



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Marahar, 2017 ONCA 930

DATE: 20171130

DOCKET: C62140

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harpinder Marahar

Appellant

Lawrence Ben-Eliezer, for the appellant

Karen Shai, for the respondent

Heard and released orally: November 23, 2017

On appeal from the conviction entered on January 8, 2016
    by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was tried on an indictment containing ten counts of
    various offences against three persons. One offence was alleged to have
    occurred on a specific date, the balance over periods of 8 to 10 years.

[2]

The case for the Crown consisted of the testimony of the three
    complainants. The defence was that the conduct alleged by the complainants did
    not occur. The appellant testified on his own behalf and called five other
    witnesses.

[3]

On the appeal from conviction, the appellant advances two arguments. He
    says that the trial judge erred:

i.

in subjecting the evidence of the Crowns witnesses to a less vigorous
    or demanding standard of scrutiny than that he accorded to the testimony of the
    appellant and the defence witnesses; and

ii.

in imposing an evidentiary burden on the appellant to advance an
    explanation for the injuries caused to one of the complainants.

Ground #1: Uneven Scrutiny

[4]

The appellant acknowledges the well-established difficulty he encounters
    in advancing his claim of uneven scrutiny.  To succeed, it is not enough for
    him to show that another trial judge could have assessed credibility or
    reliability differently. Or that this judge failed to say something that he
    could have said in his assessment of the credibility of the complainant and the
    appellant or the reliability of their testimony. To achieve success on this
    ground, the appellant must point to something in the trial judges reasons or
    elsewhere in the trial record that makes it clear that the trial judge actually
    applied different standards of scrutiny in assessing the evidence of the
    appellant and the complainant.

[5]

It is equally well settled that a trial judge is entitled to reject an
    accuseds evidence on the basis of the considered and reasoned acceptance of
    conflicting evidence beyond a reasonable doubt.

[6]

The trial judges reasons reflect a cautious and thoughtful approach to
    his assessment of the testimony of all the witnesses and his findings of fact.
    He expressed and explained his significant concerns about the credibility and
    reliability, not only of the appellants testimony, but equally the testimony
    of the complainant. He accepted only those aspects of the complainants
    testimony which were corroborated by the evidence of others whose testimony he
    found credible and reliable. Where the complainants testimony was not
    corroborated, the trial judge entered verdicts of acquittal. Read as a whole,
    the trial judges reasons reflect the antithesis of uneven scrutiny. They
    reveal, in our respectful view, an even-handed, measured approach to the
    assessment of credibility and reliability.

[7]

This ground of appeal fails.

Ground # 2: Shifting the Burden of Proof

[8]

The appellant submits further that the trial judge improperly imposed an
    evidentiary burden on him to explain just how it was that the complainant ended
    up with a bloody face when she and the appellant were alone in his office one
    day.

[9]

The complainant testified that her facial injuries occurred when the
    appellant hit her. The appellant testified that he had no idea how the
    complainant had suffered her injuries. As he left his office to return to a
    nearby classroom, he heard a big bang. On turning around, he saw the
    complainant on the floor, with a bloodied face.

[10]

In
    cross-examination, the trial Crown confronted the appellant with the substance
    of the complainants version, then asked the appellant about any possible
    explanation for the cause of the complainants injuries.  The appellant
    reiterated his claim of ignorance as to their cause.

[11]

Taking
    the reasons of the trial judge as a whole, as we must, we do not read the
    isolated passage on which the appellant focuses as an erroneous shift in the
    onus of proof.  It was, rather, a simple observation on the state of the
    evidence, about the cause of an injury that occurred when only two persons were
    present. The trial judge did not use the absence of an explanation as a makeweight
    to shore up or complete the prosecutions proof. His reasons betray any
    misapprehension about the onus and the standard of proof.

Conclusion

[12]

For
    these reasons, the appeal is dismissed.

David Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.


