COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mitchell, 2012 ONCA 483

DATE: 20120706

DOCKET: C53589

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Mitchell

Appellant

Michael J. Shea, for the appellant

Frank Au, for the respondent

Heard and released orally: July 4, 2012

On appeal from the conviction entered on November 12, 2009 by Justice T. Maddalena of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant appeals against his conviction for breaking and entering a dwelling house and committing therein a sexual assault, contrary to s. 348(1)(b) of the Criminal Code. Although he raises numerous grounds of appeal, in our view, they fall generally into three broad categories:

(1) the trial judge erred in her assessment of the appellant’s credibility by failing to take account of evidence that was capable of supporting his version of events (for example, the neighbour’s evidence of the timing of her sighting of the appellant’s bicycle at or near the complainant’s home on the day in question);

(2) the trial judge also erred in her assessment of the complainant’s credibility and reliability by failing to take account of various discrepancies in the complainant’s evidence and her late disclosure of the assault; and

(3) the trial judge erred in her appreciation of the requisite elements of the offence charged under s. 348(1)(b) of the Criminal Code.

[2] We see no error in the trial judge’s credibility and reliability assessments. The appellant denied any sexual contact with the complainant. He presented a diametrically opposite version of events to that outlined by the complainant. The trial judge wholly rejected his evidence, finding it neither reliable nor trustworthy. This was her call to make.

[3] In contrast, the trial judge found the “essential” evidence of the Crown witnesses – the complainant, her mother and a next-door neighbour – to be both credible and reliable. Her reasons reveal that she was alert to the alleged discrepancies in the evidence of the complainant and the other Crown witnesses. She found these discrepancies to be minor in nature and concluded that they did not “cast any reasonable doubt whatsoever” on the credibility and reliability of these witnesses on the core matters in dispute. The trial judge also made specific factual findings that resolved many of the suggested discrepancies. The trial judge’s credibility and reliability findings attract great deference from this court.

[4] Finally, notwithstanding the appellant’s assertion to the contrary, the trial judge found that the complainant’s mother had left the home before the assault and, accordingly, that the appellant had no permission to enter the complainant’s home. This was sufficient to support the conviction on the offence charged.

[5] For the reasons given, the appeal is dismissed.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“Alexandra Hoy J.A.”