



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. N.K., 2021 ONCA 13

DATE: 20210111

DOCKET: C64694

Juriansz, Tulloch and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.K.

Appellant

Alexander Ostroff, for the appellant

Adam Wheeler, for the respondent

Heard: September 3 2020 by
    videoconference

On appeal from the conviction entered by
    Justice Calum U. C. MacLeod of the Superior Court of Justice on July 5, 2017, with
    reasons reported at 2017 ONSC 3988, and from the sentence imposed on October
    13, 2017, with reasons reported at 2017 ONSC 5931.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals his convictions and
    sentence, following a judge alone trial on charges of sexual assault, assault,
    criminal harassment, and uttering threats to kill an animal. He was sentenced
    to a global term of five years and 11 months incarceration, less five months
    credit for pre-sentence custody.

[2]

On October 7, 2014, the complainant, then 21,
    accompanied the appellant, then 51, from Ottawa to a cottage near Bancroft. Both
    the complainant and appellant testified at trial and each gave differing
    versions of the events that transpired on the night in question.

[3]

The complainant testified the appellant took her
    to the cottage under the false pretense she would be attending a family party. Instead,
    she found herself alone with the appellant, not knowing where she was, and with
    no way of leaving.

That night,
    after becoming angry with her for resisting his sexual advances and after
    threatening to kill her dog, the appellant forced her to engage in sexual
    activity.

[4]

The appellant gave a different version. He testified
    that he had a long-standing sexual relationship with the complainant and that,
    on the night in question, she had gone to the cottage with him willingly, and that
    they engaged in consensual sexual activity.

[5]

The following morning, the appellant and the
    complainant were involved in a car accident, resulting in the car going off the
    road and rolling into a ditch. The complainant, who was injured, crawled out of
    the sunroof, and asked residents of a nearby house to call 911. She was
    subsequently taken by paramedics to a hospital.  On two separate occasions,
    when asked if she was sexually assaulted, she denied she was sexually
    assaulted.  She was first asked by the paramedic who took her to the hospital,
    and then while at the hospital, she was asked by a nurse.

[6]

The appellant also left the scene.  He was
    located at a nearby gas station and arrested by the police, at which time he
    denied there was anybody else in the car with him.

[7]

Upon returning to Ottawa, the appellant
    attempted to contact the complainant multiple times. He attended at her
    residence several times, once entering her apartment with keys she left at the
    cottage. He slipped disturbing notes under her door. The complainant
    subsequently contacted the police who advised her that they could take no
    action against the appellant unless she applied for a peace bond.  The complainant
    then applied for a peace bond, at which time, she disclosed the allegations of sexual
    assault for the first time.

Discussion

[8]

The appellant
    submits that the trial judge failed to properly apply the
W.(D)
principle,
    reversed the burden of proof, and applied uneven scrutiny to the evidence. We
    do not accept these arguments.

[9]

The trial judge
    set out his understanding of the principles of
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, in detail before beginning his analysis of the evidence,
    and structured his analysis accordingly. For example, he explained, at para.
    20, that he would deal with the appellants evidence first though he heard it
    last because he would be bound to acquit [the appellant] if [he] found that
    evidence either completely compelling or at least sufficient to raise a
    reasonable doubt.

[10]

The trial
    judges reasons when read as a whole demonstrate his understanding that the
    trial was not simply a credibility contest between the complainant and the
    appellant. In assessing the appellants evidence in light of all the evidence
    at trial, it was proper for the trial judge to compare the evidence of the
    appellant to the evidence of the complainant.

[11]

We are not
    persuaded that the trial judge applied an uneven scrutiny to the evidence of
    the appellant and of the complainant or otherwise erred in his assessment of
    the complainants credibility. The trial judge found the complainants 
    evidence about non-essential matters, such as when the relationship started and
    when the complainant had veterinary appointments, had discrepancies that may
    give rise to concern about the accuracy of the unaided recollection of the
    complainant. He found her forthright in acknowledging those discrepancies and concluded
    the discrepancies did not undermine the important points in her evidence. After
    carefully considering the defects in the complainants credibility and
    reliability, he was entitled to accept, as he did, her explanations for her
    initial denials she had been sexually assaulted and her testimony that the
    sexual activity at the cottage was not consensual.  A trial judge can accept
    some, none, or all of a witness evidence.

[12]

By contrast, the
    appellants evidence was replete with many unexplained contradictions and
    inconsistencies. The number of times he claims to have had sex with the
    complainant ranged from less than 10 to between 66 and 107 times. He refused to
    admit and could not explain the discrepancy in his evidence on this point. He repeatedly
    claimed to have left the complainants cell phone in her apartment after the
    collision, and when confronted with cell phone records that placed the phone
    with him, he claimed there was a well orchestrated plot to frame him. The
    appellant did not point to any matter that made it clear the trial judge
    actually applied different standards of scrutiny in assessing the evidence of
    the appellant and complainant: see
R. v.
    Radcliffe
, 2017 ONCA
    176, 347 C.C.C. (3d) 3, at paras. 23-25.
R.
    v. Kiss
, 2018 ONCA 184,
    on which the appellant relies, was an entirely different case. Here, the trial
    judge considered and accepted the complainants explanations for the
    discrepancies in her evidence while the appellant offered none. He did not, as
    the appellant argues, simply disregard the inconsistencies in the complainants
    evidence because she acknowledged them. On the other hand, the trial judge considered
    possible explanations for the discrepancies in the appellants evidence, such
    as confusion about dates, but found them inadequate. Unlike in
Kiss
, the
    trial judge did not [expect] more of [the appellant] than he did of [the
    complainant].:
Kiss
, at para. 96.

[13]

The appeal from
    conviction is dismissed.

[14]

The appellant is
    granted leave to appeal sentence. He submits that the trial judge erred by
    failing to explain why his pre-sentence time under strict house arrest was not
    taken into account and, in any event, that the trial judge miscalculated the
    credit for his time in pre-trial custody.

[15]

If the trial
    judges failure to grant the appellant some credit for his time under house
    arrest was an error, it did not materially affect the sentence imposed, which was
    entirely fit: see
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41, at
    paras. 106-108;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 36-55.

[16]

The Crown
    concedes that the trial judge appears to have miscalculated the appropriate
    credit for the appellants period in pre-sentence custody. The trial judge
    allowed a credit of five months but, correctly calculated, the credit should be
    six months and a day. The Crown also states that the victim fine surcharge
    imposed should be set aside in light of the Supreme Courts decision in
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599, at paras. 110-111.

[17]

The appeal
    from sentence is allowed, the credit for pre-sentence custody is varied to six
    months plus one day, and the victim fine surcharge in the amount of $800 is set
    aside. The balance of the sentence appeal is dismissed.

R.G. Juriansz J.A.

M. Tulloch J.A.

M. Jamal J.A.


