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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court: Court of Appeal for Ontario

Date: February 26, 2018

Docket: C60993 and C61286

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Andrew Ronald Kiss

Appellant

Docket: C60993

AND BETWEEN

Her Majesty the Queen

Appellant

and

Andrew Ronald Kiss

Respondent

Docket: C61286

Counsel

Keith E. Wright, Esq., for the appellant (C60993) / respondent (C61286)

Hannah Freeman, for the respondent (C60993) / appellant (C61286)

Hearing and Appeal

Heard: November 30, 2017

On appeal from: the conviction entered on July 13, 2015 and the sentence imposed on October 19, 2015 by Justice Gary W. Tranmer of the Superior Court of Justice, sitting without a jury.

Decision

Paciocco J.A.:

OVERVIEW

[1] Andrew Kiss was convicted after a judge alone trial of sexually assaulting K.S. in a university dorm room. Like many "date-rape" prosecutions, this was a "he-said, she-said" case. And like many such cases, the parties were young, barely adults at the time. Andrew Kiss was not yet 19. K.S. had just reached that age.

[2] A number of witnesses testified at the trial, but K.S. and Mr. Kiss told the heart of the story. By the end of the trial, the trial judge believed K.S.'s evidence beyond a reasonable doubt, and disbelieved Mr. Kiss's evidence to the point where it did not raise a reasonable doubt.

[3] Mr. Kiss raised a number of grounds of appeal related to his conviction. Most of those grounds, some of which were abandoned during oral argument, can be easily dismissed. The trial judge handled numerous legal issues that arose with alacrity in his thorough decision.

[4] However, in my view, the credibility evaluation in this case – one of the most difficult tasks trial judges perform – was sufficiently problematic to require this conviction to be overturned and a new trial ordered. The trial judge did not properly deal with an admitted exhibit. More importantly, he erred in the admission and use of reply evidence that related to Mr. Kiss's credibility. Most significantly, this is one of those uncommon cases where the conviction cannot stand because the trial judge applied different levels of scrutiny to the testimony of K.S. and Mr. Kiss.

[5] Given that the conviction appeal must be allowed, it is not necessary to address the Crown's appeal of Mr. Kiss's sentence.

THE BASE NARRATIVES OF K.S. AND MR. KISS

[6] It is not necessary to recount all of the evidence at the outset of this decision in order to explain the outcome of the conviction appeal. I will focus on the base narrative of events offered by the two key witnesses, K.S. and Mr. Kiss, to set the stage for the discussion that follows. Other features of their testimony, as well as evidence offered by other witnesses, will be described as required where it is material to the issues in this appeal.

[7] Both Mr. Kiss and K.S. agree that they did not know each other before the evening of March 13, 2012. They met at a campus bar shortly after 11:00 p.m. when Ms. Kiss arrived, after being introduced by friends. They chatted, drank alcohol, and flirted. When it came time to leave, Mr. Kiss offered to walk K.S. home. She agreed.

[8] From there, their accounts diverge.

A. K.S.'s Account

[9] K.S. said that Mr. Kiss was quite drunk when they left the bar but that his motor and cognitive skills were not so impaired that they were unable to have a conversation. There was no hand holding or kissing en route. She said that when they arrived at her dorm room she invited him in.

[10] K.S. testified that shortly after entering her room, Mr. Kiss retrieved a condom from his pocket. They chatted for as long as 10 to 15 minutes. Then he joined her on the bed where she had been sitting and they kissed, first while seated, and then while lying down. This led to mutual sexual touching, which K.S. agrees was consensual. She says the touching was over their clothing.

[11] K.S. said that she had no intention of having sexual intercourse and decided things had gone far enough. She sat up and told Mr. Kiss that she had a boyfriend. He said he did not care and continued to kiss her. He reached into the neck of her buttoned shirt and gave it one quick, forceful tug, opening her shirt to her mid-stomach. He pulled down her bra and kissed her breasts. She told him that she did not want to do this, but he persisted.

[12] K.S. testified that she managed to sit up near the end of the bed. Mr. Kiss shoved her, causing her head to bang on the wall. After 10 seconds, he shoved her onto the floor. She landed with her head between the bar fridge and the foot of the bed.

[13] K.S. tried to "shimmy" away but he climbed on top of her almost immediately after she hit the floor. He used his body weight to hold her down. She repeatedly said "no" and struggled with him for some time. While he was forcing her body to the ground, in one motion and with one hand, he pulled her skirt and underwear down to her knees where they remained. K.S. agreed that sound travels in her building, but testified that it did not occur to her to cry out for help. She said that Mr. Kiss penetrated her with his finger while holding her down with his forearm.

[14] K.S. testified Mr. Kiss, who had removed his pants, penetrated her vagina with his penis. In order to do so, Mr. Kiss used his knees to force her legs open while her skirt and panties were still on her body just below her knees. Within as little as six seconds, she was able to wiggle a leg free and pull it back to her chest. She kicked him to get him off. He stood up, removed the condom he had been wearing, and threw it onto a pile of clothes. She had not been aware that he was wearing a condom until then. She agreed that he did not put the condom on when he was on the bed.

[15] After he got up, Mr. Kiss said he was sorry. He pulled up his pants and put on one of the two shirts he had been wearing and said he was going to the washroom. She told him to "get the fuck out of the building." Again, he said he was sorry. He also said words to the effect of, "next time I will do better." He departed, leaving his T-shirt behind.

