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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Sanderson, 2016 ONCA 866

DATE: 20161118

DOCKET: C61267

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garry Sanderson

Appellant

James Zegers, for the appellant

David Friesen, for the respondent

Heard: November 10, 2016

On appeal from the conviction entered on June 16, 2015 and the sentence imposed on July 31, 2015 by Justice L.C. Leitch of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant and the complainant met at a social gathering at a mutual friend’s home. The complainant fell asleep on the couch in the early morning hours. The trial judge found that the appellant engaged in sexual intercourse with the complainant while she slept, without her consent, knowing that she was not consenting.

[2] The appellant was convicted of sexual assault and sentenced to a period of incarceration of 30 months. He appeals his conviction and seeks leave to appeal sentence.

[3] The appellant’s primary arguments on his appeal of conviction are that:

1. The trial judge’s credibility analysis was unreasonable and unsupported by the evidence;

2. The trial judge misapplied R. v. W.(D.) and impermissibly shifted the burden of proof to the appellant; and

3. The trial judge erred in concluding that the forensic evidence was consistent with both the appellant’s and the complainant’s version of events. He submits it was only consistent with his version of events.

[4] We reject these arguments.

[5] The trial judge‘s credibility analysis was reasonable and fully supported by the evidence. She began that analysis by instructing herself in accordance with R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and expressly and properly applied R. v. W.(D.). She explained why she did not believe the appellant’s evidence that he engaged in consensual sexual activity, short of intercourse, with the complainant and why his evidence did not leave her with a reasonable doubt. She then proceeded to set out the evidence that she did accept and why she accepted it. She was entitled to consider that the complainant’s behaviour and emotional state, as observed by others, was inconsistent with the appellant’s version of events. The trial judge did not impermissibly shift the burden of proof onto the appellant.

[6] We agree with the trial judge that the forensic evidence that the amylase detected on the complainant’s underwear could have come from the appellant’s saliva was consistent with both the appellant’s and the complainant’s version of events and therefore neutral.

[7] Finally, there is no basis to interfere with the sentence imposed by the trial judge. At the hearing, appellant’s counsel conceded that the sentence the trial judge imposed was within the range established by applicable jurisprudence and that the potential immigration consequences could not justify reducing the sentence to less than six months.

[8] Accordingly, the appeal is dismissed, leave to appeal sentence is granted, but the appeal of sentence is dismissed.

“Alexandra Hoy A.C.J.O.”

“Doherty J.A.”

“K. van Rensburg J.A.”