Court File and Parties

CITATION: R. v. Gilboy, 2007 ONCA 472

DATE: 20060627

DOCKET: C45347

COURT OF APPEAL FOR ONTARIO

MOLDAVER, MacPHERSON and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DREW GILBOY

Appellant

Counsel:

Charn Singh Gill, for the appellant

Megan Stephens, for the respondent

Heard and released orally: June 22, 2007

On appeal from the conviction entered by Justice Frank R. Caputo of the Superior Court of Justice on March 13, 2006.

ENDORSEMENT

[1] The appellant appeals his conviction for sexual assault. He argues that the trial judge erred: (1) by failing to appreciate and address in his reasons numerous inconsistencies between the complainant’s evidence and that of other witnesses; (2) by misapprehending the evidence of several witnesses; and (3) by failing to properly apply the principles outlined in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). We reject these submissions.

[2] Many of the inconsistencies identified by the appellant were not material. In other instances, the trial judge specifically addressed the evidence that the appellant says gave rise to inconsistencies between the complainant’s testimony and that of the other witnesses.

[3] Importantly, the trial judge’s key finding that the complainant was highly intoxicated, to the knowledge of the appellant, was amply supported by the evidence of several witnesses, including the appellant himself who acknowledged that the complainant was so drunk that she was unable to even back the appellant’s car out of the driveway. There was considerable evidence that the complainant had consumed a large amount of alcohol and had used cocaine on the night in question.

[4] Nor do we accept that the trial judge misapprehended critical evidence or that he failed to properly apply W.(D.). The trial judge’s reasons are lengthy and detailed. He devoted about forty pages to a review of the evidence. He then outlined the legal principles applicable to this case. There is no suggestion that he ignored or misstated any of these principles. Finally, he applied these principles to the facts as he found them. Given the structure and content of the trial judge’s reasons, including his comprehensive review of all the evidence adduced at trial, we are satisfied that he was alert to and properly applied the requirements of W.(D.).

[5] We also reject the appellant’s assertion that the trial judge’s reasons fail to reveal the basis for the appellant’s conviction or that they otherwise offend the sufficiency of reasons standard established by R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) and related cases. To the contrary, in our view, the trial judge’s reasons more than meet this standard.

[6] In the end, we are satisfied that there was ample evidence to support the trial judge’s findings that the complainant, in the circumstances, was incapable of consenting to sex with the appellant, that the appellant’s alleged belief that the complainant had consented arose either from self-induced intoxication or reckless or wilful blindness, and that the appellant failed to take reasonable steps to ascertain that the complainant was consenting.

[7] The appeal is dismissed.

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”