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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
DATE: 20220906 DOCKET: C68522
Trotter, Zarnett and Favreau JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Dylan Levely Appellant
Counsel: Craig Zeeh and Alison Craig, for the appellant Michael S. Dunn, for the respondent
Heard: April 4, 2022
On appeal from the convictions entered by Justice Pamela Borghesan of the Ontario Court of Justice on February 6, 2020, and from the sentence imposed on June 22, 2020.
Overview
1The appellant was convicted of criminal harassment, assault, mischief, extortion, sexual assault, forcible confinement, and breach of probation. The trial judge imposed a global sentence of five years for these offences, less credit for pre-trial custody.
2The criminal harassment charge arose out of numerous threatening emails the appellant sent, on June 24 and 25, 2019, to the complainant, his former intimate partner, demanding that she see him and return money he claimed she owed him. The assault, mischief, extortion, sexual assault, and forcible confinement charges arose out of interactions between the appellant and the complainant when, after the last of the threatening emails, they actually met on June 25, 2019. The breach of probation charge arose from the fact that during this time period the appellant was on probation and required to keep the peace and be of good behaviour.
3The appellant argues that the trial judge misapprehended the evidence concerning emails exchanged between the appellant and the complainant on June 26, 2019, following the occurrence of the alleged offences, and, in respect of that evidence, proceeded in a manner that undermined trial fairness. He also argues that the trial judge misapprehended the effect of the evidence of a defence witness whom she found to be credible.
4For the reasons that follow, I would dismiss the appeal.
5The appellant’s argument concerning June 26 emails focuses on the trial judge having relied on one of them without taking into account an additional email sent by the appellant on that date. The argument fails because the additional email the appellant says the trial judge overlooked was not part of the evidence. It was referred to in a PowerPoint compilation of emails provided to the trial judge as an aid – but was never made part of the evidentiary record in the manner that other emails, including the one the trial judge relied on, were. Although that process had the potential for confusion, it is clear that the participants at trial were not actually confused and did not consider emails that were only referred to in the PowerPoint, but were not otherwise admitted into evidence, to be part of the evidentiary record the trial judge was to consider.
6The appellant also asserts that he had no opportunity to respond to the significance of the June 26 email on which the trial judge relied, claiming he was not cross-examined on it and the Crown disavowed reliance on it in argument. The predicates to a trial unfairness argument are not, however, made out. Crown counsel did cross-examine the appellant on the email in question, and did place considerable reliance on it in her closing argument. The defence had an opportunity to respond to the claimed significance of the email. In all of the circumstances, the trial judge cannot be said to have convicted the appellant on a basis of which he was unaware and to which he had no opportunity to respond.
7The trial judge’s reasons show that she did not misapprehend the evidence of the defence witness she found to be credible; her reasons reconciled that evidence with the evidence of the complainant in a manner responsive to the main contention the appellant made at trial about it.
The Trial Evidence
8Because of other offences he had committed, the appellant was on probation in June 2019, on terms that included a condition that he keep the peace and be of good behaviour.
9The appellant and the complainant had been in an intimate relationship, but it had ended by June 2019 and they were dating other people. The appellant was, however, jealous of the complainant’s new boyfriend, and believed that she owed him money.
(i) The Emails and the PowerPoint Compilation
10An important part of the evidence at trial consisted of emails between the appellant and the complainant. The way in which the emails were presented to the trial judge gave rise to a difference of opinion between counsel on appeal as to exactly what was in evidence at trial.
11During the examination-in-chief of the complainant, Crown counsel indicated that she intended to put certain email correspondence into evidence, and that because of their number and frequency – “an email every minute sometimes” – she had created a PowerPoint presenting them in chronological order to avoid confusion. The trial judge asked Crown counsel if she intended to enter “the originals as exhibits with the PowerPoint as an assist”; Crown counsel agreed that this was her intention.
12Defence counsel then stated that the emails were going in on consent and questioned whether both the originals and the PowerPoint were required, as she was satisfied the PowerPoint “accurately reflects both the chronology of the emails and… the content”. Crown counsel responded that her position was that “the evidence is the originals and the PowerPoint is an aid and so I’m asking for both to go in.”
