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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-05-01 Docket: C70091

Before: MacPherson, Copeland and Gomery JJ.A.

Between:

His Majesty the King Respondent

and

R.K. Appellant

Counsel: Robert Sinding, for the appellant Baaba Forson, for the respondent

Heard: April 30, 2024

On appeal from the conviction entered on August 30, 2016 and the sentence imposed on June 6, 2019 by Justice W. Danial Newton of the Superior Court of Justice.

Reasons for Decision

[1] The appellant attended a get together at the complainant’s mother’s home. Everyone present was drinking and/or inhaling hair spray. The complainant, who was 13 years old, was present at this gathering.

[2] The appellant and the complainant left the home and walked together to a nearby field. At some point during this time, the appellant sexually assaulted the complainant. On the way back to her mother’s home, the complainant felt that her pants were wet and assumed that she had urinated in her pants. When she arrived at her home, she found that it was blood, not urine, and that she was bleeding profusely from her vagina.

[3] The appellant left the mother’s home shortly thereafter.

[4] The complainant was rushed to a hospital and received emergency surgery.

[5] A trial was held before Newton J. of the Superior Court of Justice. The only issue was the identity of the complainant’s assailant. The trial judge concluded that the Crown had proved the appellant was the person who sexually assaulted the complainant. He was convicted of aggravated sexual assault, sexual interference and breach of recognizance.

[6] On a contested basis, the trial judge designated the appellant as a Dangerous Offender pursuant to s. 753(1) of the Criminal Code. The trial judge accepted a joint submission on the custodial portion of a sentence for the appellant – eight years of custody, less pre-sentence custody of 2480 days, leaving 440 custodial days to serve, followed by a long term supervision order for 10 years.

[7] The appellant appeals his conviction and the Dangerous Offender designation.

Conviction Appeal

[8] On the conviction appeal, the appellant advances four grounds of appeal.

[9] First, the appellant contends that the trial judge erred in admitting the complainant’s preliminary hearing testimony and her videotaped statement to police as necessary and reliable hearsay: see R. v. Khan, [1990] 2 S.C.R. 531.

[10] The complainant was only 15 years old when the trial took place. She attempted to testify at trial but was unable, despite a one-day adjournment and accommodations put in place to enable her to testify.

[11] The appellant argues that the trial judge erred in finding that the necessity requirement was satisfied. He points out that the complainant provided a videotaped statement to the police and testified in person at the preliminary inquiry when she was two years younger than she was at the time of the trial.

[12] We do not accept this submission. In our view, the trial judge conducted a proper hearsay inquiry. His factual findings were reasonable and he committed no legal error.

[13] In his ruling, the trial judge noted: “It is conceded and there is no doubt that this is a very significant traumatic event that has been suffered by this young woman.” The trial judge also recorded what had unfolded as the complainant tried to testify. On the first day, she began to testify in the presence of the appellant, without a screen, and without a support person. By the end of her testimony, the trial judge reported, “she was mouthing, I don’t want to do this, I don’t want to be here.” On the second day, the trial judge allowed the complainant to testify by CCTV and to have a support person near her. This didn’t work, with the complainant muttering that she was “scared of [R.K.]”.

[14] At this point, the Crown made the hearsay application. The trial judge found that the necessity component of the Khan test was easily met based on his review of the medical records and his observations over two days of the complainant’s attempted testimony. The reliability component of the test was also met by the written transcripts and presence of cross-examination for the preliminary inquiry testimony. The parties had agreed that if the trial judge found either the preliminary inquiry transcript or the police statement to be admissible hearsay, then both should be admitted. We see no error in this analysis.

[15] Second, the appellant asserts that the trial judge did not engage in a proper W.(D.) analysis in his reasons: see R. v. W.(D.), [1991] 1 S.C.R. 742. Specifically, the appellant says that the trial judge’s reasons do not engage the third prong of W.(D.) – “on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the [appellant]”.

[16] We are not persuaded by this submission. It is true that the trial judge devoted a good deal of attention to why he did not believe the appellant’s testimony. However, he also addressed other evidence, including the testimony of the complainant’s sister, videotape evidence showing the appellant and the complainant walking together, DNA evidence and, crucially, the complainant’s police statement and preliminary inquiry testimony, to support his ultimate conclusion.

[17] Third, the appellant submits that the trial judge’s reasons are “inadequate generally”. This is a weak submission. The trial judge delivered clear and reasonably detailed reasons. Nor is there any merit in the appellant’s related, but narrower, assertion that the trial judge delivered inadequate reasons for rejecting a potentially innocent explanation about the complainant’s blood found on the appellant’s hoodie.

[18] Fourth, the appellant contends that the trial judge should have stayed one of the two charges based on the Kienapple principle: see R. v. Kienapple, [1975] 1 S.C.R. 729.

[19] This issue was not raised in the court below and it has no practical effect so we decline to consider it.

Sentence Appeal

[20] The trial judge imposed a sentence on the appellant that had three components – (1) designation of the appellant as a dangerous offender pursuant to s. 753(1) of the Criminal Code; (2) eight years imprisonment for the index offences concurrent less time served with credit at 1.5 days for each day served; and (3) thereafter, long term supervision for 10 years. The parties did not agree that the appellant should be designated a dangerous offender. However, they made a joint submission on the determinate and long term supervision components of the sentence, in the event the appellant was designated a dangerous offender. The appellant appeals from his designation as a dangerous offender.

[21] We can find no fault in the trial judge’s analysis on this issue. We think that the record amply supports his conclusion:

In so concluding I place significant weight on [R.K.’s] history of past and current offences which includes as noted, “serious violence”, “fairly quick return to violence following release from custody”, “a fairly high density of violence” and his poor prognosis given, as Dr. Pearce notes, [R.K.’s] treatment resistant substance abuse disorder, his personality disorder and his current age. … I am satisfied that [R.K.’s] pattern of conduct is very likely to continue and that his pattern of conduct is substantially or pathological intractable even after further treatment.

Disposition

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

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”