WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.V., 2020 ONCA 291

DATE: 20200514

DOCKET: C65682

Feldman, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.V.

Appellant

Riaz Sayani, for the appellant

Nicole Rivers, for the respondent

Heard: December 4, 2019

On appeal from the conviction entered on April 18, 2018 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting without a jury.

Feldman J.A.:

Overview

[1] The appellant and the complainant had been high school friends. They were not in a romantic or sexual relationship. One afternoon, they had a sexual encounter at the appellant’s home involving vaginal sex and cunnilingus. The complainant said she did not consent. She testified that the appellant hit her head against a wall before he had sex with her and choked her while doing so. The appellant said the sex was consensual. He denied hitting the complainant’s head against the wall or ever choking her.

[2] The trial judge convicted the appellant of sexual assault, assault, and choking.

[3] Before this court, the appellant challenges the credibility findings of the trial judge. With respect to his own testimony, the appellant argues the trial judge erred in law by finding that he structured his testimony to meet the allegations he was facing, and misapprehended critical aspects of his testimony. With respect to the complainant’s testimony, the appellant argues that the trial judge minimized inconsistencies in her evidence in contrast to the treatment of his evidence.

[4] I would allow the appeal and order a new trial. It was an error of law for the trial judge to turn the appellant’s constitutional rights to be present at the hearing, to know the case he had to meet, and to make full answer and defence into an evidentiary trap, by finding that he structured his evidence to respond to the allegations against him. The trial judge also erred by misapprehending the evidence of the appellant on a key issue.

A. Facts

[5] Both parties testified. Their accounts were similar in several respects. They agreed there was a sexual encounter that included intercourse and cunnilingus. They disagreed on whether the sexual encounter was consensual, on whether the appellant pushed the complainant’s head into the wall and choked her during sex, and on many other details.

[6] The complainant was having a bad day at school on October 26, 2015 and began a Facebook chat with the appellant, a friend who had graduated. He offered to pick her up. They went to his house to watch a TV show on Netflix.

[7] The TV was in his bedroom in the basement. He lay down on the bed. She sat on the bed at his feet. When she started to feel hot in her sweatshirt, she borrowed a t-shirt from the appellant. She said she changed into the t-shirt in the hall, out of the appellant’s sight, while he said she changed in the bedroom but he turned his back. She denied that they were cuddling or kissing while watching the TV show. The appellant testified that they were. She later put the sweatshirt back on over the t-shirt and then removed the t-shirt from underneath. After the TV show had finished, they decided to watch a movie.

[8] Her version of what happened next was that he asked her three or four times if she wanted to have sex with him and she said no each time. They continued watching the movie in an awkward silence for about 15 minutes, when, out of the blue, he smashed her head into the wall. She was stunned and said “ow”. At the preliminary hearing, the complainant had not mentioned the 15-minute delay, and explained in cross-examination at trial that it had been a long time since the events she was describing and some parts got lost in memory.

[9] The appellant denied hitting the complainant’s head against the wall. According to him, as their kissing progressed, he started to feel her breasts, then removed her pants, which she assisted by lifting her buttocks off the mattress. When he went to remove her sweatshirt, she did it herself, in order to avoid messing up her hair. He removed her bra and his own shirt.

[10] Her version was that when he tried to remove her pants she said no and tried to hold them on. He took off his clothes, laughing a little. She told him she didn’t want to do this, and he told her not to be a baby. He pulled her pants down to the ankles and moved himself between her legs, pushing them apart.

[11] He claimed that he asked her if she wanted him to use a condom, to which she replied that it didn’t matter. She denied that he asked. He denied that he made the “don’t be a baby” comment.

[12] They both agreed that he then penetrated her with his penis. She said she did not consent and said “ow,” which prompted him to chuckle. He testified that she only said “ow” after about two minutes, and that she said it hurt because “you’re big.” He replied, “Oh, you haven’t had it this big?” She denied the exchange. She said she pushed on his chest to try to get him off. She also testified that he was propping himself up on one hand with the other hand on her neck, choking her, and he asked her if she was enjoying it. She said no and he moved his hand after a little while. He denied choking her. He testified that throughout the encounter he was kissing her and her body and that she was kissing him back, which she denied.

