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. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Rosenberg, Tulloch and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Damian Hanson
Appellant
David E. Harris, for the appellant
Randy Schwartz, for the respondent
Heard: September 18, 2013
On appeal from the conviction entered on July 26, 201 by Justice Fred Graham of the Superior Court of Justice.
ENDORSEMENT
1At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.
2In this case the appellant and the complainant told diametrically opposed stories. She told a story of a demand for oral sex followed by forced sexual intercourse to which she did not consent. It is not correct to describe her testimony as equivocal on the issue of consent.
3The appellant told a story of being sexually assaulted by the complainant who forced him to engage in oral sex without his consent and then forcibly engaging in intercourse again without his consent. In those circumstances the issues were centred on credibility and that is how the trial judge, quite properly approached the case. The elements of the complainant’s evidence that the appellant relies upon as supporting consent, when considered in context did not negative consent but were at most issues going to credibility.
4The trial judge gave lengthy reasons which did not simply review the relevant evidence but analyzed that evidence and explained why he accepted the complainant’s evidence and rejected the appellant’s evidence. The trial judge expressly referred to that evidence from the complainant which the appellant says was supportive of the defence of consent. The fact that the trial judge referred to that evidence in the context of credibility assessment and bias did not demonstrate that he was not alive to its importance.
5The appellant submits that the trial judge erred in failing to consider that the complainant was less inhibited and therefore more likely to have consented because she drank two bottles of beer. But, this issue was never put to the complainant and there was no evidence from any witness, including the appellant, that the complainant’s behaviour was affected by the consumption of alcohol. In a similar vein, the appellant argues that the trial judge failed to give sufficient weight to the 15-year-old complainant’s motive to lie out of humiliation or embarrassment from having lost her virginity to a 20-year-old stranger. We disagree. The chronology of events simply does not support the appellant’s position.
6The trial judge was entitled to consider the complainant’s demeanour immediately after the assault, when she was able to get free from the appellant. That demeanour was inconsistent with consent.
7The trial judge explained why mistaken belief in consent was not available in this case. That defence did not arise from the appellant’s evidence or the complainant’s. This was not a case where it was possible to splice together pieces of the evidence of the appellant and complainant that would be capable of supporting the defence of mistake, see R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836.
8Finally, while the trial judge may have placed considerable emphasis upon the appellant’s evidence about a sweater, we cannot say that his conclusion was unreasonable. More importantly, as the respondent points out, this was but one of a number of internal and external inconsistencies that led the trial judge to reject the appellant’s evidence. The central reason the trial judge rejected that evidence was because it was simply incredible.
9Accordingly, the appeal is dismissed.
