COURT OF APPEAL FOR ONTARIO

DATE: 20061023

DOCKET: C41419

RE: HER MAJESTY THE QUEEN (Respondent) v. D.C.V. (Appellant)

BEFORE: O’CONNOR A.C.J.O., DOHERTY and MACFARLAND JJ.A.

COUNSEL: Mangesh Duggal for the appellant Debbie Calderwood for the respondent

HEARD: October 13, 2006 RELEASED ORALLY: October 13, 2006

On appeal from the conviction entered by Justice D. Maund of the Ontario Court of Justice (Youth Justice Court) dated May 16, 2003.

E N D O R S E M E N T

[1] The appellant argues that the trial judge misapprehended the appellant’s evidence when in the trial judge’s reasons he indicated that the appellant did not testify that he asked the complainant if she was “okay” with the sexual activity at any stage while that activity was going on.

[2] The trial judge accurately summarized the appellant’s evidence during his examination-in-chief. The appellant testified that no such question had been put to him by the complainant. In cross-examination, the appellant gave different answers to what was essentially the same question. At one stage in his cross-examination, he repeated what he had said during examination-in-chief. On two occasions in cross-examination, he indicated that he had in fact asked the complainant whether she was “okay” and that she had not given any response.

[3] We do not agree that the trial judge’s reasons demonstrate any misapprehension of this part of the evidence. At most, it could be said that the trial judge did not separately articulate each and every response given by the appellant in the course of his evidence to what was essentially the same question. The trial judge’s failure to recite all of the various answers given by the appellant was, in our view, of no moment. The trial judge’s review of the evidence on this issue was significant for two reasons. First, it demonstrated that the appellant’s evidence as to the complainant’s reaction during the activity was very different in his evidence than it had been in the two statements he gave to the police. In the statements, he indicated that the complainant was a willing and enthusiastic participant in the event. In his evidence, the appellant portrayed the complainant as someone who was initially willing but by the end of the events had come very much to regret what was going on. Second, parts of the cross-examination not referred to by the trial judge hardly assisted the appellant. At their highest, they suggested a callous disregard for the complainant during the sexual activity.

[4] The appellant also argued that the trial judge misapprehended the evidence of the co-accused. The co-accused was tried separately and was called as a witness at the appellant’s trial by the Crown. We were referred to one misstatement of fact by the trial judge. The trial judge indicated that the co-accused’s evidence differed from the appellant’s in that the co-accused testified that he had removed the complainant’s pants whereas the appellant testified that it was the appellant who did so. In fact, both testified that the appellant had removed the pants and the trial judge misstated this part of the co-accused’s evidence.

[5] The misstatement was, in our view, minor. Indeed, it was clearly irrelevant to the trial judge’s overall analysis of the evidence and her credibility assessment. Certainly, the error does not come close to the kind of material misapprehension of the evidence that would warrant appellate intervention within the trial judge’s findings of fact.

[6] Two other arguments were advanced on behalf of the appellant in counsel’s factum. Counsel did not present oral argument on those issues. We have considered them and are satisfied that there is no merit to them.

[7] The appeal is dismissed.

“D. O’Connor A.C.J.O.”

“Doherty J.A.”

“J. MacFarland J.A.”