[16] K.S. testified that she threw the condom into the wastebasket and changed into pyjama pants and a sweater. She then texted her closest friend, A.S., who lived below her, to come to her room right away. A.S. did not respond immediately. K.S. testified that she then went to the dorm room next door where her neighbour D.B. and his girlfriend R.R. were found. She asked D.B. and R.R. if they heard a noise when she hit her head on the wall or fell to the floor. K.S. was permitted to narrate in her testimony that D.B. confirmed he had heard such noises.[1] K.S. then texted A.S. again. She told D.B. and R.R. what happened. They suggested she call campus security but she felt this would be "a little extreme".

[17] A.S. then showed up at D.B.'s room along with her friend A.W. A short time later K.S., A.S., and A.W. left D.B.'s room and went to K.S.'s room to discuss things. K.S. spoke to A.S. and A.W. about what had occurred. These young women also suggested calling campus security. K.S. agreed, went back to D.B.'s room, and D.B. made the call. K.S. ultimately went to hospital.

B. Mr. Kiss's Account

[18] Mr. Kiss gives a diametrically opposed account.

[19] In his testimony, Mr. Kiss said that when they left the bar he had a "buzz" but said he was not "really drunk" or intoxicated. He said he and K.S. held hands and flirted as they walked. It was implicit that sexual activity was going to occur. They kissed in the elevator. They both went directly to the bed when they entered the room.

[20] He says they fondled and K.S. removed her shirt. He removed her bra from the back, an act that took some time to achieve because of his inexperience. He took off his shirt, but not his T-shirt. He kissed her breasts and they fondled each other's genitals. Neither asked for consent, but it was implied.

[21] Mr. Kiss said he then asked K.S. if she wanted to have sex. She said yes. They each removed the balance of their clothing. He removed a condom from his pants pocket and opened it in front of her. He did not put it on correctly at first, but then managed, using both hands. He moved on top of her and they had sexual intercourse on the bed, without any resistance from her. It lasted only for a minute before he lost his erection.

[22] They soon agreed that things were not working out and stopped. Mr. Kiss was embarrassed and upset. This was his first attempt at sexual intercourse and he experienced erectile dysfunction. He removed the condom and threw it in the garbage. He agreed he might have told K.S. he would do better next time. He dressed, aware that he was not putting on the T-shirt he had been wearing when he arrived. He said he could not find it and did not want to turn on the light to look for it.

[23] Mr. Kiss said he left and went back to his residence. He said that his two roommates, C.D. and J.N., were home and asleep. He went directly to bed.

[24] A week later Mr. Kiss was arrested. He gave a voluntary statement after telling the police, "You will realize how ridiculous this is, when I tell my side."

[25] K.S.'s story did not sound ridiculous to the trial judge. As I said, he believed K.S. beyond a reasonable doubt and was left in no doubt by Mr. Kiss's evidence.

ISSUES

[26] Mr. Kiss pursued several grounds of appeal. Based on the arguments advanced, I would describe them as follows:

(a) the trial judge misapplied the burden of proof;

(b) the trial judge erred by relying on Mr. Kiss's silence during a police interview in evaluating his credibility;

(c) the trial judge erred in using K.S.'s lack of embellishment in evaluating her credibility;

(d) the trial judge erred in his treatment of Exhibit 11, the shirt K.S. had been wearing;

(e) the trial judge erred in the admission and use of reply evidence from Mr. Kiss's friend, J.N.; and

(f) the trial judge applied different levels of scrutiny in his credibility evaluation.

[27] I will discuss the first three grounds of appeal, which I reject, before analyzing the remaining grounds of appeal that I would allow.

ANALYSIS – THE REJECTED GROUNDS OF APPEAL

(a) THE TREATMENT OF THE BURDEN OF PROOF

[28] Mr. Kiss argued that the trial judge misapplied the burden of proof by convicting Mr. Kiss after accepting K.S.'s evidence on the "preponderance of probabilities". Mr. Kiss also argued that the trial judge erred by disposing of individual credibility challenges on the basis that, in isolation, they did not raise a reasonable doubt. I do not accept that the trial judge erred in either respect.

[29] The claim that the trial judge convicted Mr. Kiss because he accepted K.S.'s evidence on the preponderance of probabilities is, strictly speaking, a challenge to the standard and not the burden of proof. However it is described, the relevant challenge is based primarily on the penultimate paragraph in the reasons for judgment:

On all the evidence, I am satisfied that the complainant demonstrated no carelessness with the truth. I am satisfied that her evidence is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[30] In isolation, this passage may appear to be problematic. The phrase "in harmony with the preponderance of probabilities" comes, however, from Faryna v. Chorny, [1952] 2 D.L.R. 354, a case the trial judge had cited earlier in his reasons. The Faryna decision is widely regarded as offering guidance in the evaluation of credibility and reliability, whether in criminal or civil cases. The relevant passage from the Faryna decision, at para. 10, is not about weighing the evidence to see whether it is more likely true than not, as the balance of probabilities standard requires. Instead, the passage offers advice on the importance of considering the probability or improbability of an account:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[31] The plausibility of K.S.'s account was a central theme in this case. The trial judge was doing no more in referring to the preponderance of probabilities than responding to defence challenges to the plausibility of K.S.'s account. The trial judge was saying that he found K.S.'s story to be plausible, i.e., in harmony with the way things can and do happen. It was appropriate for the trial judge to have done so.

