



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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.B., 2019 ONCA 361

DATE: 20190503

DOCKET: C65189

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.B.

Appellant

Ian McCuaig, for the appellant

Candice Suter, for the respondent

Heard: May 1, 2019

On appeal from the conviction entered on September 5,
    2017 Justice James W. Sloan of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault and sexual interference
    after a trial before a judge of the Superior Court of Justice sitting without a
    jury. At the conclusion of the hearing we dismissed the appeal with reasons to
    follow. We now provide those reasons.

The Background Facts

[2]

The complainant was 31 years old when she testified. She gave evidence
    of three separate incidents involving the appellant. These, she said, took
    place when she was nine or ten years old and the appellant was visiting and
    looking after her.

[3]

In her testimony, the complainant had some difficulty recalling the
    precise timing and details of these incidents. However, her evidence was
    confirmed in part by the testimony of others, namely, her childhood best friend,
    her friends father, and her mother.

[4]

The appellant testified at trial. He denied the incidents described by
    the complainant or that he had ever engaged in any inappropriate sexual contact
    with her. An integral part of the defence position was that the timeline relied
    upon by the Crown, and reflected in the counts on the indictment, was flawed.
    No such conduct
could
have occurred because the appellant had no
    relationship with the complainant or her mother at that time.

[5]

The trial judge rejected the appellant's testimony. He did not believe
    him, nor did his evidence raise a reasonable doubt about the appellant's guilt.
    The complainants testimony, coupled with the balance of the evidence, satisfied
    the judge beyond a reasonable doubt about the appellant's guilt.

The Arguments on Appeal

[6]

In this court, the appellant contends that the trial judge erred in
    reaching his conclusion that guilt had been proven beyond a reasonable doubt by
    applying uneven scrutiny to the evidence of the complainant and that of the
    appellant. This uneven scrutiny, the appellant says, is made clear by three
    specific errors on the part of the trial judge:

i.

in concluding that the evidence of the witness, R.C., contradicted the
    appellant's testimony when it in fact bolstered or supported it;

ii.

in relying on prior consistent statements of the complainant as
    bolstering her credibility; and

iii.

in
    finding that the complainant had no motive to lie and impermissibly relying on
    this finding to bolster the complainant's credibility.

Discussion

[7]

As this court has said many times when an argument of uneven scrutiny is
    advanced, it is a very difficult claim of error to put forward successfully. It
    fails in this case.

[8]

In our view the appellant has not pointed to anything in the record or
    the reasons that confirms that the trial judge actually applied different
    standards of scrutiny in his assessment of the evidence of the complainant, on
    the one hand, and the appellant, on the other. Without more, the fact that the
    trial judge believed the evidence of the complainant and disbelieved that of
    the appellant does not establish that the judge applied uneven scrutiny in
    doing so.

[9]

We are not satisfied that the trial judge misstated R.C.'s evidence in a
    way that contradicted the appellant's evidence or that he used such a mistaken
    view of that evidence to reject the timeline described by the appellant. The
    trial judge reached his conclusion about the no-contact date having considered
    R.C.'s evidence alongside the evidence of his daughter. This conclusion was
    open on the evidence.

[10]

Nor
    are we persuaded that the trial judge improperly used evidence of the
    complainant's prior disclosure of the incidents to R.C., her family doctor, and
    in a failed report to police in 1997. We do not read the trial judge's reasons
    as indicative of use of these statements as evidence that the incidents
    disclosed by the complainant had occurred. In our view, fairly read, the
    reasons make it clear that the use of this evidence was for the entirely
    permissible purpose of understanding the narrative and assessing the
    complainant's credibility. See,
R. v. Dinardo
, [2008] 1 S.C.R. 788, at
    paras. 36-38.

[11]

Finally,
    we do not accept that the trial judge erred by confusing the absence of evidence
    of a motive to lie with absence of a motive to lie and using it as supportive
    of the credibility of the complainant. The trial judge simply concluded that
    there was no evidence in the record of any motive to lie on the part of the
    complainant. He did not consider that there was no motive to lie nor did he use
    such an absence of motive to buttress the credibility of the complainant.

Conclusion

[12]

It
    is for these reasons that the appeal was dismissed.

David Watt J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


