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:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court File and Parties

CITATION: R. v. El-Merhabi, 2008 ONCA 552

DATE: 20080711

DOCKET: C45814

COURT OF APPEAL FOR ONTARIO

ROSENBERG AND SIMMONS JJ.A. AND SPEYER J. (AD HOC)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

ALAAEDDINE EL-MERHABI

Appellant

Counsel:

Alan Letourneau for the appellant

Daniel Guttman for the respondent

Heard: June 27, 2008

On appeal from the conviction entered by Justice Paul H. Megginson of the Ontario Court of Justice dated February 21, 2006.

ENDORSEMENT

[1] The reasons of Megginson J. in this sexual assault trial are inadequate. The conclusory statement that the appellant’s story was ridiculous was not helpful in explaining to the appellant or this court why the trial judge rejected the appellant’s testimony. However, the issue in this court is whether the basis for the trial judge’s conclusion is apparent from the record, even without being articulated. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55.

[2] In this case, it is apparent from the record why the trial judge found the appellant’s story incredible. On his version of events, although he asked the complainant to come up to his office, she then invented an elaborate story as a pretext for an excuse to go home early. In context, the appellant’s testimony made no sense.

[3] The appellant also submits that the trial judge erred in making his finding in favour of the complainant’s credibility solely on the basis of the absence of evidence that she had a motive to fabricate the allegation of sexual touching. We do not read the reasons in that way. The reasons must be read with defence counsel’s submissions. Defence counsel did not suggest that the complainant’s testimony was not credible. This is not surprising since that testimony is coherent and contains no internal inconsistencies or other deficiencies.

[4] Rather, the defence was that both the complainant and the appellant were credible and so the trial judge should at least have entertained a reasonable doubt. The reference by the trial judge to the lack of reason attributable to the complainant to make up a story was not a comment on the complainant’s credibility but one of the reasons for rejecting the appellant’s version of events. The appellant’s recounting of the complainant’s conduct in which he attempted to suggest a reason for the false allegation made no sense.

[5] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“Janet Simmons J.A.”

“Speyer J. (ad hoc)”