



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. R.K., 2019 ONCA 337

DATE: 20190425

DOCKET: C64236

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.K.

Respondent

Michael Dineen, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: April 18, 2019

On appeal from the conviction entered on May 15, 2017 by
    Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant
    appeals his conviction of one count of sexual interference following a short
    trial by jury.

[2]

The main thrust
    of the defence was that the complainant fabricated the complaint because of
    pressure from his father to make the complaint. In fact, the complainant did
    disclose the alleged abuse to his mother immediately following his father yelling
    at him to admit he had been abused.

[3]

The appellant
    attacks the trial judge's instruction to the jury that "[t]he timing of
    the disclosure signifies nothing."

[4]

Inclusion of this
    sentence in the charge was ill-advised in the context of this case. However, we
    are satisfied the jury would not have been misled when the impugned sentence is
    considered  in light of the charge as a whole and closing addresses of
    counsel. Considering the sentence in context, it is clear the trial judge was
    referring to the delay between incidents alleged and the disclosure, and not
    the circumstances in which disclosure was made.

[5]

The entire
    paragraph containing the impugned sentence makes this clear:

The timing of the disclosure signifies nothing. Not all
    children immediately disclose sexual abuse and the timing of the disclosure
    depends upon the circumstances of the particular victim. Theres no predictable
    rule as to how people who are victims of trauma such as sexual assault will
    behave. In assessing the credibility of the complainant, the timing of the
    complaint is simply one circumstance to consider in the factual mosaic of a
    particular case. A delay in disclosure standing alone will never give rise to
    an adverse inference against the credibility of a complainant. The reasons for
    delay are many. They may include embarrassment, fear, guilt, or a lack of
    understanding and knowledge.

[6]

The defence
    position was clearly outlined in the charge and the trial judge reviewed the
    evidence supporting it.

[7]

We would not give
    effect to this ground of appeal.

[8]

The appellant
    also argues the charge was unbalanced. We are not persuaded this is so.

[9]

Lastly, with
    consent of the Crown, the victim fine surcharge is set aside.

[10]

The appeal from
    conviction is dismissed.

R.G.
    Juriansz J.A.

David Watt
    J.A.

Harvison
    Young J.A.