[13] She testified that he pulled out and began performing cunnilingus on her but stopped when she pushed his head away. He put his penis close to her face and asked for oral sex, which she refused. He said she refused because his penis had already been inside her vagina. She denied saying that. He then had sexual intercourse with her again. She testified that she again said “ow”, he again told her to stop being a baby, and kept asking her if she liked it. She kept answering no. He claimed that they changed positions, which she denied. He said that he asked her where she would like him to ejaculate and she answered that it didn’t matter. He also asked her if she would swallow it, which she refused. She eventually agreed that he would ejaculate on her stomach, which he did. She denied this entire conversation, but agreed that he did ejaculate on her stomach.

[14] At the end they wiped themselves off with Kleenex and he drove her home. He described the drive as awkward, and she said they did not speak and she could not wait to get out of the car. He said she gave him a kiss goodbye. She denied it. Later, he texted her but she did not respond.

[15] When the complainant got home, she began to cry and throw up, and she told her stepmother about the incident involving the appellant. Her father called the police that evening. She was taken to the hospital for a sexual assault examination. A nurse at the hospital testified that the complainant was “very scared and upset”.

[16] For the appellant’s part, after dropping the complainant at her home, he bought some oven-ready pizzas at Foodland and went to his friend’s house to watch a hockey game.

[17] Within the next couple of days, a detective called the appellant asking if he would turn himself in. In a police statement, the appellant reported that he then called his friend to tell him that the complainant had said he raped her. He told his friend, “I’m fucked dude.”

[18] The appellant confirmed in his testimony that he thought the entire encounter was consensual. He said the complainant did not tell him to stop except in relation to the oral sex, she helped him remove her clothing, and she did not resist or push him away. The complainant said the opposite. She did push him away, she was assaulted, choked and constrained by his larger body on top of her. She did not consent.

B. Reasons of the Trial Judge

[19] The trial judge found the complainant to be entirely credible, honest, and open. She found the complainant’s testimony internally consistent and that she responded carefully to discrepancies between her evidence-in-chief and her testimony at the preliminary inquiry. The trial judge found the tone of the Facebook messaging beforehand was not sexual and there was nothing to suggest that a sexual encounter was going to take place. The trial judge observed that the way the complainant changed her clothes showed modesty, and found that the awkwardness on the drive home was more consistent with non-consensual sex. The trial judge also placed weight on the fact that the complainant disclosed the event immediately to her stepmother, who testified that the complainant was “shaking and crying hysterically”, and on the fact that that the nurse at the hospital said she was very upset and scared.

[20] The trial judge rejected the testimony of the appellant for two reasons. The trial judge’s first reason was that she agreed with the Crown’s submission, that “his testimony was structured to meet the allegations he was facing.” Second, she rejected his evidence because he remembered details of collateral issues but had “no recollection of choking [the complainant] or placing his hands on her neck”, which the trial judge found “simply defies credibility.” However, the trial judge rejected the Crown’s submission that the appellant’s comment to his friend – “I’m fucked” – was an admission of guilt. The trial judge viewed that comment as equally consistent with surprise or fear.

[21] The trial judge concluded that the appellant’s evidence did not leave her with a reasonable doubt and found him guilty on all counts.

C. Issues on Appeal

[22] The appellant submits that the trial judge made three errors in her credibility assessments, two regarding the appellant’s credibility and one regarding the complainant’s credibility:

1. The trial judge erred in law by finding that the appellant structured his evidence to meet the allegations he was facing, thereby turning against him his rights to know the case he had to meet and to make full answer and defence.

2. The trial judge erred in law by misapprehending the appellant’s evidence on the issue of his denial that he choked the complainant.

3. The trial judge erred in law by minimizing major discrepancies in the complainant’s evidence, resulting in uneven scrutiny of the appellant’s and the complainant’s evidence.

[23] I would allow the appeal on the basis of the first two grounds of appeal. As I would order a new trial, it is unnecessary to rule on the appellant’s arguments concerning uneven scrutiny of the evidence.

