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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(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).

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. K.A.D., 2012 ONCA 672

DATE: 20121003

DOCKET: C52470

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.A.D.

Appellant

Leora Shemesh, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: September 27, 2012

On appeal from the conviction entered on June 28, 2010 by Justice S. Chapnik of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant submits that the trial judge erred by misapprehending aspects of the evidence and failing to apply the R. W.(.D.) test.

[2] On our view of this record, we cannot agree that the trial judge misapprehended any material aspect of the evidence. She conducted a careful and detailed review of the evidence and identified specific features that led her to conclude that the complainant’s version was trustworthy and led her to reject the evidence of the appellant.

[3] The Crown concedes that one phrase in the trial judge’s reasons is problematic. She stated at p. 1137 of the transcript:

On a global view of the evidence as a whole, there is an air of reality and truthfulness in Ms. R.’s evidence. This, coupled with the contradictions in the evidence of the accused, leads me to accept the evidence of the complainant on the major issues in dispute… [emphasis added]

Viewed in isolation, the underlined phrase might suggest that the trial judge used her rejection of the appellant’s evidence as a factor to support her acceptance of the evidence of the complainant. However, we agree with the Crown that this problematic phrase must be read in the context of this entire judgment.

[4] The trial judge carefully reviewed the complainant’s evidence. She identified reasons for accepting the evidence including specific features of the evidence that corroborated the complainant’s version. She provided an ample explanation for accepting the complainant’s evidence and we are satisfied that her acceptance of the complainant’s evidence did not rest and did not depend upon her rejection of the appellant’s evidence.

[5] The trial judge referred to R. v. W.(D.) twice in her reasons. She specifically concluded at p. 1153 that she did not believe the appellant’s version, that his testimony did not raise a reasonable doubt in her mind and that she was satisfied on the evidence before her that the Crown had proven its case beyond a reasonable doubt. She also concluded that the Crown had failed to prove two counts in the indictment beyond a reasonable doubt and acquitted the appellant on those counts. This satisfies us that the trial judge fully understood and properly applied R. v. W.(D.).

[6] For these reasons, the appeal from conviction is dismissed. The sentence appeal has previously been abandoned by the appellant.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“Gloria J. Epstein J.A. »