13The court then marked, as Exhibit 2, “the emails” and, as Exhibit A, the PowerPoint.
14From the discussion that led up to the marking of Exhibit 2 and the PowerPoint, one might have thought that the emails in Exhibit 2 and in the PowerPoint were the same. However, Exhibit 2 consisted only of emails exchanged between the appellant and the complainant on June 24 and June 25 up to 5:09 p.m. The PowerPoint included those emails, but also included further emails: four emails sent between 10:18 p.m. and 11:05 p.m. on June 25, and 48 emails sent on June 26 and 27. There was no discussion of the evidentiary status of emails that were included in the PowerPoint but not in Exhibit 2.
(ii) The Exhibit 2 Emails
15On June 24 and 25 (up to 5:09 p.m.), the appellant sent over sixty emails to the complainant, demanding that she meet with him and describing what he would do to get the money he was owed.
16The June 24 emails included threats to hurt her new boyfriend (“[your] fat old grey haired man gonna catch it”), threats to attend the residence of the complainant’s family (where she was staying) to get the money from them, and threats that the complainant had been given her last warning, that he did not “care about jail”, and that she should answer “BEFORE THIS GETS OUT OF CONTROL”. An email sent early in the morning on June 25 included a threat to slash “every1s tires”.
17The complainant testified that she felt threatened by these emails. In his evidence, the appellant agreed that the complainant did not want him to go to her house and that he had said he would do so to get her to do what he wanted. He denied his emails were threatening but agreed some might see their contents that way.
18Ultimately, on June 25, by an email sent at 4:22 p.m., the complainant agreed to meet with the appellant in a public place. While the complainant was driving to pick the appellant up outside the agreed upon meeting place – a building complex, the appellant, by an email sent at 4:46 p.m., changed the meeting place to the parking lot of a convenience store.
(iii) The Complainant and the Appellant Meet on June 25
19The complainant drove to the convenience store and picked up the appellant. The complainant and the appellant gave almost completely divergent accounts as to what then occurred.
20According to the complainant, when she picked the appellant up outside the convenience store, he demanded that she drive to “his house”, a location that she had been to with him before. When they parked outside the house, the appellant told her to go in. When she refused, the appellant took her car keys and cell phone. She eventually followed him into the house.
21On entering the house, the complainant said she saw a person she assumed to be J.G., the owner of the house, playing video games in the living room; she then went downstairs to the appellant’s bedroom. The appellant refused her request to return her cell phone and keys unless she messaged her boyfriend, which she refused to do. The appellant then told her to take her clothes off, threatening that if she did not, he would cut them off with scissors he was brandishing. She complied.
22The appellant then forced the complainant to perform fellatio on him. After that, he forcibly penetrated her a number of times. He then told her to shower. After she returned to the bedroom and dressed, he again prevented her from leaving, closing the bedroom door and gesturing that he would punch her. Eventually, he opened the door and they left together. The complainant drove the appellant to the building complex and dropped him off.
23According to the appellant, he and the complainant originally agreed to meet outside the building complex, but he changed the location to the convenience store. The complainant picked him up there, and she drove to the parking lot of a local mall. They were there, in the complainant’s car, for about 20 minutes, during which they had a consensual intimate interaction. They then drove to the building complex, and argued on the way there, after which the appellant left the complainant’s car.
24The appellant testified that he and the complainant did not go to the house she described on June 25, that he never lived there, and that he had only been there in the past for some poker games, sometimes taking the complainant with him.
25J.G., whom the complainant said she assumed she saw in the living room of the house when she entered on June 25, also gave evidence. He testified that he owned the house, the appellant never lived there or rented any room in the house, and the basement bedrooms were rented to two other individuals. When J.G. was in the living room, he could see people entering and leaving the house. Although he could not recall where he was on June 25, he had not seen the complainant at his house on that day. The appellant had only been at the house occasionally to play poker, sometimes accompanied by the complainant. J.G. testified that he had not seen the appellant since earlier in June, and had not seen the complainant since sometime before that.
