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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.

Court Information

CITATION: R. v. S.K., 2008 ONCA 285

DATE: 20080416

DOCKET: C47458

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

S.K.

Appellant

Daniel F. Moore for the appellant

John Patton for the respondent

Heard: April 8, 2008

On appeal from the decision of Justice Dunnet of the Superior Court of Justice dated July 24, 2007.

ENDORSEMENT

[1] The three questions of law argued in this court were raised in the summary conviction appeal court and addressed by Dunnet J. in her careful reasons. We see no error of law in her analysis. We propose to make only brief reference to one of the grounds of appeal.

[2] As observed by Dunnet J., the trial judge used inappropriate phraseology in considering the second step in the “W.D.” inquiry. The trial judge asked whether the defence evidence “might reasonably be true” instead of asking herself whether the defence evidence left her with a reasonable doubt. Whether those formulations would ever yield different results is debatable. However, the “might reasonably be true” formulation does pose a risk, particularly in jury cases, of an improper reversal of the burden of proof.

[3] In the context of the defence raised in this case and the trial judge’s findings as to credibility, like Dunnet J., we cannot assign reversible error to the trial judge in respect of her application of a fundamental principle like the burden of proof based on her single use of an inapt phrase. In other parts of her reasons, the trial judge made it clear that she understood that the burden of proof was on the Crown throughout the case to prove guilt beyond a reasonable doubt on the totality of the evidence.

[4] We would grant leave to appeal and dismiss the appeal.

“Doherty J.A.”

“Paul Rouleau J.A.”

Feldman J.A. (dissenting):

[5] I would grant leave to appeal, allow the appeal, and order a new trial.

[6] The summary conviction appeal judge found that the trial judge made an error of law by misstating the second branch of the W.D. test, asking whether the evidence given by the appellant and his wife “might reasonably be true”, instead of whether it raised a reasonable doubt. As explained by Fish J.A. (as he then was) in R. v. Mathieu (1994), 1994 CanLII 5561 (QC CA), 90 C.C.C. (3d) 415 (Qc. C.A.), the “might reasonably be true” test derives from the doctrine of recent possession, where it effectively reverses the onus of proof. Its use as part of the W.D. test is at best confusing and at worst undermines the presumption of innocence by placing a higher onus on the accused than is required by the W.D. approach.

[7] The summary conviction appeal judge applied and followed this court’s decision in R. v. Rattray (2007), 2007 ONCA 164, 222 O.A.C. 28, in which it held that the “might reasonably be true” error does not amount to reversible error where the trial judge completely rejected the appellant’s evidence as untrue and found the Crown’s case to be overwhelming. In my view, she erred in so doing.

[8] The appellant’s evidence was essentially that after his stepdaughter and her family moved out of his house, his loving relationship with them continued but he did not see them that much and he was never alone with the complainant and her two brothers, as the complainant alleged. As noted by appellant’s counsel, the complainant’s brothers were not called as witnesses to either address this issue or the corollary, that is, if they were together, what they observed.

[9] The trial judge did not completely reject the appellant’s evidence in this case. Rather, she found only that his credibility was undermined by his minimization of the number of occasions where he had contact with the complainant.

[10] More importantly, this was not an overwhelming Crown case. The only evidence of the commission of any offence came from the complainant. The trial judge had to explain away discrepancies in the complainant’s evidence, including her initial disclosure of only one incident of sexual touching later followed by “serial disclosure” of five to seven incidents of sexual touching. The trial judge also had to overlook the indication from the complainant’s vocabulary that the complainant’s evidence had been somewhat “contaminated” between her initial disclosure and her testimony. Although the trial judge ultimately accepted the complainant’s evidence as credible, it cannot be said to constitute an overwhelming case.

[11] In my view, this was not a case where the seriousness of the W.D. error can be overcome on the basis of the two reasons given by this court in Rattray. The appellant denied the complainant’s allegations. The trial judge concluded that his story “could not reasonably be true”, while explaining away the discrepancies in the complainant’s account. In these circumstances, one cannot be certain that the trial judge’s error of law in articulating and applying the burden of proof could not have affected the verdict. I would therefore grant leave to appeal, allow the appeal, set aside the conviction and order a new trial.

“K. Feldman J.A.”