



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    that could identify the complainant or a witness shall not be published in any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. Hanson, 2013
    ONCA 577

DATE: 20130926

DOCKET: C54445

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damian Hanson

Appellant

David E. Harris, for the appellant

Randy Schwartz, for the respondent

Heard: September 18, 2013

On appeal from the conviction entered on July 26, 201 by
    Justice Fred Graham of the Superior Court of Justice.

ENDORSEMENT

[1]

At the conclusion of oral argument, we dismissed the appeal with reasons
    to follow. These are those reasons.

[2]

In this case the appellant and the complainant told diametrically
    opposed stories. She told a story of a demand for oral sex followed by forced
    sexual intercourse to which she did not consent. It is not correct to describe
    her testimony as equivocal on the issue of consent.

[3]

The appellant told a story of being sexually assaulted by the
    complainant who forced him to engage in oral sex without his consent and then
    forcibly engaging in intercourse again without his consent. In those
    circumstances the issues were centred on credibility and that is how the trial
    judge, quite properly approached the case.  The elements of the complainants
    evidence that the appellant relies upon as supporting consent, when considered
    in context did not negative consent but were at most issues going to
    credibility.

[4]

The trial judge gave lengthy reasons which did not simply review the
    relevant evidence but analyzed that evidence and explained why he accepted the
    complainants evidence and rejected the appellants evidence. The trial judge
    expressly referred to that evidence from the complainant which the appellant
    says was supportive of the defence of consent. The fact that the trial judge
    referred to that evidence in the context of credibility assessment and bias did
    not demonstrate that he was not alive to its importance.

[5]

The appellant submits that the trial judge erred in failing to consider
    that the complainant was less inhibited and therefore more likely to have
    consented because she drank two bottles of beer. But, this issue was never put
    to the complainant and there was no evidence from any witness, including the
    appellant, that the complainants behaviour was affected by the consumption of
    alcohol. In a similar vein, the appellant argues that the trial judge failed to
    give sufficient weight to the 15-year-old complainants motive to lie out of
    humiliation or embarrassment from having lost her virginity to a 20-year-old
    stranger. We disagree. The chronology of events simply does not support the
    appellants position.

[6]

The trial judge was entitled to consider the complainants demeanour
    immediately after the assault, when she was able to get free from the
    appellant. That demeanour was inconsistent with consent.

[7]

The trial judge explained why mistaken belief in consent was not
    available in this case. That defence did not arise from the appellants
    evidence or the complainants. This was not a case where it was possible to
    splice together pieces of the evidence of the appellant and complainant that
    would be capable of supporting the defence of mistake, see
R. v. Park
,
    [1995] 2 S.C.R. 836.

[8]

Finally, while the trial judge may have placed considerable emphasis
    upon the appellants evidence about a sweater,  we cannot say that his
    conclusion was unreasonable. More importantly, as the respondent points out,
    this was but one of a number of internal and external inconsistencies that led
    the trial judge to reject the appellants evidence. The central reason the trial
    judge rejected that evidence was because it was simply incredible.

[9]

Accordingly, the appeal is dismissed.


