



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Addo-Binney, 2012
    ONCA 792

DATE: 20121119

DOCKET: C53834

OConnor A.C.J.O., Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bismark Addo-Binney

Appellant

A. Herscovitch, for the appellant

G. Choi, for the respondent

Heard and released orally: November 9, 2012

On appeal from the conviction entered on April 8, 2011
    and the sentence imposed on June 15, 2011 by Justice Anne M. Molloy of the Superior
    Court of Justice sitting without a jury.

ENDORSEMENT

[1]

On April 8, 2011, the appellant was convicted of sexual assault. He was
    sentenced to 12 months imprisonment and two years probation. The appellant
    appeals his conviction only to this court.

[2]

The appellant submits that the trial judge improperly took judicial
    notice that men are stronger than women, misapprehended the evidence of the
    relative levels of the complainants and appellants physical fitness and
    effectively shifted the burden of proof by considering whether the inferences
    the defence asserted should be drawn from the evidence were possible rather
    than whether they raised a reasonable doubt.

[3]

The appellant argues that these errors were material to the trial
    judges reasoning and that she failed to properly apply the principles of
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. We do not accept these arguments. At
    various points in her reasons, the trial judge stated the governing
W.(D.)
principles
    correctly. We are satisfied when her reasons are read as a whole that she
    properly applied the
W.(D.)
principles to the entirety of the
    evidence. This is made particularly clear by paras. 94-95 of her reasons.

[4]

While a generalization about the relative physical strength of men and
    women may have questionable relevance in a case like this, where the woman is
    much bigger that the man, we are not satisfied that the trial judges comment
    was material to her conclusion as to the appellants guilt. There was ample
    evidence in the record to support the trial judges findings of credibility. As
    she observed, the text messages between the parties immediately after the
    encounter and the e-mail exchange a few days later strongly corroborated the
    complainants version of what happened. In our view, those text messages were
    tantamount to an acknowledgement of guilt.

[5]

We are not persuaded that there is any basis to interfere with the trial
    judges conclusion. The appeal is dismissed.

D. OConnor A.C.J.O.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A. »


