R. v. Greer, 2009 ONCA 505

CITATION: R. v. Greer, 2009 ONCA 505

DATE: 20090622

DOCKET: C48901

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

James Greer

Appellant

Counsel:

Andrew Bond, for the appellant

Dena Bonnet, for the respondent

Heard: June 19, 2009

On appeal from the conviction entered on December 10, 2007 by Justice Thomas A. Heeney of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from his conviction for sexual assault by Heeney J. on December 10, 2007.

[2] The appellant contends that the trial judge resorted to speculation with respect to the evidence of the complainant. He submits that the speculation encompasses four findings made by the trial judge: (1) that the complainant had no motive to fabricate her allegation of sexual assault; (2) that she would not have been upset if she consented to the sexual activity; (3) that she had a financial disincentive to fabricate the allegation of sexual assault; and (4) that the complainant’s testimony accorded with common sense.

[3] We disagree. The trial judge did not engage in speculation or conjecture; rather, in our view he made logical inferences from the record. He was entitled to do this.

[4] The appellant submits that the trial judge placed undue reliance on the demeanour of the complainant both in the witness box and when considering her post-encounter conduct.

[5] We disagree. While the trial judge attached significance to the complainant’s demeanour, his analysis continued beyond this one finding. He reviewed the evidence of three witnesses who corroborated the complainant’s evidence that she was upset after the sexual encounter. He also considered other relevant conduct that was consistent with her story: her conversation with Scott Greer that morning, leaving work early that day, and going to the hospital. He also considered whether she had a motive to fabricate and her evidence in terms of common sense, as he was entitled to do. We do not accept that he attributed a common sense to the complainant that the record does not support.

[6] The appellant contends that the trial judge applied a more rigorous standard of scrutiny to the defence evidence than to the evidence tendered by the Crown. We disagree. In our view, the trial judge’s assessment of the Crown and defence evidence was comprehensive, balanced and, ultimately, fair.

[7] The appeal is dismissed.