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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. G.T., 2015 ONCA 221

DATE: 20150402

DOCKET: C55221

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. T.

Appellant

Taro Inoue, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: March 12, 2015

On appeal from the conviction entered on December 22, 2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of attempted aggravated sexual assault after a trial before a Superior Court judge sitting without a jury on a single count of aggravated sexual assault.

[2] On his appeal from conviction the appellant says that the trial judge erred:

i. in failing to caution himself about the dangers of making unassisted handwriting comparisons of two documents filed as exhibits at trial and in concluding that the appellant was their author; and

ii. in failing to properly apply the W.(D.) analysis to the critical factual issue at trial, that is to say, whether the appellant and the complainant engaged in unprotected sexual activity after the appellant’s HIV positive diagnosis on March 7, 2006.

[3] We would not give effect to either ground of appeal.

[4] To take first the handwriting point. The appellant acknowledges that it was open to the trial judge to make a comparison between the known handwriting of the appellant, his signature on an affidavit, and the contested document, a motel registration card said to reflect the attendance of the appellant and complainant at a motel where the complainant said unprotected sexual intercourse occurred on a date after the appellant was diagnosed as HIV positive, but before she learned of that diagnosis.

[5] The trial judge accepted the evidence of the motel owner that the appellant and complainant stayed at the motel during the long weekend in May, 2007. He considered the “striking similarity” of the signature of the appellant’s surname on the registration card and his admitted signature on an affidavit filed on a pre-trial motion to be confirmatory of the owner’s sworn testimony. While it may have been preferable for this very experienced trial judge to explicitly caution himself about the care to be taken in unassisted comparisons of handwriting as signalled by the decision of this court in R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 116 C.C.C. (3d) 385, it was not reversible error for him not to have done so: see R. v. Malvoisin (2006), 71 W.C.B. (2d) 215 (Ont. C.A.), at para. 4. His conclusion was a reasonable one in the circumstances of this case.

[6] To take next the complaint that the trial judge failed properly to apply the principles of W.(D.) in reaching his conclusion of guilt. We consider this claim of error to be equally devoid of merit.

[7] The trial judge devoted three paragraphs of his decision specifically to the burden of proof. This portion of his reasons includes specific reference to the principles expressed in W.(D.). For example, in para. 34 of his reasons, the trial judge wrote:

[34] If the testimony of Mr. [T.] with respect to the absence of sexual contact with M.C. after December, 2005 is believed, he is entitled to an acquittal. But even if his testimony is not positively believed, he is entitled to be acquitted if his evidence leaves a reasonable doubt with respect to whether he continued to have sexual intercourse with her after April 2006. And even if his evidence is rejected, it does not follow that he must be convicted. Rejection of his testimony would not alter the nature or incidence of the burden of proof: the burden would remain on the Crown to prove beyond a reasonable doubt on the basis of all the unrejected evidence that he did engage in unprotected sexual intercourse after he learned he was HIV positive. Rejection of his testimony or of any other evidence relied upon by the defence would not bolster the Crown's case. I approach my assessment of the evidence with those propositions clearly in mind.

[8] Faithful to his announced intention, the trial judge concluded his analysis of whether the appellant had had unprotected sexual intercourse with the complainant after his HIV positive diagnosis in these terms:

[47] For the reasons I have indicated, I do not believe Mr. [T.]’s evidence that his sexual relationship with M.C. ended in December 2005, prior to the date on which he learned he was HIV positive. Further, his evidence does not leave me with a reasonable doubt in that respect. The evidence that I do accept – primarily the testimony of M.C. as confirmed by that of Mr. Marzilli – satisfies me beyond a reasonable doubt that Mr. [T.] continued to have an intimate relationship with M.C. after he knew he was infected with HIV, and that he did so both before and after mid-September 2006, when he began antiretroviral drug treatment under the direction of Dr. Hall.

[48] I am also satisfied beyond a reasonable doubt that the sexual intercourse was unprotected. Both M.C. and Mr. [T.] testified that the sexual intercourse they engaged in throughout their affair was often unprotected, notwithstanding their best intentions of using condoms. I believe M.C.’s evidence that this continued in the time period after April 2006.

[9] We would not give effect to this ground of appeal.

[10] The appeal is dismissed.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”