



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

111. (1)
Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138. (1)
Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a)       is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary
    conviction.






CITATION:
R. v. S.P., 2011 ONCA 743



DATE: 20111125



DOCKET: C51110, C51116 and C51208



COURT OF APPEAL FOR ONTARIO



MacPherson, Simmons and Blair JJ.A.



C51110



BETWEEN



Her Majesty the Queen



Respondent



and



S.P.



Appellant



C51116



BETWEEN



Her Majesty the Queen



Respondent



and



F.S.



Appellant



C51208



BETWEEN



Her Majesty the Queen



Respondent



and



K.S.



Appellant



Véronique Henry, for the appellant S.P.



G. Dhaliwal, for the appellant F.S.



Paul Calarco, for the appellant K.S.



Andreea Baiasu, for the respondent



Heard and released orally: November 24, 2011



On appeal from the conviction entered on August 6, 2009, and
          the sentence imposed on September 14, 2009 by Justice David P. Cole of the
          Ontario Court of Justice.



ENDORSEMENT



[1]

The three appellants were jointly convicted of committing a gang sexual
    assault, along with two others who do not appeal.  S.P. and F.S.
    were also convicted of forcible confinement.  S.P. was also convicted of
    assault arising out of an entirely differently incident; he does not appeal
    from this conviction.

[2]

At the trial, it was not in dispute that the appellants and the
    complainant knew each other, were hanging out together in an abandoned apartment
    after school, and that four boys in succession had sex with the complainant. 
    The central issue at the trial was whether the complainant had consented to
    have sex, or whether she was forcibly confined and sexually assaulted by the
    boys.  The trial judge held that the complainant had not consented, and that
    the boys did not have an honest belief in her consent.

[3]

On the honest but mistaken belief in consent issue, all three appellants
    contend that the trial judge ignored relevant evidence in making his
    credibility and reliability findings, misapplied the
W.(D.)
analysis,
    and applied different levels of scrutiny to, on the one hand, the complainants
    evidence and, on the other hand, the appellants evidence.

[4]

We do not accept these submissions.  The trial judge explicitly followed
    the
W.(D.)
analysis.  He carefully reviewed the evidence of all the
    witnesses and made supportable credibility findings relating to them.  His
    scrutiny of the various witnesses strikes us as even-handed.

[5]

In the end, the trial judge accepted the complainants evidence that she
    clearly told S.P. and F.S.  that she did not want to engage in sexual
    activity.  In addition, the trial judge rejected K.S.s evidence in its
    entirety, including his evidence suggesting that the complainant had agreed to
    have sex with him.  In doing so, he found that K.S. was part of a plan worked
    out in advance that all the boys would have sex with the complainant.  It was
    open to him to make this finding.

[6]

The appeals are dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

R.A. Blair J.A.


