



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.




WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.S., 2021 ONCA 804

DATE: 20211112

DOCKET: C68648

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.S.

Appellant

John K. Lefurgey, for the appellant

Natalya Odorico, for the respondent

Heard: November 8, 2021

On appeal from the conviction entered on
    February 20, 2020 by Justice Peter D. Griffiths of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge misapprehended the evidence
    when he concluded that the appellant had sexually assaulted the complainant
    when she was between 11 and 13 years old, between 1995 and 1999. We are not
    persuaded that the trial judge misapprehended the evidence and dismiss the
    appeal.

[2]

The complainant testified that she first met the appellant when she was
    in grade six, in the fall of 1995, when he was dating her mother. In the years
    that followed, the complainant and her mother lived at three different
    addresses. The appellant moved in with the complainants family at the second
    of those addresses and continued living with them at the third address. The
    complainant was an adult at the time of trial and was testifying to events that
    had occurred 22 years earlier, when she was a child. She said the assaults
    occurred before the appellant moved in with them and continued until he moved
    out of the third address.

[3]

There were problems in her evidence as to the timing and the place of
    the assaults. For example, she testified that the assaults first began at the
    appellants home on Navy Street, but the appellant did not move into that home
    until 1997, after he broke up with the complainants mother.

[4]

The trial judge noted that a crucial point of evidence for the Crown
    and the defence is that the appellant has the words fuck you inscribed on
    his penis. The complainant testified that she saw those words and that tattoo
    every time she saw the appellant nude, and that she saw him nude many times
    over several years that the assaults continued. The trial judge accepted that
    the appellant acquired the tattoo after he broke up with the complainants
    mother and moved out of her home in August 1996. The complainant also testified
    that the abuse stopped after he moved out.

[5]

The appellant argues that the trial judge misapprehended the evidence by
    concluding that the abuse must have continued after he moved out of the home,
    when there was no evidence that the assaults continued after that point.

[6]

The trial judge concluded that the complainant was mistaken about the
    precise location and times when the assaults occurred but was convinced that
    invasive sexual assaults described by her had in fact occurred.

[7]

He observed,

But this is one of those occasions
    when I have to consider that [the complainant], an adult woman, is testifying
    with the memories and the observations essentially of an 11- and 12-year-old
    girl. The tattoo would be very startling and very unusual, and certainly very
    memorable. It would not surprise me if 22 years later the fact of the tattoo is
    more memorable than when it was acquired. I find that her recollection that the
    tattoo was always there is an inconsistency with the evidence but does not in
    my view undermine [the complainants] credibility.

[8]

The trial judge was convinced that the complainant had accurately
    described the ongoing course of numerous repeated sexual assaults in their
    essential nature. Her evidence about the conduct she ascribed to the appellant
    was detailed and persuasive. There was no suggestion that she was deliberately
    fabricating the allegations. The issue was the reliability of her evidence.

[9]

The trial judge was alive to the inconsistencies the defence argued made
    the complainants evidence unreliable. It was open to the trial judge to
    reconcile those differences by accepting some parts of the complainants
    evidence and rejecting other parts. The trial judge noted that her memory was
    unreliable as to where the events happened but not about what happened. The
    trial judge implicitly came to the same conclusion about when the assaults
    occurred.

[10]

These
    inferences were reasonably available to the trial judge. There was no
    misapprehension of the evidence, and the appeal is accordingly dismissed.

Doherty J.A.

G. Pardu J.A.

J.A. Thorburn J.A.


