



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
, chapter Y-1 of the
    Revised Statutes of Canada, 1985, provided that he or she is not in custody
    pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an
    offence punishable on summary conviction.




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. A.K., 2020 ONCA 435

DATE: 20200702

DOCKET: C66198

Doherty, MacPherson and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.K.

Appellant

Julie Santarossa, for the appellant

Elizabeth Kozak, for the respondent

Heard: In writing

On appeal from the findings of guilt
    made on August 14, 2018 by Justice Lynda S. Ross of the Ontario Court of
    Justice, sitting in Youth Criminal Justice Court.

REASONS FOR DECISION

[1]

The appellant, A.K., is K.H.s (the complainant)
    half-brother. They have the same father. In 2017, the appellant was charged
    with two counts of sexual assault. The offences allegedly occurred in 2008 or
    2009, when the appellant was 14 or 15 and the complainant was between 6 and 8.
    After a brief trial, in which the complainant and the appellant were the only
    witnesses, the trial judge found the appellant guilty on both charges. She
    imposed conditional discharges on both counts with 18 months probation.

[2]

The appellant appeals from the findings of
    guilt. For the reasons that follow, we allow the appeal and order a new trial.

[3]

At the time of the alleged offences, the
    complainant resided with her mother and two older brothers, E. and A., in
    Leamington, Ontario. Her father, who was also the appellants father, had access
    visits with the complainant. On occasion, the complainants father and his two
    sons, the appellant and C., would sleep over at the complainants home in
    Leamington.

[4]

The complainant testified one night when the
    appellant was sleeping over with his father, he came into her bedroom. She was
    lying in bed facing away from the door. She awoke to find the appellant standing
    beside her bed. He touched her legs, butt and vagina over her clothing. When he
    tried to put his hands in her pants, the complainant rolled over away from the
    contact. The appellant left her room. Neither the appellant, nor the
    complainant said anything during the incident. It lasted about two to five
    minutes.

[5]

The complainant described a second assault about
    a month or two after the first. She and her mother were staying overnight at the
    fathers home in Kingsville, Ontario. The complainant went there on weekends to
    visit her father, often with her mother. The complainant testified the
    appellant, who lived with his mother, would sleep over at his fathers home when
    the complainant was there now and then. Because of the earlier incident in
    Leamington, the complainant tried to avoid being at her fathers home overnight
    if the appellant was going to be there.

[6]

When the complainant stayed at her fathers, she
    slept on a recliner in the living room. One evening, when she was lying on the
    recliner, she saw the appellant sitting on the couch watching television close
    by. She felt the appellant touching her chest, her bum and her back. The
    touching was over her clothing. The complainant stirred in response to the
    touching. The appellant stopped and went back to watching television. Shortly
    afterward, the complainant got up from the recliner and went into her fathers bedroom.

[7]

In addition to the two alleged sexual assaults,
    the complainant described another incident, which she recalled occurred before
    the assaults. She was in her bedroom at her mothers house playing with her Barbie
    dolls. The appellant walked by and asked her if the dolls were having sex. She
    said no. He put the dolls in a sex position and walked out of the room.

[8]

The complainant testified some time after the
    alleged assaults when she was nine, she was removed from her mothers care by
    the Childrens Aid Society. Her mother suffered from serious mental health problems.
    The complainant went to live with her grandmother. She told her grandmother
    about the assaults and she thought her grandmother spoke to somebody about
    them.

[9]

The complainant suffers from depression and
    anxiety. She has been hospitalized as a result of suicidal ideation and takes
    medication. The complainant came to believe that the appellants assaults had contributed
    to her developing depression and anxiety.

[10]

The appellant testified and denied sexually
    assaulting the complainant.

[11]

The appellant testified he had slept over at the
    mothers residence in Leamington on only one occasion. He recalled sleeping
    there so he and his father could drive his brother to the bus station to attend
    a cadet camp in Barrie the next day. The appellant denied he went to the complainants
    bedroom and sexually assaulted her during the night. The appellant recalled
    other brief visits at the home in Leamington when he and his father went to
    that town for the appellants lacrosse games.

[12]

The appellant lived with his mother. He testified
    he visited his father on occasion, although at times their relationship was
    strained. He recalled when his father lived in Kingsville, he would stay at his
    fathers on the weekend, so he could get up early and go to work with his
    father and grandfather at the produce market in Detroit. According to the
    appellant, the complainant did not stay overnight at the fathers residence in
    Kingsville on any occasion when the appellant stayed there overnight.

[13]

The appellant also denied the Barbie doll
    incident. He testified he had no interest in playing with Barbie dolls or
    talking to his much younger half-sister about Barbie dolls.

[14]

According to the appellant, there was not much
    of a relationship between him and the complainant. They seldom saw each other,
    and he was much older than her. In the appellants mind, there had never been any
    problem between himself and the complainant. The complainant also described her
    relationship with the appellant as kind of distant. She rarely saw him. There
    was never any animosity between them.

[15]

The trial judge properly instructed herself on
    the burden of proof. She acknowledged that this was a he said/she said
    situation with little, if any, independent evidence confirming or refuting the
    different versions of events given by the two witnesses. The trial judge
    acknowledged that both the complainant and appellant gave their testimony in a
    forthright manner and were unshaken in cross-examination.

[16]

The trial judge concluded the complainant was a
    credible witness. She found the complainant had no motive to fabricate the
    allegations and the evidence showed there was an opportunity for the assaults
    to have occurred, as described by the complainant. The trial judge also
    considered and rejected certain arguments made on behalf of the appellant. Some
    of those arguments she found to be predicated on myths about how victims
    react to sexual assaults. Others were premised on assumptions about how parents
    do and do not arrange sleeping accommodations during access visits.

