W A R N I N G
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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
CITATION: R. v. K.L., 2007 ONCA 505
DATE 20070705
DOCKET: C44927
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
K. L.
Appellant
Richard Litkowski and Emily Morton for the appellant
Lisa Joyaz for the respondent
Heard and endorsed June 28, 2007
On appeal from conviction by Justice Jennifer A. Blishen of the Superior Court of Justice dated December 7, 2005.
APPEAL BOOK ENDORSEMENT
[1] The trial judge did not state what use she was making of the prior consistent statements. However, we are not persuaded that she used the statements for the truth of their contents or as confirmatory/corroborative evidence of the complainant’s testimony.
[2] In the case of the March 28th disclosures, the defence called the foster mother to deny that the complainant had disclosed the sexual relationship to her on that day. In those circumstances, it was open to the Crown to call reply evidence and it was open to the trial judge to accept the reply evidence and use it to asses, in positive terms, the complainant’s credibility and reliability.
[3] As for the disclosure to Greg and the asterisks in the school agenda, we are satisfied that the trial judge used that evidence only to rebut the defence position that the complainant should not be believed because she had failed to disclose her allegations to other people such as her psychologist and counsellor. In the circumstances, we see no error in her use of the evidence for that purpose.
[4] On the issue of collaboration between the appellant and his wife, it was open to the trial judge to factor that into her credibility assessment and we see no error in her analysis or conclusion.
[5] Likewise, we see no merit in the submission that the trial judge shifted the burden of proof regarding the complainant’s knowledge of the contents of the LCAS folder. At most, the trial judge was indicating that on the evidence before her, the appellant had failed to meet an evidentiary burden.
[6] Finally we do not accept the appellant’s submission that the trial judge subjected his evidence to a higher level of scrutiny than that of the complainant. The trial judge gave exemplary reasons, including reasons for rejecting the appellant’s evidence and accepting the complainant’s evidence on the charges for which she convicted the appellant.
[7] In that regard, we note that the trial judge looked for confirmation and cited numerous examples, including the physical characteristics of the appellant, in concluding that she could safely rely on the complainant’s evidence that she and the appellant had a long-standing sexual relationship.
[8] Accordingly, the appeal is dismissed.