



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that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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the victim shall not be published in any document or broadcast or transmitted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. Phung, 2016 ONCA 170

DATE: 20160229

DOCKET: C59147

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Phung

Appellant

Setu Purohit, for the appellant

Lisa Henderson, for the respondent

Heard and released orally: February 26, 2016

On appeal from the conviction entered on May 8, 2014 and
the sentence imposed on May 8, 2014 by Justice A. McFadyen of the Ontario Court
of Justice.



ENDORSEMENT

[1]

The appellant appeals his convictions for possession of controlled drugs
and
Criminal Code

and Customs Act
offences involving child
pornography.

[2]

The appellant testified to deny the charges but the trial judge rejected
his evidence and found that Crown had proved guilt on each count beyond a
reasonable doubt.

[3]

With respect to the child pornography counts, the Crown concedes that
the trial judge misapprehended the evidence of the computer expert that there
was a Sort Needed folder in the main Pictures folder as well as in the Guy
Pics folder.

[4]

We agree with the Crowns submissions that this error did not fatally
infect the convictions on the child pornography counts. In her reasons, the
trial judge identified other similarities between the structures of the files
and folders the appellant acknowledged creating. The appellant also admitted
accessing the Guy Pics subfolder which contained several folders containing
sexually explicit materials including the Text Reading subfolder that
contained the contraband material. When he opened the Guy Pics subfolder, the
Text Reading subfolder would have been apparent.

[5]

We do not accept the submission that the trial judge could only convict
if there was concrete evidence that the appellant had looked at the contents of
the Text Reading subfolder. The trial judge rejected the appellants
explanation for how the contraband found its way on to the computer. That
finding, combined with the evidence of the organisation and nature of the
folder files and subfolders and the evidence that the Text Reading subfolder
was obvious when the Guy Pics folder was opened, was sufficient to justify
the trial judges inference that the appellant had knowledge of the contents of
the Text Reading subfolder.

[6]

With respect to the controlled drugs count, the trial judge carefully
reviewed the appellants explanation for the drugs in his possession. She found
that the appellant was unable to provide either a prescription or a coherent
explanation for the quantity of the controlled drugs that he possessed. In our
view, that finding was readily available to her on the evidence.

[7]

For these reasons, the appeal is dismissed.

Robert J. Sharpe
J.A.

M.L. Benotto
J.A.

Grant Huscroft
J.A.


