COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and- J. M.
(Appellant)
BEFORE: MCMURTRY C.J.O., LASKIN AND BORINS JJ.A.
COUNSEL: Owen Wigderson, for the appellant
Alison Hurst, for the respondent
HEARD: June 9, 2000
On appeal from the conviction by Jennings J. dated June 10, 1999.
E N D O R S E M E N T
1The appellant seeks leave to appeal on a question of law
under s. 839(1)(a) of the Criminal Code from the decision of the
summary conviction appeal judge, Jennings J., dismissing his
appeal from his conviction for sexual assault by Couto J. The
only ground of appeal is that Jennings J. erred in upholding the
trial judge’s refusal to permit the defence to cross-examine the
complainant about a prior sexual assault complaint which she had
made against a different person.
2The proposed cross-examination of the complainant was with
respect to a collateral matter. In R. v. Riley (1992), 11 O.R.
(3d) 151, this court held that the defendant’s cross-examination
of the complainant about an alleged prior false complaint should
not be permitted unless the “defence is in a position to
establish that the complainant has recanted her earlier
accusations or that they are demonstrably false”. We are
satisfied that in R. v. W. (B.A.), 1992 24 (SCC), [1992] 3 S.C.R. 811, decided
very shortly after Riley, the Supreme Court neither expressly,
nor implicitly, departed from the principle stated in Riley.
3Moreover, as the proposed line of questioning related to a
collateral matter, the trial judge’s decision to exclude the
cross-examination involved the exercise of his discretion: R. v.
Meddoui, 1991 42 (SCC), [1991] 3 S.C.R. 320 at 320-21.
4In our view, Jennings J., for the reasons which he gave,
correctly found no basis on which to interfere with the trial
judge’s exercise of his discretion.
5Accordingly, we would grant leave to appeal and dismiss the
appeal.
“R.R. McMurtry C.J.O”
“John I. Laskin J.A.”
“S. Borins J.A.”