(iv) The Exhibit 3 and Exhibit 5 Emails
26During the complainant’s direct examination, one email that the appellant sent to her and one that she sent to the appellant, both on June 26, were introduced into evidence. There was no discussion about the fact that these emails were already in the PowerPoint (although they were), or suggestion that they were already in evidence by virtue of their inclusion in the PowerPoint. These June 26 emails were marked as Exhibit 3. They stated:
At 1:11 p.m. [appellant to the complainant]: All u had to do was tell the guy u don’t want to see him no more but u chose him over me 1c again [“ the appellant’s 1:11 p.m. email ”.]
At 1:13 p.m. [complainant to the appellant]: I don’t want you
27When the complainant was cross-examined, she was not asked about any June 26 emails. But on the basis that the defence had alleged recent fabrication during the complainant’s cross-examination, the Crown asked for permission to introduce, during her re-examination, three additional June 26 emails that the complainant sent to the appellant. The defence opposed the request. Defence counsel did not take the position that these June 26 emails were already in evidence (although they were in the PowerPoint). The trial judge asked whether she could look at the emails the Crown wanted to introduce for the purpose of making her ruling; defence counsel objected to her doing so, and the trial judge agreed not to.
28The trial judge ruled in favour of allowing the Crown to introduce three further emails of June 26 sent by the complainant for the limited purpose of rebutting the allegation that the complainant had fabricated her allegation after a conversation she had with a 911 dispatcher later on June 26. The three emails introduced (together with the two earlier June 26 emails sent by the appellant to which the complainant’s emails responded) were marked as Exhibit 5. The three emails from the complainant to the appellant stated:
At 1:09 p.m.: […] now your making me stay with you even tho I don’t want you. You raped me. I didn’t want you [the “ 1:09 p.m. email ”.]
At 1:11 p.m.: I begged you to stop while I was crying my eyes out
At 1:11 p.m.: I never would’ve said anything of what you have done until you forced yourself into me. I hate you! I had to call a helpline because of you last night
29When the appellant testified, he was asked by his own counsel about the two emails (that were part of Exhibit 5) that he had sent to the complainant on June 26 (at 1:07 and 1:08 p.m.), minutes before the three referred to in the complainant’s re-examination. He explained they were attempts to get the complainant to calm down. [1]
30The appellant agreed in cross-examination that the complainant’s emails of June 26 in Exhibit 5 (introduced during her re-examination) accused him of rape. He was then asked about his statement in the appellant’s 1:11 p.m. email (part of Exhibit 3) to the effect that all the complainant had to do was tell her boyfriend that she wouldn’t see him anymore. It was suggested to him by Crown counsel that the consequence the complainant suffered for not complying with his request was forced sex. He disagreed. Although he was asked about other emails during his re-examination, the appellant was not asked by his own counsel about the appellant’s 1:11 p.m. email.
(v) Emails in the PowerPoint and not in Numbered Exhibits
31At the conclusion of the evidence, there remained a discrepancy between the emails in the PowerPoint and those included in the three numbered exhibits (2, 3, and 5) that consisted of original emails – the PowerPoint included numerous additional emails. Among these was an email sent by the appellant to the complainant on June 26, one minute after the appellant’s 1:11 p.m. email:
At 1:12 p.m. [appellant to the complainant]: Wat r u talking about that’s not wat it was meant to be wtf r u saying rite now [the “ 1:12 p.m. email ”.]
32No questions were asked of any witness about the 1:12 p.m. email, or any of the others included in the PowerPoint but not in the numbered exhibits.
(vi) Submissions About June 26 Emails During Closing Argument at Trial
33During closing argument, there was no mention of the 1:12 p.m. email or of any others that were in the PowerPoint but not in a numbered exhibit.
34Defence counsel at trial did not make reference to the June 26 emails that were in evidence until, at the end of her closing argument, the following exchange took place involving the trial judge, defence counsel and Crown counsel regarding June 26 emails:
THE COURT: …. And I just want to review Exhibit 5 for a moment. So I - I take it now that I’m reading the timestamps on Exhibit 5, it looks like [the appellant] makes the contact first at 1:07 p.m. Let me just make sure I’m understanding this. And then it looks like, [the complainant], do I have this right that I’m - am I reading this correctly, that at 1:11 p.m. she sends those two messages about, I never would have said anything of what you’ve done until you forced yourself into me, and then the second message is I begged you to stop while I was crying my eyes out. And then there’s no - I have no response to that, is that correct? Am I reading that correctly? So those messages are sent at 1:11 p.m., but there’s no response from [the appellant] to those.
