Court of Appeal for Ontario

CITATION: R. v. Smith, 2010 ONCA 155

DATE: 20100303

DOCKET: C49863

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Jason Smith

Applicant/Appellant

John Collins, for the applicant/appellant

Benita Wassenaar, for the respondent

Heard & released orally: February 24, 2010

On appeal from the convictions and sentence imposed by Justice J.R. Kealey of the Superior Court of Justice dated October 28 and December 17, 2008.

ENDORSEMENT

[1] We are not persuaded that the reasons of the trial judge disclose any error of law that could lead us to set aside these convictions.

[2] While the reasons might well have been fuller, the trial judge did explain how he scrutinized the evidence as a whole. The appellant submits that certain of the complainant’s actions suggest that she had consented. The trial judge found that as a young 15 year old girl she was traumatized and rendered numb by the aggressive actions of the much older and larger appellant. In our view, this provides a sufficient explanation of why the trial judge concluded that the various actions of the complainant relied upon by the appellant did not indicate a consensual sexual encounter nor raise a reasonable doubt. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

[3] We do not accept the submission that the trial judge failed to follow the analysis required by R. v. W.D. He gave specific and detailed reasons for rejecting the evidence of the appellant. Read as a whole, the reasons explain why the trial judge concluded that the appellant’s evidence did not leave him with a reasonable doubt and why he found on all of the evidence that he was convinced beyond a reasonable doubt of the guilt of the appellant.

[4] The trial judge did not err with respect to the use of evidence of recent complaint. That evidence was admissible as part of the narrative. The co-worker to whom the complainant had complained described the complainant as “upset, scared and in shock”. That evidence was relevant to the complainant’s demeanour immediately after the incident and, therefore, relevant to her credibility.

[5] The findings of the trial judge on the appellant’s credibility rejecting his assertion that the complainant had told him several times she was 18 are fatal to the appeal against conviction on the child pornography count. There was no evidence of any other inquiry as to the complainant’s age.

[6] With respect to sentence, we see no error in principle that would justify our interfering with the sentence.

[7] Accordingly, the appeal against the conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”