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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Wilson, 2010 ONCA 849
DATE: 20101213
DOCKET: C48904
COURT OF APPEAL FOR ONTARIO
Laskin, Armstrong and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Bruce Wilson
Appellant
Michael S. Mandelcorn, for the appellant
Howard Leibovich, for the respondent
Heard and released orally: December 3, 2010
On appeal from the conviction entered on November 30, 2007 and the sentence imposed on January 19, 2008 by Justice G.G. Sedgwick of the Superior Court of Justice.
ENDORSEMENT
[1] This was a trial of an allegation of sexual assault where the primary theory of the defence was that the complainant was lying. The Crown called several witnesses, including the complainant and two of her friends who were directly involved in most of the relevant circumstances. The defendant did not testify or call any evidence.
[2] The trial judge disagreed that the complainant was lying and believed her evidence specific to the sexual assault.
[3] The appellant submits that the trial judge erred in three ways. First, he argues that the trial judge failed to properly analyze the inconsistencies in the complainant’s testimony and that of her two friends for purposes of assessing both the credibility and reliability of the complainant. We disagree.
[4] As this court has held on many occasions, a trial judge is not required to address every alleged inconsistency. Rather, he or she is only required to give such detail as the evidentiary record and the dynamics of the case mandate. The trial judge in this case was aware that drugs and alcohol were consumed, and he noted that while there were inconsistencies in the testimony of the complainant and her two friends, he found that the inconsistencies were not material. He committed no error in his analysis.
[5] Second, the appellant submits that the trial judge erred in accepting the complainant’s evidence that the sexual assault was not consensual. Again, we disagree.
[6] Although defence counsel in cross-examination suggested to her that she had agreed to exchange sex for drugs, she specifically denied this, and while the appellant is correct that it was open to the trial judge to disbelieve her, he did not. As his reasons illustrate, the complainant’s evidence to a large extent was confirmed by her two friends. The trial judge was also correct in holding that there was no evidence otherwise, merely defence counsel’s submissions.
[7] Finally, we disagree with the appellant’s third argument that the verdict is unreasonable. Once the analysis and findings of the trial judge have been confirmed, as they were in this case, there is ample basis to conclude that a properly instructed judge acting judicially could reasonably have rendered this verdict.
[8] The appeal is dismissed.
“John Laskin J.A.”
“Robert P. Armstrong J.A.”
“H.S. LaForme J.A.”