D. Analysis

(1) The “Evidence Structuring” Error

The Legal Principles

[24] An accused person is constitutionally entitled and statutorily required to be present at his or her trial: Criminal Code, R.S.C. 1985, c. C-46, s. 650(1); R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79. The accused is also entitled to make full answer and defence: Charter, ss. 7 and 11(d); Criminal Code, s. 650(3).

[25] In order to give full effect to these entitlements and obligations, as well as an accused’s Charter right under s. 7 to a fair trial, this court has held in a number of cases that it is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that he tailored his evidence to the disclosure or the testimony heard in court. To do so has the effect of turning those entitlements into a trap for the accused who testifies: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.); R. v. White (1999), 1999 CanLII 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.); R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; and R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170. This court has most recently affirmed these principles in R. v. M.D., 2020 ONCA 290, released concurrently with this decision.

[26] In White, Doherty J.A. acknowledged that it seems a logical inference to draw, that where a witness appears to have crafted his evidence to respond to information provided to him about the case, that tends to make his evidence suspect. However, even though it may seem logical, it is an illegal inference when drawn against an accused, who is entitled to hear the case he or she has to meet and to respond to it, as Doherty J.A. held at para. 20:

As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. [Footnote omitted.]

[27] The jurisprudence has recognized a limited range of circumstances in which the Crown may cross-examine an accused on his right to be present at trial or on his right to receive disclosure. One such situation arose in White, where the accused used telephone records produced prior to trial to assist with times and dates of meetings with the complainant, and the Crown was entitled to bring out that he had had access to the records before testifying: see White, at para. 22; R. v. Cavan (1999), 1999 CanLII 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.), at para. 45, leave to appeal refused, [1999] S.C.C.A. No. 600; R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58.

[28] Similarly, the Crown may cross-examine the accused on disclosure to substantiate a claim of recent fabrication or concoction of an alibi by the accused: see R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105. However, the Crown cannot make the allegation of concoction to the jury without first putting it to the accused and giving him an opportunity to respond. That was the Crown’s error in Peavoy.

[29] In Peavoy, the Crown argued in its closing address to the jury that the accused had concocted his evidence after receiving disclosure, but never put that proposition to the accused. The court found the Crown’s conduct unfair and prejudicial both because of the misuse of disclosure against the accused and the failure to give the accused the opportunity to respond to the charge of recent fabrication: Peavoy, at p. 625.

[30] R. v. Jorgge was a judge-alone trial where the trial judge erred in her reasons by discounting the appellant’s evidence regarding the meaning of consent because she found that he tailored his evidence to the arguments he had heard his counsel make on a voir dire: at paras. 8-11. White and Schell were jury trials where the Crown erred in the cross-examination of the accused by suggesting that his evidence was suspect because he had received disclosure before testifying. While a limiting instruction to the jury was sufficient to cure the error in White, the trial judge gave no such instruction in Schell, and this court ordered a new trial: White, at para. 21; Schell, at para. 66.

[31] In Thain, a judge-alone trial, the trial judge made the same error by taking into account, when assessing the accused’s credibility, the fact that he had received disclosure before testifying, as quoted at para. 15: “The accused’s credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence.”

The Crown’s Position at Trial

[32] It was the Crown’s submission at trial, adopted by the trial judge, that the accused should not be believed because he structured his evidence to meet the allegations he was facing.

[33] In her written closing submissions, the trial Crown summarized her arguments why the trial judge should reject the appellant’s evidence by stating: “In essence, it is the respectful submission of the Crown that [the appellant’s] evidence was structured to meet the allegations he was facing”, citing R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381. Under the heading “Memory Better Today,” the Crown advanced the following argument:

[The appellant] testified that his memory is better today when asked in cross-examination about the inconsistency between his trial evidence and his statement with respect to why [the complainant] changed into a t-shirt. Two days after the incident he told Detective Watson that he doesn’t remember why she needed a t-shirt and in examination in chief he testified she said she was hot. That his memory is better today, does not have the ring of truth.

[34] In her oral closing submissions, the trial Crown elaborated on this argument, stating:

With respect to his memory being better today or him not structuring his evidence, I mean, he testifies in his statement – and this is just one detail, but not knowing why she changed her shirt and then hears her testify and lo and behold now his evidence has changed and I think that’s important to note, that he’s changed his evidence from the original statement. [Emphasis added.]

