



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    complainant or a witness shall not be published in any document or broadcast or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.





CITATION:
R. v. C.H., 2011
          ONCA
376



DATE: 20110512



DOCKET: C51513



COURT OF APPEAL FOR ONTARIO



Weiler, Gillese and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



C.H.



Appellant



William Thompson, for the appellant



Susan Magotiaux, for the respondent



Heard and released orally:
May 9, 2011



On appeal from the conviction
          entered on January 23, 2009 and the sentence imposed on September 10, 2009 by
          Justice Erwin W. Stach of the Superior Court of Justice, sitting without a
          jury.



ENDORSEMENT



[1]

The trial judge in comprehensive, thoughtful,
    responsive reasons found the appellant guilty of aggravated sexual assault
    while acquitting him of the charge of attempt murder.

[2]

The appellant submits that the verdict was unreasonable
    and that the trial judge erred in dismissing the defence position that there
    was an alternate suspect.

[3]

The only issue at trial was identity.  The trial judges credibility finding in
    favour of the complainant, C.B., as well as the timing of the assault is
    entitled to deference.  The Crowns
    theory was that C.B. was hit on the head and knocked unconscious before being sexually
    assaulted, while the defence suggested that she may have blacked out due to
    intoxication and been sexually assaulted by a third person at a later point in
    time.  The trial judge gave careful
    consideration to this issue, including finding that C.B.s observations in the
    period immediately prior were the product of a conscious working and aware
    mind before concluding that C.B. was knocked unconscious.  After C.B. refused consensual sex with the
    appellant a second time, C.B.s last memory was of seeing the appellant
    following her and then being on her back screaming, Youre going to kill
    me.  Her account of the surroundings she
    saw while on her back was confirmed.

[4]

The trial judge was also entitled to rely on the circumstantial
    evidence to confirm C.B.s account.  That
    evidence consisted of the appellants DNA on the rock covered in her blood as
    well as convincing eye witness testimony that the appellant had worn a shirt
    that night and returned shirtless.  A
    discarded shirt that bore the complainants blood and the appellants DNA was
    found near the crime scene.  It was the
    trial judges role to resolve inconsistencies in the evidence respecting the
    colour of the shirt and he made no error in doing so.

[5]

As for the appellants statement to the police, the
    trial judge did not, as the appellant contends, make an inference of guilt from
    the statement.  The conclusions he drew
    from the statement were available to him on the evidence.

[6]

The appellants submissions and his specific complaints
    about the trial judges conclusions on isolated pieces of evidence are, in
    essence, an attempt to reargue the case.

[7]

The totality of the evidence amply supported the
    conviction.  The appellants guilt was
    the only rational inference.

[8]

In coming to this conclusion, we do not ignore the
    appellants second argument, namely, that
the trial judge failed to give proper consideration to the evidence of
    an alternate suspect.  In our opinion,
    having regard to the evidence as to the timing of the assault, which he
    accepted, he was entitled to conclude that defence counsel was asking him to
    speculate that there was an alternative suspect.

[9]

The
    appeal is dismissed.
K.M. Weiler J.A.
E.E. Gillese J.A.
H.S. LaForme J.A.