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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-05-03

Docket: C65189

Panel: Watt, Pardu and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

K.B. Appellant

Counsel

For the Appellant: Ian McCuaig

For the Respondent: Candice Suter

Hearing and Appeal

Heard: May 1, 2019

On appeal from: The conviction entered on September 5, 2017 by Justice James W. Sloan of the Superior Court of Justice.

Reasons for Decision

Background Facts

[1] The appellant was convicted of sexual assault and sexual interference after a trial before a judge of the Superior Court of Justice sitting without a jury. At the conclusion of the hearing we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] The complainant was 31 years old when she testified. She gave evidence of three separate incidents involving the appellant. These, she said, took place when she was nine or ten years old and the appellant was visiting and looking after her.

[3] In her testimony, the complainant had some difficulty recalling the precise timing and details of these incidents. However, her evidence was confirmed in part by the testimony of others, namely, her childhood best friend, her friend's father, and her mother.

[4] The appellant testified at trial. He denied the incidents described by the complainant or that he had ever engaged in any inappropriate sexual contact with her. An integral part of the defence position was that the timeline relied upon by the Crown, and reflected in the counts on the indictment, was flawed. No such conduct could have occurred because the appellant had no relationship with the complainant or her mother at that time.

[5] The trial judge rejected the appellant's testimony. He did not believe him, nor did his evidence raise a reasonable doubt about the appellant's guilt. The complainant's testimony, coupled with the balance of the evidence, satisfied the judge beyond a reasonable doubt about the appellant's guilt.

Arguments on Appeal

[6] In this court, the appellant contends that the trial judge erred in reaching his conclusion that guilt had been proven beyond a reasonable doubt by applying uneven scrutiny to the evidence of the complainant and that of the appellant. This uneven scrutiny, the appellant says, is made clear by three specific errors on the part of the trial judge:

i. in concluding that the evidence of the witness, R.C., contradicted the appellant's testimony when it in fact bolstered or supported it;

ii. in relying on prior consistent statements of the complainant as bolstering her credibility; and

iii. in finding that the complainant had no motive to lie and impermissibly relying on this finding to bolster the complainant's credibility.

Discussion

[7] As this court has said many times when an argument of uneven scrutiny is advanced, it is a very difficult claim of error to put forward successfully. It fails in this case.

[8] In our view the appellant has not pointed to anything in the record or the reasons that confirms that the trial judge actually applied different standards of scrutiny in his assessment of the evidence of the complainant, on the one hand, and the appellant, on the other. Without more, the fact that the trial judge believed the evidence of the complainant and disbelieved that of the appellant does not establish that the judge applied uneven scrutiny in doing so.

[9] We are not satisfied that the trial judge misstated R.C.'s evidence in a way that contradicted the appellant's evidence or that he used such a mistaken view of that evidence to reject the timeline described by the appellant. The trial judge reached his conclusion about the no-contact date having considered R.C.'s evidence alongside the evidence of his daughter. This conclusion was open on the evidence.

[10] Nor are we persuaded that the trial judge improperly used evidence of the complainant's prior disclosure of the incidents to R.C., her family doctor, and in a failed report to police in 1997. We do not read the trial judge's reasons as indicative of use of these statements as evidence that the incidents disclosed by the complainant had occurred. In our view, fairly read, the reasons make it clear that the use of this evidence was for the entirely permissible purpose of understanding the narrative and assessing the complainant's credibility. See, R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-38.

[11] Finally, we do not accept that the trial judge erred by confusing the absence of evidence of a motive to lie with absence of a motive to lie and using it as supportive of the credibility of the complainant. The trial judge simply concluded that there was no evidence in the record of any motive to lie on the part of the complainant. He did not consider that there was no motive to lie nor did he use such an absence of motive to buttress the credibility of the complainant.

Conclusion

[12] It is for these reasons that the appeal was dismissed.

"David Watt J.A."

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."