



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.M., 2017 ONCA 457

DATE: 20170605

DOCKET: C61366

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. M.

Appellant

Setu Purohit, for the appellant

Kathleen Farrell, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on February 7, 2014
    by Justice S. ONeill of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions of sexual assault, sexual
    interference, incest and breach of probation. The victim of the sexual offences
    was his teenage daughter, born October 1996, from whom he had been estranged
    for many years. They reconnected in 2010 when she was in grade 8. The victim
    first disclosed the sexual assaults in 2012. Upon his convictions in 2014, the
    appellant was sentenced to a custodial term of 2 years less a day.

[2]

The appellant submits the trial judge erred in his credibility
    assessments and his appreciation of the evidence. He submits the trial judge
    failed to address and resolve what he characterized as major inconsistencies in
    the victims testimony, that the trial judge mischaracterized evidence, and applied
    a much lower and more forgiving standard of scrutiny to the victims evidence
    compared with the higher standard of scrutiny he placed on the appellants
    evidence.

[3]

We would not give effect to any of these submissions. Appellants
    counsel acknowledges he cannot ask this court to retry the case but it seems to
    us his submissions do seek to have us revisit the credibility assessments, the weighing
    of the evidence, and findings of the trial judge.

[4]

The record, considered as a whole, provided ample support for the trial
    judges conclusion that this was a case of incremental disclosure by a young
    person who was almost throughout or at different times between the fall of 2010
    and December, 2013, afraid, confused, fearful of hurting her father, and
    embarrassed.

[5]

Moreover, the trial judge set out an ample basis in his reasons for
    disbelieving the appellant including his lengthy criminal record for crimes of
    dishonesty, his drug and alcohol use which he acknowledged in his own testimony
    had screwed up his memory. The appellants own testimony confirmed many
    details in the victims testimony and went a long way in establishing the
    existence of an inappropriate sexual relationship with her. The testimony of
    the appellants former common law partner and that of another friend of the appellant
    provided additional support for the existence of this inappropriate sexual
    relationship.

[6]

As we said, the appellant is attempting to have this court retry the
    case. The trial judges conclusions are entitled to deference. He engaged in a
    thorough assessment of the evidence and the credibility of the witnesses. We see
    no reason to interfere.

[7]

The appeal is dismissed.

[8]

The appellants appeal of sentence is also dismissed as abandoned.

R.G. Juriansz J.A.

S.E. Pepall J.A.

G.T.
    Trotter J.A.


