and witnesses in the
criminal justice process;

(b) the safeguarding of the interests of
witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a
full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
participants who are involved in the proceedings;

(f) whether effective alternatives to the
making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects
of the proposed order; and

(h) any other factor that the judge or
justice considers relevant.

(3)     If an accused is charged with an
offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
(3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
accused applies for an order under subsection (1), the judge or justice shall,
if no such order is made, state, by reference to the circumstances of the case,
the reason for not making an order.

(4) No adverse inference may be drawn
from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985,
c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.D., 2019 ONCA 138

DATE: 20190214

DOCKET: C65068

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.D.

Appellant



J.D., in person

Ian Smith, duty counsel

Jessica Smith Joy, for the respondent

Heard:  February 14, 2019

On appeal from the conviction entered on June 16, 2017
and the sentence imposed on February 21, 2018 by Justice Laurie Lacelle of the
Superior Court of Justice, sitting without a jury.



APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction and sentence on the following
charges:

1.

sexual assault; and

2.

forcible confinement.

[2]

These charges arose out of an incident involving an altercation with his
domestic partner which resulted in a number of other charges to which the
appellant has pled guilty.

[3]

He pled not guilty to the allegations of sexual assault and forcible
confinement.  Following a judge alone trial, the appellant was found guilty and
sentenced to a global sentence of 3 years and 9 months, less 3 months for
pre-sentence bail conditions.  He appeals his convictions on the following
basis:

1.

that the trial judge misapprehended the evidence; and

2.

that the verdict was unreasonable.

[4]

We do not agree.  The trial judge gave very detailed and comprehensive
reasons addressing all the concerns raised by the appellant, as well as his
counsel at trial.  The trial judge itemized every point raised by the appellant
in her reasons for judgment and reconciled all concerns.  We see no basis to
interfere with this decision.  Accordingly, conviction appeal is dismissed.

Sentence
Appeal

[5]

In our view, the global sentence of 3 years and 9 months was a fit
sentence in all the circumstances.  The Crown concedes that the imposition of a
victim fine surcharge is now unconstitutional.

[6]

Accordingly, the sentence appeal is dismissed, except for the portion of
the sentence imposing a victim fine surcharge, which is set aside.




