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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. M.K., 2016 ONCA 589

DATE: 20160725

DOCKET: C56170

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. K.

Appellant

M. K., acting in person

Diana Lumba, for the appellant

Michael Bernstein, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on April 2, 2012 and the sentence imposed on September 27, 2012 by Justice Robert J. Smith of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, now 54 years old, was convicted of several sexual offences in connection with a single complainant who was then between 13 and 19 years of age. The conduct included kissing, fondling, and partial intercourse. The appellant was in a position of trust in relation to the complainant.

[2] The case for the Crown consisted of the testimony of the complainant. The appellant testified on his own behalf. He denied the conduct in which the complainant said he had engaged. He also adduced the evidence of the complainant’s mother and her brother. To some extent, at least, the evidence of those two witnesses supported the testimony of the appellant. The trial judge rejected their evidence, in part at least due to bias, a calculated effort to assist in the exculpation of the appellant.

[3] The appellant contends that his conviction is flawed by several errors in the reasoning process the trial judge followed to reach his conclusion that the Crown had proven the appellant’s guilt beyond a reasonable doubt. He also says that the sentence imposed – 7 years less credit of 250 days for time spent in pre-disposition custody – reflects error.

The Appeal against Conviction

[4] To take first the appeal from conviction.

[5] The appellant says that the trial judge erred:

i. in approaching the case as a credibility contest between the complainant’s assertions and the appellant’s denial, rather than by faithful adherence to the principles of R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742;

ii. by placing undue emphasis on the evidence of the appellant’s controlling nature and a note made by the complainant in her math book – “If anything happens to me its because of my step-dad” – in reaching his conclusion of guilt;

iii. in reversing the burden of proof by relying on the disbelief of two defence witnesses of the complainant’s testimony to reject their evidence adduced in support of the defence;

iv. by making impermissible use of the complainant’s good character adduced in a cross-examination of defence witnesses; and

v. in rejecting the appellant’s testimony in part because it was difficult to follow.

[6] We are not prepared to interfere with the findings of guilt on any basis advanced, whether considered individually or cumulatively.

[7] To begin, at the outset, the conclusion and at least once during the course of his reasons, the trial judge made explicit reference to the decision in W.(D.). He expressly stated that the trial was not a credibility contest. He considered the credibility of each witness who testified, found the complainant worthy of belief and the defence witnesses at once incredible and their evidence unreliable. The mere fact that the trial judge reviewed the evidence of the complainant and the defence witnesses consecutively does not establish that he considered the case a credibility contest in view of his express statements to the contrary.

[8] The assignment of weight to the evidence of witnesses who testify in a criminal trial is for the trial judge to determine. We do not retry cases. We do not recalibrate the weight assigned to evidence at one remove from the trial process. Reading the reasons of the trial judge as a whole, in a functional way as we are required to do, we are unable to say that the trial judge applied any improper principle in his assessment or misapprehended the evidence adduced at trial. Further, we observe that at least two of the items of evidence about which the appellant claims misuse were adduced by defence counsel at trial.

[9] In connection with the additional grounds suggested by the appellant himself, we are unable to see any substance in them. The majority envisage the introduction of fresh evidence. All fail on the basis of at least two of the Palmer criteria.

The Appeal from Sentence

[10] The appeal from sentence was but faintly pressed. We are satisfied that the sentence imposed was entirely fit. It falls within the appropriate range and reflects no error in principle or disproportionate emphasis on any relevant sentencing objective, principle or factor.

Conclusion

[11] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”