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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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: 20041026

DOCKET: C40986 and C40984

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KAJENDRAN BALASUBRAMANIAM (Appellant)

BEFORE:

WEILER, GOUDGE AND BLAIR JJ.A.

COUNSEL:

Michael F. W. Bennet

for the appellant on the conviction appeal and the respondent on the sentence appeal

Julia Forward and Jamie C. Klukach

for the Crown

HEARD:

October 8, 2004

RELEASED

ORALLY:

October 8, 2004

On appeal from the summary conviction by Justice Ray Stortini of the Superior Court of Justice dated October 28, 2003.

E N D O R S E M E N T

[1] The appellant raised a number of issues in oral argument on his conviction appeal.

[2] First, he argued that the trial judge erred in failing to follow the approach in R. v. W.D. We disagree. The trial judge clearly enunciated the W.D. principles as he began his reasons and there is nothing in the balance of those reasons to indicate that he failed to apply them in any way.

[3] Second, he said that the trial judge did not adequately explain how he reached his conclusion. Again, we disagree. The trial judge made clear that he relied on the complainant’s evidence and the independent evidence and rejected the appellant’s evidence in finding that the Crown’s case was made out. There was no need for the trial judge to refer to every piece of evidence before him. This ground of appeal fails.

[4] Third, the appellant submitted that the trial judge applied a higher level of scrutiny to the appellant’s evidence than to that called by the Crown. Again, we find no basis for this assertion. The trial judge simply singled out those pieces of evidence that he found most persuasive. He was perfectly entitled to do so.

[5] Finally, the appellant complained that the trial judge did not explain the inconsistency alleged to exist between the forensic evidence about the location of the sperm and the complainant’s evidence. We see none. Both the complainant and the appellant said that the sperm was on his pants.

[6] As to the other issues raised in the appellant’s factum that were not pursued in oral argument, we see nothing that would lead us to find reversible error.

[7] In all, there was ample evidence to support the conclusion reached by the trial judge. The conviction appeal must be dismissed.

[8] As to the Crown’s sentence appeal, we agree that the sentence imposed by the trial judge does constitute an error in principle on the facts of this case. However given that the sentence imposed on appeal has been fully served, we decline to accede to the Crown’s request to set it aside. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

[9] The appellant is not pursuing his cross-appeal of sentence.

[10] Therefore both the appeal and the cross-appeals are dismissed.

“K.M. Weiler J.A.”

_ “S.T. Goudge J.A.”

“R.A. Blair J.A.”