



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Cho, 2017 ONCA 723

DATE: 20170918

DOCKET: C60076

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Quen Hao Cho

Appellant

Janani Shanmuganathan, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: September 7, 2017

On appeal from the conviction entered on December 29,
    2014 and on appeal from the sentence imposed on February 2, 2015 by Justice Thomas
    P. Cleary of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a single witness trial the appellant was convicted of assault with
    a weapon and two counts of sexual assault.  Each count related to the same
    complainant, a person with whom the appellant had an intermittent relationship.

[2]

The day following the second sexual assault, the complainant went to a
    police station.  At first, she complained of sexual harassment and sought a no
    contact order against the appellant. Over time, she returned to the police
    station with a more fulsome account of her allegations, including two instances
    of forced sexual intercourse, several months apart.

[3]

The appellant appeals his convictions and seeks leave to appeal the sentence
    of 51 months in the penitentiary imposed by the trial judge.

[4]

The appellant advances a single ground of appeal against conviction. He
    says that the trial judge erred by reversing the onus of proof by finding guilt
    established on the basis of his rejection of the defence submissions without
    going on to consider whether the evidence as a whole established the
    appellants guilt beyond a reasonable doubt.

[5]

We do not give effect to this ground of appeal.

[6]

In our view, when the reasons for judgment are read as a whole, as they
    must be, they reveal no reversal of the burden of proof.

[7]

This was a one witness case. The relevant issue for the trial judge to decide
    was whether the whole of the complainants evidence met the standard of proof
    required of the Crown in a criminal case or fell short of the mark. The trial
    judge outlined and rejected the defence attacks on the credibility of the
    complainant and the reliability of her evidence.

[8]

Without more, addressing and rejecting defence submissions about the
    credibility of the complainant and the reliability of her evidence does not
    amount to reversal of the burden of proof. Further, the reasons demonstrate the
    trial judges correct understanding of the presumption of innocence and the
    burden and standard of proof. While the reasons could have been clearer and
    better delivered in one piece rather than in two instalments, we are satisfied
    that they sufficiently explain
why
the trial judge decided the case as
    he did.

[9]

We are further satisfied that the trial judge did not err in rejecting
    the defence submissions that the manner in which the complainant disclosed the
    offences to the police undermined her credibility and the reliability of her
    evidence.  These findings represent inferences that the trial judge drew from
    primary facts. They were inferences that were available for him to draw.  That
    he might have drawn other inferences is beside the point. He didnt. And that
    he didnt does not make the inferences he drew unavailable or wrong.  They were
    available and are entitled to deference in this court.

[10]

While we do not agree that the failure to embellish her account of the
    instances of which she testified was a factor that enhanced the complainants
    credibility or the reliability of her evidence, we prefer to view this comment
    as more a characterization of the straight forward manner in which the
    complainant testified at trial.

[11]

The appeal from conviction is dismissed.

[12]

On the appeal from sentence, the appellant says that the sentence
    imposed by the trial judge violates the principles of totality and restraint.

[13]

The appellant acknowledges that the individual sentences imposed by the
    trial judge on the convictions of sexual assault fall at the lower end of the
    range of fit sentences for their offences.  Further, the appellant takes no
    issue that consecutive sentences were appropriate in this case.

[14]

This case bristles with aggravating factors. The number of sexual
    assaults committed.  Their demeaning and degrading nature. The fact that the
    parties were in a domestic relationship. The extent of the physical violence,
    the evidence of planning. And the significant impact of the offences on the
    complainant.

[15]

In our view, the sentences imposed reflect no error in principle; no
    improper emphasis on any relevant factor; and no failure to consider any
    relevant or consideration of an irrelevant factor. The total sentence imposed
    in our view was fit.

[16]

Leave to appeal sentence is granted but the appeal from sentence is
    dismissed.

David Watt J.A.
Gloria Epstein J.A.
David Brown J.A.


