COURT OF APPEAL FOR ONTARIO

DATE: 20000626

DOCKET: C32351

RE: HER MAJESTY THE QUEEN (Respondent) –and- J. M.

(Appellant)

BEFORE: MCMURTRY C.J.O., LASKIN AND BORINS JJ.A.

COUNSEL: Owen Wigderson, for the appellant

Alison Hurst, for the respondent

HEARD: June 9, 2000

On appeal from the conviction by Jennings J. dated June 10, 1999.

E N D O R S E M E N T

[1] The appellant seeks leave to appeal on a question of law

under s. 839(1)(a) of the Criminal Code from the decision of the

summary conviction appeal judge, Jennings J., dismissing his

appeal from his conviction for sexual assault by Couto J. The

only ground of appeal is that Jennings J. erred in upholding the

trial judge’s refusal to permit the defence to cross-examine the

complainant about a prior sexual assault complaint which she had

made against a different person.

[2] The proposed cross-examination of the complainant was with

respect to a collateral matter. In R. v. Riley (1992), 11 O.R.

(3d) 151, this court held that the defendant’s cross-examination

of the complainant about an alleged prior false complaint should

not be permitted unless the “defence is in a position to

establish that the complainant has recanted her earlier

accusations or that they are demonstrably false”. We are

satisfied that in R. v. W. (B.A.), 1992 24 (SCC), [1992] 3 S.C.R. 811, decided

very shortly after Riley, the Supreme Court neither expressly,

nor implicitly, departed from the principle stated in Riley.

[3] Moreover, as the proposed line of questioning related to a

collateral matter, the trial judge’s decision to exclude the

cross-examination involved the exercise of his discretion: R. v.

Meddoui, 1991 42 (SCC), [1991] 3 S.C.R. 320 at 320-21.

[4] In our view, Jennings J., for the reasons which he gave,

correctly found no basis on which to interfere with the trial

judge’s exercise of his discretion.

[5] Accordingly, we would grant leave to appeal and dismiss the

appeal.

“R.R. McMurtry C.J.O”

“John I. Laskin J.A.”

“S. Borins J.A.”