MS. KRUG [defence counsel]: That’s how I read it.
THE COURT: Okay.
MS. KRUG: I think there was - at 1:07 email I think there was some evidence before the court, and if I’m wrong about this obviously disregard what I’m saying, there’s some evidence about a family member communicate - a family member on one side communicating with a family member on the other side, and [the appellant] is hearing about some complaint through a third party.
THE COURT: Right. I just wanted to clarify that...
MS. KRUG: Yeah.
THE COURT: ...they’re pretty explicit allegations, and I know for what purpose they were introduced, a limited purpose, but there’s no response to those by [the appellant]. Do I have that right, Ms. Krug?
MS. KENNEDY [trial Crown]: I think, Your Honour, I’m not speaking [sic] to elicit or to - to say that [the appellant’s] response or lack thereof is an admission of anything.
THE COURT: Right. No, I just wanted to make sure I was reading the emails correctly.
MS. KENNEDY: Yes.
THE COURT: I don’t have ....
MS. KENNEDY: I believe you are.
THE COURT: ...in evidence – no, and I’m not saying that his silence is anything.
MS. KENNEDY: Yes.
THE COURT: I just wanted to make sure I understood that. [Emphasis added.]
35Following this exchange, and notwithstanding her statement about an “admission”, Crown counsel, in describing her theory of the case during her closing argument, referred to the appellant’s 1:11 p.m. email. She said:
In—in a sentence that respectfully sounds like, you see what you get. The consequence of not doing what I say, the consequence of choosing the other man over me is what you’ve now suffered. That is the subtext to what [the appellant] emails after the assault. [Emphasis added.]
Later in her submissions, she added:
…what makes sense in this case, taking into account all of the evidence, including the emails that are sent after the incident, is that [the appellant] wanted to get together with—with [the complainant]. She—she turned him down because she was ready to move on. She wasn’t going to just email and call it off with this new person, and that was making a choice to move on from [the appellant], a choice that he did not agree with and that’s what motivated the sexual assault in this case. [Emphasis added.]
36Defence counsel made a brief reply argument but did not address this point.
The Trial Judge’s Reasons for Judgment
37The trial judge found that the appellant’s emails of June 24 and 25, 2019, demanding that the complainant meet him and pay him money, were “an obvious attempt to intimidate [the complainant] into doing as he says” and an attempt “to control [the complainant] through the use of fear” by making threats. She considered the complainant’s fear to be reasonable in the circumstances. She found that the criminal harassment charge was proven beyond a reasonable doubt.
38On the charges that turned on what occurred when the complainant and the appellant met on June 25, the trial judge also found them proven beyond a reasonable doubt. She observed that if she accepted the complainant’s version of events, all the offences were made out. She rejected certain arguments about the complainant’s credibility and reliability, including the argument that if she accepted J.G.’s evidence she could not also accept the complainant’s evidence. Instead, although she accepted J.G.’s evidence as credible, and specifically accepted he did not see the complainant enter the house, she found that did not undermine the complainant’s credibility. The trial judge noted that the complainant had testified she did not see the face of the person she thought was J.G. upon entering the house nor did she have any communication with him – in essence, she had only assumed that it was J.G. As she had not expressed any degree of certainty about this point, the fact that she was mistaken about this did not seriously detract from her evidence, as it could have been another male occupant of the house that she had seen. The trial judge accepted the complainant’s evidence as “detailed, comprehensive and straight forward,” and her account, in the circumstances, as “believable”.
39The trial judge noted that the appellant and the complainant had given “dramatically different versions” as to what occurred after they met on June 25, and that if the appellant’s version of their interactions was accepted or raised a reasonable doubt, the appellant was entitled to an acquittal.
