COURT OF APPEAL FOR ONTARIO

DATE: 20000619

DOCKET: C31996

RE: HER MAJESTY THE QUEEN (Respondent) and M. T.
(Appellant)

BEFORE: CATZMAN, WEILER AND FELDMAN JJ.A.

COUNSEL: Gregory Lafontaine, for the appellant
Leslie Paine, for the respondent

HEARD: June 13, 2000

On appeal from the conviction of Caputo J. dated February 14,
1999.

E N D O R S E M E N T

[1] We agree that the trial judge was not entitled to use prior
consistent statements of the claimant to bolster her credibility
in response to an allegation of recent fabrication. However, in
our view the trial judge did not do that in this case. Rather,
he drew an inference from the evidence and, in particular, from
the inconsistencies which were brought out in evidence by defence
counsel, that those were all of the inconsistencies in the
complainant’s evidence and that, in the balance of her statements
and testimony, she was consistent.

[2] In making the findings of consistency, the trial judge did
not use those consistencies as a make-weight in favour of the
credibility of the complainant, but only to delineate the areas
of recent fabrication alleged for which he was bound to consider
the complainant’s explanation in assessing her credibility and in
making his findings.

[3] With respect to the trial judge’s finding of attempted anal
intercourse, that finding was not unreasonable having regard to
the plaintiff’s own description of that event in her testimony at
the trial and to the nature of the medical evidence on that
issue.

[4] We do not agree that the trial judge committed the error of
reversing the onus when he noted in his reasons that the
appellant had been unable to explain certain incriminating
aspects of the physical evidence, such as the torn brassiere,
found at the scene. The trial judge was not obliging the
appellant to explain these pieces of evidence but only giving him
an opportunity to raise a reasonable doubt by his explanation.
This was a case where the appellant admitted intercourse and the
defence was consent. Therefore, items of physical evidence which
spoke to a non- consensual encounter would be evidence against
the appellant unless there was an explanation which cast doubt on
their probative value or significance. This conduct by the trial
judge did not amount to a reversal of onus.

[5] In the result, the appeal is dismissed.