[32] The second portion of the burden of proof ground of appeal relates to three occasions when the trial judge said that specific challenges to K.S.'s credibility did not leave him with a reasonable doubt. The trial judge did so when he rejected the contention that K.S.'s account of what Mr. Kiss was able to accomplish with one hand while holding her down was implausible. The trial judge also said that the implausibility claim relating to K.S.'s ability to kick Mr. Kiss in the chest while he was on top of her did "not leave [him] with a reasonable doubt that it occurred as she described." And when discounting the significance of her "unusual" claim that her skirt was shorter in the back than the front the trial judge commented that he could not say, "that point raises a reasonable doubt about the core elements of the alleged offence."

[33] Of course, the appropriate question is not whether any particular credibility or reliability challenge raises a reasonable doubt; it is whether the evidence as a whole leaves a reasonable doubt. For this reason, it is not advisable to explain the rejection of individual challenges by referencing the ultimate standard of proof for a conviction. When the trial judge's decision is read, as a whole, however, it is evident that he understood his obligation to consider whether there was a reasonable doubt based on the totality of the evidence. He described his duty to do so on a number of occasions, and he quoted from case law admonishing that evidence is not to be weighed in isolation. More importantly, his reasons, when read in their entirety, show a cumulative evaluation took place.

[34] Although it would have been better if the trial judge had not used burden of proof language in explaining why he was rejecting defence challenges to individual components of the Crown case, in my view, this was a case of infelicitous language, not an error in analysis.

(b) THE USE OF MR. KISS'S SILENCE

[35] The trial judge rejected Mr. Kiss's testimony that he asked K.S. whether she wanted to have sex and that she consented. In doing so, the trial judge relied heavily on Mr. Kiss's failure to mention this version of events during his police interview. Mr. Kiss says this use of his pre-trial sentence was improper, and that the Crown should not have been allowed to ask him about his silence during cross-examination.

[36] To be sure, it is generally improper to consider what an accused did not say to the police. But not here. As I will explain, the trial judge relied on the inconsistency between the versions of events told by Mr. Kiss, not on Mr. Kiss's failure to speak. I will begin that explanation by describing what is not permissible when it comes to the pre-trial silence of the accused, as it will help to make the point.

[37] It is not permissible to use the pre-trial silence of the accused when interacting with persons in authority as an implied admission, or as evidence of consciousness of guilt. This is what the trial judge improperly invited the jury to do in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, after Mr. Turcotte failed to give information to the police that he would have been expected to give had he been innocent. As this court said in R. v. Poirier, [2000] O.J. No. 2292, 133 O.A.C. 352, at para. 18, "no inference can be drawn that if the accused was innocent he or she would have asserted his or her innocence upon arrest".

[38] It is also wrong to use the fact that the accused remained silent, instead of offering an explanation to the authorities on a previous occasion, to reject an account offered by the accused for the first time at trial: R. v. Rohde, 2009 ONCA 463, 246 C.C.C. (3d) 18, at para. 14; R. v. Duong, 2014 ONCA 375, 311 C.C.C. (3d) 139, at para. 54; R. v. J.S., 2018 ONCA 39, at paras. 55-56; and see the helpful summary of the authorities in R. v. Doyle, 2017 ONSC 1826, [2017] O.J. No. 1587, at paras. 71-96.

[39] If these kinds of reasoning were permitted, the right to silence would be a "snare and a delusion": Turcotte, at para. 45. The law would hold out to the accused that they are entitled to remain silent, but then use their silence against them: R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1316.

[40] In contrast, it is not a "snare and a delusion" to use the voluntary pre-trial statements of accused persons against them. Those who make voluntary pre-trial statements have not remained silent. They have chosen to speak. They have waived the very protection the right to silence offers: R. v. Hebert, [1990] 2 S.C.R. 151. It follows that if what they voluntarily said before trial is materially inconsistent with the testimony they give at trial, no objection can be taken to using that inconsistency to discount their testimony.

[41] Naturally, testimony can be inconsistent with a voluntary, pre-trial statement because it deviates from the pre-trial statement by adding details that materially change the narrative offered. The adverse inference drawn from this kind of inconsistency is based not on the exercise of the right to silence but on the inconsistent stories being told. The permissible inference is not from silence, it is from the material differences in the versions told.

[42] This is the heart of this court's reasoning in R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1. Mr. Hill, charged with murder, was seeking a manslaughter conviction based on the partial defence of provocation. When he described the fatal confrontation to the police he gave a version that did not include allegations that the victim verbally abused and physically assaulted him. His trial testimony added these features. The Crown cross-examined Mr. Hill about this. This court held that the cross-examination was appropriate. The rule was described at para. 46:

The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused's testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused's silence when questioned by the police, the cross-examination is inappropriate.

[43] Mr. Kiss asked us to refrain from following Hill, saying that this discussion is obiter and inconsistent with higher authorities. I disagree. The Hill decision is neither obiter nor inconsistent with higher authorities.

[44] In Hill, Doherty J.A., writing for the court, relied on the principle I just described to finally dispose of a ground of appeal. The holding is not obiter simply because the appeal was successful on another issue.

