DATE: 2001-04-02

DOCKET: C30513

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOPHER SHERRATT (Appellant)

BEFORE: DOHERTY, FELDMAN AND SIMMONS JJ.A.

COUNSEL: Peter Connelly, For the appellant Miriam Bloomenfeld, For the respondent

HEARD: March 28, 2001

On appeal from the conviction by Justice S. C. Hill dated June 26, 1998.

E N D O R S E M E N T

[1] The complainant acknowledged she had engaged in certain consensual sexual contact with the appellant while in his vehicle at the end of a date. She said the appellant then forced sexual intercourse upon her against her will.

[2] The appellant advanced four grounds of appeal against his conviction for sexual assault.

i) Misuse of Evidence of After-the-Fact Conduct

[3] The trial judge made the following findings concerning evidence that the appellant had sexual relations with his ex-girlfriend following the conclusion of his date with the complainant:

However, sexual relations with [his ex-girlfriend] would not be inconsistent with earlier sexual relations with the complainant. The circumstances of Mr. Sherratt’s attendance at [his ex-girlfriend’s] home … are highly unusual. He was not expected. It was 3-4:00 in the morning and he, for the first time ever, entered the house by a window. He had sexual relations and left within half an hour. On the totality of the evidence in this case, it appears to me that Mr. Sherratt attended at the residence of this woman, with whom he was not living, in order to mask his earlier criminality. In his interview statement with the police, a little over twelve hours after the alleged sexual assault, Mr. Sherratt stated in respect of [his ex-girlfriend] ‘I got her to tell you I was there.’

[4] The appellant says the trial judge erred in drawing a speculative conclusion concerning his intentions and in mistakenly drawing an inference of guilt, based on after-the-fact conduct, without proper consideration of the relevant legal principles.

[5] We disagree. The trial judge’s findings were made in response to a defence submission that the appellant’s actions were equally, if not more, consistent with the appellant having been aroused by the complainant and having engaged in intercourse with his ex-girlfriend after the complainant declined to do so. There is no indication in the trial judge’s reasons that he used the evidence to draw an inference of guilt based on after-the-fact conduct. The conclusion reached by the trial judge was reasonable in light of the unusual circumstances he enumerated.

ii) Misuse of Evidence Pointing Away from Guilt

[6] Evidence was adduced that upon his arrest, the appellant agreed to make a statement to police, consented to a search of his vehicle and offered to take a polygraph test.

[7] The appellant submits the trial judge erred in failing to conclude this evidence amounted to consciousness of innocence. In particular, he says the trial judge failed to consider the factors enumerated in R. v. B. (S.C.) (1998), 119 C.C.C. (3d) 530 (Ont. C.A.) at paragraph 30 concerning the significance of an offer to take a polygraph test.

[8] We find no error in the trial judge’s conclusion that a finding of consciousness of innocence was not warranted. The factors referred to by the appellant relate to the admissibility of evidence of an offer to take a polygraph test, and not to the inference to be drawn from such evidence once admitted. The conclusions reached by the trial judge concerning the proffered evidence of consciousness of innocence were available on the evidence.

iii) Browne v. Dunn Error

[9] We reject the appellant’s submission that the trial judge erred in his application of the “rule” from Browne v. Dunn (1893), 6 R. 67 (H.L.) when he stated that the complainant was not examined on a defence submission concerning how menstrual blood may have been transferred from the complainant to the appellant’s underwear. The trial judge found the defence submission to be speculative. His statement that the complainant was not examined concerning the defence theory simply formed part of his review of the issue of whether there was evidence capable of supporting it.

iv) Misapprehension of Material Evidence

[10] Even if the trial judge erred in his appreciation of whether all taxi companies in Brampton were contacted as part of the police investigation, we do not consider that detracted from his ultimate conclusion that the telephonic investigation did not diminish the confirmatory force of the gas station attendant’s evidence. The investigation conducted did not rule out the complainant’s version of events.

[11] We find no merit in the appellant’s submission that the trial judge misapprehended evidence by not considering the complainant’s inability to explain the removal of her shirt. The trial judge indicated in his reasons that he was aware of the evidence – he simply attributed no significance to it.

v) Appeal Against Sentence

[12] The appeal against sentence was abandoned at the hearing.

[13] For the reasons given, the appeal is dismissed.

"Doherty J.A."

"K. Feldman J.A."

"Simmons J.A."