[35] In rejecting the appellant’s evidence, the trial judge stated: “I agree with the Crown’s submission that [the appellant’s] testimony was structured to meet the allegations he was facing.”

Analysis on Appeal

[36] On appeal, the Crown makes two arguments to justify the trial judge’s “structuring” finding.

[37] First, in its factum, the Crown cites five areas in the appellants’ evidence that it argues made it reasonable for the trial judge to conclude that the appellant’s testimony was “structured to meet the allegations he was facing.” However, that argument misses the point. It is the duty of the trial judge to resist such reasoning, no matter how seductive, and to look for other bases on which to assess the accused’s credibility without undermining his constitutional rights.

[38] Second, the Crown argues that the trial judge was entitled to disbelieve the appellant on the basis of his claim that his memory had improved over time regarding the t-shirt incident.

[39] Noting the inconsistency in the appellant’s evidence discussed above, the trial Crown argued that the appellant “hear[d] [the complainant] testify and lo and behold now his evidence has changed”. Unfortunately, this is the very type of structuring accusation that is not permitted for a Crown or a trial judge. By accepting the trial Crown’s submission that the appellant’s testimony “was structured to meet the allegations he was facing,” the trial judge fell into precisely the type of legal error that Laskin J.A. described in Jorgge, at para. 13:

The trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial. She was not, however, entitled to attribute those inconsistencies to his presence at the voir dire.

[40] Accordingly, the trial judge erred in law and improperly turned the appellant’s right to be present at his own trial into an evidentiary trap.

[41] While Crown counsel agreed in oral argument that it would be an error for a trial judge to use the accused’s presence in court against him by suggesting that he tailored his evidence, the Crown relied on three cases in support of its position that the trial judge was entitled to refer to “a different type of structuring”: R. v. Gilbert, 2015 ONCA 927, 343 O.A.C. 199; Quartey; and R. v. Roble, 2004 CanLII 23106 (Ont. C.A.).

[42] First, the Crown submitted that it is not an error for a trial judge to assess an accused’s credibility by observing that the accused tailored his evidence to put himself in a more favourable light. In Gilbert, the trial judge impugned the accused’s credibility in part because he tailored his denials of the allegations against him in a way that made him appear respectful of boundaries between teachers and students. That reasoning was not improper because, unlike in this case, it did not turn on the accused using disclosure or responding to the evidence heard at trial.

[43] Second, the Crown referred to Quartey, in which the trial judge found the accused’s evidence to be “insincere, concocted, and unbelievable” and added that it was “structured clearly to meet the allegations he was facing”: at para. 19. The challenge to the credibility assessment in Quartey on appeal was that the trial judge believed he was choosing between the two versions of the events, he applied stereotypical myths in rejecting aspects of the accused’s evidence, he shifted the burden of proof, and he applied uneven scrutiny. There was no challenge to the trial judge’s reference to structuring. The majority of the court dismissed the appeal; it did not consider the structuring comment on the basis that it undermined the accused’s right to be present at his trial, nor did the court affirm the reasons on that basis. The Supreme Court later approved the analysis of the majority of the Court of Appeal in brief oral reasons: 2018 SCC 59, [2018] 3 S.C.R. 687.

[44] The third case relied on by the Crown is a brief, six-paragraph endorsement of this court in 2004 in R. v. Roble. The issues on appeal in that case were uneven scrutiny of the evidence and undue reliance on demeanour. The trial judge found that the accused’s evidence was “well thought out; scripted” or had “the aura of it being tailored to fit the circumstances”: 2002 CarswellOnt 5994 (S.C.), at paras. 41, 45. This court was not asked to consider whether those statements undermined the appellant’s right to be present at the trial and to make full answer and defence.

[45] I am satisfied that these cases are all distinguishable from this appeal. The court was not asked in any of these cases to address the “structuring” or “tailoring” error on the basis discussed in Peavoy, White, Schell, Thain, and Jorgge, binding decisions of this court that address the issue directly. While a trial judge is entitled to treat with concern an accused’s evidence that appears rehearsed, scripted, or implausible, it will be an error for a trial judge to find or for a Crown to submit that an accused’s evidence should be rejected because it appeared tailored or structured to meet the case against him.