40In concluding that the appellant’s evidence should be rejected, she found “significant evidentiary value” in the times the emails of June 26 were sent. Specifically, she found the appellant’s 1:11 p.m. email (in Exhibit 3) to be a direct response to the 1:09 p.m. email (in Exhibit 5) in which the complainant alleged rape. According to the trial judge, the appellant’s 1:11 p.m. email did not deny the allegation or express confusion or outrage at it, but instead blamed the complainant for being raped because it said, “all she had to do to avoid being raped was to tell the man she would not see him anymore”. She considered this an admission that he sexually assaulted the complainant because she refused to end another relationship, that it corroborated the complainant’s evidence because this was exactly what she said had occurred, and that this dealt a “fatal blow” to the appellant’s credibility.
41The trial judge also found the appellant’s version inconsistent with the exchange of emails on June 24 and 25, in which the appellant was seeking contact with the complainant and she was clear that she wanted nothing to do with him.
42The trial judge made no reference to any of the emails that were only in the PowerPoint, such as the 1:12 p.m. email, in coming to her conclusion.
Analysis
(i) The Issues on Appeal
43The appellant makes two central points.
44First, he argues that the trial judge misapprehended the evidence concerning the emails of June 26. The trial judge focused on the appellant’s 1:11 p.m. email as the response to the rape allegation the complainant made at 1:09 p.m. and failed to advert to the 1:12 p.m. email, which could equally have been, or formed part of, the response, and could be read as rejecting the allegation. Moreover, her approach undermined trial fairness, as it was based on an email that was never put to the appellant when he was testifying, was contrary to a concession of the Crown, who disavowed reliance on the email, and was in effect a new theory injected into the case by the trial judge without the defence having an opportunity to address it.
45Second, the appellant argues that the trial judge accepted J.G.’s evidence but misapprehended the extent to which it undermined the complainant’s evidence. She only considered the effect of the complainant saying she thought she saw J.G. in the living room of the house, but failed to consider that J.G. also contradicted her evidence that the appellant lived at the house and thus had access to a bedroom in it where he could do what she claimed.
(ii) The Criminal Harassment Conviction is Unaffected by the Alleged Errors
46Neither of the errors that the appellant contends occurred affect the criminal harassment conviction.
47The trial judge’s factual findings clearly support the criminal harassment conviction. The trial judge made her findings based on the contents of the appellant’s June 24 and 25 emails, which were clearly persistent and threatening, and the complainant’s evidence of the fear they reasonably induced in her. The trial judge found that the appellant knew of the complainant’s fear. Her findings are entitled to deference on appeal. They are not affected by J.G.’s evidence, however construed, nor by the effect given to the appellant’s email of June 26.
48I would dismiss the appeal against this conviction.
(iii) The Assault, Mischief, Extortion, Sexual Assault, Forcible Confinement, and Breach of Probation Convictions Were not Tainted by Reversible Error
No Misapprehension of Evidence and No Trial Unfairness Arising from a Failure to Consider the 1:12 p.m. Email
49A misapprehension of evidence can support reversal of a conviction where it pertains to the substance rather than to the detail of the evidence, is material rather than peripheral to the reasoning of the trial judge, and the error plays an essential part in the reasoning process resulting in a conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, 8.
50It is fundamental to the appellant’s ground of appeal concerning the emails of June 26 that the 1:12 p.m. email was in evidence before the trial judge. This assertion underpins the argument that it was significant for the trial judge to have ignored the 1:12 p.m. email, as according to the appellant it constituted “an absolute denial of the complainant’s rape allegation” and expressed the “outrage” and “confusion” the trial judge found lacking in the appellant’s 1:11 p.m. email upon which she focused. It also underpins, in important part, the trial unfairness aspect of this ground of appeal. As the appellant argues:
If [defence] counsel had known that [the trial judge] was going to use [the 1:11 p.m. email] against the [a]ppellant, then surely counsel would have brought the 1:12 p.m. email to the trial judge’s attention. But once the Crown had disavowed [during closing argument] any reliance on [the appellant’s 1:11 p.m. email], defence counsel could not be faulted for failing to raise the [a]ppellant’s 1:12 p.m. email.
