WARNING
THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court File and Parties
Citation: R. v. S.P., 2011 ONCA 743
Date: 2011-11-25
Docket: C51110, C51116 and C51208
Court of Appeal for Ontario
Before: MacPherson, Simmons and Blair JJ.A.
C51110
Between
Her Majesty the Queen Respondent
and
S.P. Appellant
C51116
Between
Her Majesty the Queen Respondent
and
F.S. Appellant
C51208
Between
Her Majesty the Queen Respondent
and
K.S. Appellant
Counsel: Véronique Henry, for the appellant S.P. G. Dhaliwal, for the appellant F.S. Paul Calarco, for the appellant K.S. Andreea Baiasu, for the respondent
Heard and released orally: November 24, 2011
On appeal from the conviction entered on August 6, 2009, and the sentence imposed on September 14, 2009 by Justice David P. Cole of the Ontario Court of Justice.
Endorsement
[1] The three appellants were jointly convicted of committing a gang sexual assault, along with two others who do not appeal. S.P. and F.S. were also convicted of forcible confinement. S.P. was also convicted of assault arising out of an entirely differently incident; he does not appeal from this conviction.
[2] At the trial, it was not in dispute that the appellants and the complainant knew each other, were hanging out together in an abandoned apartment after school, and that four boys in succession had sex with the complainant. The central issue at the trial was whether the complainant had consented to have sex, or whether she was forcibly confined and sexually assaulted by the boys. The trial judge held that the complainant had not consented, and that the boys did not have an honest belief in her consent.
[3] On the honest but mistaken belief in consent issue, all three appellants contend that the trial judge ignored relevant evidence in making his credibility and reliability findings, misapplied the W.(D.) analysis, and applied different levels of scrutiny to, on the one hand, the complainant’s evidence and, on the other hand, the appellants’ evidence.
[4] We do not accept these submissions. The trial judge explicitly followed the W.(D.) analysis. He carefully reviewed the evidence of all the witnesses and made supportable credibility findings relating to them. His scrutiny of the various witnesses strikes us as even-handed.
[5] In the end, the trial judge accepted the complainant’s evidence that she clearly told S.P. and F.S. that she did not want to engage in sexual activity. In addition, the trial judge rejected K.S.’s evidence in its entirety, including his evidence suggesting that the complainant had agreed to have sex with him. In doing so, he found that K.S. was part of a plan worked out in advance that all the boys would have sex with the complainant. It was open to him to make this finding.
[6] The appeals are dismissed.
“J.C. MacPherson J.A.”
“Janet Simmons J.A.”
“R.A. Blair J.A.”