



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.R., 2020 ONCA 20

DATE: 20200114

DOCKET: C64036

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.R.

Appellant

James Harbic and Robert Harbic, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: January 10, 2020

On appeal from the conviction entered on April 29, 2016 by
    Justice
Ronald M. Laliberté
of the Superior Court of
    Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant was convicted of two counts of sexual interference against
    his step-daughter, M.T., who accused him of rubbing and penetrating her vagina
    with his fingers on several occasions when she was between 7 and 14 years of
    age. The appellant was acquitted of sexual abuse charges against his biological
    daughter, A.T.

[2]

The appellant raises the following arguments on appeal:

1.

The trial judge engaged in impermissible speculative reasoning in rejecting
    the evidence of K.R. when he relied on hearsay evidence of the statements and
    behaviour of the complainants mother, J.T.

2.

The trial judge placed undue weight on the demeanor of M.T. in assessing
    her credibility, while ignoring relevant inconsistencies in her testimony.

3.

The verdict is unreasonable.

[3]

At the conclusion of the hearing we dismissed the appeal with reasons to
    follow. These are our reasons.

The trial judge was entitled to reject the appellants
    evidence

[4]

M.T., and A.T. testified at trial, along with the appellant. The trial
    judge found that M.T. was credible, but rejected the evidence of A.T. and the
    appellant.

[5]

It was open to the trial judge to find that the appellant was not a
    reliable witness and that his evidence was not credible. As to reliability, the
    appellant acknowledged that his memory was harmed by two drug overdoses; that
    he sometimes has difficulty remembering things; and that he told the police
    that some of his memory had been erased. These memory problems undermined the
    appellants evidence that he was never alone with the children at any time,
    despite his insistence to the contrary.

[6]

The appellant testified that he did not bathe the children after they
    were no longer infants; that he was never left alone with the children when
    J.T. went shopping; that he never put the children to bed; and that he never
    played with them in their bedroom. He acknowledged skiing and skating alone
    with the children, but said that there were other people around when he went
    swimming with them. The appellant acknowledged only that he was not basically
    alone with the children while watching television in the living room, as J.T. would
    be in the kitchen cooking and would walk in and out of the living room.

[7]

The trial judges finding that it was highly improbable that the
    appellant would never have been alone with his daughters is supported by the evidence
    and is reasonable. The trial judge considered that the appellants evidence on
    this point was an attempt to exclude any opportunity for him to commit the
    offences. The same is true of the appellants evidence that he went onto the
    roof because it was leaking, and not to spy on M.T. while she was in the
    bathroom. It was open to the trial judge to conclude that the appellant was
    neither reliable nor credible and that his evidence did not raise a reasonable
    doubt.

[8]

The trial judges credibility findings do not depend on hearsay evidence
    or speculation concerning J.T.s reaction when M.T. told her that the appellant
    had abused her. Nor does M.T.s evidence that her mother was at home at the
    time of some of the abuse undermine the trial judges finding that the
    appellant was not credible. M.T.s evidence was that the mother was
elsewhere
    in the home
at the time, occupied with watching television, having a
    cigarette or a coffee, or cooking. The trial judges credibility and
    reliability findings are entitled to deference and there is no basis for this
    court to interfere with them.

The trial judge was entitled to accept MTs evidence

[9]

The appellant submits that the trial judge erred by emphasizing the
    demeanour of M.T. in determining her credibility and reliability, despite the
    lack of details and inconsistencies in her testimony.

[10]

We disagree.

[11]

The trial judge found that M.T.s evidence was both detailed and
    internally consistent, and highlighted several reasons for finding that she was
    reliable and credible. He found that M.T.s evidence was confirmed in a number
    of ways by external evidence, including the appellants evidence. He
    acknowledged that M.T. was wrong in believing that the appellant had cut her
    door in half so as to deny her privacy, as the door was already cut when they
    moved into the home. But it was open to the trial judge to find that this was
    not a significant point in the context of her evidence as a whole. Although the
    trial judge remarked that M.T.s demeanour was appropriate, her demeanour did
    not play a significant role in the trial judges findings. He specifically
    cautioned himself that demeanor is not, in and of itself, an appropriate means
    of measure for reliability and/or credibility.

[12]

In summary, there is no basis to interfere with the trial judges
    findings on reliability and credibility of M.T.

The verdict is not unreasonable

[13]

It is well established that there is a high bar to meet to establish
    that a verdict is unreasonable. The appellant simply repeats what he regards as
    frailties in the evidence of the complainant and asserts a failure of the trial
    judge to understand or apply the evidence. This does not come close to
    establishing that the verdict was unreasonable.

[14]

The trial judge was alive to the burden of proof, as reflected in his
    decision to acquit the appellant on charges related to his daughter A.T. He
    properly applied the law as set out in
R. v. W.(D.)
, [1991] 1 SCR 742.
    Having rejected the evidence of the appellant and found that it did not raise a
    reasonable doubt, he was satisfied that the evidence established guilt beyond a
    reasonable doubt. There is no basis to interfere with his decision.

Conclusion

[15]

The appeal is dismissed.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.