51The 1:12 p.m. email was not, however, in evidence, and thus the arguments based on the proposition that it was must be rejected. The 1:12 p.m. email was in the PowerPoint – which was introduced as an aid, not as evidence itself. The 1:12 p.m. email was not introduced into evidence or included in any of the numbered exhibits. The record supports the conclusion that only emails that became part of the numbered exhibits were evidence.
52The Crown’s decision to include more emails in the PowerPoint than those that became numbered exhibits (and therefore evidence), and to do so without a clear statement on the record as to why, was one that had the potential to confuse. But I am satisfied that none of the participants at the trial were confused into thinking that any email that only appeared in the PowerPoint, but was not otherwise introduced into evidence and made part of a numbered exhibit, was part of the evidence the trial judge would consider in deciding the case.
53This is clear from the way the parties introduced, or responded to the proposed introduction of, any June 26 emails following the filing of Exhibit 2 (which contained only June 24 and 25 emails). No party maintained that any June 26 emails were in evidence simply because they were in the PowerPoint. Only certain June 26 emails were marked as part of Exhibit 3 and Exhibit 5.
54But the best indicator of the lack of confusion is found in the positions taken when, during the complainant’s re-examination, the Crown sought to introduce three June 26 emails sent by the complainant. These emails were in the PowerPoint, but the parties did not proceed on the basis that that made them evidence. Rather, the Crown asked for a ruling that these specific emails could be used. Defence counsel objected to the Crown introducing them and also submitted that the trial judge could not look at them until after she had ruled on their admissibility. The trial judge did not look at them, or treat them as evidence, until she had ruled they were admissible and defined the purpose for which they could be used; only after that point did the emails become evidence, marked as Exhibit 5. None of this would have made sense if all the emails in the PowerPoint were, for that reason alone, already part of the evidentiary record.
55Defence counsel did not seek to introduce the 1:12 p.m. email into evidence, nor did she proceed in a way that indicated she thought it was already in evidence because it was in the PowerPoint. The appellant does not suggest ineffective assistance of counsel. Indeed, defence counsel may have justifiably been concerned that introducing the 1:12 p.m. email may have led to other emails of June 26 and 27, which were in the PowerPoint but were not in the evidence, being introduced, and that this might not have assisted the appellant.
56In any event, the trial judge cannot be faulted for not considering an email that was not in evidence. She cannot be said to have misapprehended what was in evidence because she failed to take into account something that was not in evidence. Nor can she be faulted for allegedly not giving the defence an opportunity, during argument, to refer to something that was not in evidence.
The Trial Judge Did Not Proceed on a Theory of Liability to which the Defence had No Opportunity to Respond
57I turn, therefore, to the question of whether, even if the 1:12 p.m. email was not in evidence, the manner in which the trial judge used the emails of June 26 that were in evidence – specifically those of 1:09 p.m. and 1:11 p.m. – undermined trial fairness. The appellant argues that Crown counsel did not cross-examine him about his 1:11 p.m. email, and that in argument Crown counsel expressly disavowed any reliance on that email in relation to an allegation of rape when she stated: “I’m not [seeking] to elicit or to-to say that [the appellant’s] response or lack thereof is an admission of anything.” Thus, when the trial judge introduced, for the first time in her reasons for judgment, a theory that the appellant’s 1:11 p.m. email was a response to the allegation of rape, and that considerable significance could be given to it, she was introducing a new theory to which the defence did not have the opportunity to respond.
58Generally, a trial judge is not limited to considering only the theory advanced by the Crown, but considerations of trial fairness may foreclose consideration of “[an] alternative base of liability inconsistent with the way the parties have conducted their respective cases”: R. v. R.H., 2022 ONCA 69, at paras. 19-20; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 161, leave to appeal refused, [2010] S.C.C.A. No. 460, and [2011] S.C.C.A. No. 119. See also R. v. Lai, 2022 ONCA 344, at paras. 12-15. It is fundamentally unfair to convict a person on a basis of which they are unaware and to which they have not had an opportunity to respond, as it denies the right of an accused person to make full answer and defence: R.H., at para. 23.
59The cases on trial unfairness refer to alternative theories or bases for liability, rather than alternative views of the significance of certain evidence along a singular route to liability, which is the situation here. But assuming that the doctrine could apply where a trial judge relies on evidence disavowed by the Crown in circumstances where the defence had no notice or opportunity to respond, that is simply not what occurred here.
