Ontario Criminal


Appeal

Right of appeal
Leave to appeal from dismissal of appeal from conviction for sexual assault was refused

Accused was convicted of sexually assaulting complainant, niece of his common-law wife. Complainant and accused both attended party celebrating complainant’s grandparents’ 50th wedding anniversary. Accused had become highly intoxicated. According to complainant, accused entered her room, began sexually touching her and then performed oral sex on her before she realized what was happening and fled room. Complainant testified that she believed accused thought she was his wife, as they had similar build and his wife was initially supposed to stay in that room. At trial, accused denied having any sort of sexual interactions with complainant or his wife that night. Accused said he entered complainant’s room, thought that person sleeping in bed was his wife, and fell asleep naked beside her in bed. Accused denied that he had engaged in sexual activity with anyone believing that she was his spouse. Accused sought leave to appeal from decision of SCAJ dismissing his appeal from conviction. Leave to appeal denied. Whether there was air of reality to defence did raise question of law. Accused conceded that his appeal did not raise issue of significance to administration of justice generally. There were no clear errors identifiable in reasons of SCAJ. Where accused asserts he had no sexual contact of any kind with complainant, it would be fantasy to speculate that he was lying on that point, but to then attribute to him defence completely incompatible with his evidence, namely that he was assailant but he may have been operating on mistaken belief. Accused had not identified any exceptional circumstances which would justify second appeal.

R. v. H. (A.D.) (Oct. 15, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., G. Pardu J.A., and K.M. Weiler J.A., CA C59604) Leave to appeal decision at 117 W.C.B. (2d) 100 was refused. 127 W.C.B. (2d) 10.

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