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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210602 DOCKET: C67366
Feldman, Tulloch and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
B.L. Appellant
Counsel: Michael Crystal, for the appellant Michael Dunn, for the respondent
Heard: December 1, 2020 by video conference
On appeal from the conviction entered by Justice Sally A. Gomery of the Superior Court of Justice on June 13, 2019, with reasons reported at 2019 ONSC 3700.
Feldman J.A.:
A. Introduction
[1] The appellant appeals from his conviction of sexual assault, entered by a trial judge sitting without a jury. He was charged with sexual assault causing bodily harm, but was acquitted of causing bodily harm and convicted on the included offence.
[2] The complainant and the appellant were college acquaintances who got together one evening at the appellant’s residence after he contacted her when two of his old friends had been in a car accident earlier that day. Following a few hours of conversation, they moved from his living room to his bedroom. He began massaging her, which led to mutual consensual oral sex. That was followed by vaginal intercourse. The complainant said the appellant then penetrated her anally, which he denied.
[3] The issue before the trial judge was consent to the intercourse or honest but mistaken belief in consent. The complainant testified that she denied consent to sexual intercourse. The appellant said that there was consent to any and all sexual activity. The case turned on the credibility of both parties. Applying the analysis from R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge accepted the evidence of the complainant that she did not consent to intercourse, rejected the evidence of the appellant, and found that the evidence did not leave her with a reasonable doubt about the elements of the charge. The trial judge considered the complainant’s evidence that she was in terrible pain and experienced bleeding after the assault. However, the trial judge was not satisfied beyond a reasonable doubt that the complainant suffered “any tangible physical or psychological injury”, and therefore acquitted the appellant of causing bodily harm.
[4] The appellant appeals his conviction on the basis that the trial judge made a number of errors in her credibility analyses of both parties. While I would not give effect to the specific errors as framed by the appellant, it was an error of law for the trial judge to impugn the appellant’s credibility on the basis that his evidence was tailored to the complainant’s evidence that he heard as part of the Crown’s case at trial. For that reason, I would allow the appeal.
B. Factual Background
[5] The trial judge succinctly set out, in summary form, the factual background of the case, at paras. 2-6, of her decision:
In 2016, the defendant and the complainant were both students in the same program at A[…] College in [a city in Ontario]. They did not know each other well, but exchanged texts on November 30 after the defendant messaged the complainant on Facebook. Two friends of the defendant had been involved in a car accident earlier that day and he wanted some company. At about 10:30 p.m., he met up with the complainant on campus and they walked to the house he shared with other students. They talked in the living room for several hours. They both drank gin and tonic from the same glass, which the defendant topped up a few times.
At about 2:00 or 2:30 a.m., they moved to his bedroom. The complainant lay face down on the bed. The defendant straddled her hips and gave her a massage, starting at her shoulders and moving down her back. He then began lowering her pants and underwear. The complainant asked the defendant: “What are you doing?”
Their accounts of what happened next diverge significantly.
According to the defendant, the complainant communicated, through her words and actions, that she was fully consenting to any and all sexual activity. He says that she specifically asked whether they would have sexual intercourse and ultimately said: “If you want to do it, let’s just do it.” After they performed oral sex on each other, he says that the complainant climbed on top of him and initiated vaginal intercourse. The intercourse ended when he accidentally thrust against the complainant’s perineum, which was painful for both of them. She then told him she did not want to resume any sexual activity, he walked her home, and they left on good terms after hugging one another.
The complainant’s account of what occurred after she asked “What are you doing?” is very different. She says that the defendant pressured her, through words and gestures, to participate in further massaging, kissing and oral sex. She never clearly consented to any activity but did not object either. When however the defendant lay on top of her and began to rub his penis near her vagina, she said: “No, I’m not doing this, especially without a condom”. He replied: “I swear on my nephew’s head that I am clean” and penetrated her forcefully. A few minutes later, according to the complainant, the defendant flipped her over onto her front and penetrated her anally. She screamed: “No, get off of me” and he did. He walked her home. The following day, she reported the alleged sexual assault to police.
C. The Trial Judge's Decision
(1) Overview
[6] The trial judge applied the W.(D.) analysis by asking: (1) whether she believed the evidence of the appellant; (2) if she did not accept his evidence, whether his evidence raised a reasonable doubt; and (3) if the appellant’s evidence did not raise a reasonable doubt, whether, based on the evidence she accepted, the Crown had proven that the appellant intentionally had intercourse with the complainant without her consent and without an honest but mistaken belief in her consent.
