



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. K.M., 2016 ONCA 347

DATE: 20160509

DOCKET: C60143

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

Vikram Singh, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on January 14, 2015
    by Justice Ann J. Watson of the Ontario Court of Justice.

ENDORSEMENT

[1]

Following a trial, the appellant was convicted of sexual assault, unlawful
    confinement, and sexual interference with a person under 14 years of age. The
    sexual assault charge was stayed pursuant to
R. v. Kienapple
, [1975] 1
    S.C.R. 729. The convictions stemmed from a single incident that took place when
    the complainant was 11 years old. She lived with her mother and the appellant
    at the time. The trial took place some 13 years later.

[2]

The complainant said that the incident occurred while she and the
    appellant were on the bed in the master bedroom. She said that in addition to
    tickling her, the appellant rubbed her stomach and torso, pulled up her shirt
    and her bra down, and then licked, touched and kissed her breasts.

[3]

The appellant admitted that he touched the complainant while the two of
    them were on the bed in the master bedroom, but testified that he only intended
    to tickle her to get her out of the room. He said he apologized immediately to
    the complainant, seeing that she was uncomfortable when he lifted her shirt,
    and was about to tickle her on her bare skin. He denied rubbing her torso, exposing
    her breasts, and touching them with his hands and mouth.

[4]

The appellant raises numerous grounds of appeal:

·

The
    trial judge misapprehended the evidence and ought to have weighed the evidence
    differently;

·

The
    reasons were inadequate;

·

The convictions were unreasonable based on the trial judges unreasonable
    credibility findings;

·

The
    trial judge convicted the appellant with respect to dates outside of those
    contained in the information;

·

She improperly intervened during the Crowns submissions; and

·

The
    unlawful confinement conviction was not established on the evidence, and the
    trial judge failed to make findings with respect to the elements of that
    offence.

Misapprehension and weighing of evidence

[5]

The appellant does not identify any particular misapprehension of the evidence,
    and none is apparent.

[6]

The appellant submits that the trial judge should have treated some of
    the evidence as undermining the complainants credibility:

·

The
    complainants inability to remember specific dates;

·

The
    difference between her description of locking herself in the bathroom, as
    compared to shutting the door to the bathroom after the event;

·

Her
    history of mental illness;

·

Possible
    inconsistencies about the manner in which she told her mother about what had
    occurred immediately after the event;

·

Her
    description of feeling ill before the event, as opposed to the appellants
    evidence that he did not notice anything out of the ordinary;

·

Her
    attendance at the front door of the appellants home some years after the
    event, to ask for a phone number; and

·

The
    failure of the Childrens Aid Society or Family and Child Services to investigate,
    since it would have done so unless the allegation was fabricated or not capable
    of belief.

[7]

The appellant also argues that the trial judge ought to have assessed
    his evidence differently. He submits that she should not have concluded that
    the appellants admitted actions in lying on the bed with the complainant,
    lifting her shirt, and intending to tickle her on her bare skin followed by an
    immediate apology corroborated the complainants version of events. He further submits
    the trial judge should not have concluded that the appellants behaviour after
    the event showed that he knew he had done something wrong.

[8]

The trial judge gave thorough and careful reasons for finding the
    complainant to be a credible and reliable witness, and for rejecting the
    appellants evidence. Her approach was reasoned. She explained why she did not conclude
    that peripheral issues undermined the complainants credibility. Dealing with
    the appellants evidence, the trial judge observed in her reasons, at paras. 57
    and 58:

[The appellant] was aware that the complainant was made to feel
    uncomfortable by the touching and had breached a boundary. I find that it is
    unreasonable since joking and tickling were a part of their normal relationship
    that the complainant would have been made to feel uncomfortable by the
    defendant tickling her in the fashion that he testified to. She herself could
    not recall if the defendant tickled her over her clothes or directly on her
    skin before she testified that the nature of the touching changed. However it
    is clear from her evidence that his tickling her directly on her skin would not
    have been viewed by her at the time as unusual.

