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
1In 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.
2Despite 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.
3Thus, the appeal must be allowed and a new trial ordered.