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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Karnes, 2013 ONCA 605

DATE: 20131003

DOCKET: C56179

Goudge, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Allan Karnes

Appellant

Edward Kiernan, for the appellant

Katie Doherty, for the respondent

Heard and released orally: September 30, 2013

On appeal from the conviction entered on May 30, 2012 and the sentence imposed on September 27, 2012 by Justice B. Matheson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Following a trial by judge alone, the appellant was convicted of one count of sexual assault on the young daughter of his former girlfriend. The assaults occurred when the complainant was seven to nine years of age and persisted for a period of almost 3 years. The appellant’s companion conviction on one count of touching for a sexual purpose was stayed in accordance with R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.). The appellant was sentenced to three years’ imprisonment.

[2] The appellant appealed from his conviction and sentence; however, he has since abandoned his sentence appeal.

[3] In support of his conviction appeal, the appellant first argues that the trial judge erred by relying on the absence of any proven inconsistencies between the complainant’s trial testimony, and her earlier statement to the police and her testimony at the preliminary inquiry, to bolster her credibility. The appellant says that this offends the rule against oath-helping since prior consistent statements cannot be used to enhance the credibility of the person making those statements.

[4] We do not accept this argument.

[5] Although the trial judge referred to the absence of any demonstrated inconsistencies between the complainant’s evidence at the preliminary inquiry and her statement to the police, on the one hand, and her testimony at trial, on the other hand, there is nothing in his reasons to suggest that he relied on this fact, which appears to have been accurate on its face, to positively support the complainant’s credibility. Unlike the facts in R. v. Hariraj, 2012 ONCA 294, in this case neither the Crown in its final submissions nor the trial judge in his reasons indicate that the complainant was telling the truth because no inconsistences were drawn out of her police statement and her prior testimony. Further, the trial judge’s impugned comment appears to have been responsive to the defence claim at trial that the complainant’s evidence should be rejected in part on the basis of inconsistencies.

[6] This ground of appeal fails.

[7] The appellant next argues that the trial judge erred in his assessment of the appellant’s credibility by concluding, inaccurately, that the appellant was inconsistent in certain of his evidence at trial, in particular, concerning whether and to what extent he babysat the complainant and her brother alone.

[8] We disagree. Having reviewed the relevant transcript references, we see no error in the trial judge’s finding that the appellant shifted his evidence on this issue on cross-examination from that given during his examination-in-chief. We see no misapprehension of the appellant’s relevant evidence in this regard.

[9] Finally, the appellant contends that the trial judge’s reasons fail to meet the standard for sufficiency of reasons set out in R. v. Sheppard, 2002 SCC 25, [2002] 1 SCR 860 because they fail to explain why the appellant’s evidence did not give rise to a reasonable doubt in the trial judge’s mind.

[10] Again, we disagree. When the trial judge’s reasons are examined as a whole, as they must be, they are sufficient to explain his basis for disbelieving the appellant and convicting him of the charged offence. As noted by the Supreme Court in R. v. Boucher, 2005 SCC 72, [2005] S.C.J. No. 73, trial judges are not required to slavishly follow and delineate in their reasons the three steps in R. v. W.(D.), [1991] S.C.R. 26. In this case, the appellant acknowledges that the trial judge properly identified the requirements of R. v. W.(D.). On this record, there is no reason to assume that having done so, he then failed to properly apply them.

[11] The appeal is dismissed.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”