



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. K.A.D., 2012
    ONCA 672

DATE: 20121003

DOCKET: C52470

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.A.D.

Appellant

Leora Shemesh, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: September 27, 2012

On appeal from the conviction entered on June 28, 2010 by
    Justice S. Chapnik of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred by misapprehending
    aspects of the evidence and failing to apply the
R. W.(.D.)
test.

[2]

On our view of this record, we cannot agree that the trial judge
    misapprehended any material aspect of the evidence. She conducted a careful and
    detailed review of the evidence and identified specific features that led her
    to conclude that the complainants version was trustworthy and led her to
    reject the evidence of the appellant.

[3]

The Crown concedes that one phrase in the trial judges reasons is
    problematic. She stated at p. 1137 of the transcript:

On a global view of the evidence as a whole, there is an air of
    reality and truthfulness in Ms. R.s evidence. This,
coupled
    with the contradictions in the evidence of the accused
, leads me to
    accept the evidence of the complainant on the major issues in dispute
    [emphasis added]

Viewed in isolation, the underlined phrase might
    suggest that the trial judge used her rejection of the appellants evidence as
    a factor to support her acceptance of the evidence of the complainant. However,
    we agree with the Crown that this problematic phrase must be read in the
    context of this entire judgment.

[4]

The trial judge carefully reviewed the complainants evidence. She
    identified reasons for accepting the evidence including specific features of
    the evidence that corroborated the complainants version. She provided an ample
    explanation for accepting the complainants evidence and we are satisfied that
    her acceptance of the complainants evidence did not rest and did not depend
    upon her rejection of the appellants evidence.

[5]

The trial judge referred to
R. v. W.(D.)
twice in her reasons.
    She specifically concluded at p. 1153 that she did not believe the appellants
    version, that his testimony did not raise a reasonable doubt in her mind and
    that she was satisfied on the evidence before her that the Crown had proven its
    case beyond a reasonable doubt. She also concluded that the Crown had failed to
    prove two counts in the indictment beyond a reasonable doubt and acquitted the
    appellant on those counts. This satisfies us that the trial judge fully
    understood and properly applied
R. v. W.(D.).

[6]

For these reasons, the appeal from conviction is dismissed. The sentence
    appeal has previously been abandoned by the appellant.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

Gloria
    J. Epstein J.A. »


