



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. F.M., 2019 ONCA 816

DATE: 20191009

DOCKET: C65718

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

F.M.

Appellant

F.M., acting in person

Andreea Baiasu, for the respondent

Mark Halfyard, duty counsel

Heard: October 3, 2019

On appeal from the conviction entered by
    Justice Michael Quigley of the Superior Court of Justice on May 13, 2016 and
    the sentence imposed on August 25, 2016.

APPEAL BOOK ENDORSEMENT


[1]

The appellant was convicted of numerous sexual
    offences committed against various family members.

[2]

The appellant challenges his convictions in
    relation to two victims  [J.J.] and [M.O.] He argues that the trial judge
    failed to address their reliability.

[3]

We are not persuaded that the trial judge
    overlooked this issue in his analysis of the evidence. The issues of
    credibility and reliability were raised during counsels submissions. While
    this is not a guarantee that the trial judge considered these issues, it
    provides important context for the consideration of his reasons. In his
    reasons, the trial judge explained why he found both witnesses to be
    trustworthy. His analysis encompassed both credibility and reliability
    considerations. Moreover, we observe that the trial judge pointed to other
    evidence that he believed confirmed the evidence of these two witnesses.
    Lastly, the appellant did not testify or lead evidence to contradict either
    witness. Accordingly, despite duty counsel Mr. Halfyards able submissions, we
    dismiss ground of appeal.

[4]

Duty counsel on behalf of the appellant further
    argues that the trial judge erred in relation to one count of breaching his
    undertaking (Count 9) by considering the appellants conduct that occurred
    before he entered the undertaking. The Crown concedes the error. We accept this
    reasonable concession, set aside this conviction and order a new trial. At the
    invitation of the Crown, we stay this charge.

[5]

As for sentence, duty counsel on behalf of the
    appellant submits and the Crown concedes that the trial judge erred in failing
    to give the appellant credit for pre-sentence custody at a rate of 1.5:1. We
    accept this concession and credit the appellant with a further 503 days of
    pre-sentence custody, to be applied to Counts #4 and #6 on the Indictment dated
    January 5, 2015.