[45] And while there are, in higher authorities, broad passages that impose no qualifications on the general principle prohibiting the use of the pre-trial silence of accused persons against them, those authorities are not about inconsistent statements. In Hill, at paras. 43-48, this court explained the limits of the general principle where such inconsistencies do occur.

[46] This court's decision in R. v. A.G., 2015 ONCA 159, 319 C.C.C. (3d) 441 is to the same effect. At para. 30, this court reinforced the need to tread carefully when relying on inconsistences that are based on omitted detail. I agree. There are preconditions to admissibility meant to control cross-examination and impeachment in such cases.

[47] First, the pre-trial statement must be a narrative relating to precisely the same topic as the testimony. The difference between the accused offering inconsistent versions on precisely the same topic and being selective about what topics are discussed must be respected. The former may count against the credibility of the accused's testimony whereas the latter may not.

[48] Second, the omissions from the pre-trial statement must be material enough to rely upon fairly.

[49] Third, the pre-trial statement must be used for a proper purpose. Specifically, inconsistencies that arise from omissions can only inform an assessment of the credibility of the accused's testimony, and cannot ground inferences about guilt.

[50] In this case, Mr. Kiss has not established that the Crown engaged in improper cross-examination, about his silence or that the trial judge misused the pre-trial statement. Mr. Kiss's testimony that consent to sex was discussed and explicitly granted by K.S. was a material change from the narrative account that he offered to the police about his sexual interaction with K.S. Mr. Kiss did not simply raise a new topic at trial that he had chosen not to discuss before. Instead, he gave a different version of the way that consent was communicated. The trial judge committed no error in permitting the Crown to pursue this line of cross-examination, or in using the inconsistency to reject Mr. Kiss's testimony.

(c) THE LACK OF EMBELLISHMENT

[51] On two occasions when evaluating K.S.'s testimony, the trial judge commented that he found no examples of her exaggerating or embellishing her testimony. Mr. Kiss asserts that the trial judge erred in law by using the lack of exaggeration or embellishment to enhance K.S.'s credibility. I am not persuaded that this error occurred.

[52] The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of K.S.'s testimony. It is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. G.(G.), 115 C.C.C. (3d) 1, at p. 10; R. v. L.L., 2014 ONCA 892, at para. 2; R. v. R.A.G., 2008 ONCA 829, at para. 20. While identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthful and dishonest accounts can appear to be without exaggeration or embellishment.

[53] On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.

[54] Trial judges are presumed to know the law. In this case, there is no basis for apprehending that the trial judge inappropriately added weight to K.S.'s credibility. In my view, on a fair reading of the reasons for judgment, the trial judge was simply recording that K.S.'s evidence did not suffer from a problem of exaggeration or embellishment that would have diminished its weight. He did not err on this ground.

ANALYSIS – THE SUCCESSFUL GROUNDS OF APPEAL

(d) THE TREATMENT OF EXHIBIT 11, THE COMPLAINANT'S SHIRT

[55] Exhibit 11 was the button shirt that K.S. was wearing during the alleged sexual assault. At trial, she testified that Mr. Kiss pulled the shirt open with one quick and "forceful tug". She told the police that he ripped her shirt off, and that he tried to tear it off. The defence position was that an examination of the shirt would show that K.S.'s version was impossible given the complete absence of damage to the shirt. The trial judge, despite hearing oral evidence that the shirt was undamaged, chose not to look at the shirt during deliberations before rejecting the defence theory as "speculative" and unhelpful in indicating "an unlikeliness of the truth of the complainant's account."

[56] Mr. Kiss argues that it was unfair of the trial judge not to inspect the shirt before coming to his conclusion. I agree, in part. In my view, the trial judge should either have inspected the shirt, or alerted counsel to his concerns about the propriety of doing so, so that counsel could respond. He did neither. In the circumstances of this case, this was unfair to Mr. Kiss.

[57] Critical to my conclusion is that Mr. Kiss's counsel reasonably expected that the shirt would be inspected, and that the trial judge contributed to that expectation. It was evident during the trial that Mr. Kiss was placing a heavy reliance on the trial judge's examination of the shirt. The Crown did not put K.S.'s shirt into evidence. Counsel for Mr. Kiss did. When he was tendering the shirt as an exhibit, defence counsel invited the trial judge to inspect it later. The trial judge said "Alright." The Crown raised no objection.

[58] During closing submissions, defence counsel submitted that an examination of the shirt would support the defence position that Mr. Kiss could not have ripped the shirt open as K.S. described. At no time did the trial judge express any reservations about looking at the shirt.

[59] In my view, if the trial judge was going to defeat the expectation that the shirt would be inspected, an expectation that he had helped to create, he should have alerted defence counsel so that defence counsel could either attempt to allay the trial judge's concerns, or consider an alternative way of using the shirt to show the implausibility of K.S.'s description of how the shirt came to be open.

[60] It is not fanciful to suggest that had the opportunity to allay the trial judge's concerns been provided, defence counsel may well have succeeded in persuading the trial judge to inspect the shirt. I say this because the trial judge's reasons for not inspecting the shirt are problematic.

