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. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

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

(b) 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

(c) 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,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) 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.

DATE: 20041217

DOCKET: C41566

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – R.V. (Respondent)

BEFORE:

ROSENBERG, MOLDAVER and MacPHERSON JJ.A.

COUNSEL:

Susan Magotiaux and Rosella Cornaviera

for the applicant/appellant

Ian R. Smith

for the respondent

HEARD & RELEASED ORALLY:

December 14, 2004

On appeal from the judgment of Justice R. Thomas of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated March 3, 2004 appealing the acquittal by Justice T. Wolder of the Ontario Court of Justice dated December 14, 2001.

E N D O R S E M E N T

[1] The trial judge and the summary conviction appeal judge made serious errors of law. On the complainant’s story, the defence of mistaken belief in consent was not available. Merely because there was a viable marriage does not itself give rise to a defence of mistaken belief in consent in the face of the complainant’s unequivocal statements to the respondent that she was not consenting to further sexual relations. There was no burden on the Crown to disprove the defence merely because the parties were married. Nor could it be said that there could be any implied consent in those circumstances.

[2] In light of these legal errors, we grant leave to appeal, albeit with considerable reluctance, given the fifteen months delay from the time the summary conviction appeal was heard and the court delivered its reasons.

[3] However, for the following reason, the appeal from the acquittal is dismissed. The trial judge made entirely inconsistent findings. He first held that the facts were not greatly in dispute. To the contrary, the material facts going to the core issue were very much in dispute. The trial judge related the complainant’s version of the events, as if that version accorded with his findings of fact, but then went on to find that the respondent was credible. As the Crown fairly conceded before us, if the respondent’s version of the events was accepted, then he had to be acquitted. This is so irrespective of any consideration of mistaken belief in consent. In those circumstances, proper application of the rule in R. v. W.(D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), required that the respondent be acquitted..

[4] Accordingly, the appeal from the acquittal is dismissed.

[5] With respect to costs, the appeal judge granted costs to the respondent on the basis of misconduct by the Crown. There was no evidentiary basis for such a finding. Accordingly, the appeal in relation to costs is allowed and the costs order is set aside.

Signed: “M. Rosenberg J.A.”

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”