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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-06-05

Docket: C61366

Judges: Juriansz, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

K.M. Appellant

Counsel:

• Setu Purohit, for the appellant
• Kathleen Farrell, for the respondent

Heard and released orally: June 1, 2017

On appeal from: the conviction entered on February 7, 2014 by Justice S. O'Neill of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions of sexual assault, sexual interference, incest and breach of probation. The victim of the sexual offences was his teenage daughter, born October 1996, from whom he had been estranged for many years. They reconnected in 2010 when she was in grade 8. The victim first disclosed the sexual assaults in 2012. Upon his convictions in 2014, the appellant was sentenced to a custodial term of 2 years less a day.

[2] The appellant submits the trial judge erred in his credibility assessments and his appreciation of the evidence. He submits the trial judge failed to address and resolve what he characterized as major inconsistencies in the victim's testimony, that the trial judge mischaracterized evidence, and applied a much lower and more forgiving standard of scrutiny to the victim's evidence compared with the higher standard of scrutiny he placed on the appellant's evidence.

[3] We would not give effect to any of these submissions. Appellant's counsel acknowledges he cannot ask this court to retry the case but it seems to us his submissions do seek to have us revisit the credibility assessments, the weighing of the evidence, and findings of the trial judge.

[4] The record, considered as a whole, provided ample support for the trial judge's conclusion that this was a case of incremental disclosure "by a young person who was almost throughout or at different times between the fall of 2010 and December, 2013, afraid, confused, fearful of hurting her father, and embarrassed."

[5] Moreover, the trial judge set out an ample basis in his reasons for disbelieving the appellant including his lengthy criminal record for crimes of dishonesty, his drug and alcohol use which he acknowledged in his own testimony "had screwed up" his memory. The appellant's own testimony confirmed many details in the victim's testimony and went a long way in establishing the existence of an inappropriate sexual relationship with her. The testimony of the appellant's former common law partner and that of another friend of the appellant provided additional support for the existence of this inappropriate sexual relationship.

[6] As we said, the appellant is attempting to have this court retry the case. The trial judge's conclusions are entitled to deference. He engaged in a thorough assessment of the evidence and the credibility of the witnesses. We see no reason to interfere.

[7] The appeal is dismissed.

[8] The appellant's appeal of sentence is also dismissed as abandoned.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."