[61] Specifically, when the trial judge disclosed in his reasons for judgment that he had not examined the shirt, he said:

While the garments are available as exhibits, and defence urged me to carefully examine them, I do not have the necessary expertise or the ability to undertake a proper demonstration, nor should I do so, in the absence of counsel and the accused.

[62] First, the trial judge misapprehended defence counsel's request. Defence counsel did not ask the trial judge to undertake a demonstration with the shirt in the absence of counsel. He simply wanted the fabric, fit, and condition of the buttons and buttonholes to be examined.

[63] Second, the trial judge's disclaimer of expertise, made without even looking at the shirt, is open to significant debate. It is difficult to accept that ordinary experience would never enable a conclusion to be made as to the likelihood of a garment being damaged by a quick and "forceful tug", regardless of its make, design, or the size of the buttons or buttonholes. Arguably, the trial judge should at least have looked at the garment before disclaiming his ability to draw a relevant inference. In effect, the trial judge was speculating that it would be speculative to conclude that K.S.'s shirt would have been damaged if Mr. Kiss did what she claimed. If the trial judge had shared his belief that he did not have the expertise to conduct a meaningful inspection, defence counsel might well have been able to persuade the trial judge otherwise.

(e) THE EVIDENCE OF J.N. IN REPLY

[64] The trial judge permitted the Crown to call Mr. Kiss's roommate, J.N., as a reply witness. Reply evidence was permitted on two topics. First, the Crown was permitted to call J.N. to testify that Mr. Kiss was very intoxicated, contrary to Mr. Kiss's testimony that he was not. Second, the Crown was permitted to confirm that Mr. Kiss's roommate, C.D., told J.N. that he tried to intervene between Mr. Kiss and K.S. because Mr. Kiss was drunk.

[65] In my view, the trial judge erred in permitting reply evidence to be given on this latter point. The trial judge said it was admissible "on the same basis" as the other reply evidence, in other words, to prove that Mr. Kiss was very intoxicated. Yet, J.N.'s testimony that C.D. said Mr. Kiss was drunk is inadmissible hearsay if it was offered for that purpose.

[66] Nor could J.N.'s testimony about what C.D. told him come in as a prior inconsistent statement to discredit C.D since C.D. admitted in cross-examination that he made this statement to J.N. The reply evidence on what C.D. told J.N. should not have been admitted.

[67] The treatment of the reply evidence relating to J.N.'s own observations and opinions about Mr. Kiss's sobriety was also in error. It may have contravened the collateral fact rule described in R. v. Krause, [1986] 2 S.C.R. 466, p. 473, at para. 15, since the degree of Mr. Kiss's intoxication was not an issue essential for the determination of the case. Whether the collateral fact rule was violated by the reply evidence is debatable because the rigid conception of what facts are collateral embraced in Krause may have been overtaken by a more principled approach that does not treat sufficiently important evidence about credibility as collateral: R. v. R.(D.), [1996] 2 S.C.R. 291, at paras. 41-45; and R. v. C.F., 2017 ONCA 480, at paras. 58-66. I need not resolve the question because a more serious error occurred relating to J.N.'s reply evidence.

[68] Specifically, the trial judge allowed the Crown to exceed the permission he had granted to call J.N. to prove Mr. Kiss's degree of impairment. Instead, the Crown used the reply evidence, improperly, as an opportunity to call and discredit J.N. for the purpose of discrediting Mr. Kiss through a collusion theory for which no foundation had been demonstrated. The trial judge did not intercede to prevent this. He facilitated it, and then treated the evidence obtained as "significant". This undermined the fairness of the trial.

[69] When the Crown called J.N. as a witness, there was no reasonable expectation that J.N. would provide proof that Mr. Kiss was very intoxicated. From the outset, it was obvious that J.N. was a reluctant witness. The day before J.N. was called as a witness, the Crown asked the trial judge for a material witness warrant on the basis that J.N. was evading service. J.N. came to court only after the trial judge made clear that a material witness warrant would issue if he did not do so. As the trial judge learned after J.N. began to testify, when J.N. arrived at court, he told the police that he was recanting his police statement. He claimed the statement, including his comments relating to Mr. Kiss's state of intoxication, was not accurate.

[70] Almost as soon as J.N. took the stand, the Crown began to ask questions that would set the stage for a finding that J.N. was not cooperating because he was in collusion with Mr. Kiss. Before even attempting to ask about Mr. Kiss's state of sobriety, the Crown began exploring the close friendship between J.N. and Mr. Kiss: when was the last time that J.N. spoke to Mr. Kiss and to C.D., and what were they talking about. J.N. was then asked questions about his lack of cooperation in coming to court, about giving his police statement, about his recantation, and about speaking to Mr. Kiss about coming to court. These questions were not directed at securing testimony on the permitted subject areas, nor were they basic introductory questions. Notwithstanding that it was the Crown that called J.N. as a witness, these questions were in the nature of cross-examination relevant to the prospect of collusion. These questions were extensive enough to take up 18 pages of trial transcript before the Crown got to the subjects it was permitted to ask J.N. about.

[71] After J.N. failed to offer evidence confirming Mr. Kiss's intoxication, the Crown sought and received leave under the Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(2) to cross-examine J.N. That cross-examination took place. The Crown then sought a declaration of adversity under s. 9(1) to "cross-examine the witness at large." The trial judge agreed that J.N. was adverse, but when disagreement ensued over whether a s. 9(1) declaration of adversity would enable the Crown to cross-examine J.N. at large in light of this court's decision in R. v. Figliola, 2011 ONCA 457, 105 O.R. (3d) 641, the Crown abandoned the application.

