COURT OF APPEAL FOR ONTARIO
DATE: 20000728
DOCKET: C30322
RE: HER MAJESTY THE QUEEN (Respondent) –and– G. B.
(Appellant)
BEFORE: ROSENBERG, MacPHERSON and SHARPE JJ.A.
COUNSEL: Carol Cahill, for the appellant
David Lepofsky, for the respondent
HEARD: July 27, 2000
On appeal from the conviction imposed by The Honourable Madam
Justice Rose Boyko, sitting with a jury, dated March 19, 1998.
E N D O R S E M E N T
[1] Based on the material before her, the trial judge properly
dismissed the application to adduce evidence of other sexual
conduct under s.276 of the Criminal Code. In her subsequent
testimony, the complainant stated that she was a virgin. The
appellant did not renew the application under s.276. In any
event, none of the proposed evidence put before the trial judge
was relevant to any issue raised by the complainant’s testimony.
[2] The charge to the jury was fair and balanced and properly
dealt with all the issues. The appeal from conviction is
dismissed.
[3] As to sentence, we do not read the trial judge’s reasons as
indicating that a conditional sentence can never be imposed in
cases of sexual assault. These, however, were serious offences
involving grave breach of trust on a vulnerable victim. The
trial judge did not make any error in principle in refusing to
impose a conditional sentence.
[4] Leave to appeal sentence is granted but the appeal is
dismissed.
Signed: “M. Rosenberg J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”