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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 .
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
(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.
(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 of Appeal for Ontario
DATE: 20211112 DOCKET: C68648 Doherty, Pardu and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
K.S. Appellant
Counsel: John K. Lefurgey, for the appellant Natalya Odorico, for the respondent
Heard: November 8, 2021
On appeal from the conviction entered on February 20, 2020 by Justice Peter D. Griffiths of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant argues that the trial judge misapprehended the evidence when he concluded that the appellant had sexually assaulted the complainant when she was between 11 and 13 years old, between 1995 and 1999. We are not persuaded that the trial judge misapprehended the evidence and dismiss the appeal.
[2] The complainant testified that she first met the appellant when she was in grade six, in the fall of 1995, when he was dating her mother. In the years that followed, the complainant and her mother lived at three different addresses. The appellant moved in with the complainant’s family at the second of those addresses and continued living with them at the third address. The complainant was an adult at the time of trial and was testifying to events that had occurred 22 years earlier, when she was a child. She said the assaults occurred before the appellant moved in with them and continued until he moved out of the third address.
[3] There were problems in her evidence as to the timing and the place of the assaults. For example, she testified that the assaults first began at the appellant’s home on Navy Street, but the appellant did not move into that home until 1997, after he broke up with the complainant’s mother.
[4] The trial judge noted that a “crucial point of evidence for the Crown and the defence” is that the appellant has the words “fuck you” inscribed on his penis. The complainant testified that she saw those words and that tattoo every time she saw the appellant nude, and that she saw him nude many times over several years that the assaults continued. The trial judge accepted that the appellant acquired the tattoo after he broke up with the complainant’s mother and moved out of her home in August 1996. The complainant also testified that the abuse stopped after he moved out.
[5] The appellant argues that the trial judge misapprehended the evidence by concluding that the abuse must have continued after he moved out of the home, when there was no evidence that the assaults continued after that point.
[6] The trial judge concluded that the complainant was mistaken about the precise location and times when the assaults occurred but was convinced that invasive sexual assaults described by her had in fact occurred.
[7] He observed,
But this is one of those occasions when I have to consider that [the complainant], an adult woman, is testifying with the memories and the observations essentially of an 11- and 12-year-old girl. The tattoo would be very startling and very unusual, and certainly very memorable. It would not surprise me if 22 years later the fact of the tattoo is more memorable than when it was acquired. I find that her recollection that the tattoo was always there is an inconsistency with the evidence but does not in my view undermine [the complainant’s] credibility.
[8] The trial judge was convinced that the complainant had accurately described the ongoing course of numerous repeated sexual assaults in their essential nature. Her evidence about the conduct she ascribed to the appellant was detailed and persuasive. There was no suggestion that she was deliberately fabricating the allegations. The issue was the reliability of her evidence.
[9] The trial judge was alive to the inconsistencies the defence argued made the complainant’s evidence unreliable. It was open to the trial judge to reconcile those differences by accepting some parts of the complainant’s evidence and rejecting other parts. The trial judge noted that her memory was unreliable as to “where the events happened but not about what happened.” The trial judge implicitly came to the same conclusion about when the assaults occurred.
[10] These inferences were reasonably available to the trial judge. There was no misapprehension of the evidence, and the appeal is accordingly dismissed.
“Doherty J.A.”
“G. Pardu J.A.”
“J.A. Thorburn J.A.”