[72] By then the Crown had what it sought. J.N. was presented as a very close friend of Mr. Kiss who had recently spoken to Mr. Kiss and C.D., and who, like them, was recanting statements he had made to the police about Mr. Kiss being very drunk when he returned to their apartment. This was a material theme in the Crown's closing arguments, and it registered with the trial judge, who said:

It is significant to the decision that I have reached in this case that Mr. Kiss, [C.D. and J.N.] all gave testimony contrary to their statements to the police.

Mr. Kiss told the police on March 19th, 2012, that he was really drunk, "nine out of ten". [C.D] told the police, in March of 2012, that Andrew was getting "trashed" at the bar. [J.N.] told the police, in March of 2012, that Andrew was clearly very drunk when he got home, and that [C.D.] had told him that Andrew was really drunk at the bar.

There was an order made excluding witnesses at the outset of the trial. All three of the witnesses testified contrary to their police statements – that each made independently of the other, in March of 2012, shortly after the night in question – and testified, at trial, that Andrew was not drunk that night.

[73] In my view, the use of J.N.'s testimony to discredit Mr. Kiss's defence in this way was improper.

[74] First, as the Nova Scotia Court of Appeal stated in R. v. Clair, 1995 NSCA 138, 143 N.S.R. (2d) 101:

As a prefix to the admissibility of rebuttal evidence the Crown must present to the trial judge a full and accurate picture of the evidence to be called and the purpose of calling it so that the trial judge can properly determine if the evidence should be permitted…

[Citations omitted.]

[75] Second, the Crown was not responding to evidence that Mr. Kiss had relied upon to buttress his case. Instead, the Crown introduced a new witness into the proceedings during reply, so that it could discredit that witness (whose testimony was never called by Mr. Kiss in his own defence) and then taint Mr. Kiss with an allegation of collusion with that witness.

[76] Third, while the law permits witnesses to be called to offer affirmative evidence of collusion, the law does not permit the Crown to discredit its own witnesses as liars in an effort to discredit the accused. Although technically distinguishable, this court's decision in R. v. Soobrian, 21 O.R. (3d) 603, 96 C.C.C. (3d) 208, at p. 216 supports the principle that, absent a demonstrated evidentiary foundation linking the alleged lies of a witness with the accused, the lies told by that witness are irrelevant in assessing the credibility or guilt of the accused. For this reason, unless an evidentiary foundation for collusion has been established, the Crown cannot call a witness for the purpose of discrediting that witness in order to support a collusion theory.

[77] Similarly, in Figliola, at para. 61, this court recognized that it is improper, and prejudicial, for the Crown to "shred the credibility of the Crown's own witness and to create a factual matrix" to invite the inference that the witness was "lying for the very purpose of covering up for [the accused] and that [the accused is] therefore a liar […] and probably guilty."

[78] In my view, although both Soobrian and Figliola involved attacks on anticipated defences made during the Crown case, the principles apply to reply evidence as well. Indeed, they apply with even greater force given the limited use that is to be made of reply evidence and the reduced opportunities that exist for answering reply evidence. The Crown should not have been exploring its collusion theory in reply without demonstrating a foundation to the trial judge for doing so.

[79] The trial judge did not intercede when it became evident that the Crown was setting the stage to discredit J.N. before broaching the permitted topics. Indeed, contrary to the direction in Soobrian and Figliola that it is improper for the Crown to use a s. 9 rulings to discredit its own witness in an effort to discredit the accused, the trial judge ultimately gave leave and then presided over a s. 9(2) cross-examination.

[80] The trial judge then drew the collusion inference the Crown invited based on the coincidental recantations of Mr. Kiss, C.D., and J.N. relating to Mr. Kiss's state of sobriety, even though Mr. Kiss was never given an opportunity to respond to the Crown's collusion theory.

[81] These errors played a central role in the trial outcome. The collusion theory, built largely on testimony that should not have been permitted, was, in the trial judge's own words, "significant to the decision". Simply put, the trial judge drew a significant inference based on evidence that should not have been received. He erred in doing so.

(f) DIFFERENT LEVELS OF SCRUTINY

[82] It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence. Where this happens, a trial will be unfair to the accused: R. v. Howe, 192 C.C.C. (3d) 480; R. v. Owen, 150 O.A.C. 378; and R. v. T.(T.), 2009 ONCA 613, at paras. 71-74.

[83] This is a notoriously difficult ground of appeal to succeed upon because a trial judge's credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility: R. v. D.T., 2014 ONCA 44, at paras. 71-73; and R. v. Aird, 2013 ONCA 447, at para. 39. An "uneven scrutiny" ground of appeal is made out only if it is clear that the trial judge has applied different standards in assessing the competing evidence: Howe, at para. 59. Where the imbalance is significant enough, "the deference normally owed to the trial judge's credibility assessment is generally displaced": R. v. Rhayel, 2015 ONCA 377, at para. 96; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19; and R. v. Phan, 2013 ONCA 787, at para. 34.

