DATE: 20040830

DOCKET: C39893

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. J.C. B.-E. (A Young Person) (Appellant)

BEFORE: DOHERTY, LASKIN and JURIANSZ JJ.A.

COUNSEL: Alan D. Gold, for the appellant Lorna Bolton, for the respondent

HEARD: August 26, 2004

ORALLY

RELEASED: August 26, 2004

On appeal from the conviction entered by Justice Masse of the Ontario Court of Justice (Youth Court) dated February 17, 2003.

E N D O R S E M E N T

[1] This is a conviction appeal.

[2] The trial judge convicted the appellant on the basis that the complainant had initially consented to sexual intercourse but had, however, in the course of the sexual activity, withdrawn that consent, made that withdrawal known to the appellant, and he had continued with the sexual activity despite that consent. The complainant’s evidence as effectively summarized in the Crown’s factum at paras. 26 to 28, fully supported the trial judge’s conclusion.

[3] We cannot agree with Mr. Gold’s able submissions to the effect that the trial judge misapplied the principles in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). In assessing this argument, we must consider the reasons as a whole and not take passages from the reasons in isolation. We also proceed on the basis that trial judges are not required to follow any particular format, although one format may be a better way of expressing the W.(D.) principles than another.

[4] The trial judge set out the relevant passage from R. v. W.(D.). He reviewed the evidence, including the appellant’s evidence, at some length. He made it clear that his ultimate verdict must be based on the entirety of the evidence and required a consideration of whether on the entirety of the evidence there was a reasonable doubt. The trial judge referred to six factors which ultimately compelled him to accept the complainant’s evidence. While those factors were more or less cogent, at least some of them offered potentially strong support for the complainant’s evidence. We have in mind here the evidence of the bruising which the trial judge referred to in the course of listing those factors.

[5] The trial judge was also alive to the potential difficulties with the complainant’s credibility. He referred to the inconsistencies in her evidence and he considered what impact those inconsistencies should have on her credibility. We think, he was addressing the third stage of the W.(D.) instruction albeit in a slightly different order.

[6] Ultimately, the trial judge decided that the inconsistencies were not such as to leave him in doubt. In our view, this was a finding that was open to the trial judge and we cannot interfere with that credibility assessment.

[7] The appeal is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“R.G. Juriansz J.A.”