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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.S.H., 2013 ONCA 676

DATE: 20131106

DOCKET: C55981

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.H.

Appellant

Michael W. Caroline, for the appellant

Davin Michael Garg, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered on May 9, 2012 and the sentence imposed on September 7, 2012 by Justice R. Zisman of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] We would not give effect to the grounds of appeal raised by the appellant.

[2] In the circumstances of this case, the spontaneous way in which the complaint came out was admissible as part of the narrative and provided context for assessing the complainant’s credibility. See R. v. DiNardo at para. 39. We are satisfied that the trial judge was entitled to use the evidence in this way and that she did not use the contents of the statement to corroborate the complainant’s evidence.

[3] We have not been persuaded that the trial judge misapprehended the evidence in any material way. For example, contrary to the submission of the appellant it was open to the trial judge to find that the appellant did deny being humiliated by his wife’s infidelity and that in the context of this case, that assertion defied common sense.

[4] We do not agree that the trial judge unfairly applied stricter scrutiny to the defence evidence and the complainant’s evidence. The focus of the trial judge’s comments were on the inconsistences in the trial testimony, which there were several in the appellant’s evidence, unlike the complainant’s evidence. It may be that the trial judge placed more emphasis on the manner in which the fall down the stairs was reported by the appellant and his mother, than was justified by the evidence. However, this was only one of several reasons the trial judge gave for rejecting the appellant’s evidence. We are satisfied the result would have been the same even without the emphasis placed on the fall.

[5] Accordingly, the appeal is dismissed. Counsel confirmed that the sentence appeal is abandoned. Accordingly, the sentence appeal is dismissed as abandoned.