[84] In my view, this error occurred here. Whereas the trial judge took even the leanest opportunities to find reason to reject Mr. Kiss's evidence, he was uncommonly forgiving of similar and even more serious problems with K.S.'s testimony.

[85] To be clear, I do not take issue with the trial judge's ultimate finding that Mr. Kiss was not credible. There was ample evidence to support this conclusion. As the trial judge found, Mr. Kiss provided confident, self-serving answers at trial on matters he was unsure of in his police statements. It is also a fair inference that Mr. Kiss changed his trial story for the better by falsely claiming that he obtained verbal consent for sexual intercourse from K.S. Mr. Kiss also admitted to lying to the police. This foundation would have been sufficient to support the trial judge's conclusion that he could not believe, or have a reasonable doubt, based on Mr. Kiss's testimony.

[86] The problem is that the trial judge supplemented these important considerations with a range of far less compelling factors, yet he discounted comparable or even more significant problems with K.S.'s testimony. Had the trial judge applied as exacting a standard of scrutiny to the testimony of K.S. as he imposed on Mr. Kiss, he may well have been left with a reasonable doubt.

[87] I will begin with the trial judge's use of J.N.'s evidence, that he and C.D. were awake when Mr. Kiss returned home from K.S.'s dormitory. To the contrary, Mr. Kiss testified that J.N. and C.D. were asleep when he got home. The trial judge used this contradiction against Mr. Kiss. The problem with his doing so is three-fold.

[88] First, to a reasonable observer, the decision to rely on J.N.'s testimony on this point may appear to be unfairly selective. The judge convincingly found J.N. to be a thoroughly incredible witness. He was evasive, confusing, and inconsistent. Indeed, the trial judge found J.N. to be an adverse witness to the Crown. Yet the trial judge chose to believe J.N.'s testimony about being awake with C.D. when Mr. Kiss returned. A trier of fact is certainly free to believe some, all, or none of the evidence of a witness. There should, however, be a reasonable basis for the choice that is made. There is no evident, reasonable basis on the record or in the reasons for the trial judge's choice to believe J.N. solely on the one point that contradicted Mr. Kiss's evidence.

[89] Second, and more importantly, the trial judge was not consistent about this. He used J.N.'s testimony that he was up when Mr. Kiss got home to diminish Mr. Kiss's credibility. But when he was evaluating J.N.'s evidence, the trial judge used the fact that Mr. Kiss contradicted J.N. on this same point to discredit J.N.

[90] Third, the trial judge treated the contradiction over who was awake when Mr. Kiss arrived home as a significant contradiction, even though it was a collateral point. He also placed "significant" reliance on Mr. Kiss's inconsistent accounts of his sobriety, another collateral point. This included inconsistencies in Mr. Kiss's evidence about the alcohol he consumed. The problem is that the trial judge did not treat the collateral inconsistencies in K.S.'s testimony the same way.

[91] K.S.'s descriptions about what happened after Mr. Kiss left, including her meeting next door with D.B. and R.R., and with A.S. and A.W., was more problematic than Mr. Kiss's descriptions of who was awake when he got home. K.S.'s post-event accounts were internally inconsistent and externally contradicted on the timing, location, and order of events. Yet the trial judge placed no importance on these inconsistencies.

[92] The trial judge also discounted K.S.'s inconsistent testimony about the amount of alcohol she consumed because there was no issue with how intoxicated she was. In fact, Mr. Kiss claimed that she was as intoxicated as he was.

[93] To be clear, there is no problem with discounting contradictions because they are collateral. This will often be the right thing to do. The instant point is that the same measure should be used for both parties, and in this case it was not.

[94] The trial judge was also critical of Mr. Kiss when Mr. Kiss reasoned his way to an answer on matters he did not specifically recall. The trial judge said he was rationalizing. For example, Mr. Kiss was criticized for testifying that he did not say he went to the washroom, not because he remembered never saying it, but because he just knew he did not go to the washroom. He was also criticized for saying he wore a belt because he typically does so.

[95] In contrast, the trial judge was not troubled that K.S. was trying to "reason through" a contradiction in her evidence about whether she fell into the fridge or beside the fridge. He was not troubled that K.S.'s response to a challenge about why she did not yell for help evolved from a claim that she thought it was enough to say, "Stop", to a claim that she "froze up", even though the latter explanation was offered only after her first answer proved problematic. When first confronted with her failure to let Mr. Kiss know that she was not interested in sex when he pulled out a condom, she said she did not know why she would not have done so. She then explained that it would be "weird or rude for me to say to someone at that point, 'I don't want to have sex with you'." The trial judge did not view K.S.'s efforts to reason her way through to an answer as rationalizing.

[96] Once again, the point is not that it is right or wrong for a trial judge to consider whether a witness' answer is based on inference or reason rather than memory. The point is that the trial judge expected more of Mr. Kiss than he did of K.S.

[97] The standard of scrutiny applied to Mr. Kiss's credibility evaluation was so exhaustive that although it was a "small point", the trial judge mentioned that Mr. Kiss could not explain why his T-shirt was not in the pile with the rest of his clothes. In contrast, the trial judge found the material problems with K.S.'s testimony to be "inconsistencies of minor matters, or simply the use of different words to describe the same event."

