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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. Khan, 2010 ONCA 225
DATE: 20100326
DOCKET: C50639
COURT OF APPEAL FOR ONTARIO
Moldaver, Simmons and Lang JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Bilal Khan
Appellant
Joseph Di Luca, for the appellant
Stacey D. Young, for the respondent
Heard and released orally: March 18, 2010
On appeal from conviction by Justice Irving W. André of the Ontario Court of Justice dated July 23, 2008 and sentence imposed dated September 12, 2008.
ENDORSEMENT
[1] The complainant in this case presented with certain challenges. In these circumstances, particular deference is owed to the findings of the trial judge. He was uniquely positioned to assess the evidence of the complainant, both in terms of her overall credibility and the reliability of her testimony.
[2] In this case, apart from one exception, the complainant acknowledged in cross-examination that certain details of the incident, which she had described in her video statement to the police but neglected to mention in her examination in-chief, had indeed occurred. The trial judge was alive to this and while he accepted that there was some “inconsistency” between her statement and her testimony, he concluded that there was “a great deal of consistency between the two.” Recognizing that the complainant had not reviewed her video statement, and bearing in mind her challenges, the trial judge was of the view that the unfolding of the complainant’s version of the events did not undermine either her credibility or the reliability of her testimony. This was a call for the trial judge to make and we see no basis for interfering with it.
[3] In choosing to accept the complainant’s evidence, the trial judge noted that she gave her evidence in a measured fashion. There was no attempt on her part to gild the lily. In addition, she conceded events that on their face might have reflected adversely on her account. As indicated, the trial judge was uniquely positioned to consider these credibility and reliability indicators and we consider his assessment to be sound.
[4] It is clear to us that the trial judge carefully examined the complainant’s testimony. This is evidenced, for example, by his conclusion that he could not find penetration because the complainant’s testimony on that point was equivocal. The trial judge was also alive to other alleged problems in the complainant’s testimony, such as her statements about physical contact with police officers. He considered these matters and gave cogent reasons for concluding that they did not impact on his overall favourable assessment of her evidence.
[5] In concluding that he could safely act on the complainant’s testimony, the trial judge referred to two items of evidence that he considered to be confirmatory. While he may have erred in using the DNA evidence in this regard, he was on solid ground in considering the complainant’s emotionally distressed condition shortly after the event.
[6] In our view, the misuse of the DNA evidence amounts to harmless error. At trial, after giving three separate statements to the police over a period of six months in which he denied any sexual contact with the complainant, the appellant for the first time admitted that he had kissed the complainant’s neck and breasts, albeit, he claimed, at her instigation. In this regard, we note that the trial judge recognized that the question of who initiated the sexual contact was critical to the central issue of credibility. He explicitly addressed that issue and resolved it in favour of the complainant. We see no material errors in that assessment.
[7] As for the second ground of appeal, defence counsel at trial raised no concerns in response to the trial judge’s suggestion that it was unnecessary to play the video of the complainant’s statement given the existence of a written transcript which both sides agreed was accurate. In the circumstances, we are not persuaded that the trial judge improperly curtailed cross-examination.
[8] In the result, the appeal from conviction is dismissed.
[9] The appellant acknowledges that the sentence appeal is moot. Accordingly, it too is dismissed.
Signed: “M. J. Moldaver J.A.”
“Janet Simmons J.A.”
“S. E. Lang J.A.”