R. v. Aharonov

R. v. Aharonov Collection Decisions of the Court of Appeal Date 2016-11-24 Neutral citation 2016 ONCA 894 Docket numbers C60314 Judges Sharpe, Robert J.; van Rensburg, Katherine; Pardu, Gladys I. Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Aharonov, 2016 ONCA 894 DATE: 20161124 DOCKET: C60314 Sharpe, van Rensburg and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Aharonov Appellant Kristin Bailey, for the appellant Hannah Freeman, for the respondent Heard and released orally: November 22, 2016 On appeal from the conviction entered on December 9, 2014 and the sentence imposed on April 17, 2015 by Justice Carol A. Brewer of the Ontario Court of Justice. ENDORSEMENT [1] The appellant was convicted of possession of child pornography and sentenced to 10 months’ imprisonment. He appeals conviction and seeks leave to appeal sentence. Conviction appeal [2] The appellant submits that the trial judge erred in ruling that his inculpatory statement to the police was voluntary. The appellant contends that the trial judge should have found that the absence of any record of what happened to the appellant during the two and a half hours after he arrived at the station and before he gave his statement, combined with certain utterances he made during the course of the interview with the police regarding his desire to be released on bail, raised a doubt about the voluntariness of his statement. [3] We do not accept this submission. [4] The appellant was given the standard caution upon arrival at the police station and he spoke to duty counsel before giving his statement. The police officers who interacted with the appellant testified that no threats were made and no inducements were offered. The appellant did not testify on the voir dire. When the appellant asked about bail during his recorded statement, the police officers conducting the interview made it clear that there was no quid pro quo and that the issue of bail was not in their hands but was one for the courts to decide. [5] The trial judge gave careful reasons for finding that the statement was voluntary. Any hope that the appellant may have had regarding bail was not the product of anything said by the police. [6] We see no basis upon which the court could interfere with the trial judge’s finding. [7] The appellant concedes that if the ground of appeal relating to the voluntariness of the statement fails, the ground relating to alleged misapprehension of the evidence cannot succeed. Sentence Appeal [8] The appellant argues that the trial judge placed insufficient weight on the time he spent on relatively onerous bail conditions prior to trial. [9] The appellant points out that the trial judge placed particular reliance on R. v. Yau, 2011 ONSC 1009 (CanLII), [2011] O.J. No 720, where a sentence of 10 months was imposed before credit for pretrial custody and he asks that his sentence be reduced to one of six months. [10] We do not accept that submission. [11] The trial judge specifically averted to what she described as “relatively strict bail conditions” and she described those conditions as “a significant mitigating factor”. We do not accept that she ignored what she just described as a significant mitigating factor when crafting an appropriate sentence. [12] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed. “Robert J. Sharpe J.A.” “K. van Rensburg J.A.” “G. Pardu J.A.”