



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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.M., 2019 ONCA 427

DATE: 20190522

DOCKET: C65478

Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.M.

Appellant

Jennifer Dagsvik, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: May 17, 2019

On appeal from the conviction entered on November 16,
    2017 and the sentence imposed on June 15, 2018 by Justice John Fregeau of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of sexual assault, one count
    of invitation to sexual touching, and one count of touching for a sexual
    purpose. The complainant was the niece of the appellants then wife, who was
    9-11 years old at the time of the offences.

[2]

The appellant submits that the trial judge erred in three respects. He
    says that the trial judge erred:

1.

in overemphasizing the appellants demeanour in making an adverse credibility
    finding;

2.

in misapprehending the evidence concerning logical reasons why the
    appellant would not have spent time alone with the complainant, and the
    evidence of the complainants mother; and

3.

in applying a harsher standard of scrutiny to the appellants evidence
    than the Crowns.

[3]

We disagree, and dismiss the appeal for the following reasons
.

[4]

First, it cannot be said that the appellants demeanour was one of the
    main reasons the trial judge found him not to be credible. This is not a case
    in which the trial judge wrongly made assumptions or accorded undue weight to
    impressions based solely on the appellants testimonial demeanour.

[5]

Although the trial judge noted that the appellant repeatedly and
    emphatically denied that he was ever alone with the complainant, his statement
    that he was left with the impression that the accuseds evidence was strategic
    rather than balanced and forthright was made in the context of his
    consideration of the evidence as a whole. The trial judge found no logical
    reason for the appellant never to have been alone with the complainant, and
    that the appellants evidence lacked an air of reality and was improbable
    and contrary to common sense. These findings were open to the trial judge and
    are entitled to deference.

[6]

Second, although the trial judge overstated the effect of the testimony
    of the complainants mother as to the appellant having been alone with the
    complainant, his rejection of the appellants evidence was also grounded in his
    acceptance of the evidence of the complainant and the appellants former wife.
    The trial judge did not misapprehend the evidence in finding that there was no
    logical reason for the appellant never to have been alone with the complainant.
    Read as a whole, his decision provides ample basis for his finding.

[7]

Third, there is no basis to conclude that the trial judge applied a
    harsher standard of scrutiny to the evidence of the appellant than that of the
    Crown. The trial judge properly instructed himself concerning the evidence of
    children. He acknowledged frailties in the evidence of the complainant, and in
    particular the mistake she made concerning the date of the hockey camp, but
    considered that this was an immaterial inconsistency on a peripheral issue.
    That characterization was open to him. Importantly, the trial judge found that
    the complainant did not waiver as to the truth of her core allegation
    throughout cross-examination.

[8]

The trial judge cannot be said to have demonstrated an undiscriminating
    acceptance of the complainants evidence, or that of the appellants former
    wife.  The trial judge specifically treated the evidence of the appellants former
    wife with care on the basis of his conclusion that she was hostile to the
    appellant. Nor can the trial judge be said to have drawn common sense
    inferences in favour of the Crown but not the defence. The appellants argument
    is, in essence, an invitation for this court to reweigh the evidence.

[9]

The appeal is dismissed.

[10]

The
    sentence appeal is allowed. The sentence is varied to set aside the victim surcharge
    but is in other respects unchanged.

Doherty
    J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.


