



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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




WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)          If the prosecutor or the accused
    intends to show cause under section 515, he or she shall so state to the
    justice and the justice may, and shall on application by the accused, before or
    at any time during the course of the proceedings under that section, make an
    order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

Failure to comply

(2)     Everyone who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.K., 2018 ONCA 567

DATE: 20180620

DOCKET: C60958

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.K.

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: June 19, 2018

On appeal from the conviction entered on December 19,
    2014 and the sentence imposed on September 9, 2015 by Justice Lucia Favret of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions on seven counts for various
    offences against his former domestic partner, including sexual assault with a
    weapon. He received a global three-year custodial sentence.

[2]

All of the offences arise out of the couples very turbulent and
    troubled relationship. It was common ground that both the appellant and the
    complainant were at times verbally and physically abusive toward each other.

[3]

The case on the particular offences before the court turned on the trial
    judges assessment of the credibility and reliability of the appellant and the
    complainant.

[4]

The appellant takes issue with the trial judges assessment of the
    evidence, arguing that she subjected the evidence of the complainant and the
    appellant to an uneven level of scrutiny. He submits that the trial judge erred
    in finding on her own initiative that the appellant breached the rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L.), and in drawing an adverse inference
    against him. Finally, the appellant contends that he was prejudiced by the
    ineffective assistance of his trial counsel.  He seeks to file fresh evidence
    on appeal in support of that ground, as well as the
Browne v. Dunn
ground.

[5]

We are not persuaded by these submissions.

[6]

The trial judges lengthy reasons demonstrate that she fairly assessed
    the evidence given by the appellant and the complainant. In particular, the
    trial judge was clearly alert to the serious deficiencies and discrepancies in
    the complainants evidence. This assessment led the trial judge to reject the
    complainants evidence in relation to the counts that she dismissed.

[7]

With respect to the remaining counts, the trial judge explained why she
    rejected the appellants evidence and why it did not leave her with a
    reasonable doubt, and why she accepted the complainants evidence in support of
    those counts of which she convicted the appellant. It is well-established that
    a trial judge can accept some, all or none of a witnesss evidence. It was open
    to the trial judge to accept the portions of the evidence of the complainant
    that she found substantiated the offences against the appellant.

[8]

While it would have been preferable for the trial judge to have given
    the parties an opportunity to address the
Browne v. Dunn
issue relied
    upon by her to make an adverse inference against the appellant, her reasons
    show that there was ample evidence on which she based her other adverse
    findings of credibility against the appellant. Having considered her reasons as
    a whole, we are not persuaded that the trial judges adverse inference with
    respect to the discrete
Browne v. Dunn
issue materially affected the
    outcome of the trial or rendered the trial unfair to the appellant.

[9]

The primary focus of the trial judges
Browne v. Dunn
finding
    related to the evidence of the complainants father and the fresh evidence
    fails to demonstrate any factual basis for the appellants diabolical plan
    theory. To the extent the trial judge did err by unilaterally raising
Browne
    v. Dunn
in her reasons we would, if necessary, apply the
curative
    proviso
.

[10]

Finally,
    the appellant has not met the high threshold to demonstrate ineffective assistance
    of counsel in this case. The tactical decisions of his trial counsel about
    which the appellant now complains were fair and reasonable in the
    circumstances, and carried out with the appellants informed instructions.

[11]

The
    appellant also seeks leave to appeal his sentence. The three-year sentence was
    fit. We see no basis to interfere with it.

[12]

Accordingly,
    the application for fresh evidence is dismissed and the appeal from conviction
    and sentence is dismissed.

Robert J. Sharpe
    J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


