WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Strathy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
B.L.
Appellant
Timothy E. Breen for the appellant
Megan Stephens for the respondent
Heard: July 16, 2013
On appeal from the conviction entered on June 22, 2011 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
1The appellant’s principal attack on the trial judge’s reasons focuses on the trial judge’s assessment of the credibility of the main complainant and of the accused. We see no error in the trial judge’s credibility assessment. He applied the principles in W.D. and he gave specific reasons why he accepted the evidence of the complainant and rejected the evidence of the appellant. In doing so, he dealt with the defence’s argument on the complainant’s alleged motive to fabricate and on the alleged inconsistencies in her evidence. These were proper matters for the trial judge to consider in his credibility assessment. In considering them, the trial judge did not shift the burden of proof or use the complainant’s previous statements to confirm her trial testimony. Accordingly, we decline to give effect to the appellant’s principal ground of appeal.
2The appellant’s related different standards of scrutiny argument also fails. We see nothing in the trial judge’s reasons that show he clearly applied different standards of scrutiny to the evidence of the complainant and the evidence led by the defence.
3Finally, we do not agree with the appellant’s argument that the trial judge erred by admitting discredible conduct evidence of the appellant’s extramarital affair, and then further erred by improperly using this evidence to reject the appellant’s testimony. The evidence of the appellant’s extramarital affair came out as part of the narrative and was largely elicited by the defence. The trial judge did not use this evidence to engage in impermissible propensity reasoning. Rather, he used it as one example of an inconsistency casting doubt on the credibility of the appellant’s testimony.
4Accordingly, the appeal is dismissed.