[98] For example, the trial judge treated the inconsistency between K.S.'s testimony in chief that she took Mr. Kiss to her room just to talk, and her later admission that she knew at the time that there would be some sexual activity when they got there, as minor. It is difficult to see how, in a consent case, inconsistent evidence about whether the complainant expected sexual activity is "minor". In contrast, the trial judge did not treat as minor the contradiction between a statement that Mr. Kiss had made to the police suggesting that he was not attracted to K.S., and his demonstrated sexual interest in her.

[98] Similarly, K.S. testified that she did not intend to have sex with Mr. Kiss when he took out the condom, but she told A.S. that when Mr. Kiss took out the condom she thought, "This guy's going to get lucky". Even though this contradiction went directly to K.S.'s willingness to have sex, the trial judge considered this contradiction to be minor. It was not.

[100] The trial judge also treated as minor an inconsistency between K.S.'s preliminary inquiry testimony and her trial testimony about whether she was afraid that Mr. Kiss would come back. In context, that inconsistency was material. The evidence at trial was that K.S. went to bed naked with the door unlocked after the assault. Such behaviour would not be consistent with K.S.'s frame of mind if she were afraid, as she testified at the preliminary inquiry. The consistency problem disappears, however, if K.S. was not afraid, as she testified at trial. Simply put, there was reason for concern that K.S. may have changed her trial testimony about the state of her fear to fit the narrative better, but the trial judge simply dismissed the contradiction.

[101] K.S. testified that she did not scream for help during the alleged assault. The trial judge considered this to be unimportant. As the Supreme Court held in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, there is no rule as to how victims of sexual assault are apt to behave. I reject Mr. Kiss's claim that the trial judge erred in relying on D.D. for this purpose. The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[102] The problem I have, however, is that A.S. testified that K.S. told her that during the assault she was screaming, "No", and making a lot of noise during the assault so that her neighbours would hear her. Without explanation, the trial judge disregarded the contradiction as to whether K.S. was seeking help as a minor inconsistency. K.S.'s reaction was a key part of her narrative of what happened, and both versions she gave cannot be true. This contradiction required attention.

[103] There was also an important inconsistency in K.S.'s description of how she ended up on the floor. Up until the preliminary inquiry, K.S. said that Mr. Kiss "tackled" her from the bed, as in football. At trial she said he shoved her to the floor from the bed. The trial judge disregarded this discrepancy as a mere matter of words. It was not. If Mr. Kiss tackled K.S. to the floor, they both would have fallen to the floor together, consistent with what K.S. told L.H. This version presented serious plausibility problems for K.S.'s evidence that Mr. Kiss surreptitiously put a condom on before penetrating her. This is because K.S. was clear that he did not put a condom on when they were on the bed together, and Mr. Kiss argued that it would have been impossible for him to have put a condom on with one hand, while on the floor, wrestling with K.S., as she described. The trial judge circumvented this challenge to K.S.'s testimony by finding that there were "other options" as to when Mr. Kiss could have put the condom on, such as "when he got off the bed, and before he got onto the floor." If Mr. Kiss tackled K.S. to the floor, there was no such opportunity. The inconsistency about how Mr. Kiss got K.S. on the floor was an important feature of the narrative, but was disregarded as minor.

[104] Most troubling is that on two occasions the trial judge gave no adverse weight to the complications with K.S.'s evidence, but instead treated her readiness to admit those difficulties as enhancing her credibility and reliability.

[105] Specifically, K.S. testified that after the sexual event ended, Mr. Kiss said, "Next time, I'll do better". This comment made no sense in the context of K.S.'s narrative, but supported Mr. Kiss's claim that he had experienced erectile dysfunction during consensual sex. The trial judge saw the problem, but instead of treating this incongruent evidence as taxing the credibility of K.S.'s narrative, he said, "She did not have to give this evidence. It would have been better for her story to have left it out, but she did not. Viewed in this fashion, her admission supports her credibility and reliability."

[106] K.S. also testified that after Mr. Kiss left, she put pyjama pants and a sweater on before going next door. This testimony was at least curious on her version of events since she said her clothes were displaced but not removed. She could simply have readjusted them. In contrast, her act of getting dressed in pyjamas and a sweater supported Mr. Kiss's version of events. Mr. Kiss had said she was voluntarily naked during their encounter. On that version, she would have to dress before leaving the room. Yet, the trial judge did not weigh the impact these competing versions had on the evidence. Instead, he disregarded the complication because "she made that admission."

[107] Put simply, on these two occasions the trial judge disregarded the problems with what K.S. said because he was impressed by the fact that she said it. Yet admitting a difficult fact does not eliminate the difficult fact. While it was not wrong for the trial judge to note the candour of the witness, he should have considered the impact of the difficulties that she admitted. This generous treatment of K.S.'s evidence stands in contrast to the rigid evaluation Mr. Kiss's testimony received.

[108] The uneven evaluation of the evidence in this case was an error, and it undermined the fairness of the trial.

CONCLUSION

[109] In my view, cumulatively, the errors I have identified have caused a miscarriage of justice by undermining the fairness of Mr. Kiss's trial.

[110] I would therefore allow Mr. Kiss's appeal, set aside the sexual assault conviction, and order a new trial.

Released: February 26, 2018 ("G.E.")

"David M. Paciocco J.A."

"I agree. Gloria Epstein J.A."

"I agree. I.V.B. Nordheimer J.A."

[1] D.B. was not called as a witness.