Conclusion

[46] In this case, the trial judge accepted the submission of the trial Crown, amplified by an example from the evidence, that the appellant’s evidence was structured to respond to the allegations against him. She erred in law in so doing. By assessing the appellant’s evidence in that way, the trial judge made a trap of his right to be present at the trial and to make full answer and defence.

(2) Misapprehension of the Choking Evidence

[47] The appellant also submits that the trial judge misapprehended his evidence on a key issue that clearly affected her overall conclusion on credibility and the outcome of the case.

[48] The trial judge advanced only two reasons for disbelieving the appellant. The first was because his evidence was structured to meet the allegations he was facing. I have already found that to be an error of law.

[49] The second was with respect to the appellant’s denial that he remembered choking the complainant. The trial judge explained her conclusions regarding the appellant’s credibility in the following statement in her reasons:

This court deals with many allegations of historic sexual assault, incidents that have occurred years in the past. Often accused persons in those cases are required to recall incidents that have occurred decades ago. This is not such a case. [The appellant] met with police officers the day after the incident, yet he testified that he had “no recollection of choking [the complainant] or placing his hands on her neck”. This simply defies credibility. This is in distinct contrast to his testimony that had remarkable specificity in regard to collateral matters.

[50] She then listed four details that the appellant remembered regarding where he purchased his TV, the brand of t-shirt he lent to the complainant, the fact that he used to go to church near the complainant’s home, and that he purchased oven-ready pizzas because he knew Foodland had a deal.

[51] However, a review of the appellant’s evidence on the choking issue reveals that he maintained throughout his testimony that he did not choke the appellant. At the very beginning of his testimony, the appellant’s trial counsel asked him if he choked the complainant and he said, “No, I did not.” Counsel later asked if the appellant had “any recollection” of his hand being on her neck and he said he had “absolutely no recollection of that.” Then, in cross-examination, Crown counsel followed up on the “recollection” language in the following exchange:

Q. Okay. So when your lawyer was asking you questions about choking your response was you have no recollection of choking her. So it’s possible you did choke her, but you just don’t remember?

A. No, I must have worded that wrong because there was no choking.

Q. You must have worded that wrong?

A. Yeah…

Q. Okay.

A. … I must have worded that wrong then, because I did not choke her.

Q. Well, you’re trying to be, I take it, as honest as you can right now, right?

A. Yes.

Q. And you’re under oath and you know that it’s your trial right now?

A. Yes.

Q. Okay. So it’s very important the words that you choose when you’re speaking, correct?

A. Yes, correct.

Q. Okay. So you didn’t mean you have no recollection of it when you said that?

A. No, I meant I do not remember that.

[52] It is clear from the trial judge’s reasons that her understanding of the appellant’s evidence was that in fact he might have choked her, but he just did not remember. It was the inability to remember that the trial judge found defied credibility. But from the beginning of his testimony through his cross-examination, it is clear that he denied that he choked the complainant. It was not a matter of memory.

[53] In R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 40, Watt J.A. explained what constitutes a misapprehension of evidence: “A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings”.

[54] Here, the trial judge mistook the substance of the appellant’s evidence on this critical point and failed to give proper effect to that evidence.

[55] In this case, as both reasons the trial judge gave for rejecting the appellant’s evidence were tainted by error, no foundation remains for sustaining that finding.

(3) Conclusion

[56] As the first two grounds are determinative of the result, there is no need to address the third ground of appeal.

[57] I would also add this comment. In this appeal, and in M.D., another sexual assault decision released concurrently with this one, the “structuring” or “tailoring” error has required this court to order a new trial, with all that entails for the parties, especially in a sexual assault case. The two appeal decisions are being released together to draw attention to the error that has been identified by this court in a number of cases over the last two decades, in order to highlight its significance.

E. Disposition

[58] I would allow the appeal, set aside the conviction, and order a new trial.

[59] Because of the COVID-19 emergency, the panel relieved the appellant from the term of his bail that requires him to surrender into custody prior to this decision being released.

Released: “K.F.” May 14, 2020

“K. Feldman J.A.”

“I agree. M. Tulloch J.A.”

“I agree. M. Jamal J.A.”