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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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.M., 2016 ONCA 347

DATE: 20160509

DOCKET: C60143

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

Vikram Singh, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on January 14, 2015 by Justice Ann J. Watson of the Ontario Court of Justice.

ENDORSEMENT

[1] Following a trial, the appellant was convicted of sexual assault, unlawful confinement, and sexual interference with a person under 14 years of age. The sexual assault charge was stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The convictions stemmed from a single incident that took place when the complainant was 11 years old. She lived with her mother and the appellant at the time. The trial took place some 13 years later.

[2] The complainant said that the incident occurred while she and the appellant were on the bed in the master bedroom. She said that in addition to tickling her, the appellant rubbed her stomach and torso, pulled up her shirt and her bra down, and then licked, touched and kissed her breasts.

[3] The appellant admitted that he touched the complainant while the two of them were on the bed in the master bedroom, but testified that he only intended to tickle her to get her out of the room. He said he apologized immediately to the complainant, seeing that she was uncomfortable when he lifted her shirt, and was about to tickle her on her bare skin. He denied rubbing her torso, exposing her breasts, and touching them with his hands and mouth.

[4] The appellant raises numerous grounds of appeal:

• The trial judge misapprehended the evidence and ought to have weighed the evidence differently;

• The reasons were inadequate;

• The convictions were unreasonable based on the trial judge’s unreasonable credibility findings;

• The trial judge convicted the appellant with respect to dates outside of those contained in the information;

• She improperly intervened during the Crown’s submissions; and

• The unlawful confinement conviction was not established on the evidence, and the trial judge failed to make findings with respect to the elements of that offence.

Misapprehension and weighing of evidence

[5] The appellant does not identify any particular misapprehension of the evidence, and none is apparent.

[6] The appellant submits that the trial judge should have treated some of the evidence as undermining the complainant’s credibility:

• The complainant’s inability to remember specific dates;

• The difference between her description of locking herself in the bathroom, as compared to shutting the door to the bathroom after the event;

• Her history of mental illness;

• Possible inconsistencies about the manner in which she told her mother about what had occurred immediately after the event;

• Her description of feeling ill before the event, as opposed to the appellant’s evidence that he did not notice anything out of the ordinary;

• Her attendance at the front door of the appellant’s home some years after the event, to ask for a phone number; and

• The failure of the Children’s Aid Society or Family and Child Services to investigate, since it would have done so unless the allegation was fabricated or not capable of belief.

[7] The appellant also argues that the trial judge ought to have assessed his evidence differently. He submits that she should not have concluded that the appellant’s admitted actions in lying on the bed with the complainant, lifting her shirt, and intending to tickle her on her bare skin followed by an immediate apology corroborated the complainant’s version of events. He further submits the trial judge should not have concluded that the appellant’s behaviour after the event showed that he knew he had done something wrong.

[8] The trial judge gave thorough and careful reasons for finding the complainant to be a credible and reliable witness, and for rejecting the appellant’s evidence. Her approach was reasoned. She explained why she did not conclude that peripheral issues undermined the complainant’s credibility. Dealing with the appellant’s evidence, the trial judge observed in her reasons, at paras. 57 and 58:

[The appellant] was aware that the complainant was made to feel uncomfortable by the touching and had breached a boundary. I find that it is unreasonable since joking and tickling were a part of their normal relationship that the complainant would have been made to feel uncomfortable by the defendant tickling her in the fashion that he testified to. She herself could not recall if the defendant tickled her over her clothes or directly on her skin before she testified that the nature of the touching changed. However it is clear from her evidence that his tickling her directly on her skin would not have been viewed by her at the time as unusual.

I find the defendant’s evidence to be unreasonable as to why, when he testified he was flabbergasted that the complainant was in his bedroom lying on the bed and refusing to leave, he would choose to lie down on the bed beside her and tickle her under her top. I note that it was her evidence that she was developing breasts and was wearing a bra at the time. Even though the complainant did not think that it was unusual that the defendant would tickle her on her skin, why would the defendant feel the need or believe that it would be alright to lie beside her, lift her top and tickle her on her skin at her stage of development? Indeed why did he need to lie on the bed with her and thereafter lift her top at all in order to tickle her to get her out of the bed? Why did he not just tickle her over her clothes? Why lie on the bed with her at all? The defendant’s actions were unreasonable to this regard.

[9] In effect, the appellant is asking this court to retry this case. There is no basis for this court to interfere with the credibility findings made by the trial judge.

Adequacy of reasons

[10] The reasons given by the trial judge are detailed and comprehensive. It is plain how she came to the conclusions she did. There is no basis to conclude that the reasons are inadequate.

Unreasonable verdict

[11] The appellant submits that the verdict was unreasonable because it was based on unreasonable findings of credibility. In R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746, the Supreme Court stated, at para. 10:

Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence”. [Citation omitted.]

[12] Relying on P. (R.), this court observed in R. v. Sharp (21 April 2016), Toronto, M42660, at para. 13:

The test for demonstrating an unreasonable verdict is an exacting one. The [appellant] must demonstrate that the verdict is one a judge or a properly instructed jury could not reasonably have rendered, or that the trial judge drew an inference or made a finding of fact essential to the verdict that is either (i) plainly contradicted by the evidence relied upon by the judge for that inference or finding, or (ii) shown to be incompatible with evidence that has not been contradicted or rejected. [Citation omitted.]

[13] The convictions on the sexual interference and sexual assault counts are plainly reasonable on the findings made by the trial judge.

The relevant dates

[14] The information, as framed, states that the offences took place between September 1 and November 30, 2001. The trial judge concluded that the assault occurred either in the fall of 2001 or January 2002. Both sides acknowledged at trial that the precise date of the incident was not material. They agreed the physical contact took place on the same date that the appellant’s relationship with the complainant’s mother ended, when she learned of her daughter’s complaint.

[15] For this reason, the trial judge found that it was clear the complainant and the appellant were testifying about the same incident. Section 601(4.1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that a variance between an information and the evidence adduced at trial is not material when it relates to the time when the offence is alleged to have been committed. The appellant was in no way misled about what incident the charges were in relation to, nor was he prejudiced in his defence.

Alleged procedural improprieties

[16] The appellant also submits that questions asked by the trial judge to clarify evidentiary issues during the Crown’s submissions were somehow improper. There is no basis for this suggestion.

Unlawful confinement conviction

[17] The trial judge did not make any express findings on the unlawful confinement charge. Undoubtedly this is because the case was argued on an all or nothing basis, depending on the trial judge’s assessments of credibility. The Crown submits that the unlawful confinement conviction is nonetheless sustainable, based on the appellant having placed his arm over the complainant, preventing her from getting up while the assault was committed. The Crown submits that the appellant’s actions constrained the complainant and prevented her from leaving the bedroom, albeit briefly.

[18] A conviction for unlawful confinement requires a finding that for any significant period of time, the complainant was physically restrained contrary to her wishes so that she could not move about from place to place, and a finding that the accused intended to confine the complainant. See R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473-75, leave to appeal to S.C.C. refused, [1985] S.C.C.A. No. 118.

[19] Absent findings as to the elements of unlawful confinement, the conviction on that count cannot be sustained. At the hearing of this appeal, the Crown agreed that, in that event, it would be content if the conviction for unlawful confinement were simply quashed, rather than a new trial ordered, leaving intact the concurrent sentence for sexual interference.

Disposition

[20] In the result, the appeal is allowed to the extent of quashing the conviction for unlawful confinement, but is otherwise dismissed.

“George R. Strathy C.J.O.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”