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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. A.A., 2012 ONCA 323

DATE: 20120516

DOCKET: C51586

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A. A.

Appellant

Michael Dineen, for the appellant

Catherine Mullaly, for the respondent

Heard: April 26, 2012

On appeal from the conviction entered on October 19, 2009 and the sentence imposed on November 12, 2009 by Justice Lloyd Budzinski of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions for sexual assault and utter death threat on the ground that in applying the third stage of the W.D. analysis, the trial judge misapprehended the evidence of the complainant and relied on inferences from her evidence that did not logically support the conclusion that he drew from them.

[2] Both the complainant and the appellant testified at the trial. They were both friends of another young man, T.F., but had not met each other until that evening. There was no issue that they had a lengthy sexual encounter on the evening in question. The issue was whether it was consensual or forced on the complainant by the appellant. The appellant told her he would drive her home. The assault occurred when they were walking, supposedly to the appellant’s car.

[3] In assessing the appellant’s evidence for credibility and reliability, the trial judge noted that he demonstrated a “pattern of boasting and inflationary thinking.” As an example, the trial judge mentioned that the appellant spoke of one time driving a Lincoln Navigator and working at jobs only if the minimum pay was $12 an hour. In fact, however, he had no place to stay, having been ejected from a hostel, and no money at the time. The trial judge concluded that the appellant’s tendency to boast undermined his credibility and was consistent with the complainant’s description of his boasting “about his potentials.”

[4] The appellant submitted that the trial judge erred and misapprehended the evidence when he said that the complainant gave evidence of the appellant’s boasting. However, there was some evidence from the complainant, given in cross-examination, where the complainant was asked about what occurred after the assault. The appellant had walked her to the bus stop and while walking, he said that she was going to be his girlfriend, and because of that, he was prepared to tell her that he had lied to her earlier when he told her he had a car, and that he never had a car.

[5] The trial judge stated that their descriptions of the boasting were not the same, but that the appellant’s description was consistent with the complainant’s. In light of the fact that the appellant had told her – or boasted - that he had a car when he did not, and that in evidence he had referred to having (boasted about) a Lincoln Navigator, in our view the trial judge did not err in his apprehension that the complainant had described some boasting by the appellant.

[6] In assessing the complainant’s credibility, the trial judge referred to her as giving her evidence in an objective manner. In support, he pointed to two aspects of her evidence: (1) that she was open about the fact that she was angry at T.F. because she was supposed to sleep at his house that night; and (2) that she described the appellant after the attack as friendly and as wanting to continue the relationship. The trial judge explained that these statements could be viewed as inconsistent with someone who was attacked against her will or who was trying to falsely blame someone to get the attention of her boyfriend.

[7] The appellant argues first that the trial judge misapprehended the complainant’s evidence about the accused after the attack and second, that the inference he drew from her evidence did not follow logically from that evidence. We do not agree.

[8] The complainant was asked a number of times in examination in-chief and cross-examination about what the accused said and did after the attack. She described how he walked her to the bus stop so that she could take the bus home, and on the way he told her that she would now be his girlfriend and that she was pretty. He also threatened her and T.F. with death if she told anyone about the attack.

[9] In totality, it was not an unfair characterization of her evidence by the trial judge to say that she described the appellant as friendly in the context of deciding whether she was credible. He concluded that she was essentially straightforward and he drew the inference that she was not embellishing to suit a purpose, which enhanced her credibility. He was entitled to view her evidence in that way and made no error in so doing.

[10] The appellant’s submission is that the trial judge’s conclusions regarding the complainant’s evidence amounted to misapprehensions of her evidence and did not support his finding on the third branch of W.D. that the Crown had proved its case beyond a reasonable doubt based on the evidence that the court accepted.

[11] In our view, the trial judge did not misapprehend the evidence. He referred to the law as set out in W.D. He was entitled to reject the evidence of the appellant and accept and act on the evidence of the complainant in order to find that the charges of sexual assault and utter a death threat to the complainant were proved beyond a reasonable doubt. In contrast, he was not satisfied beyond a reasonable doubt on the count of threatening death to T.F. and dismissed that count.

[12] The appeal is dismissed.

Signed: “John Laskin J.A.”

“K. Feldman J.A.”

“David Watt J.A.”