Publication Ban 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240416 Docket: C67861 Judges: Lauwers, Hourigan and Nordheimer JJ.A.

Between: His Majesty the King, Respondent and Orville Kebokee, Appellant

Counsel: Paul S. Bragagnolo, for the appellant Stephanie A. Lewis, for the respondent

Heard: April 11, 2024

On appeal from the conviction entered on March 24, 2016 by Justice G. Radley-Walters of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual interference under s. 151 of the Criminal Code. The trial judge found that the appellant sexually abused the complainant, during the summer of 2014, when he was living with her family and working for their seasonal catering business.

[2] The appellant appeals only from his conviction. His principal ground of appeal is that the trial judge erred in his credibility assessment. The appellant takes issue with the trial judge’s acceptance of the complainant’s evidence and the rejection of evidence favourable to him. Regarding the complainant’s evidence, the appellant cited several issues with her testimony that he says should have left the trial judge with a reasonable doubt. Further, the appellant contends that the trial judge impermissibly discounted the issues with the complainant’s evidence based on her age. The appellant also submits that the trial judge made factual errors in the evidentiary analysis he used to support his credibility findings.

[3] We are not persuaded that the appellant has established an error that would displace the deference owed to the trial judge’s credibility findings. In our view, the appellant’s argument amounts to an invitation to this court to reweigh the evidence and come to a different conclusion as to his guilt. We see no error in the trial judge’s credibility analysis. The submission that the trial judge ignored alleged problematic aspects of the complainant’s testimony based on her age must also be rejected. The trial judge’s treatment of the complainant’s evidence does not reflect any dilution of the standard of proof. Taken at their highest the appellant’s complaints about the trial judge’s evidentiary analysis in support of his credibility findings do not amount to palpable and overriding errors. The trial judge acknowledged inconsistencies in the complainant’s evidence but found that she was not shaken in her core allegations. That finding was open to him.

[4] The appeal is dismissed.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“I.V.B. Nordheimer J.A.”