



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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 friends 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 appellants primary arguments on his appeal of conviction are that:

1.

The trial judges 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 appellants and the complainants version of events.
    He submits it was only consistent with his version of events.

[4]

We reject these arguments.

[5]

The trial judges 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] 1 S.C.R. 742,
and expressly and properly applied
R. v.
    W.(D.)
. She explained why she did not believe the appellants 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 complainants behaviour and emotional
    state, as observed by others, was inconsistent with the appellants 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 complainants underwear could have come from the appellants
    saliva was consistent with both the appellants and the complainants 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, appellants 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.


