



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. M.K., 2016 ONCA 589

DATE: 20160725

DOCKET: C56170

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. K.

Appellant

M. K., acting in person

Diana Lumba, for the appellant

Michael Bernstein, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on April 2, 2012
    and the sentence imposed on September 27, 2012 by Justice Robert J. Smith of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant, now 54 years old, was convicted of several sexual
    offences in connection with a single complainant who was then between 13 and 19
    years of age. The conduct included kissing, fondling, and partial intercourse.
    The appellant was in a position of trust in relation to the complainant.

[2]

The case for the Crown consisted of the testimony of the complainant.
    The appellant testified on his own behalf. He denied the conduct in which the
    complainant said he had engaged. He also adduced the evidence of the
    complainants mother and her brother. To some extent, at least, the evidence of
    those two witnesses supported the testimony of the appellant. The trial judge
    rejected their evidence, in part at least due to bias, a calculated effort to
    assist in the exculpation of the appellant.

[3]

The appellant contends that his conviction is flawed by several errors
    in the reasoning process the trial judge followed to reach his conclusion that
    the Crown had proven the appellants guilt beyond a reasonable doubt. He also
    says that the sentence imposed  7 years less credit of 250 days for time spent
    in pre-disposition custody  reflects error.

The Appeal against Conviction

[4]

To take first the appeal from conviction.

[5]

The appellant says that the trial judge erred:

i.

in approaching the case as a credibility contest between the complainants
    assertions and the appellants denial, rather than by faithful adherence to the
    principles of
R. v. W.(D.)
, [1991] 1 SCR 742;

ii.

by placing undue emphasis on the evidence of the appellants controlling
    nature and a note made by the complainant in her math book  If anything
    happens to me its because of my step-dad  in reaching his conclusion of
    guilt;

iii.

in reversing the burden of proof by relying on the disbelief of two
    defence witnesses of the complainants testimony to reject their evidence adduced
    in support of the defence;

iv.

by making impermissible use of the complainants good character adduced
    in a cross-examination of defence witnesses; and

v.

in rejecting the appellants testimony in part because it was difficult
    to follow.

[6]

We are not prepared to interfere with the findings of guilt on any basis
    advanced, whether considered individually or cumulatively.

[7]

To begin, at the outset, the conclusion and at least once during the
    course of his reasons, the trial judge made explicit reference to the decision
    in
W.(D.).
He expressly stated that the trial was
not
a
    credibility contest. He considered the credibility of each witness who
    testified, found the complainant worthy of belief and the defence witnesses at
    once incredible and their evidence unreliable. The mere fact that the trial
    judge reviewed the evidence of the complainant and the defence witnesses
    consecutively does not establish that he considered the case a credibility
    contest in view of his express statements to the contrary.

[8]

The assignment of weight to the evidence of witnesses who testify in a
    criminal trial is for the trial judge to determine. We do not retry cases. We
    do not recalibrate the weight assigned to evidence at one remove from the trial
    process. Reading the reasons of the trial judge as a whole, in a functional way
    as we are required to do, we are unable to say that the trial judge applied any
    improper principle in his assessment or misapprehended the evidence adduced at
    trial. Further, we observe that at least two of the items of evidence about
    which the appellant claims misuse were adduced by defence counsel at trial.

[9]

In connection with the additional grounds suggested by the appellant
    himself, we are unable to see any substance in them. The majority envisage the
    introduction of fresh evidence. All fail on the basis of at least two of the
Palmer
criteria.

The Appeal from Sentence

[10]

The appeal from sentence was but faintly pressed. We are satisfied that
    the sentence imposed was entirely fit. It falls within the appropriate range
    and reflects no error in principle or disproportionate emphasis on any relevant
    sentencing objective, principle or factor.

Conclusion

[11]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

David Watt J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


