



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. M.K., 2015 ONCA 563

DATE:  20150729

DOCKET:
C58543

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.K.

Appellant

Richard Litkowski, for the appellant

Jason Gorda, for the respondent

Heard:  July 20, 2015

On appeal from the convictions entered by Justice Gilmore
    of the Superior Court of Justice on November 5, 2013 and the sentence imposed
    on April 1, 2014.

By the Court:

[1]

The appellant was charged with sexually assaulting his stepsister.  The
    Crown alleged that the assaults occurred in Markham, Ontario and Picton,
    Ontario.  The trial judge convicted on the charges relating to the events in
    Picton and acquitted on the charges relating to the events in Markham on the
    basis that the Crown had not proved that those events occurred after the
    appellant was 18.  The trial judge imposed a sentence of 2 years, less a day,
    followed by 2 years probation.  The appellant appeals conviction and sentence.


I



THE CONVICTION APPEAL

[2]

There are four grounds of appeal.

1:  The alleged misuse of the appellants statement to the
    police in the assessment of his credibility

[3]

The Crown cross-examined the appellant on portions of a statement he had
    given to the police concerning the allegations.  The trial judge concluded that
    several of the appellants answers to questions about specific allegations made
    against him were equivocal and inconsistent with a reliable and credible
    denial.  For example, the investigating officer asked the appellant whether the
    complainant ever touched his penis.  The appellant responded, not that I know
    of.

[4]

Counsel for the appellant argues that the trial judge took these answers
    out of the context of the rest of the statement.  The appellant expressly
    denied any sexual misconduct several times during that statement.  Counsel also
    points out that the appellant testified that his answers were merely an attempt
    to search his memory back over 20 years to see if he could remember anything
    that might have been misconstrued by the complainant.

[5]

The trial judges characterization of some of the appellants answers
    during the police questioning was open to her on the entirety of the evidence. 
    Nor, in our view, is the negative impact of those answers on the appellants
    credibility necessarily minimized by the more general denials in the statement
    of any criminal activity.

[6]

The trial judge considered the appellants answers to some of the
    specific allegations put to him in cross-examination as one of several factors
    that, in her view, undermined the appellants credibility.  She did not focus
    exclusively on a single answer or contradiction in the statement and did not
    misapprehend the content of the statement.  The cases relied on by the
    appellant are distinguishable on their facts:  e.g. see
R. v. W. (J.S.)
,
    [2013] O.J. No. 4409 at 47-49;
R. v. T. (D.)
, [2014] O.J. No. 255 at
    paras. 68-69.

[7]

In summary, we see no error in the trial judges conclusion that some of
    the answers given by the appellant in his statement of the police negatively
    impacted on the credibility of his evidence at trial.  Ultimately, that factor,
    combined with the other factors identified by the trial judge, compelled her to
    conclude that the appellants evidence did not leave her with a reasonable
    doubt on the charges arising out of the events in Picton.

2:  Did the trial judge err in her identification of the
    factors relevant to the appellants credibility?

[8]

The trial judge specifically identified four factors that led her to
    conclude that the appellants testimony was not credible.  The first, some of
    the answers given by the appellant in his statement, is the subject of the
    first ground of appeal set out above.  The other three factors  lies the
    appellant told the police about his father and his whereabouts, inconsistent
    statements by the appellant as to the quality of his memory, and the
    appellants answers in cross-examination minimizing his opportunity to have
    assaulted the complainant, were all, on the trial judges view of the evidence,
    properly used by her in assessing the credibility of the appellants testimony.

[9]

Other trial judges may have taken a different view of one or more of
    these factors.  Any one of the factors standing alone may not have reasonably
    justified the rejection of the appellants testimony.  However, taken as a
    whole and placed in the context of the entirety of the evidence, we cannot say
    that the factors identified by the trial judge did not justify her conclusion
    that the appellants evidence did not leave her with a reasonable doubt on the
    Picton-related charges.

3:  The trial judges approach to the evidence of the
    complainant

[10]

The
    appellant submits that the trial judge focussed almost exclusively on the
    complainants credibility or sincerity and failed to engage in a critical examination
    of the reliability of her evidence:  see
R. v. Sanichar
(2012), 280
    C.C.C. (3d) 500 at para. 30 (Ont. C.A.), revd, [2013] 1 S.C.R. 54.  Counsel
    points to the absence of any specific reference by the trial judge to the 20
    years between the events in issue and the complainants making of the
    allegations, a key factor in assessing reliability, as indicative of the trial
    judges failure to address reliability.