60First, contrary to the appellant’s submission, he was cross-examined on his 1:11 p.m. email. Crown counsel, after bringing the appellant’s attention to his awareness of a rape allegation, took him to that email, and put to him the exact theory she subsequently articulated in argument – that he was saying that the consequence of the complainant not ending another relationship as he had requested was that she was sexually assaulted. The defence had the opportunity to respond to that contention during the evidentiary phase of the trial.
61Second, when viewed as a whole, the Crown’s closing argument does not disavow reliance on the appellant’s 1:11 p.m. email. On the contrary, on two occasions subsequent to the exchange with the trial judge the appellant points to, the Crown honed in on that email, contending that it in effect was the appellant saying that the sexual assault was the consequence of the complainant’s refusal to break up with her boyfriend.
62Crown counsel did not explain precisely the difference between her statement that she was not seeking to treat the response or lack of response to the rape allegation (in a 1:11 p.m. email of the complainant) as an admission, and the contention that she was making about the significance of the appellant’s 1:11 p.m. email. But it is quite clear, when the Crown’s trial argument is considered as a whole, that the Crown’s contention was that the appellant’s 1:11 p.m. email was sent about a sexual assault, and it supported the Crown’s case and undermined that of the appellant. The defence had a full opportunity to respond to that contention in reply argument, but did not do so.
63The trial judge accepted the Crown’s basic contention; she found the appellant’s 1:11 p.m. email said that he sexually assaulted the complainant because she refused to end another relationship. She gave that contention, which was known to the defence and to which they had the opportunity to respond, three related consequences: that the email was an admission, a corroboration of what the complainant said occurred, and a fatal blow to the appellant’s credibility. The Crown was clearly arguing for the latter two consequences. It is not plausible that the appellant chose not to respond to the Crown’s contention which carried those consequences, but would have responded if Crown counsel had said she was seeking the “admission” consequence the trial judge also attached. Indeed, the appellant’s counsel does not so argue in this court, framing his argument on the basis that the Crown disavowed any reliance on the appellant’s 1:11 p.m. email. But the Crown did not do so.
64In the circumstances, there would have been no effect on the defence response or the outcome if the Crown or the trial judge had not used the word admission. I would therefore reject this ground of appeal.
No Misapprehension of J.G.’s Evidence
65I would also reject the argument that the trial judge misapprehended J.G.’s evidence.
66The trial judge set out what J.G. had said, both about: (i) the fact that he would have seen someone enter the house if he was in the living room of his house and had not seen the complainant do so on June 25; and (ii) the appellant not residing at the house. The thrust of the appellant’s argument at trial was that the first point was irreconcilable with the complainant’s evidence because, on the appellant’s view of it, the complainant had testified that she was sure that she saw J.G. when she came into the house. The trial judge did not accept that point because she found that the complainant had not claimed with certainty that she saw J.G., and in effect had simply assumed it was him, never seeing the person’s face or speaking to him. Therefore, she was simply mistaken, but not dishonest, and her evidence that she was at the house was not undermined by that of J.G. – who was not sure he was there on that date.
67The trial judge’s reasons were therefore responsive to the main submission made by the appellant at trial. The trial judge was clearly aware that J.G. said the appellant did not live at the house and that there were tenants who did. The fact that she did not address the significance of those facts divorced from the appellant’s main contention at trial about the effect of J.G.’s evidence does not mean that she misapprehended anything.
Conclusion
68I would dismiss the conviction appeal. Although the notice of appeal also asserted that the sentence imposed was unreasonable, no submissions were made in the appellant’s factum or in oral argument about this. I would not grant leave to appeal sentence.
Released: September 6, 2022 “G.T.T.”
“B. Zarnett J.A.”
“I agree. Gary Trotter J.A.”
“I agree. L. Favreau J.A.”
[1] At 1:07 p.m.: O ya did u tell her wat uv done to me u better tell her to relax about the [shit] she saying At 1:08 p.m.: U r literally doing this to urself bc ur not taking in wat I’m saying