COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) and M. T. (Appellant)
BEFORE: CATZMAN, WEILER AND FELDMAN JJ.A.
COUNSEL: Gregory Lafontaine, for the appellant Leslie Paine, for the respondent
HEARD: June 13, 2000
On appeal from the conviction of Caputo J. dated February 14, 1999.
E N D O R S E M E N T
[1] We agree that the trial judge was not entitled to use prior consistent statements of the claimant to bolster her credibility in response to an allegation of recent fabrication. However, in our view the trial judge did not do that in this case. Rather, he drew an inference from the evidence and, in particular, from the inconsistencies which were brought out in evidence by defence counsel, that those were all of the inconsistencies in the complainant’s evidence and that, in the balance of her statements and testimony, she was consistent.
[2] In making the findings of consistency, the trial judge did not use those consistencies as a make-weight in favour of the credibility of the complainant, but only to delineate the areas of recent fabrication alleged for which he was bound to consider the complainant’s explanation in assessing her credibility and in making his findings.
[3] With respect to the trial judge’s finding of attempted anal intercourse, that finding was not unreasonable having regard to the plaintiff’s own description of that event in her testimony at the trial and to the nature of the medical evidence on that issue.
[4] We do not agree that the trial judge committed the error of reversing the onus when he noted in his reasons that the appellant had been unable to explain certain incriminating aspects of the physical evidence, such as the torn brassiere, found at the scene. The trial judge was not obliging the appellant to explain these pieces of evidence but only giving him an opportunity to raise a reasonable doubt by his explanation. This was a case where the appellant admitted intercourse and the defence was consent. Therefore, items of physical evidence which spoke to a non- consensual encounter would be evidence against the appellant unless there was an explanation which cast doubt on their probative value or significance. This conduct by the trial judge did not amount to a reversal of onus.
5In the result, the appeal is dismissed.