



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. R.D., 2019 ONCA 132

DATE: 20190221

DOCKET: C64842

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

R.D., appearing in person

Zachary Kerbel, duty counsel

Andrew Hotke, for the respondent

Heard: February 12, 2019

On appeal from the conviction entered on April 28, 2017,
    and the sentence imposed on October 25, 2017, by Justice Robert Charney of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction on three grounds:

1.       That
    the trial judge erred in declining to admit the defence expert evidence on the
    issue of recovered memory;

2.       That
    the trial judge erred in relying on jurisprudence from B.C. in his
    consideration of recovered memory; and

3.       The
    trial judge erred in his treatment of the complainants evidence by dismissing numerous
    minor inconsistencies and one major inconsistency rendering the verdict
    unreasonable.

[2]

We do not agree.

[3]

With respect to the expert evidence, the defence sought to call an
    expert to give evidence in the area of memory science and the cognitive and
    social psychological aspects of human memory. The intent of the evidence was to
    address concerns regarding the reliability of the complainants evidence. The
    trial judge rightfully excluded this evidence on the basis that it would
    impermissibly trench on the province of the fact finder by commenting directly
    on the credibility and reliability of the complainant.

[4]

Furthermore, the trial judge noted that all the concerns raised in the
    experts report regarding the potential frailties of the complainants memory
    could be raised by defence counsel in his closing submissions. As such, the
    expert evidence did not meet the threshold requirement of necessity. We agree
    with this finding.

[5]

On the second ground raised by the appellant, we would not accept this
    argument. When analyzing the evidence of the complainant, the trial judge
    assessed it within the context of his age at the time of the incident. He made
    specific findings with respect to the circumstances surrounding the disclosure
    of the sexual assault by the complainant, as well as the complainants memory,
    based on other corroborative evidence adduced at trial.

[6]

In very detailed and comprehensive reasons, the trial judge found the
    complainant to be a compelling and straightforward witness. The appellant did
    not testify. The trial judge noted that the complainant did not attempt to
    exaggerate his memories, and his evidence about the incident in the shower
    included as much detail as one could expect from a person who underwent a
    brief, but troubling and confusing experience as an eight year old. The trial
    judge noted that the complainants memories in relation to the surrounding
    circumstances of the incident were generally consistent with those of the other
    witnesses.

[7]

With respect to the third ground, for the reasons given above, we would
    not accept the appellants argument. The trial judge specifically noted the
    areas of concern and the inconsistencies with the complainants evidence. He
    assessed these concerns within the totality of all the evidence and was
    satisfied beyond a reasonable doubt of the guilt of the appellant.

[8]

One aspect of the complainants evidence that gave the trial judge
    pause was the complainants suggestion during the preliminary hearing that he
    remembered he could feel the appellants erect penis against the area of his
    right hip. The complainant confirmed this evidence when asked about it at
    trial. The trial judge specifically commented that this evidence seemed
    unlikely to him given the height difference between the appellant and the
    complainant when he was eight years old. However, when viewed within the
    context of the complainants evidence as a whole, the trial judge concluded
    that the incongruity was not sufficient to raise a reasonable doubt as to the
    core allegation. We agree with the trial judge that this inconsistency does not
    detract from the complainants unshaken testimony on the central allegation
    about the incident in the shower.

[9]

In all the circumstances the appeal is dismissed.

J.C. MacPherson J.A.

Robert Sharpe J.A.

M. Tulloch J.A.


