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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-01-11
Docket: C65299
Panel: Doherty, Hourigan and Harvison Young JJ.A.
Between
Her Majesty the Queen Respondent
and
K.S. Appellant
Counsel
For the Appellant: Jeff Marshman
For the Respondent: Manasvin Goswami
Heard
January 10, 2019
Appeal Information
On appeal from the conviction entered by Justice June Maresca of the Ontario Court of Justice on November 10, 2017.
Appeal Book Endorsement
(1) Did the Trial Judge Fail to Resolve the Conflict in the Evidence in Respect of the "Disclosure Narrative"
[1] There are three grounds of appeal.
[2] The trial judge reviewed the evidence at length. She found "strong indicia" of the reliability and credibility of the complainant's evidence. That finding was warranted on the evidence. The complainant's evidence was also supported by other evidence, including the evidence concerning the timing of the appellant's departure from the home.
[3] In our view, the reasons provide adequate insight into the basis upon which the trial judge preferred the evidence of the complainant over the evidence of the other witnesses in respect of the timing of the "disclosure narrative".
(2) Did the Trial Judge Erroneously Conflate the Absence of Evidence of a Motive to Fabricate with a Proven Absence of Motive
[4] The reasons do not support this submission. There are two references in the reasons to motive: see pp. 177, 178-179. The first is merely a summary of the state of the evidence. The second accurately sets out the burden of proof on this issue. It is not, in our view, a finding by the trial judge of a proven absence of motive.
(3) Did the Trial Judge Subject the Evidence of the Appellant to a Higher Level of Scrutiny
[5] Both counsel advanced careful and detailed submissions on this point in their factums. We see no need to rehash those submissions. The standard of review is well understood. We agree with the respondent that there was no material misapprehension of the evidence, and we also accept the submission that the credibility assessments were firmly rooted in the evidence. We would not give effect to this argument.
[6] The appeal is dismissed.