DATE: 20050628

DOCKET: C40162

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ROY THOMAS JOHNSTON (Appellant)

BEFORE: SHARPE, GILLESE and ROULEAU JJ.A.

COUNSEL: Frank Addario for the appellant Susan Ficek for the respondent

HEARD & ENDORSED: June 23, 2005

On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice March 23, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The principal ground of appeal is that the trial judge erred by failing to advert the possibility of collusion or tainting between the two complainants having ruled to that effect on the similar fact evidence voir dire. While the trial judge did not specifically refer to collusion or tainting in his reasons for judgment, he did give very full reasons in which he subjected the evidence of both complainant to very careful scrutiny and he did not accept much of the evidence of one of the complainants. This case is quite unlike R. v. F(J) (2003) 177 A.C.C. (3d) 1 which involved international collusion and animus, significant changes and inconsistencies in the evidence of the complaints, and an absence of the very sort of careful analysis of the evidence present here. As to the other grounds for appeal on these reasons, we are not persuaded the trial judge simply assumed the assault took place. Nor do we agree that account of the complainant was so improbable as to preclude a finding of guilt, or that the trial judge made improper use of demeanour evidence. Accordingly, the appeal is dismissed.