R. v. Cobb, 2008 ONCA 121

ENDORSEMENT

1We tend to agree with the appellant that demeanour sometime after the event and at trial was not confirmatory of lack of consent, but we are also satisfied that the use of the evidence did not result in any substantial wrong or miscarriage of justice.

2The context is important. The issue of demeanour sometime after the event and at the trial was introduced by defence counsel who suggested that the complainant’s apparent calm demeanour was inconsistent with lack of consent. We view the trial judge’s comments largely as a response to defence counsel’s observations and not as an improper reliance on her demeanour as proof of guilt. The trial judge gave several reasons for finding that there was no consent that did not turn on the complainant’s demeanour. He also explained why he found the appellant’s version of the events was incredible.

3The appellant also submits that the trial judge failed to resolve critical issues that went to credibility. We do not take the same view of the importance of these issues. As to the lack of dirt on the clothing, the complainant gave an explanation for the lack of dirt and as she pointed out, the clothing was only taken from her many hours after the attack. As to the personal information, we are of the view that this was a peripheral issue. Finally, as to the appellant giving the complainant his telephone number, it appears that the trial judge accepted the complainant’s evidence that this occurred well before the attack. As such, it was not inconsistent with the later non-consensual offence.

4Accordingly the appeal is dismissed.

Signed: