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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-11-30

Docket: C62140

Panel: Watt, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Harpinder Marahar Appellant

Counsel

Lawrence Ben-Eliezer, for the appellant

Karen Shai, for the respondent

Hearing and Release

Heard and released orally: November 23, 2017

On appeal from: the conviction entered on January 8, 2016 by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Overview

[1] The appellant was tried on an indictment containing ten counts of various offences against three persons. One offence was alleged to have occurred on a specific date, the balance over periods of 8 to 10 years.

[2] The case for the Crown consisted of the testimony of the three complainants. The defence was that the conduct alleged by the complainants did not occur. The appellant testified on his own behalf and called five other witnesses.

[3] On the appeal from conviction, the appellant advances two arguments. He says that the trial judge erred:

i. in subjecting the evidence of the Crown's witnesses to a less vigorous or demanding standard of scrutiny than that he accorded to the testimony of the appellant and the defence witnesses; and

ii. in imposing an evidentiary burden on the appellant to advance an explanation for the injuries caused to one of the complainants.

Ground #1: Uneven Scrutiny

[4] The appellant acknowledges the well-established difficulty he encounters in advancing his claim of uneven scrutiny. To succeed, it is not enough for him to show that another trial judge could have assessed credibility or reliability differently. Or that this judge failed to say something that he could have said in his assessment of the credibility of the complainant and the appellant or the reliability of their testimony. To achieve success on this ground, the appellant must point to something in the trial judge's reasons or elsewhere in the trial record that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and the complainant.

[5] It is equally well settled that a trial judge is entitled to reject an accused's evidence on the basis of the considered and reasoned acceptance of conflicting evidence beyond a reasonable doubt.

[6] The trial judge's reasons reflect a cautious and thoughtful approach to his assessment of the testimony of all the witnesses and his findings of fact. He expressed and explained his significant concerns about the credibility and reliability, not only of the appellant's testimony, but equally the testimony of the complainant. He accepted only those aspects of the complainant's testimony which were corroborated by the evidence of others whose testimony he found credible and reliable. Where the complainant's testimony was not corroborated, the trial judge entered verdicts of acquittal. Read as a whole, the trial judge's reasons reflect the antithesis of uneven scrutiny. They reveal, in our respectful view, an even-handed, measured approach to the assessment of credibility and reliability.

[7] This ground of appeal fails.

Ground #2: Shifting the Burden of Proof

[8] The appellant submits further that the trial judge improperly imposed an evidentiary burden on him to explain just how it was that the complainant ended up with a bloody face when she and the appellant were alone in his office one day.

[9] The complainant testified that her facial injuries occurred when the appellant hit her. The appellant testified that he had "no idea" how the complainant had suffered her injuries. As he left his office to return to a nearby classroom, he heard a "big bang". On turning around, he saw the complainant on the floor, with a bloodied face.

[10] In cross-examination, the trial Crown confronted the appellant with the substance of the complainant's version, then asked the appellant about any possible explanation for the cause of the complainant's injuries. The appellant reiterated his claim of ignorance as to their cause.

[11] Taking the reasons of the trial judge as a whole, as we must, we do not read the isolated passage on which the appellant focuses as an erroneous shift in the onus of proof. It was, rather, a simple observation on the state of the evidence, about the cause of an injury that occurred when only two persons were present. The trial judge did not use the absence of an explanation as a makeweight to shore up or complete the prosecution's proof. His reasons betray any misapprehension about the onus and the standard of proof.

Conclusion

[12] For these reasons, the appeal is dismissed.

"David Watt J.A." "C.W. Hourigan J.A." "B.W. Miller J.A."