



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dorah, 2013
    ONCA 273

DATE: 20130429

DOCKET: C55288

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Dorah

Appellant

Matthew Dorah, acting in person

Erica Chozik, duty counsel

Robin Flumerfelt, for the respondent

Heard and released orally:  April 15, 2013

On appeal from the conviction entered on June 30, 2011 by
    Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault. Counsel submits
    that the trial judge misapplied the standard of proof, improperly applied a
    different standard of scrutiny to the evidence of the complainant and failed to
    advert to the appellants mistaken belief that there was consent. As such, the
    verdict was unreasonable.

[2]

We do not give effect to these submissions. The trial judge provided
    detailed and thoughtful reasons for decision and was satisfied that the Crown
    had proven beyond a reasonable doubt that sexual intercourse had occurred
    without the consent of the complainant. He found that the appellants testimony
    was riddled with internal inconsistencies and improbabilities and that it was
    contradicted in important respects by the witness called by the appellant. He
    concluded that substantial portions of the appellants testimony were untrue.

[3]

At pp. 19-20 of his reasons, the trial judge expressly recognized that
    rejection of the appellants evidence did not lead inexorably to a conclusion
    that he was guilty and that as the trial judge, he must subject the testimony
    of the complainant to the same degree of scrutiny as that of the appellant.

[4]

In our view, the trial judge proceeded to do so and addressed the
    weaknesses in the complainants testimony including her allegation of having
    made a call to 911. That said, he was satisfied that there was corroboration
    for her account of what happened.

[5]

The reasons read in their entirety do not reveal that the appellants
    evidence was subjected to uneven or unfair scrutiny. See also
R. v. C.R
.
    2010 ONCA 176.

[6]

Based on the evidence before him, it was open to the trial judge to
    conclude that the complainant did not consent to sexual intercourse with the
    appellant and that the appellant knew that she was not consenting.

[7]

Furthermore, there is no air of reality to the argument that a basis for
    considering mistaken belief in consent could be cobbled together from all the
    evidence that the trial judge accepted.

[8]

The appeal is dismissed.

R.G. Juriansz J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


