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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

WARNING

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

517(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

517(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

Court Information

Court: Court of Appeal for Ontario

Date: 2018-06-20

Docket: C60958

Panel: Sharpe, Roberts and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

A.K. Appellant

Counsel

For the Appellant: Najma Jamaldin and Paul Genua

For the Respondent: Nancy Dennison

Hearing

Heard and released orally: June 19, 2018

On appeal from: The conviction entered on December 19, 2014 and the sentence imposed on September 9, 2015 by Justice Lucia Favret of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions on seven counts for various offences against his former domestic partner, including sexual assault with a weapon. He received a global three-year custodial sentence.

[2] All of the offences arise out of the couple's very turbulent and troubled relationship. It was common ground that both the appellant and the complainant were at times verbally and physically abusive toward each other.

[3] The case on the particular offences before the court turned on the trial judge's assessment of the credibility and reliability of the appellant and the complainant.

[4] The appellant takes issue with the trial judge's assessment of the evidence, arguing that she subjected the evidence of the complainant and the appellant to an uneven level of scrutiny. He submits that the trial judge erred in finding on her own initiative that the appellant breached the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), and in drawing an adverse inference against him. Finally, the appellant contends that he was prejudiced by the ineffective assistance of his trial counsel. He seeks to file fresh evidence on appeal in support of that ground, as well as the Browne v. Dunn ground.

[5] We are not persuaded by these submissions.

[6] The trial judge's lengthy reasons demonstrate that she fairly assessed the evidence given by the appellant and the complainant. In particular, the trial judge was clearly alert to the serious deficiencies and discrepancies in the complainant's evidence. This assessment led the trial judge to reject the complainant's evidence in relation to the counts that she dismissed.

[7] With respect to the remaining counts, the trial judge explained why she rejected the appellant's evidence and why it did not leave her with a reasonable doubt, and why she accepted the complainant's evidence in support of those counts of which she convicted the appellant. It is well-established that a trial judge can accept some, all or none of a witness's evidence. It was open to the trial judge to accept the portions of the evidence of the complainant that she found substantiated the offences against the appellant.

[8] While it would have been preferable for the trial judge to have given the parties an opportunity to address the Browne v. Dunn issue relied upon by her to make an adverse inference against the appellant, her reasons show that there was ample evidence on which she based her other adverse findings of credibility against the appellant. Having considered her reasons as a whole, we are not persuaded that the trial judge's adverse inference with respect to the discrete Browne v. Dunn issue materially affected the outcome of the trial or rendered the trial unfair to the appellant.

[9] The primary focus of the trial judge's Browne v. Dunn finding related to the evidence of the complainant's father and the fresh evidence fails to demonstrate any factual basis for the appellant's "diabolical plan" theory. To the extent the trial judge did err by unilaterally raising Browne v. Dunn in her reasons we would, if necessary, apply the curative proviso.

[10] Finally, the appellant has not met the high threshold to demonstrate ineffective assistance of counsel in this case. The tactical decisions of his trial counsel about which the appellant now complains were fair and reasonable in the circumstances, and carried out with the appellant's informed instructions.

[11] The appellant also seeks leave to appeal his sentence. The three-year sentence was fit. We see no basis to interfere with it.

[12] Accordingly, the application for fresh evidence is dismissed and the appeal from conviction and sentence is dismissed.

Robert J. Sharpe J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.