[11]

The
    trial judge reviewed the complainants evidence at length (para. 113 and
    following) and in doing so addressed many of the arguments put forward by the defence
    at trial.  For example, the trial judge considered the defence arguments that
    the nature and timing of the disclosures should negatively impact on the
    appellants credibility.  She gave reasons for rejecting that submission and
    concluding that the nature of the disclosure was consistent with both the
    reliability and credibility of the allegations (see paras. 113-117).

[12]

The
    trial judge also considered many of the inconsistencies in the complainants
    evidence advanced by the defence as undermining the reliability of her
    evidence.  The trial judge said:

Ms. S.s [the complainant] evidence was not perfect.  I agree,
    she was even defensive at times, but looking at the inconsistencies as a whole,
    they do not shake my belief in the reliability of her evidence about these
    incidents.

[13]

The
    trial judges examination of the inconsistencies in the complainants evidence
    was clearly directed at an assessment of the reliability of that evidence. A
    review of the entirety of the reasons as they relate to an assessment of the
    complainants evidence compels the conclusion that the trial judge was alive to
    both credibility and reliability-related concerns when addressing that
    evidence.

[14]

The
    appellant also focusses on the trial judges observation at the end of her
    analysis of the complainants evidence:

She [the complainant] believed that these things happened to
    her and this court does as well.

[15]

This
    observation must be placed in the context of the preceding 40 paragraphs that contain
    a detailed analysis of the complainants evidence directed at both credibility
    and reliability.  Considered in that context, the trial judges belief that the
    complainant was assaulted as she said she was flowed from a thorough
    examination of the credibility and reliability of the complainants evidence.

4:  The failure to consider the parts of the complainants
    mothers evidence that favoured the appellant

[16]

The
    trial judge concluded that the complainants mother had a strong animus toward
    the appellant for reasons unrelated to these specific allegations.  Because of
    that animus, the trial judge was not prepared to accept any part of the
    mothers evidence that inculpated the appellant unless it was consistent with
    the complainants evidence.

[17]

The
    appellant has no quarrel with the trial judges treatment of the mothers
    potentially inculpatory evidence.  He submits, however, that parts of the
    mothers evidence supported his position at trial and that the mothers animus
    towards him was no reason to reject that part of her evidence.  Indeed, he submits
    that the mothers animus would tend to make that part of her evidence more
    credible.

[18]

The
    logic of the appellants argument cannot be denied, however, it does not get
    the appellant anywhere on the facts of this case.  Opportunity was the only material
    issue on which the mothers evidence offered some potential support for the
    appellants position.  He maintained in his evidence that he had little, if
    any, opportunity to commit the assaults in the hot tub at the home in Picton. 
    The trial judge accepted that the evidence supported a somewhat diminished
    opportunity to commit those assaults.  In reaching that conclusion, the trial
    judge implicitly accepted the mothers evidence relevant to the question of
    opportunity, at least to the extent that it was consistent with the appellants
    evidence.  The trial judge went on, however, to find that although the
    opportunity to sexually assault the complainant in the hot tub may have been
    diminished, there remained sufficient opportunity for sexual activity in the
    hot tub.  Nothing said by the mother in her evidence was capable of
    eliminating that opportunity.

[19]

The
    conviction appeal is dismissed.


II



the sentence appeal

[20]

In
    oral submissions, counsel for the appellant alleged a single error by the trial
    judge in her reasons for sentence.  He submits that the trial judge properly
    placed the appellants offence at the lower end of the sentencing range in
    respect of sexual assaults on children.  He further submits, however, that the
    trial judge then, in imposing a sentence of 2 years less one day went well
    beyond the lower range of sentencing into the mid-range of sentencing for this
    type of offence.

[21]

In
    the course of her thorough reasons for sentence, the trial judge said:

While one could never say that the actions of Mr. K. are
    excusable, they are, when considering a range of sentence, such that they
    should be considered to be in the lower end of the sentencing range with
    respect to the nature and type of act of abuse perpetrated by the victim.

[22]

On
    our reading, the trial judge was addressing the nature of the conduct that
    constituted the sexual assaults in this case.  She placed that conduct at the
    lower end of the range of conduct that could constitute the offence.  She was
    not addressing the circumstances relevant to sentencing as a whole.

[23]

Accepting
    the trial judges characterization of the conduct as at the lower end of the
    sentencing range, but also having regard to the blatant breach of trust
    involved in these offences and the many occasions on which the appellant
    assaulted the complainant, we cannot say that the sentence imposed by the trial
    judge was unfit.  We would grant leave to appeal sentence, but dismiss the
    sentence appeal.

[24]

The
    appeals from conviction and sentence are dismissed.

Released:  DD  JUL 29 2015

Doherty J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


