WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

CITATION: R. v. Gray, 2010 ONCA 684

DATE: 20101020

DOCKET: C50392

COURT OF APPEAL FOR ONTARIO

Weiler, MacPherson and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Billy Gray Jr.

Appellant

William Thompson, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: October 7, 2010

On appeal from the conviction entered on June 27, 2008 by Justice H. Pierce of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of sexual assault on an 18-year old girl by Pierce J. of the Superior Court of Justice on 27 July 2008. He was sentenced to 42 months imprisonment. He appeals the conviction.

[2] The appellant contends that the trial judge erred in rejecting the appellant’s explanation for how the complainant’s DNA came to be on his underwear.

[3] We disagree. The appellant’s explanation, was, in a word, farfetched and the trial judge was entitled to reject it.

[4] The appellant submits that the trial judge erred by applying a more stringent standard to the assessment of the appellant’s evidence than to the evidence of the complainant and her boyfriend, who testified that he saw the sexual assault on the complainant through a window in the appellant’s trailer.

[5] We do not accept this submission. The trial judge approached the evidence of all witnesses who were intoxicated at the time of the offence with the same degree of caution. She recognized in her reasons the difficulties of relying on the evidence of intoxicated witnesses and looked for corroborating evidence. She explained in her reasons why she rejected the uncorroborated and inconsistent evidence of the appellant. Her findings of credibility are entitled to deference.

[6] Third, the appellant submitted in oral argument that the evidence of the vaginal bleeding should have been afforded much less weight given that the complainant refused to permit a pelvic examination in the clinic. Accordingly, he argued that the trial judge erred in failing to consider this evidence from that point of view.

[7] We do not accept this submission. The trial judge did not treat the complainant’s statement to the nurse as bolstering the complainant’s testimony. The trial judge merely observed that the statement to the nurse was consistent with the complainant’s account of being vaginally raped. She also stated explicitly that the complainant had not permitted a pelvic examination. In our view, the trial judge did not misuse the complainant’s statement to the nurse. Moreover, the complainant testified that following the assault she was bleeding vaginally. The trial judge was entitled to accept her testimony in this regard.

[8] The appeal is dismissed.

“K. M. Weiler J.A.”

“J. C. MacPherson J.A.”

“Rob P. Armstrong J.A.”