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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Doherty, Rosenberg and Epstein JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
K.A.R.
Appellant
Dominic Lamb, for the appellant
Dena Bonnet, for the respondent
Heard and release orally: March 16, 2012
On appeal from conviction entered by Justice P. Kane of the Superior Court of Justice, dated September 2, 2010.
ENDORSEMENT
1We are satisfied that the trial judge did not reverse the burden of proof by pointing out that no explanation was put forward for why the complainant told the truth about her stepfather’s abuse but lied about the appellant’s abuse. That a central part of the complainant’s evidence was undoubtedly true was a fact to be considered by the trial judge.
2The trial judge correctly reviewed the W.(D.) principles at some length in his reasons for judgment. His reasoning does not disclose a reversal of the burden of proof.
3We do not agree that the trial judge set up a false dichotomy. The appellant testified that the complainant asked her what would happen if she said her stepfather touched her improperly. The trial judge was entitled to measure the appellant’s credibility by considering her response to this allegation. We view this part of the trial judge’s reasons as no more than the common sense observation that the appellant’s response made no sense, especially given her own background as a victim of abuse.
4Finally, we are satisfied that the trial judge did not give unreasonable weight to the appellant’s demeanour in the police interview and at trial. The trial judge only took demeanour into account as one factor of many for rejecting the appellant’s evidence. We note that he expressly cautioned himself that he should not give undue weight to demeanour.
5Accordingly, the appeal from conviction is dismissed.
Signed: “M. Rosenberg J.A.”
“Doherty J.A.”
“Epstein J.A.”