I find the defendants evidence to be unreasonable as to why,
    when he testified he was flabbergasted that the complainant was in his bedroom
    lying on the bed and refusing to leave, he would choose to lie down on the bed
    beside her and tickle her under her top. I note that it was her evidence that
    she was developing breasts and was wearing a bra at the time. Even though the
    complainant did not think that it was unusual that the defendant would tickle
    her on her skin, why would the defendant feel the need or believe that it would
    be alright to lie beside her, lift her top and tickle her on her skin at her stage
    of development? Indeed why did he need to lie on the bed with her and
    thereafter lift her top at all in order to tickle her to get her out of the
    bed? Why did he not just tickle her over her clothes? Why lie on the bed with
    her at all? The defendants actions were unreasonable to this regard.

[9]

In effect, the appellant is asking this court to retry this case. There
    is no basis for this court to interfere with the credibility findings made by
    the trial judge.

Adequacy of reasons

[10]

The reasons given by the trial judge are detailed and comprehensive. It
    is plain how she came to the conclusions she did. There is no basis to conclude
    that the reasons are inadequate.

Unreasonable verdict

[11]

The appellant submits that the verdict was unreasonable because it was
    based on unreasonable findings of credibility. In
R. v. P. (R.)
, 2012
    SCC 22, [2012] 1 S.C.R. 746, the Supreme Court stated, at para. 10:

Whereas the question whether a verdict is reasonable is one of
    law, whether a witness is credible is a question of fact. A court of appeal
    that reviews a trial courts assessments of credibility in order to determine,
    for example, whether the verdict is reasonable cannot interfere with those
    assessments unless it is established that they cannot be supported on any
    reasonable view of the evidence. [Citation omitted.]

[12]

Relying on
P. (R.)
, this court observed in
R. v. Sharp
(21 April 2016), Toronto, M42660, at para. 13:

The test for demonstrating an unreasonable verdict is an
    exacting one. The [appellant] must demonstrate that the verdict is one a judge
    or a properly instructed jury could not reasonably have rendered, or that the
    trial judge drew an inference or made a finding of fact essential to the
    verdict that is either (i) plainly contradicted by the evidence relied upon by
    the judge for that inference or finding, or (ii) shown to be incompatible with
    evidence that has not been contradicted or rejected. [Citation omitted.]

[13]

The convictions on the sexual interference and sexual assault counts are
    plainly reasonable on the findings made by the trial judge.

The relevant dates

[14]

The information, as framed, states that the offences took place between
    September 1 and November 30, 2001. The trial judge concluded that the assault
    occurred either in the fall of 2001 or January 2002. Both sides acknowledged at
    trial that the precise date of the incident was not material. They agreed the
    physical contact took place on the same date that the appellants relationship
    with the complainants mother ended, when she learned of her daughters complaint.

[15]

For this reason, the trial judge found that it was clear the complainant
    and the appellant were testifying about the same incident. Section 601(4.1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, provides that a variance
    between an information and the evidence adduced at trial is not material when
    it relates to the time when the offence is alleged to have been committed. The
    appellant was in no way misled about what incident the charges were in relation
    to, nor was he prejudiced in his defence.

Alleged procedural improprieties

[16]

The appellant also submits that questions asked by the trial judge to
    clarify evidentiary issues during the Crowns submissions were somehow
    improper. There is no basis for this suggestion.

Unlawful confinement conviction

[17]

The trial judge did not make any express findings on the unlawful
    confinement charge. Undoubtedly this is because the case was argued on an all
    or nothing basis, depending on the trial judges assessments of credibility. The
    Crown submits that the unlawful confinement conviction is nonetheless
    sustainable, based on the appellant having placed his arm over the complainant,
    preventing her from getting up while the assault was committed. The Crown
    submits that the appellants actions constrained the complainant and prevented
    her from leaving the bedroom, albeit briefly.

[18]

A conviction for unlawful confinement requires a finding that for any
    significant period of time, the complainant was physically restrained contrary
    to her wishes so that she could not move about from place to place, and a
    finding that the accused intended to confine the complainant. See
R. v.
    Gratton
(1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473-75, leave to
    appeal to S.C.C. refused, [1985] S.C.C.A. No. 118.

[19]

Absent findings as to the elements of unlawful confinement, the conviction
    on that count cannot be sustained. At the hearing of this appeal, the Crown agreed
    that, in that event, it would be content if the conviction for unlawful
    confinement were simply quashed, rather than a new trial ordered, leaving
    intact the concurrent sentence for sexual interference.

Disposition

[20]

In the result, the appeal is allowed to the extent of quashing the
    conviction for unlawful confinement, but is otherwise dismissed.

George R. Strathy
    C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.


