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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Weiler, Sharpe and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.R.
Appellant
Jennifer Trehearne and Joshua Frost, for the appellant
Avene Derwa, for the respondent
Heard: February 7, 2014
On appeal from the conviction entered on October 3, 2011 by Justice M. Rocheleau of the Ontario Court of Justice.
ENDORSEMENT
1The appellant appeals his conviction for sexual assault. The issue at trial was credibility. The complainant testified that the appellant forced her to have sex. The appellant testified that they did have sex but that it was consensual. The appellant submits that the complainant’s evidence contained many inconsistencies and that the reasons given by the trial judge for accepting her evidence and rejecting his evidence are inadequate and reveal legal error.
2As is often the case in a busy trial court where oral reasons for judgment are given, the trial judge’s reasons in this case are not ideal. However, despite the able argument presented by Ms. Trehearne, we are not persuaded that appellate intervention is called for in this case.
3While standing on their own, the problems with the appellant’s evidence identified by the trial judge were far from compelling, they did carry some weight.
4We do not accept the submission that the trial judge engaged in the type of forbidden reasoning discussed in R. v. Maharajah (2004), 2004 39045 (ON CA), 186 C.C.C. (3d) 247 at para. 30: I accept the evidence of the complainant; the complainant’s evidence differs from the evidence of the accused on material matters; therefore, I do not believe the evidence of the accused and I find that the Crown’s case is proved beyond a reasonable doubt. As pointed out in R. v. J.J.R.D. (2006), 215 C.C.C. (3d)] 252 at para. 53: “[A]n outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence” provides a proper basis for rejecting the accused’s evidence provided that the trial judge goes on to consider whether, notwithstanding her rejection of the accused’s evidence, it raises a reasonable doubt. No reversal of the onus of proof takes place in such circumstances. In the present case, the trial judge did not simply proceed directly from finding that the complainant was credible to concluding that the allegations were proved beyond a reasonable doubt. Earlier in her reasons, the trial judge recited the R. v. (W.D.) formula and, reading her reasons as a whole, we are satisfied that she proceeded through the three stages of analysis and found that on all the evidence the Crown had proved its case beyond a reasonable doubt.
5The trial judge offered several reasons for accepting the complainant’s evidence. While the appellant impugned each reason, we see no need to address each one individually and will only make brief comment. In particular, the trial judge found that when the complainant returned to her friends at the Subway restaurant following her brief visit to the appellant’s apartment, she was in a state of upset and distress. It was open to the trial judge to conclude that the complainant’s demeanor within minutes of the encounter at the apartment was entirely inconsistent with the appellant’s claim that they had engaged in consensual sex and that when the complainant left his apartment she was not upset.
6The complainant testified that when she went to the complainant’s apartment she was menstruating. She testified that she thought the appellant had removed the tampon she was using before he sexually assaulted her. The appellant testified that the complainant had removed the tampon from her vagina before they engaged in consensual sex. When she was examined at the hospital, a tampon was found in her vagina. The complainant testified that she had no other tampon with her and had not replaced it. The trial judge accepted this evidence and concluded that the complainant was mistaken in thinking the appellant had removed the tampon. On this evidence, it was open to the trial judge to conclude that if the complainant had consented to sexual intercourse she herself would have ensured that the tampon that was later found in her vagina at the hospital had been removed.
7The trial judge was alive to inconsistencies in the complainant’s evidence. It was for the trial judge to decide what weight to give to the cumulative effect of the inconsistencies. The trial judge concluded that given the considerable period of time that had passed between the incident and the trial, the complainant’s evidence was nonetheless reliable on the central issue of consent. It was open to her to do so. The verdict was not unreasonable.
8Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
