W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20041014

DOCKET: C41503

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and- L.W. (Appellant)

BEFORE: LABROSSE, MacPHERSON and CRONK JJ.A.

COUNSEL: Daniel A. Stein for the appellant

Nadia Thomas for the respondent

HEARD: October 13, 2004

RELEASED ORALLY: October 13, 2004

On appeal from the conviction entered by Justice Richard G. Byers of the Superior Court of Justice, sitting without a jury, on October 16, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction for sexual assault by Byers J. of the Superior Court of Justice.

[2] The complainant met the appellant over the telephone in December 2000. In April 2001, they were married in Jamaica, where he lived. She sponsored the appellant to join her in Canada and he arrived in August 2002. Thereafter, the complainant alleged that their previously good relationship changed and the appellant became extremely domineering and controlling. Over the next few months, she alleged that he assaulted her, both physically and sexually, on several occasions. The appellant was convicted of assault in March 2003, but the couple got back together after he vowed to change his ways.

[3] The complainant alleged that he began to abuse her again and, in June 2003, he was charged with assault and sexual assault. The complainant testified about three incidents during which the appellant forced sexual intercourse on her and another incident when the appellant punched her in the head.

[4] At the trial, the appellant challenged the complainant’s allegations, suggesting that she had a motive to fabricate the offences and that the sex between them was consensual. The appellant did not testify. He was acquitted of the assault charge and convicted of sexual assault.

[5] The appellant now appeals his conviction on the grounds that the trial judge erred in admitting similar fact evidence and that he engaged in propensity reasoning; that he should have cautioned himself against the possibility of collusion; and that the sexual assault count should have been divided into three separate counts at trial.

[6] In our view, the circumstances of the present case support the admissibility of the similar fact or prior discreditable conduct evidence. This evidence related to the history of domestic abuse in the relationship between the appellant and the complainant and it had probative value regarding the material issues in the prosecution.

[7] The evidence demonstrated how the relationship had progressed from the appellant lecturing about his strict rules to abusive conduct. It also demonstrated the appellant’s domineering and possessive behaviour in his attempt to control the complainant.

[8] The evidence was admissible as part of the narrative, as evidence of motive or animus and it was relevant in assessing the complainant’s credibility, particularly on the questions why she did not leave the relationship or disclose the abuse earlier. Its probative value outweighed its prejudicial effect.

[9] It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by judge alone. When the trial judge decided to admit the evidence, he noted that this was not a jury case and when the complainant’s testimony extended past her relationship with the appellant, he immediately stopped Crown counsel. The trial judge saw the prior discreditable conduct as relevant to the relationship between the appellant and the complainant and used it to assist him in understanding and explaining the actions of the parties.

[10] The trial judge acquitted the appellant of the count of common assault with which the appellant had also been charged. He also stressed in his reasons and in his discussions with counsel that the only offences with which he was concerned were those charged against the appellant. This is indicative, in our view, that the trial judge did not misuse this similar fact evidence.

[11] The trial judge’s reasons for judgment were delivered orally, immediately following the final submissions of counsel, and were relatively brief. He did not specifically discuss the potential for collusion between the complainant and the other witnesses who testified for the Crown. However, the trial judge would not have lost sight of the defence’s submissions as he had just heard them moments before giving his reasons.

[12] Collusion was not one of the chief aspects of the defence’s overall theory of the case. In his closing submissions, defence counsel only very briefly alluded to the issue and not in a very clear manner at that. It is not surprising that the trial judge did not see the need to expressly discuss the issue in his reasons. In any event, it is implicit that he concluded there was no collusion when he found that the evidence of the various Crown witnesses bolstered the complainant’s allegations of sexual assault.

[13] During oral argument of this appeal, the appellant’s counsel abandoned the other ground of appeal dealing with the separate counts.

[14] In closing, as noted earlier, the appellant did not testify at trial. The Crown had a very strong case and we see no basis to doubt the correctness of the verdict.

[15] Accordingly, the appeal is dismissed.

Signed: “J.-M. Labrosse J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”