[17]

There can be no quarrel with the trial judges
    treatment of the complainants evidence. Nor did she err in her forceful
    rejection of some of the submissions made by counsel for the appellant in
    support of the contention the complainant was not a credible witness.

[18]

The appellant submits, however, the trial
    judges treatment of, and outright rejection of, the appellants evidence does
    reveal error. The trial judge gave four reasons for rejecting the appellants
    evidence:

·

the appellant couched his denials in tentative
    or conditional language such as I wouldnt have been there or that would
    never have happened;

·

the appellant repeatedly emphasized he had no
    relationship with the complainant, in an apparent effort to distance himself
    from the complainant;

·

the appellant absolutely denied the Barbie
    doll incident, insisting he would never go into the complainants room to talk
    with her; and

·

the appellant professed to have a remarkably detailed
    recollection of his fathers home, including the furnishings and where his
    father habitually sat.

[19]

There are problems with each of the reasons
    advanced by the trial judge for rejecting the appellants evidence.

(i)

The appellants phraseology

[20]

The appellant used phrases like that would
    never have happened when asked about events, including the alleged sexual
    assaults. On many occasions, in the same answer, he used direct unqualified
    language in making his denials. For example, when asked whether he had any
    recollection of the incident at his fathers home, the appellant replied:

No I do not, that would not have happened.

[21]

The trial judge offers no explanation for her
    conclusion that the appellants phraseology was indicative of a lack of
    credibility. It must be borne in mind the appellant was being asked about
    events that may or may not have occurred about 10 years earlier. Some of those
    events were not memorable. It is not surprising a witness, when asked about
    events from long ago, would, in attempting to answer honestly, not speak in
    definitive terms, but rather speak in terms of what would have or would not
    have happened. The phraseology used by the appellant from time-to-time in some
    of his answers could not reasonably offer any insight into his credibility.

(ii)

The appellants description of his relationship
    with the complainant

[22]

The trial judge found that the appellant, in his
    testimony, emphasized over and over again the non-relationship that he had
    with [the complainant]. The trial judge saw this as an attempt to distance
    himself from the complainant.

[23]

There are two difficulties with this analysis.
    First, a reading of the transcript does not support the characterization of the
    appellants evidence as a repeated emphasis of the nature of his relationship
    with the complainant. He was asked about that relationship, just as the
    complainant was asked about it. He answered those questions.

[24]

Second, and more importantly, the appellants
    description of his relationship with the complainant was essentially the same
    as the complainants description of the relationship. Both described the
    relationship as distant and largely non-existent, because they seldom saw each
    other, and the appellant was several years older than the complainant. The
    trial judges finding the appellant misrepresented the nature of his
    relationship with the complainant is inconsistent with the complainants
    evidence, the only other evidence about the nature of the relationship, and
    inconsistent with the trial judges finding that the complainants evidence was
    credible.

(iii)

The Barbie doll evidence

[25]

As outlined above (see para. 17), the trial
    judge found the qualified or conditional nature of some of the appellants
    answers demonstrated he was not a credible witness. The trial judge took the
    opposite approach in respect of the appellants evidence about the Barbie
    doll incident. The trial judge determined that the appellants absolute
    denial he would ever go into the complainants room to speak to her while she
    was playing with her Barbie dolls indicated he was not a credible witness.
    Bearing in mind the age difference, the distant nature of the relationship
    between the appellant and complainant, and the evidence the appellant did not
    visit the complainants home very often, it is not apparent why the trial judge
    treated the appellants unqualified rejection of the suggestion he would go
    into the complainants room to speak with her while she was playing with her
    Barbie dolls as a basis for finding the appellant was not a credible witness.

(iv)

The appellants recollection of his fathers
    home

[26]

The trial judge found it absolutely
    unbelievable the appellant would recall, some 10 years after the relevant
    events, details about his fathers home, the furnishings, and where his father sat
    to watch television. There are two difficulties with that finding. First, the
    appellants recollection was not significantly more detailed than the
    complainants recollection of the furnishings in the room. The appellant and
    complainant did disagree about the number of recliners in the living room. She
    said there were two, he said there was one. Apart from that, the descriptions
    were not dissimilar. Second, apart from the complainants evidence about the
    number of recliners in the living room, there was no evidence to suggest any of
    the other detail provided by the appellant was inaccurate. The trial judge
    simply assumed because the description was detailed, it was fabricated by the
    appellant in an effort to buttress his credibility. Based on this record,
    everything the appellant said about the house, with the exception of the number
    of recliners in the living room, may well have been entirely correct.

[27]

Counsel for the Crown correctly submits that a
    trial judge is not obliged to find fault with an accuseds testimony in order
    to convict. A conviction may flow from a considered and reasoned acceptance,
    beyond a reasonable doubt of the complainants evidence:
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252, at para. 53 (Ont. C.A.).

[28]

The trial judges examination of the
    complainants evidence can be described as considered and reasoned. She did
    not, however, rest her rejection of the appellants evidence, or her ultimate
    verdicts, only on her analysis of the complainants evidence. Instead, the
    trial judge went on to reject the appellants evidence as untrue, citing four reasons
    for that determination. None of those reasons can support or justify her
    assessment. The trial judges reliance on factors that could not reasonably negatively
    impact on the appellants credibility must have played a significant role in
    her ultimate determination that, not only did she not believe the appellant,
    but his evidence did not leave her with a reasonable doubt.

[29]

The appeal is allowed. The errors in respect of
    the assessment of the appellants credibility require that the findings of guilt
    be set aside. A new trial is ordered.

Doherty
    J.A.
J.C. MacPherson J.A.
M.L. Benotto J.A.


