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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. C.H., 2011 ONCA 376

DATE: 20110512

DOCKET: C51513

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.H.

Appellant

William Thompson, for the appellant

Susan Magotiaux, for the respondent

Heard and released orally: May 9, 2011

On appeal from the conviction entered on January 23, 2009 and the sentence imposed on September 10, 2009 by Justice Erwin W. Stach of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The trial judge in comprehensive, thoughtful, responsive reasons found the appellant guilty of aggravated sexual assault while acquitting him of the charge of attempt murder.

[2] The appellant submits that the verdict was unreasonable and that the trial judge erred in dismissing the defence position that there was an alternate suspect.

[3] The only issue at trial was identity. The trial judge’s credibility finding in favour of the complainant, C.B., as well as the timing of the assault is entitled to deference. The Crown’s theory was that C.B. was hit on the head and knocked unconscious before being sexually assaulted, while the defence suggested that she may have blacked out due to intoxication and been sexually assaulted by a third person at a later point in time. The trial judge gave careful consideration to this issue, including finding that C.B.’s observations in the period immediately prior were “the product of a conscious working and aware mind” before concluding that C.B. was knocked unconscious. After C.B. refused consensual sex with the appellant a second time, C.B.’s last memory was of seeing the appellant following her and then being on her back screaming, “You’re going to kill me.” Her account of the surroundings she saw while on her back was confirmed.

[4] The trial judge was also entitled to rely on the circumstantial evidence to confirm C.B.’s account. That evidence consisted of the appellant’s DNA on the rock covered in her blood as well as convincing eye witness testimony that the appellant had worn a shirt that night and returned shirtless. A discarded shirt that bore the complainant’s blood and the appellant’s DNA was found near the crime scene. It was the trial judge’s role to resolve inconsistencies in the evidence respecting the colour of the shirt and he made no error in doing so.

[5] As for the appellant’s statement to the police, the trial judge did not, as the appellant contends, make an inference of guilt from the statement. The conclusions he drew from the statement were available to him on the evidence.

[6] The appellant’s submissions and his specific complaints about the trial judge’s conclusions on isolated pieces of evidence are, in essence, an attempt to reargue the case.

[7] The totality of the evidence amply supported the conviction. The appellant’s guilt was the only rational inference.

[8] In coming to this conclusion, we do not ignore the appellant’s second argument, namely, that the trial judge failed to give proper consideration to the evidence of an alternate suspect. In our opinion, having regard to the evidence as to the timing of the assault, which he accepted, he was entitled to conclude that defence counsel was asking him to speculate that there was an alternative suspect.

[9] The appeal is dismissed.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”