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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tucker, 2012 ONCA 317

DATE: 20120514

DOCKET: C52513

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raphael Tucker

Appellant

Victor Giourgas and Theodore Sarantis, for the appellant

Roger A. Pinnock, for the respondent

Heard and released orally: April 26, 2012

On appeal from the conviction entered on March 17, 2010 and the sentence imposed on May 20, 2010 by Justice David Price of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant argues four grounds of appeal against conviction. First, the appellant submits that the trial judge relied on the complainant’s prior consistent statements to support his finding that the complainant’s evidence was credible. We disagree.

[2] The trial judge does make reference to the complainant’s prior consistent statements. However, the trial judge’s credibility finding is in a separate section of his reasons and does not rely on these prior consistent statements.

[3] Second, the appellant submits that the trial judge improperly relied on his initial refusal to cooperate with the police. He points to para. 121 of the trial judge’s reasons and contends that the trial judge used his non-co-operation as evidence of consciousness of guilt. Again, we disagree.

[4] In that paragraph, the trial judge was simply responding to and rejecting a defence argument that the absence of blood in the apartment supported the appellant’s version of events.

[5] Third, the appellant contends that the trial judge erred in his approach to reasonable doubt, and particularly erred because he failed to give proper effect to the appellant’s physical limitation. We do not accept this contention.

[6] Even the defence medical expert acknowledged that the appellant’s physical limitation did not prevent him from holding the complainant by her wrists though it might have made it more difficult to do so. It was, therefore, open to the trial judge to accept the complainant’s evidence that the appellant held her down in the way that she described.

[7] Finally, the appellant submits that the trial judge failed to take account of the exculpatory portions of the appellant’s statement. We do not accept this submission.

[8] In the part of the statement the appellant says is exculpatory, he acknowledges kissing and fondling but denies penetration. That position was advanced by his counsel in submissions to the trial judge. The position put forward by defence counsel came from his client’s statement and the trial judge acknowledged this in the dialogue with defence counsel. The trial judge was well aware of the contents of the statement but nonetheless rejected the appellant’s defence. We note as well that the trial judge dealt with the defence of honest but mistaken belief in consent. That defence came solely from the appellant’s statement, further demonstrating that the trial judge considered the statement in his reasons.

[9] For these brief reasons, the conviction appeal is dismissed.

[10] The appellant also challenges the sentence he received. We see no error in the sentence that the trial judge imposed.

[11] Accordingly, the sentence appeal is also dismissed.

“John Laskin J.A.”

“K. Feldman J.A.”

“David Watt J.A.”