Her Majesty the Queen v. O.K.S., 2021 ONCA 794

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. O.K.S., 2021 ONCA 794 Date: 2021-11-08 Docket: C67561

Before: MacPherson, Simmons and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

O.K.S. Appellant

Counsel: Najma Jamaldin, for the appellant Jerry Brienza, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the convictions entered by Justice Mohammed M. Rahman of the Ontario Court of Justice on November 7, 2018, with reasons reported at 2018 ONCJ 837.

Reasons for Decision

1O.K.S. appeals his convictions for sexual assault and assault. Without providing an exhaustive list of the complaints made, the appellant says that the trial judge relied on stereotypical beliefs; misapprehended the evidence; failed to properly consider inconsistencies in the complainant’s evidence; and applied an unequal standard of scrutiny of the evidence. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

2The appellant and the complainant were married. There were no children. They had contrasting views of the state of their marriage at the time of the incident that gave rise to the charges. The complainant said that the marriage was an unhappy one. She accused the appellant of having affairs. She also admitted to having an affair herself. The complainant said that the only reason she remained in the relationship was because she was the sponsor for the appellant with respect to his immigration status in Canada.

3In contrast, the appellant says that the marriage was a happy one. He said that any issues in the marriage arose from the complainant’s drinking, which she tended to do to excess. The affair that the complainant engaged in, which she originally denied, was also a recent source of stress.

4The incident that led to the charges began with the appellant and the complainant going out to a bar. They returned home and began having sex. The complainant said that the appellant became angry with her when the complainant made a comment about his performance. The complainant says that the appellant struck her. He also demanded her phone which he eventually smashed. The contents of her phone were believed by the appellant to tie back into the complainant’s affair which the appellant realized had, in fact, occurred. The complainant says that the appellant then forced her to have sexual intercourse.

5The appellant’s version of the incident was different. He agreed that, at the outset, they had consensual sex. However, the appellant says that he became upset when the complainant suggested engaging in a sex act that he was not interested in. This suggestion caused the appellant to become suspicious about whether the complainant had, in fact, had an affair. He demanded to see her iPad which the complainant opened for him after the appellant said he would break it if she did not. The appellant found messages with another man. He became upset and punched the wall. The appellant then told the complainant that he was leaving.

6The trial judge was left with the task of resolving these competing descriptions of the events. In his reasons, he properly set out the test from R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The trial judge was aware that, in order to convict the appellant, he needed not only not to believe the appellant’s evidence but also find that it did not raise a reasonable doubt. He then had to accept that the complainant’s evidence established the guilt of the appellant beyond a reasonable doubt.

7None of the criticisms made by the appellant with respect to the trial judge’s analysis and conclusion are made out on the record before us. The trial judge gave thorough and careful reasons in which he reviewed the evidence in detail. He found that he did not believe the appellant and that his evidence did not raise a reasonable doubt, and he gave a number of reasons for that conclusion. The trial judge did not engage in any stereotypical assumptions in reaching his conclusion.

8The trial judge then proceeded to consider and accept the complainant’s evidence. He noted that her evidence was confirmed, at least in part, by photographs taken of her neck and face two days after the alleged assault. The trial judge also directly addressed the issues raised regarding the complainant’s evidence (largely allegations of inconsistencies) and found that those issues did not detract from her credibility and reliability. We do not see any basis for the assertion that the trial judge applied an unequal level of scrutiny to the evidence as between the appellant and the complainant.

9The appellant essentially asks us to retry the case. That is not our role. The appellant must demonstrate that the trial judge either committed an error of law or made a palpable and overriding error of fact. He has failed to establish either.

10It is for these reasons that the appeal was dismissed.