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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.W., 2012 ONCA 682

DATE: 20121009

DOCKET: C53000

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.W.

Appellant

Timothy E. Breen, for the appellant

James K. Stewart, for the respondent

Heard and released orally: October 3, 2012

On appeal from the conviction entered on June 24, 2010 by Justice B.J. Frazer of the Ontario Court of Justice.

ENDORSEMENT

[1] Following a five day trial before a judge of the Ontario Court of Justice, the appellant was convicted by of sexual assault causing bodily harm. The appellant and the complainant had been in a relationship and had a child together. The relationship had broken down and, at the time of the alleged sexual assault, a custody dispute concerning the child was on-going. The appellant had interim custody.

[2] The complainant testified that after spending the day with the appellant and their son, she reluctantly allowed the appellant to stay over-night at her place. She testified that during the night, the appellant struck her on the mouth with his fist, forced her to have sex and used some sort of sharp instrument to inflict multiple scratches or cuts on her body. The appellant testified that they had consensual sex. He denied that he had hit, scratched or cut her.

[3] The trial judge gave lengthy reasons rejecting the evidence of the appellant, accepting the evidence of the complainant and finding that the Crown had proved its case beyond a reasonable doubt.

[4] The appellant submits that the trial judge misapprehended the evidence on several crucial points.

The note

[5] Although there was some dispute as to the precise circumstance that led the complainant to so, she admitted that following the alleged assault, she had written a note expressing her love for the appellant and their son and her thanks for "staying with mommy last night". The appellant submitted that the tenor of the note was inconsistent with the sexual assault allegation. The trial judge reviewed the evidence concerning when and in what circumstances the note had been written and, without making explicit findings in that regard, concluded that the effect of the note was "neutral".

[6] The appellant argues that that finding amounts to a misapprehension of the evidence.

[7] We disagree. The trial judge's finding of neutrality must be read in the light of the complainant's explanation for writing a note that, on the surface, seemed inconsistent with having been the victim of a violent sexual assault, namely, that she was trapped in a lengthy abusive relationship. In our view, it was open to the trial judge to find on the whole of the evidence that the complainant's explanation for the note effectively neutralized its effect on the case.

Injuries

[8] We do not agree with the submission that the evidence of the complainant's injuries that she alleges the appellant inflected upon her during the sexual assault was inconsistent with other evidence, including the photographs taken two days after the incident. In particular, it is apparent from the photographs of the complainant that she had suffered a significant blow to her mouth, an injury inconsistent with the suggestion or allegation that her injuries were in fact self-inflicted. The trial judge carefully reviewed the evidence of the injuries. It was clearly open to him to reject the defence hypothesis that they had been self-inflicted.

Custody proceedings and motive to fabricate

[9] Finally, we are not persuaded that the trial judge misapprehended evidence as to the motive of the complainant for bringing her complaint of sexual assault in relation to the custody proceedings. Nor does the proposed fresh evidence give us any concern on this issue.

[10] The history of the custody proceedings is consistent with the complainant's evidence that she did not advance a claim for custody except as a tactical manoeuvre to secure appropriate access. It was only after the trial and after the appellant was convicted and almost certainly headed for prison that she actually actively pursued a custody claim. Had her allegation of sexual assault been fabricated in order to claim custody, it is difficult to understand why she consented to a custody order in favour of the appellant in September 2008 shortly after the alleged sexual assault.

[11] We do not agree that the trial judge misapprehended the evidence as to the custody dispute and we are not persuaded that the proposed fresh evidence as to the custody claim advanced by the complainant after the appellant's conviction could reasonably be expected to have affected the result at trial.

Disposition

[12] Accordingly, both the fresh evidence application and the appeal from conviction are dismissed.

"Robert J. Sharpe J.A."

"E.E. Gillese J.A."

"David Watt J.A."