


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    that could identify the complainant or a witness shall not be published in any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. A.A., 2012 ONCA 323

DATE: 20120516

DOCKET: C51586

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A. A.

Appellant

Michael Dineen, for the appellant

Catherine Mullaly, for the respondent

Heard: April 26, 2012

On appeal from the conviction entered on October 19, 2009
    and the sentence imposed on November 12, 2009 by Justice Lloyd Budzinski of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for sexual assault and utter death
    threat on the ground that in applying the third stage of the
W.D
.
    analysis, the trial judge misapprehended the evidence of the complainant and
    relied on inferences from her evidence that did not logically support the
    conclusion that he drew from them.

[2]

Both the complainant and the appellant testified at the trial. They were
    both friends of another young man, T.F., but had not met each other until that
    evening. There was no issue that they had a lengthy sexual encounter on the
    evening in question. The issue was whether it was consensual or forced on the
    complainant by the appellant. The appellant told her he would drive her home. The
    assault occurred when they were walking, supposedly to the appellants car.

[3]

In assessing the appellants evidence for credibility and reliability,
    the trial judge noted that he demonstrated a pattern of boasting and
    inflationary thinking. As an example, the trial judge mentioned that the
    appellant spoke of one time driving a Lincoln Navigator and working at jobs only
    if the minimum pay was $12 an hour. In fact, however, he had no place to stay,
    having been ejected from a hostel, and no money at the time. The trial judge
    concluded that the appellants tendency to boast undermined his credibility and
    was consistent with the complainants description of his boasting about his
    potentials.

[4]

The appellant submitted that the trial judge erred and misapprehended
    the evidence when he said that the complainant gave evidence of the appellants
    boasting. However, there was some evidence from the complainant, given in
    cross-examination, where the complainant was asked about what occurred after
    the assault. The appellant had walked her to the bus stop and while walking, he
    said that she was going to be his girlfriend, and because of that, he was
    prepared to tell her that he had lied to her earlier when he told her he had a
    car, and that he never had a car.

[5]

The trial judge stated that their descriptions of the boasting were not
    the same, but that the appellants description was consistent with the
    complainants. In light of the fact that the appellant had told her  or
    boasted - that he had a car when he did not, and that in evidence he had referred
    to having (boasted about) a Lincoln Navigator, in our view the trial judge did
    not err in his apprehension that the complainant had described some boasting by
    the appellant.

[6]

In assessing the complainants
    credibility, the trial judge referred to her as giving her evidence in an
    objective manner. In support, he pointed to two aspects of her evidence: (1)
    that she was open about the fact that she was angry at T.F. because she was
    supposed to sleep at his house that night; and (2) that she described the appellant
    after the attack as friendly and as wanting to continue the relationship. The
    trial judge explained that these statements could be viewed as inconsistent
    with someone who was attacked against her will or who was trying to falsely
    blame someone to get the attention of her boyfriend.

[7]

The appellant argues first that the
    trial judge misapprehended the complainants evidence about the accused after
    the attack and second, that the inference he drew from her evidence did not
    follow logically from that evidence. We do not agree.

[8]

The complainant was asked a number of
    times in examination in-chief and cross-examination about what the accused said
    and did after the attack. She described how he walked her to the bus stop so
    that she could take the bus home, and on the way he told her that she would now
    be his girlfriend and that she was pretty. He also threatened her and T.F. with
    death if she told anyone about the attack.

[9]

In totality, it was not an unfair
    characterization of her evidence by the trial judge to say that she described
    the appellant as friendly in the context of deciding whether she was credible.
    He concluded that she was essentially straightforward and he drew the inference
    that she was not embellishing to suit a purpose, which enhanced her credibility.
    He was entitled to view her evidence in that way and made no error in so doing.

[10]

The appellants submission is that the
    trial judges conclusions regarding the complainants evidence amounted to
    misapprehensions of her evidence and did not support his finding on the third
    branch of
W.D.
that the Crown had proved its case beyond a reasonable
    doubt based on the evidence that the court accepted.

[11]

In our view, the trial judge did not
    misapprehend the evidence. He referred to the law as set out in
W.D
. He
    was entitled to reject the evidence of the appellant and accept and act on the
    evidence of the complainant in order to find that the charges of sexual assault
    and utter a death threat to the complainant were proved beyond a reasonable
    doubt. In contrast, he was not satisfied beyond a reasonable doubt on the count
    of threatening death to T.F. and dismissed that count.

[12]

The appeal is dismissed.

Signed:        John
    Laskin J.A.

K.
    Feldman J.A.

David
    Watt J.A.


