



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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.S.H., 2013 ONCA 676

DATE: 20131106

DOCKET: C55981

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.H.

Appellant

Michael W. Caroline, for the appellant

Davin Michael Garg, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered on May 9, 2012 and
    the sentence imposed on September 7, 2012 by Justice R. Zisman of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

We would not give effect to the grounds of appeal raised by the
    appellant.

[2]

In the circumstances of this case, the spontaneous way in which the complaint
    came out was admissible as part of the narrative and provided context for
    assessing the complainants credibility. See
R. v. DiNardo
at para.
    39. We are satisfied that the trial judge was entitled to use the evidence in
    this way and that she did not use the contents of the statement to corroborate
    the complainants evidence.

[3]

We have not been persuaded that the trial judge misapprehended the
    evidence in any material way. For example, contrary to the submission of the
    appellant it was open to the trial judge to find that the appellant did deny
    being humiliated by his wifes infidelity and that in the context of this case,
    that assertion defied common sense.

[4]

We do not agree that the trial judge unfairly applied stricter scrutiny to
    the defence evidence and the complainants evidence. The focus of the trial
    judges comments were on the inconsistences in the trial testimony, which there
    were several in the appellants evidence, unlike the complainants evidence. It
    may be that the trial judge placed more emphasis on the manner in which the
    fall down the stairs was reported by the appellant and his mother, than was justified
    by the evidence. However, this was only one of several reasons the trial judge
    gave for rejecting the appellants evidence. We are satisfied the result would
    have been the same even without the emphasis placed on the fall.

[5]

Accordingly, the appeal is dismissed. Counsel confirmed that the
    sentence appeal is abandoned. Accordingly, the sentence appeal is dismissed as
    abandoned.


