



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. P.C., 2022 ONCA 19

DATE: 20220114

DOCKET: C68528

van Rensburg, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.C.

Appellant

Jolene Hansell, for the appellant

Hannah Freeman, for the respondent

Heard: January 10, 2022 by
    video conference

On appeal from the convictions entered by
    Justice Paul R. Sweeny of the Superior Court of Justice, sitting with a jury, on
    January 15, 2019, and from the sentence imposed on August 6, 2019.

REASONS FOR DECISION

[1]

P.C. appeals his convictions for sexual assault
    and sexual interference. He also seeks leave to appeal his sentence of four
    years.

[2]

The appellant was accused of sexually abusing
    his niece on several occasions when she was between seven and ten years of age.
    It was alleged that the appellant removed her clothes and touched her body in
    various areas, including her vagina.

[3]

The appellant advances two grounds of appeal. He
    abandoned a third ground of appeal regarding the trial judges rejection of his
    application for a challenge for cause based on religion.

[4]

First, he asserts that the trial judge used
    language in his charge to the jury that might have caused the jury to confuse the
    evidence that he gave at trial with the submissions that he made. In this
    regard, it is important to know that the appellant was not represented at
    trial. He conducted his defence on his own, albeit with the assistance of
amicus
.

[5]

In particular, the appellant complains that,
    while the trial judge referred to the evidence of the complainant, when he
    referred to the evidence that the appellant gave, he generally referred to it
    as what the appellant asserted, rather than what the appellant testified to.

[6]

We do not accept this complaint regarding the
    trial judges charge to the jury. The jury heard the evidence directly. They
    knew what both the complainant and the appellant had said happened. In
    addition, at various points in the charge, the trial judge referred expressly
    to the evidence that the appellant had given. Further, the trial judge
    instructed the jury that it was their memory of the evidence, not his, that
    mattered. We do not believe that the jury would have been misled by the
    difference in the words used, nor would they have been confused between the
    evidence that the appellant gave and the submissions he subsequently made about
    the evidence.

[7]

The second ground of appeal is that the trial
    judge failed to give sufficient assistance to the appellant, given that he was
    unrepresented. This complaint is most specifically addressed to the jury charge
    and the pre-charge conference. Again, we do not accept this complaint. We do
    not accept that the trial judge failed to give the appellant sufficient time to
    consider the draft jury charge. The trial judge had an obligation to balance
    the amount of time he afforded the parties to review the charge with his
    obligation to ensure that the trial moved forward in a timely manner. The trial
    judge gave the appellant, and counsel for the Crown, the charge in draft on
    Friday morning. He then conducted an extensive pre-charge conference that
    afternoon. The trial judge produced a revised draft charge on the following
    Monday. This was sufficient time for the appellant to provide his views on the
    contents of the charge. We are supported in that conclusion by the reality that
amicus
was, at this same time, present and providing assistance.

[8]

With respect to the sentence appeal, the
    appellant contends that the trial judge improperly relied on the fact that
    there had been penetration of the complainant by the appellant when the
    evidence did not support that conclusion. We disagree. It was open to the trial
    judge to reach the conclusion that penetration had occurred. When a trial judge
    is sentencing based on convictions made by a jury, they are required to make their
    own findings of fact when those facts are not clear from the jurys verdict:
R.
    v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18. We also note on
    this point that, by the time of sentencing, the appellant was represented by
    counsel. His counsel did not take issue with the trial judges view that
    penetration had occurred, nor did he request that a
Gardiner
hearing
    be conducted on the issue.
[1]

[9]

The appellant also complains that the trial
    judge did not give sufficient weight to various mitigating factors. Again, we
    do not agree. The trial judge considered all of the relevant factors and
    arrived at a sentence that was appropriate in the circumstances of this case.
    His conclusion regarding the appropriate sentence is entitled to deference from
    this court:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at para.
    25.

[10]

The appeal on conviction is dismissed. While
    leave to appeal sentence is granted, the appeal is dismissed.

K. van Rensburg J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.





[1]

R. v.
    Gardiner
, [1982] 2 S.C.R. 368.


