DATE: 20041201
DOCKET: C39727
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – P. W. (Appellant)
BEFORE:
ROSENBERG, FELDMAN and SIMMONS JJ.A.
COUNSEL:
James Morton
for the appellant
Eliott Behar
for the respondent
HEARD & ENDORSED:
November 26, 2004
On appeal from conviction by Justice Fern M. Weinper of the Ontario Court of Justice dated January 6, 2003
A P P E A L B O O K E N D O R S E M E N T
[1] The appellant submits that the verdict was unreasonable based on two arguments:
That mechanically the events as testified to by the complainant could not have occurred; and
that the preliminary events could not have happened without the complainant having awakened.
[2] The appellant particularly relies on this second aspect of the evidence.
[3] In our view, this conviction was not unreasonable. The story told by the complainant was not implausible. It was possible for the events to have occurred as found by the trial judge especially given that the complainant had been drinking before she fell asleep.
[4] As to the mechanics of the incident, the trial judge reviewed the evidence; she was satisfied that a sexual assault occurred. Much of the complainant’s version was in fact consistent with the appellant’s own evidence. We have not been persuaded that the position of the parties as testified to by the complainant were so implausible that a finding that a sexual assault occurred was unreasonable.
[5] Accordingly the appeal is dismissed.