DATE: 20030212

DOCKET: C36561

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– RITCHIE JOHNSON (Appellant)

BEFORE: WEILER, CHARRON and MOLDAVER JJ.A.

COUNSEL: Richard Litkowski, for the appellant

Alison Hurst, for the respondent

HEARD: February 6, 2003

RELEASED ORALLY: February 6, 2003

The appellant, Ritchie Johnson, appeals against the conviction imposed by Justice Gloria R. Klowak of the Superior Court of Justice, sitting without a jury, dated January 19, 2001.

E N D O R S E M E N T

[1] The appellant appeals against his conviction for sexual assault. He submits that a new trial should be ordered because the trial judge, in her reasons, held the complainant’s evidence to a different standard and misapprehended one aspect of the evidence.

[2] The trial judge considered not only the demeanor of the appellant but the reliability of his evidence. She found that he embellished his evidence and gave an example of this. She also considered the appellant’s evidence that L., the complainant’s housemate, had told him he could go into the complainant’s bedroom, lie down on the bed and see how he made out. She rejected this evidence. She preferred the evidence of L. who testified and said that while she had told the appellant he could sleep on the floor of her own room, she did not suggest he go to the complainant’s room and try her bed. It is also apparent from her reasons that she considered the appellant’s version in the context of all the evidence and rejected it as fanciful.

[3] Nor is it a case where the trial judge simply accepted the complainant’s version of events without addressing its frailties. The trial judge’s reasons indicate she was alert to the defence position that the complainant ought to have awakened when her clothes were removed, the lack of any sign of forced penetration, the fact the complainant did not call out to Mr. G., her former boyfriend who was asleep on the sofa outside the bedroom, and that she had a motive to lie because she still wanted Mr. G.’s respect. In our view her reasons adequately addressed these issues and indicate she did not subject the complainant’s evidence to a different standard.

[4] With respect to misapprehension of the evidence, the appellant submits that the trial judge misapprehended the appellant’s evidence in saying that it was not supported by Mr. G.. While the words spoken were substantially the same, Mr. G.’s appreciation of their tone was not consistent with the appellant’s version. As well, the appellant claimed he had said certain important things that Mr. G. did not overhear. the trial judge did not misapprehend the evidence.

[5] Accordingly the appeal is dismissed.

Signed: “Karen M. Weiler J.A.”

“Louise Charron J.A.”

“M. J. Moldaver J.A.”