DATE: 20031118

DOCKET: C39685

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – WESLEY PAUL SHAWANAMASH (Respondent)

BEFORE: WEILER, LASKIN and MacPHERSON JJ.A.

COUNSEL:

Jennifer Woollcombe for the appellant

Timothy Breen for the respondent

HEARD & ENDORSED: November 13, 2003

On appeal from the acquittal entered by Justice R. J. Walneck of the Ontario Court of Justice dated February 12, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our opinion the trial judge’s reliance on the previous incident of consensual sex amounted to an error of law. This case was not fought on the issue of consent. The respondent’s position was that the alleged act of anal intercourse did not occur.

[2] Despite Mr. Breen’s able submissions, in our opinion the trial judge’s reasons run afoul of s. 276 of the Criminal Code. But for this error of law, we cannot say that the verdict would necessarily have been the same.

[3] Thus, the appeal must be allowed and a new trial ordered.