Court of Appeal for Ontario
Judges: Huscroft, George and Gomery JJ.A.
Between:
His Majesty the King
Respondent
and
A.B. Sazal
Appellant
Counsel:
Arif Hussain, for the appellant
Stephanie Pak, for the respondent
Heard: in writing
On appeal from the conviction entered by Justice Gillian E. Roberts of the Superior Court of Justice, on February 8, 2019, with reasons reported at 2019 ONSC 964.
REASONS FOR DECISION
1The appellant argues that the trial judge misapprehended the evidence against him, in particular the evidence concerning his semen found on a towel the complainant had been wearing during the alleged sexual assault.
2We do not agree.
3The test for misapprehension of evidence set out in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 is a stringent one that is not met here. The appellant testified that his semen was on the complainant’s towel because he was having an affair with the complainant’s mother, and that she had used the towel to clean him off after they had had sex. This evidence was rejected by the trial judge. She found that there was no affair and that, in any event, it was implausible that the mother would have used the complainant’s towel to clean the appellant. The trial judge accepted the evidence of the complainant and her mother and concluded that the evidence of the semen on the complainant’s towel was “powerful confirmation” of the complainant’s evidence. These findings were open to the trial judge and there is no basis to interfere with them.
4Nor is there any basis to conclude that the trial judge erred in considering the evidence as to where the towel was left by the complainant and later recovered by the police. The trial judge recognized that there were inconsistencies in the evidence concerning the location of the towel but noted that any inconsistency did not undermine the significance of the appellant’s semen on it and its confirmation of the complainant’s evidence. We agree.
5The appeal is dismissed.
"Grant Huscroft J.A."
"J. George J.A."
"S. Gomery J.A."
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C.-46.