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CRIMINAL CODE OFFENCES - Offences against person and reputation - Overcoming resistance to commission of offence

Tuesday, January 19, 2021 @ 6:11 AM  

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Appeal by Mavros from his convictions for overcoming resistance, assault, forcible confinement, sexual assault and uttering threats. The appellant and the complainant met twice for consensual sex. The complainant testified that on a third occasion in April 2009, the appellant choked her until she passed out and then forced sexual intercourse on her four times throughout the night before driving her back downtown while threatening to burn her alive. The complainant reported the incident to the police later that day. A sexual assault examination found pinpoint bleeds in the complainant’s eye, bruising to her neck and the appellant’s semen in her vagina. The appellant admitted seeing the complainant on the night in question but denied having sex with her. The appellant was convicted in January 2017. There were six different trial dates and the appellant had five different lawyers. The trial judge found the total delay from charge to the conclusion to trial was 62 and a half months. He deducted 32 months’ delay attributed to the defence. The trial judge concluded the non-appearance of the complainant at the first trial in 2013 was an exceptional circumstance, which left a remaining delay of 14 months, under the presumptive ceiling. Police issued a subpoena for the complainant four months in advance of trial, met with her once and attempted to locate her through her brother on multiple occasions. Both the complainant and appellant had previous criminal records. The trial judge found the complainant was credible and rejected the appellant’s evidence.

HELD: Appeal dismissed. The non-attendance of the complainant at the first trial was reasonably unforeseen and unavoidable. Her non-attendance was an exceptional circumstance. The time lost could be subtracted from the delay to bring it below the 18-month presumptive ceiling. The trial judge did not err in his analysis of the delay. The trial judge’s assessment represented a contextual approach rather than an uneven scrutiny of the appellant’s and complainant’s criminal records. There was no error in his assessment of the witnesses’ credibility and reliability or in his degree of scrutiny of the evidence. The trial was not tainted or unfair due to the appellant’s self-representation during his successful adjournment application. The trial judge clearly disabused his mind of anything from the voir dire that was not admitted at trial.

R. v. Mavros, [2020] A.J. No. 1339, Alberta Court of Appeal, T.W. Wakeling, M.G. Crighton and K.P. Feehan JJ.A., December 7, 2020. Digest No. TLD-January182021003