



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(1), (2), or (3) of the
Criminal Code
shall continue. 
    These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings
    against an accused shall be held in open court, but the presiding judge or
    justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purpose of
    subsection (1), the proper administration of justice includes ensuring that.

(a)       the interests of the witnesses under the age of
    eighteen years   are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the
    proceedings are protected.

(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212,
    271, 272 or 273 and the prosecutor or the accused applies for an order under
    subsection (1), the judge or justice shall, if no such order is made, state,
    reference to the circumstances of the case, the reason for not making an order.
     R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74,
    c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1;
    1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2;
    2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s.
    20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).






CITATION: R. v. Pearson, 2011
      ONCA 70



DATE:  20110127



DOCKET: C50884



COURT OF APPEAL FOR ONTARIO



Doherty, Laskin and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Derek Pearson



Applicant (Appellant)



Nicholas A. Xynnis, for the applicant (appellant)



Frank Au, for the respondent



Heard:  January 24, 2011



On appeal from the conviction entered by Justice McWilliam of
          the Superior Court of Justice dated November 1, 2007 and the sentence imposed
          on December 11, 2007.



APPEAL BOOK ENDORSEMENT



[1]

This was a straightforward case.  The trial judge was faced with the
    difficult problem of assessing the competing testimony of the appellant and the
    complainant.  His reasons are brief but, in our view, they demonstrate the
    basis for the conviction.  The trial judge referred to the evidence surrounding
    a will admittedly written by the appellant and to the evidence of one of the
    other siblings as supportive of the complainants evidence.  In essence, the trial
    judge convicted the appellant because he concluded that the other evidence in
    the case was consistent with the complainants evidence and not the appellants
    evidence.  The other evidence led the trial judge to believe the complainant
    and disbelieve the appellant.  Those findings of credibility explain the verdicts.

[2]

There is no merit to the submission that the trial judge misapplied the
    burden of proof or that the trial judge somehow applied different standards in
    assessing the credibility of the complainant and the appellant.

[3]

The appeal is dismissed.


