



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any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C. 2014,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identify the victim shall not be published in any document or broadcast or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.S., 2019 ONCA 14

DATE: 20190111

DOCKET: C65299

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.S.

Appellant

Jeff Marshman, for the appellant

Manasvin Goswami, for the respondent

Heard: January 10, 2019

On appeal from the conviction entered by Justice June Maresca
of the Ontario Court of Justice on November 10, 2017.



APPEAL BOOK ENDORSEMENT

[1]

There are three grounds of appeal.

(1)

Did the Trial Judge Fail to Resolve the Conflict in the Evidence in Respect
of the Disclosure Narrative

[2]

The trial judge reviewed the evidence at length. She found strong
indicia of the reliability and credibility of the complainants evidence. That
finding was warranted on the evidence. The complainants evidence was also
supported by other evidence, including the evidence concerning the timing of
the appellants departure from the home.

[3]

In our view, the reasons provide adequate insight into the basis upon
which the trial judge preferred the evidence of the complainant over the evidence
of the other witnesses in respect of the timing of the disclosure narrative.

(2)

Did the Trial Judge Erroneously Conflate the Absence of Evidence of a
Motive to Fabricate with a Proven Absence of Motive

[4]

The reasons do not support this submission. There are two references in
the reasons to motive: see pp. 177, 178-179. The first is merely a summary of
the state of the evidence. The second accurately sets out the burden of proof
on this issue. It is not, in our view, a finding by the trial judge of a proven
absence of motive.

(3)

Did the Trial Judge Subject the Evidence of the Appellant to a Higher
Level of Scrutiny

[5]

Both counsel advanced careful and detailed submissions on this point in
their factums. We see no need to rehash those submissions. The standard of
review is well understood. We agree with the respondent that there was no
material misapprehension of the evidence, and we also accept the submission
that the credibility assessments were firmly rooted in the evidence. We would
not give effect to this argument.

[6]

The appeal is dismissed.




