



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. O.K.S., 2021 ONCA 794

DATE: 20211108

DOCKET: C67561

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.K.S.

Appellant

Najma Jamaldin, for the appellant

Jerry Brienza, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the convictions entered by Justice Mohammed
    M. Rahman of the Ontario Court of Justice on November 7, 2018, with reasons
    reported at 2018 ONCJ 837.

REASONS FOR DECISION

[1]

O.K.S. appeals his convictions for sexual assault and assault. Without
    providing an exhaustive list of the complaints made, the appellant says that
    the trial judge relied on stereotypical beliefs; misapprehended the evidence;
    failed to properly consider inconsistencies in the complainants evidence; and
    applied an unequal standard of scrutiny of the evidence. At the conclusion of
    the hearing, we dismissed the appeal with reasons to follow. We now provide our
    reasons.

[2]

The appellant and the complainant were married. There were no children. They
    had contrasting views of the state of their marriage at the time of the
    incident that gave rise to the charges. The complainant said that the marriage
    was an unhappy one. She accused the appellant of having affairs. She also
    admitted to having an affair herself. The complainant said that the only reason
    she remained in the relationship was because she was the sponsor for the
    appellant with respect to his immigration status in Canada.

[3]

In contrast, the appellant says that the marriage was a happy one. He said
    that any issues in the marriage arose from the complainants drinking, which
    she tended to do to excess. The affair that the complainant engaged in, which
    she originally denied, was also a recent source of stress.

[4]

The incident that led to the charges began with the appellant and the
    complainant going out to a bar. They returned home and began having sex. The
    complainant said that the appellant became angry with her when the complainant
    made a comment about his performance. The complainant says that the appellant
    struck her. He also demanded her phone which he eventually smashed. The
    contents of her phone were believed by the appellant to tie back into the
    complainants affair which the appellant realized had, in fact, occurred. The
    complainant says that the appellant then forced her to have sexual intercourse.

[5]

The appellants version of the incident was different. He agreed that,
    at the outset, they had consensual sex. However, the appellant says that he
    became upset when the complainant suggested engaging in a sex act that he was
    not interested in. This suggestion caused the appellant to become suspicious
    about whether the complainant had, in fact, had an affair. He demanded to see
    her iPad which the complainant opened for him after the appellant said he would
    break it if she did not. The appellant found messages with another man. He
    became upset and punched the wall. The appellant then told the complainant that
    he was leaving.

[6]

The trial judge was left with the task of resolving these competing descriptions
    of the events. In his reasons, he properly set out the test from
R. v. W.
    (D.)
, [1991] 1 S.C.R. 742. The trial judge was aware that, in order to
    convict the appellant, he needed not only not to believe the appellants
    evidence but also find that it did not raise a reasonable doubt. He then had to
    accept that the complainants evidence established the guilt of the appellant
    beyond a reasonable doubt.

[7]

None of the criticisms made by the appellant with respect to the trial
    judges analysis and conclusion are made out on the record before us. The trial
    judge gave thorough and careful reasons in which he reviewed the evidence in
    detail. He found that he did not believe the appellant and that his evidence
    did not raise a reasonable doubt, and he gave a number of reasons for that
    conclusion. The trial judge did not engage in any stereotypical assumptions in
    reaching his conclusion.

[8]

The trial judge then proceeded to consider and accept the complainants
    evidence. He noted that her evidence was confirmed, at least in part, by
    photographs taken of her neck and face two days after the alleged assault. The
    trial judge also directly addressed the issues raised regarding the complainants
    evidence (largely allegations of inconsistencies) and found that those issues
    did not detract from her credibility and reliability. We do not see any basis
    for the assertion that the trial judge applied an unequal level of scrutiny to
    the evidence as between the appellant and the complainant.

[9]

The appellant essentially asks us to retry the case. That is not our
    role. The appellant must demonstrate that the trial judge either committed an
    error of law or made a palpable and overriding error of fact. He has failed to
    establish either.

[10]

It is for these reasons that the appeal was dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer J.A.


