



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    that could identify the complainant or a witness shall not be published in any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. G.T., 2015 ONCA 221

DATE: 20150402

DOCKET: C55221

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. T.

Appellant

Taro Inoue, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: March 12, 2015

On appeal from the conviction entered on December 22,
    2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of attempted aggravated sexual assault after
    a trial before a Superior Court judge sitting without a jury on a single count
    of aggravated sexual assault.

[2]

On his appeal from conviction the appellant says that the trial judge
    erred:


i.

in failing to caution himself about the dangers of making unassisted
    handwriting comparisons of two documents filed as exhibits at trial and in
    concluding that the appellant was their author; and


ii.

in failing to properly apply the
W.(D.)
analysis to the
    critical factual issue at trial, that is to say, whether the appellant and the
    complainant engaged in unprotected sexual activity after the appellants HIV
    positive diagnosis on March 7, 2006.

[3]

We would not give effect to either ground of appeal.

[4]

To take first the handwriting point. The appellant acknowledges that it
    was open to the trial judge to make a comparison between the known handwriting
    of the appellant, his signature on an affidavit, and the contested document, a
    motel registration card said to reflect the attendance of the appellant and
    complainant at a motel where the complainant said unprotected sexual
    intercourse occurred on a date after the appellant was diagnosed as HIV
    positive, but before she learned of that diagnosis.

[5]

The trial judge accepted the evidence of the motel owner that the
    appellant and complainant stayed at the motel during the long weekend in May,
    2007. He considered the striking similarity of the signature of the
    appellants surname on the registration card and his admitted signature on an
    affidavit filed on a pre-trial motion to be confirmatory of the owners sworn
    testimony. While it may have been preferable for this very experienced trial
    judge to explicitly caution himself about the care to be taken in unassisted
    comparisons of handwriting as signalled by the decision of this court in
R.
    v. Abdi
(1997), 116 C.C.C. (3d) 385, it was not reversible error for him not
    to have done so: see
R. v. Malvoisin
(2006), 71 W.C.B. (2d) 215 (Ont.
    C.A.), at para. 4. His conclusion was a reasonable one in the circumstances of
    this case.

[6]

To take next the complaint that the trial judge failed properly to apply
    the principles of
W.(D.)
in reaching his conclusion of guilt. We
    consider this claim of error to be equally devoid of merit.

[7]

The trial judge devoted three paragraphs of his decision specifically to
    the burden of proof. This portion of his reasons includes specific reference to
    the principles expressed in
W.(D.).
For example, in para. 34 of his
    reasons, the trial judge wrote:

[34]    If the testimony of Mr. [T.] with respect to the
    absence of sexual contact with M.C. after December, 2005 is believed, he is
    entitled to an acquittal. But even if his testimony is not positively believed,
    he is entitled to be acquitted if his evidence leaves a reasonable doubt with
    respect to whether he continued to have sexual intercourse with her after April
    2006. And even if his evidence is rejected, it does not follow that he must be
    convicted. Rejection of his testimony would not alter the nature or incidence
    of the burden of proof: the burden would remain on the Crown to prove beyond a
    reasonable doubt on the basis of all the unrejected evidence that he did engage
    in unprotected sexual intercourse after he learned he was HIV positive.
    Rejection of his testimony or of any other evidence relied upon by the defence
    would not bolster the Crown's case. I approach my assessment of the evidence
    with those propositions clearly in mind.

[8]

Faithful to his announced intention, the trial judge concluded his
    analysis of whether the appellant had had unprotected sexual intercourse with
    the complainant after his HIV positive diagnosis in these terms:

[47]    For the reasons I have indicated, I do not believe Mr. [T.]s
    evidence that his sexual relationship with M.C. ended in December 2005, prior
    to the date on which he learned he was HIV positive. Further, his evidence does
    not leave me with a reasonable doubt in that respect. The evidence that I do
    accept  primarily the testimony of M.C. as confirmed by that of Mr. Marzilli 
    satisfies me beyond a reasonable doubt that Mr. [T.] continued to have an
    intimate relationship with M.C. after he knew he was infected with HIV, and
    that he did so both before and after mid-September 2006, when he began
    antiretroviral drug treatment under the direction of Dr. Hall.

[48]    I am also satisfied beyond a reasonable doubt that the
    sexual intercourse was unprotected. Both M.C. and Mr. [T.] testified that the
    sexual intercourse they engaged in throughout their affair was often
    unprotected, notwithstanding their best intentions of using condoms. I believe
    M.C.s evidence that this continued in the time period after April 2006.

[9]

We would not give effect to this ground of appeal.

[10]

The
    appeal is dismissed.

David Watt
    J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


