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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Singh, 2016 ONCA 835

DATE: 20161107

DOCKET: C57221

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harjeet Singh

Appellant

John J. Navarrete, for the appellant

Chris Chorney, for the respondent

Heard: November 4, 2016

On appeal from the conviction entered on January 21, 2013 by Justice L.C. Pringle of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant Harjeet Singh appeals from his conviction for sexual assault by Pringle J. of the Ontario Court of Justice. The conviction was entered in January 2013 after a six-day trial in 2012. However, the alleged sexual assault (a single assault – a rape) took place on August 16, 1991, 21 years before the trial.

[2] The complainant was a 22-year old Filipino nanny in 1991. The appellant was a 24-year old man trying to get his pilot’s licence. The parties had just got to know each other in the summer of 1991. The alleged sexual assault took place in the home of the complainant’s employers while they were away. The complainant said that she was a virgin at the time and that the appellant, whom she had invited over to visit her, raped her. The appellant testified that the complainant was not a virgin, that she liked sex, and that, on the night in question, she invited him over, dressed provocatively, engaged in consensual sex, and explicitly rejected the appellant’s offer to wear a condom.

[3] The trial judge believed the complainant and disbelieved the appellant. She also found that the supporting testimony of the appellant’s best friend undercut the appellant’s position. Accordingly, she convicted the appellant.

[4] The appellant appeals on two grounds.

[5] First, the appellant contends that the trial judge subjected the defence evidence to a more exacting standard of scrutiny than she did the complainant’s evidence.

[6] In R. v. Aird, 2013 ONCA 447, Laskin J.A. said, at para. 39:

The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.

[7] There is nothing in this appeal to remove it from the general rule described by Laskin J.A. in this passage. In our view, the trial judge, in her reasons, treated the appellant’s and complainant’s evidence comprehensively and fairly. She did not tilt towards the complainant in the manner in which she considered the evidence.

[8] Second, the appellant submits that the trial judge erred by giving too much weight and reliability to the complainant’s testimony. In oral submissions, the appellant recast this as an unreasonable verdict argument.

[9] We do not accept these submissions. The trial judge fully and carefully considered the testimony of all three witnesses at the trial. She identified problems with the testimony of both the complainant and the appellant. She considered their testimony in the context of the reasoning platform set out in R. v. W.(D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (SCC). Importantly, she evaluated the testimony of the second defence witness, the appellant’s best friend, and demonstrated that it was inconsistent with key features of the appellant’s testimony.

[10] The trial judge concluded her judgment in this fashion:

Really, it was a simple tale: Ms. B. thought it was a romance, but Mr. Singh thought it was about sex.

Looking at the totality of the evidence, I believed Ms. B.’s account. Since her evidence proved the elements of a sexual assault beyond a reasonable doubt, there must be a finding of guilt.

[11] In our view, the trial judge’s treatment of the evidence supports this summary and conclusion. There was a clear evidentiary basis for the verdict.

[12] The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”