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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. N.K., 2015 ONCA 486

DATE: 20150626

DOCKET: C57994

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.K.

Appellant

Daniel Moore, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: June 18, 2015

On appeal from the conviction entered on July 18, 2013 by Justice Katrina Mulligan of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was charged with sexual offences arising out of three separate incidents of sexual assault. The defence accepted that the complainant was a credible witness. The critical issue at trial was the reliability of his testimony. The appellant did not testify.

[2] The trial judge acquitted the appellant on the first two incidents. She found that the complainant’s evidence was not sufficiently reliable to meet the standard of proof beyond a reasonable doubt. On the third incident, however, the trial judge found the complainant’s evidence sufficiently reliable to meet the Crown’s burden of proof.

[3] In this court the appellant makes two submissions. First, the verdict was unreasonable. And second, the trial judge’s reasons for conviction were insufficient because she failed to come to grips with the impact on the third incident of her findings of unreliability on the first two incidents. We do not give effect to these submissions.

[4] As we read the trial judge’s reasons she did not find that the complainant lied about the first two incidents. Indeed as we have said, the defence accepted that the complainant’s evidence was credible. The trial judge was simply not satisfied beyond a reasonable doubt that these incidents happened in the way the complainant described. And she gave reasons for her concerns about the reliability of the complainant’s evidence on these two incidents.

[5] The third incident stood on a different footing. The complainant was older and the trial judge was satisfied that there was nothing in the trial record to raise any concerns about the reliability of his evidence. Thus, the verdict was reasonably supported by the evidence. Also, we are satisfied that the trial judge did come to grips with the impact on the third incident of her findings that the complainant’s testimony about the first two incidents was unreliable. She said at page 19 of her reasons:

Unlike the first two incidents, the evidence did not disclose anything that caused me to doubt the reliability of the complainant’s memory. Indeed his version of this third set of events went largely unchallenged. That is not to say that [N.K.] was required to testify and deny these allegations. I am saying, however, that not only did I believe the complainant’s evidence to what happened that day, but I found it to be reliable as well given his age, the shorter passage of time between the events complained of and his disclosure of same, the details provided, and the proven opportunity to commit the acts complained of.

[6] Accordingly, this appeal is dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“K. van Rensburg J.A.”