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EVIDENCE - Witnesses - Credibility - R. v. W.(D.) analysis

Friday, July 09, 2021 @ 5:41 AM  


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Appeal by JD from his convictions, by a jury, for sexual assault, sexual interference and invitation to sexual touching and the sentence imposed. The complainant testified that for several years when he was a young child, the appellant, a boarder, engaged him in mutual masturbation and oral sex several nights per week. The appellant denied the sexual contact occurred. He admitted he slept in the complainant’s room for a few weeks but testified the door was left open and the complainant’s mother would occasionally check on him. He further testified he lived in another city part of the period alleged. The appellant applied to admit fresh evidence supporting his partial alibi that he did not reside with the complainant for the entire period of the alleged offences.

HELD: Appeal from convictions dismissed; appeal from sentence allowed in part. The trial judge’s instruction on R. v. W.(D.) was not ideal but would not have misled the jury. The appellant’s evidence on the timeline of his whereabouts and his partial alibi, taken on its own, would not have led to an acquittal because of the period he admitted staying with the complainant. The jury instructions made it clear the jury had to believe the complainant that what he said occurred during the period covered by the indictment. The fresh evidence did not meet the cogency or due diligence criteria to be admitted. The retroactive application of ss. 161(1)(a) and (b) contravened s. 11(i) of the Canadian Charter of Rights and Freedoms, as conceded by the Crown. The infringement was not justified by s. 1. The s. 161 orders were set aside. Sentence: three and a half years’ imprisonment, less six months’ credit for bail conditions; DNA order; 10-year weapons prohibition; lifetime SOIRA order.

R. v. J.D., [2021] O.J. No. 3008, Ontario Court of Appeal, K.N. Feldman, M.H. Tulloch and C.W. Hourigan JJ.A., June 2, 2021. Digest No. TLD-July52021010