



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.S., 2019 ONCA 474

DATE: 20190610

DOCKET: C65926

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.S.

Appellant

Sam Goldstein, for the appellant

Catherine Weiler, for the respondent

Heard: June 5, 2019

On appeal from the finding of
    guilt made by Justice Robert Charney of the Superior Court of Justice on March
    26, 2018, and the conviction entered on September 27, 2018, with reasons
    reported at 2018 ONSC 1988.

REASONS FOR DECISION

[1]

K.S. appeals his conviction for sexual interference resulting from
    sexual activity with a 14 year old minor. He contends that the trial judge
    arrived at an unreasonable verdict, engaged in impressionistic reasoning and
    failed to give adequate reasons. At the end of the oral hearing we dismissed
    the appeal, with reasons to follow. These are our reasons.

[2]

K.S., who was 30 years of age at the time, admitted to the sexual
    activity alleged by the complainant, but relied on his claimed mistaken belief
    that the complainant was of legal age. The trial judge had a reasonable doubt
    about K.S.s belief, but convicted K.S. because he had not taken reasonable
    steps to confirm her age.

[3]

In support of the general grounds of appeal advanced, K.S. says that the
    trial judge erred by placing undue reliance on selfie photographs of the
    complainant taken at unknown dates around the time of the sexual activity. K.S.
    says this error is compounded in the face of K.S.s unchallenged testimony
    that at the time of the sexual activity, she looked closer to her appearance in
    court as a 17 year old witness, rather than as depicted in the photographs. Drawing
    analogy to case law addressing improper inferences about the way sexual assault
    victims would behave, he also contends that the trial judge drew an
    inappropriate inference about what young women look like. Finally, he claims
    that the trial judge failed to give reasons for his conclusion that [f]rom a
    subjective perspective, the complainant looks young  about 14 years of age 
    in these photos.

[4]

Each of K.S.s grounds of appeal lacks merit.

[5]

K.S. conceded that a trial judge is entitled to draw inferences from
    photographs admitted into evidence, but argues that it was unreasonable for the
    trial judge to use the photographs admitted in this case to infer that at the
    time of the offence, the complainant look[ed] young  about 14 years of age. He
    contends that it is unreasonable to draw such an inference from photos taken
    not on the day of the offence, but at unknown dates, depicting the complainant
    with various hairstyles and different clothing.

[6]

We disagree. Although the precise times when the photos were taken are
    unknown, it is agreed that the photographs were taken both before and after the
    event, while the complainant was in grade 9. They therefore frame the event,
    which occurred in the middle of that school year, and together depict the
    complainants general appearance at the time. The trial judge was therefore entitled
    to determine, based on his observation of the photographs, that at the time of
    the offence the complainant appeared to be about 14 years of age.

[7]

Moreover, the trial judges observations about the complainants
    appearance in the grade 9 photographs was enough to entitle him to reject
    K.S.s claim that, at the time of the event, she looked more like the 17 year
    old who was testifying in the case, than the person depicted in the
    photographs. The trial judge saw the photos and the complainant at the time of
    the trial. He was well placed to judge that claim. Therefore, we do not accept
    that K.S.s testimony on this point was un-contradicted.

[8]

It is noteworthy that the trial judge did not rely on the photos to
    support a conclusion as to the precise age of the complainant. He relied upon
    the photographs to conclude that her appearance around the time of the event,
    along with other evidence  including K.S.s admission that he knew the
    complainant to be in high school at the time  would have prompted a reasonable
    30 year old to make reasonable inquiries about her age before proceeding to
    having sex with her. Yet K.S., a 30 year old man giving a ride to a high school
    student he had just met that day, took no steps to inquire about the
    complainants age. In our view, the trial judges finding was closer to being
    inevitable than unreasonable.

[9]

K.S.s argument that that trial judge engaged in impressionistic
    reasoning about what young girls can be expected to look like misses the mark.
    In his factum, K.S. sought to support this argument with authority cautioning
    courts to avoid rank generalizations about what young women will or will not
    do. This body of law has nothing to do with inferences drawn from ordinary
    human experience about the apparent age of other persons. The law has long
    recognized the admissibility of a witnesss inference about apparent age:
R.
    v. Graat
, [1982] 2 S.C.R. 819. It is no more impressionistic or
    improperly speculative for a judge to draw such an inference than it is for a
    witness to do so.

[10]

Nor
    is there an issue with the quality of the trial judges reasons. It is
    unreasonable to expect that the trial judge would identify, in his reasons,
    features or details from the photographs that support his conclusion that the
    complainant looked to be about 14 years of age. As indicated, lay witnesses are
    permitted to express general opinions about apparent age precisely because it
    is difficult to use language to capture and communicate the complex
    observations that go into this kind of commonly-derived conclusion:
Graat
,
    at pp. 837-838.

[11]

We
    do not accept K.S.s analogy to direct evidence of identification. Estimates of
    age differ from direct evidence of identification in what can be expected in
    explaining why the relevant opinion is held. Where direct evidence of
    identification is offered, courts expect a basis to be provided for the opinion
    that the accused is the suspect, since identification is based on perceived
    similarities, many of which are capable of description. In contrast, it is not
    realistic to expect precise details to be available to explain meaningfully why
    someone appears to be 14 rather than 18. Moreover, the photographic record is
    available for our inspection. We have reviewed the photographs, and, in our
    view, the trial judges conclusion is a perfectly reasonable one.

[12]

We
    therefore dismissed K.S.s appeal.

Alexandra
    Hoy A.C.J.O.
C.W. Hourigan J.A.
David M. Paciocco J.A.


