CITATION: R. v. J.D., 2007 ONCA 160

DATE: 20070312

DOCKET: C43392

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – J. D. (A Young Person) (Appellant)

BEFORE:

LASKIN, MacPHERSON and CRONK JJ.A.

COUNSEL:

Peter M. Campbell

for the appellant

Shelley Maria Hallett

for the respondent

HEARD & RELEASED ORALLY:

February 23, 2007

On appeal from the convictions entered on July 12, 2004 by Justice R. J. Flaherty of the Ontario Court of Justice, sitting in Youth Justice Court.

E N D O R S E M E N T

[1] The appellant appeals his convictions for sexual assault and forcible confinement on the basis that the trial judge erred in his approach to the assessment of the complainants’ credibility concerning the critical issue of consent. Specifically, he submits that the trial judge erred: (i) by misapprehending the complainants’ evidence, thereby rendering the verdicts unfair; (ii) by failing to scrutinize the complainants’ evidence properly, especially given that it was allegedly replete with inconsistencies; and (iii) by engaging in prohibited propensity reasoning in concluding that the complainant J.P. did not consent to the sexual activity in the sub-basement.

[2] We reject these submissions.

[3] None of the inconsistencies in the complainants’ evidence relied upon by the appellant concerned the activities in the sub-basement or the issue of J.P.’s consent to those activities. Moreover, there were no material inconsistencies in J.P.’s testimony about her lack of consent to the sub-basement incidents. The trial judge accepted J.P.’s evidence, as he was entitled to do. There is nothing in his reasons that persuades us that he failed to consider or apply a proper degree of scrutiny to J.P.’s evidence as a whole, or to her testimony about the sub-basement incidents in particular.

[4] Nor do we agree that the trial judge’s conclusion that J.P. did not consent to the acts in question is tainted by impermissible propensity reasoning.

[5] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”