R. v. T.P., (2007) 228 O.A.C. 120 (CA)

• Jurisdiction: Ontario
• Judge: Doherty, Goudge and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2007), 228 O.A.C. 120 (CA),2007 ONCA 585
• Date: 13 April 2007

R. v. T.P. (2007), 228 O.A.C. 120 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. SE.001

Her Majesty the Queen (respondent) v. T.P. (appellant)

(C44807; 2007 ONCA 585)

Indexed As: R. v. T.P.

Ontario Court of Appeal

Doherty, Goudge and Feldman, JJ.A.

August 30, 2007.

Summary:

The accused was charged with sexual assault, assault and threatening death.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 1072, found the accused guilty of the charges. The accused was sentenced to four years' imprisonment (see [2006] O.T.C. 113). The accused appealed from his convictions and sentence.

The Ontario Court of Appeal allowed the conviction appeal, quashed the convictions and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See Criminal Law - Topic 4957].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - The accused was convicted of sexual assault, assault and threatening death, which allegedly occurred on March 9, 2004 - The Ontario Court of Appeal quashed the convictions and ordered a new trial - The court held, inter alia, that the trial judge had misapprehended the evidence of Ms. S., a friend of the complainant - The trial judge found that Ms. S. did not know about any relationship between the complainant and the accused before March 10, 2004, and he used Ms. S.'s ignorance of any relationship to infer that the accused was lying about a prior relationship with the complainant - However, there was no evidence as to when Ms. S. first became aware of the accused or what she knew about the prior relationship between the accused and the complainant - The trial judge was therefore wrong when he indicated that Ms. S.'s first awareness of any contact between the complainant and the accused was on March 10, 2004 - The misapprehension of the evidence was material and the verdict could not stand - See paragraphs 43 to 51.

Evidence - Topic 2291

Special modes of proof - Judicial notice - Particular matters - Human body - Physical capabilities - The accused appealed from his convictions for sexual assault, assault and threatening death - The accused had testified that the sexual activity, which included sexual intercourse, was consensual - It was common ground that the accused was not wearing a condom when he ejaculated and that the complainant would not have consented to unprotected sex - It was therefore important to determine whether the accused was wearing a condom that came off during the sexual activity, as alleged by the accused, or whether he was never wearing one - The trial judge rejected the accused's evidence that the condom became loose and came off when he lost some of his erection during sexual intercourse - The trial judge concluded that "A virile young man with a full erection bound on having a climax would not lose his erection. There is one reasonable interpretation. He did not have a condom on at all" - The Ontario Court of Appeal held that the trial judge erred in law in taking judicial notice that a healthy young male's penis would not lose its erection during sexual intercourse - The court quashed the convictions and ordered a new trial - See paragraphs 30 to 42.

Cases Noticed:

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 154 C.C.C.(3d) 97; 2001 SCC 32, refd to. [para. 37].

R. v. Spence (S.A.) (2005), 342 N.R. 126; 342 O.A.C. 150; 202 C.C.C.(3d) 1; 2005 SCC 71, refd to. [para. 37].

R. v. Lohrer (A.W.) (2004), 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 193 C.C.C.(3d) 1; 2004 SCC 80, refd to. [para. 51].

Authors and Works Noticed:

Binnie, I., Judicial Notice: How Much is Too Much, Law Society of Upper Canada Special Lectures 2003: The Law of Evidence (2004), p. 543 [para. 36].

Counsel:

Peter Copeland, for the appellant;

D. Lepofsky, for the respondent.

This appeal was heard on April 13, 2007, before Doherty, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on August 30, 2007.