COURT OF APPEAL FOR ONTARIO

DATE: 20000519

DOCKET: C32768

RE: HER MAJESTY THE QUEEN (Respondent) and WILLIAM THOMAS ROBERTSON (Appellant)

BEFORE: CARTHY, ROSENBERG and FELDMAN JJ.A.

COUNSEL: Irwin Koziebrocki, for the appellant Grace Choi, for the respondent

HEARD: May 9, 2000

On appeal from the conviction imposed by J.R. Morgan J. dated March 10, 1999.

ENDORSEMENT

[1] The Crown does not dispute that it was open to the trial judge to permit the defence to question the complainant on what she told the police about whether the act with the appellant was her first act of sexual intercourse. The Crown also does not dispute that it was open to the trial judge to permit the defence to call Ms. G. to contradict the complainant's denial that she told her she had intercourse with her boyfriend.

[2] Accordingly, we are not called upon to consider the correctness of allowing that extent of questioning on prior sexual conduct. We do agree that contradicting the complainant on whether in fact she had intercourse with her boyfriend or was abused by her father was irrelevant to any of the issues of the case except credibility and, therefore, the defence was not entitled to contradict the complainant by extrinsic evidence. Admission of this evidence would offend the collateral fact rule quite apart from the provisions of s.276 of the Criminal Code.

[3] As to the other grounds of appeal, we did not find it necessary to call upon Crown counsel. We do not agree that the trial judge improperly compartmentalized the defence evidence or erred in taking into account the appellant’s flight as conscience of guilt. We see no error in the manner in which the trial judge dealt with the complainant’s credibility.

[4] Accordingly, the appeal from conviction is dismissed. The sentence of four years’ imprisonment was well within the appropriate range and, accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

(signed) "J. J. Carthy J.A."

(signed) "M. Rosenberg J.A."

(signed) "K. Feldman J.A."