Court of Appeal for Ontario

CITATION: R. v. Dorah, 2013 ONCA 273

DATE: 20130429

DOCKET: C55288

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Dorah

Appellant

Counsel:

Matthew Dorah, acting in person

Erica Chozik, duty counsel

Robin Flumerfelt, for the respondent

Heard and released orally: April 15, 2013

On appeal from the conviction entered on June 30, 2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for sexual assault. Counsel submits that the trial judge misapplied the standard of proof, improperly applied a different standard of scrutiny to the evidence of the complainant and failed to advert to the appellant’s mistaken belief that there was consent. As such, the verdict was unreasonable.

[2] We do not give effect to these submissions. The trial judge provided detailed and thoughtful reasons for decision and was satisfied that the Crown had proven beyond a reasonable doubt that sexual intercourse had occurred without the consent of the complainant. He found that the appellant’s testimony was riddled with internal inconsistencies and improbabilities and that it was contradicted in important respects by the witness called by the appellant. He concluded that substantial portions of the appellant’s testimony were untrue.

[3] At pp. 19-20 of his reasons, the trial judge expressly recognized that rejection of the appellant’s evidence did not lead inexorably to a conclusion that he was guilty and that as the trial judge, he must subject the testimony of the complainant to the same degree of scrutiny as that of the appellant.

[4] In our view, the trial judge proceeded to do so and addressed the weaknesses in the complainant’s testimony including her allegation of having made a call to 911. That said, he was satisfied that there was corroboration for her account of what happened.

[5] The reasons read in their entirety do not reveal that the appellant’s evidence was subjected to uneven or unfair scrutiny. See also R. v. C.R. 2010 ONCA 176.

[6] Based on the evidence before him, it was open to the trial judge to conclude that the complainant did not consent to sexual intercourse with the appellant and that the appellant knew that she was not consenting.

[7] Furthermore, there is no air of reality to the argument that a basis for considering mistaken belief in consent could be cobbled together from all the evidence that the trial judge accepted.

[8] The appeal is dismissed.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”