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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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: 20050607

DOCKET: C42413

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- E.J. (Appellant)

BEFORE:

MacPherson, Armstrong and Lang JJ.A.

COUNSEL:

Sarah E. Loosemore

for the appellant

Amy Alyea

for the respondent

HEARD AND RELEASED ORALLY:

May 31, 2005

On appeal from the conviction entered by Justice Leonard T. Montgomery of the Ontario Court of Justice on April 8, 2004.

E N D O R S E M E N T

[1] The appellant appeals from his convictions for sexual offences in relation to his stepdaughter. The appellant argues that the trial judge 1) erred in his definition of reasonable doubt; 2) made improper use of the complainant's prior inconsistent statements; and 3) improperly assessed the credibility of the witnesses.

[2] The appellant argues that the trial judge failed to particularize the burden on the Crown as he would have been required to do in a jury trial. In our view, the trial judge adequately instructed himself on the burden of proof and can be presumed to know the difference between the civil and criminal standards of proof.

[3] On the second ground, in this judge alone trial, it was unnecessary for the trial judge to give himself a specific instruction on the issue of prior inconsistent statements. Moreover, it is clear that the trial judge did not rely on the complainant's prior inconsistent statements. Certain prior inconsistent statements were elicited by the Crown to rebut the defence position of recent fabrication, and others were elicited by the defence to challenge the complainant's credibility. In his concluding paragraph, the trial judge specifically said he relied on the complainant's core evidence. Core evidence he defined earlier in his reasons as evidence "relating to the three offences".

[4] On the third ground, this was not a case where the trial judge simply relied on the demeanour of the witnesses. Rather, the trial judge adequately reviewed and weighed the evidence, including the evidence of the appellant, the complainant and the complainant's mother. He was entitled to find that the complainant's mother's evidence was unreliable because it was tailored to protect the appellant. Further, the trial judge was clearly alive to the inconsistencies in the evidence. In considering those inconsistencies, he directly addressed evidence about the gloves and the shed, and made reference to the issues surrounding the appellant's opportunity during the May incident and the presence of a tunnel on the Anderson trail.

[5] The trial judge was entitled to find that, in all the circumstances, the inconsistencies were minor, particularly when he relied on the complainant's consistent evidence relating to the three offences. There was more than ample evidence to support his findings.

[6] Accordingly, the appeal is dismissed.

Signed: "J.C. MacPherson J.A."

"Robert P. Armstrong J.A."

"S.E. Lang J.A."