



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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.
Adu
, 2015 ONCA 525

DATE: 20150710

DOCKET: C57585

Weiler
, Tulloch and van
Rensburg
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis
Adu

Appellant

Najma

Jamaldin
and Paul
Genua
, for the appellant

Amanda
Rubaszek
, for the
    respondent

Heard: June 4, 2015

On appeal from the conviction entered on April 5, 2013 by
    Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault. He submits that
    the complainant was so lacking in credibility that the verdict was unreasonable
    and cannot stand. He further submits that the trial judge misapprehended the
    evidence and that she did not submit the complainants testimony to the same
    level of scrutiny as that of the appellant.

[2]

We disagree. The inconsistencies and frailties in the complainants
    evidence on which the appellant relies were addressed in the trial judges
    reasons which ran to 398 paragraphs. The reasons make it clear that the trial judge
    was alive to the inconsistencies and problems with the complainants evidence
    including her criminal record which included crimes of dishonesty, her history
    of drug abuse, her evidence as to how she got to the appellants apartment
    (which the trial judge ultimately rejected), her motive to lie or fabricate,
    and the various phone calls that were made from the complainants cell phone.

[3]

Although the appellants counsel relied on the decision of this court in
R. v.
Rhayel
,
[2015] O.J. No. 2675
,
in support of her argument that the trial judge applied different levels of
    scrutiny to the evidence of the appellant and the complainant, in this case,
    unlike in
Rhayel
,
the trial judge
    meaningfully addressed the difficulties in the complainants evidence and
    provided reasons why on the whole of the evidence she was satisfied that the
    appellant was guilty beyond a reasonable doubt.

[4]

This case turned on credibility. There was no issue that the appellant
    and the complainant had had sex. The appellants DNA was found in the
    complainants vagina. The defence position was that the complainant, a complete
    stranger to Mr.
Adu
, came to his apartment with
    another man, that she came on to him, was attracted to him, and that, after
    smoking cocaine, she was capable of consenting and did consent to having sex
    with him or that he had an honest belief in her consent.

[5]

The complainants evidence was that her first memory in the apartment
    was that she awoke or came to and realized that she was naked, lying face down
    on a bed and being penetrated vaginally from behind. She made it clear that she
    did not consent to this activity. The man had his hand on the small of her back
    applying pressure. She told him she did not want to do this and he told her
    to calm down that it would be worse for her if he was uncomfortable and that
    she should relax.

[6]

Having regard to the frailties in the complainants evidence, the trial
    judge looked for confirmation of the complainants account and found it in
    other parts of the evidence including, that Mr.
Adu
was a total stranger over 20 years older than the complainant; the complainant
    reported the sexual assault to the Shoppers Drug Mart security guard and the
    police within minutes of leaving the appellants apartment and her highly
    emotional state at this time; when examined by the sexual assault nurse at the
    hospital the complainant had injuries to her genitals consistent with a sexual
    assault and although these injuries were also consistent with vigorous
    consensual sex, the complainant had recent bruising on other parts of her body
    including her arms.

[7]

Contrary to the submission of the appellant, the trial judge did not
    misapprehend the evidence in any material respect that was essential to her
    credibility assessment.

[8]

It was open to the trial judge to find, as she did, that the frailties
    in the complainants evidence did not undermine the overall veracity of her
    account of being sexually assaulted by the appellant and to find him guilty of
    sexual assault. The verdict is reasonable.

[9]

Accordingly, the appeal is dismissed.

K.M.
Weiler
J.A.

M. Tulloch J.A.

K. van
Rensburg
J.A.