[7] The trial judge did not believe the appellant’s version of how he obtained consent. She set out, at paras. 11-13, his version as follows:
According to the defendant, when he began to roll the complainant’s pants down during the back massage and she asked “What are you doing?”, she did so in a “very flirty” way. He told her that her pants were in the way and she replied: “Oh, okay”. He then removed her pants but not her underwear and continued his massage, starting at her ankles and moving up to her thighs.
The defendant testified that the complainant then asked him whether they were going to have sexual intercourse, and he said he would like to. She asked whether he had a condom, and he replied: “I swear on my nephew’s head I am clean”. According to the defendant, the complainant then said: “If you want to do it, let’s just do it.”
The defendant said that they then each performed oral sex on each other, after which the complainant climbed on top of the defendant and inserted his penis in her vagina. The sex ended about twenty to thirty minutes later when, after they had moved into a different position where he was thrusting into her vagina from behind, he accidentally hit her perineum. This was painful for both of them and he disengaged from her. The defendant apologized and, after a few minutes, suggested that they try again or that they have a shower together. The complainant said she wanted to go home as she had commitments later that day. The defendant showered on his own, then walked her home.
[8] The trial judge listed three main reasons for rejecting the appellant’s account and expressed general concerns about his veracity. The three main reasons were: (1) his account was internally inconsistent; (2) his account of the conversation during the massage, prior to any sexual activity, did not ring true; and (3) his evidence about what the complainant said was not plausible. In addition, the trial judge did not find the appellant to be a credible witness because of the way he answered questions put to him by the Crown in cross-examination.
[9] After finding that she did not believe the appellant and that his evidence did not raise a reasonable doubt, the trial judge turned to a full consideration of the complainant’s evidence.
(2) The Appellant's Evidence
(a) The appellant's account was internally inconsistent
[10] The trial judge concluded from the appellant’s evidence that his position was that the complainant initiated all the sex, that he was not trying to convince her to engage in sexual activity, and that sex was not even on his mind when he asked her if she wanted to resume intercourse after they had stopped. The trial judge found that this position was not consistent with the appellant’s active pursuit of sex once they went into his bedroom, both before and after they had intercourse. The trial judge listed five examples of how he actively attempted to persuade the complainant, or just went ahead without any discussion or consent: (1) he pulled down her pants during the massage, without first asking if she agreed to have him touch her buttocks; (2) when he told her that her pants were in the way, and she replied with “[o]h, okay,” he took this as a green light to take her pants off completely; (3) he then began to massage her bare legs and thighs, without asking her if that was agreeable; (4) in response to the complainant’s question about whether he had a condom, he swore on his nephew’s head that he was clean; and (5) after they halted intercourse because of the complainant’s pain, he continued to press her for more sex or other intimate activity. The trial judge concluded that the “contradiction between what he says he was doing and what he actually admits to having done fundamentally undermines his credibility.”
(b) The appellant's account of the conversation during the massage, prior to any sexual activity, did not ring true
[11] In his examination-in-chief, the appellant described the sequence of events from when he removed the complainant’s pants and continued the massage of her legs and thighs. At that point, the complainant asked him if he thought they were going to have intercourse, he said he would like to, and she said, “[i[f you want to do it, let’s just do it,” which he took to mean she was agreeing to all sexual activity up to and including intercourse. He initially repeated this account in cross-examination, but then agreed with Crown counsel that the complainant asked about a condom, and that he responded by swearing on his nephew’s head that he was clean. In his version, the complainant did not say to him she would not have sex without a condom. Rather, the complainant simply asked the appellant whether he had a condom, he confirmed to her that he was “clean,” and then she said, “[i]f you want to do it, let’s just do it.”
[12] The trial judge found it odd that the appellant gave the same account twice without mentioning the complainant’s question about the condom, but then suddenly remembered it later in cross-examination. She had a doubt about “whether [the appellant’s] evidence [was] genuine or whether he [was] reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue.”
(c) The appellant's evidence about what the complainant said was not plausible
[13] In the text messages that the parties exchanged before they met up, the complainant made the point that she had just met the appellant and that he told her he was not looking for anything but “Netflix and Chill.” The appellant assured her that he was a respectful and “hard working guy,” but included that he loved cuddling and was great at massages. Following that exchange, where the complainant expressed her uncertainty about spending time with the appellant, the trial judge found it implausible that the complainant would ask right away about sexual intercourse during a massage, even if she was being flirty as the appellant claimed.
[14] The trial judge also did not find it plausible that the complainant would say “just do it” after being concerned enough to ask about protection, and receiving the appellant’s simple answer that he was “clean.” As the trial judge noted, the appellant admitted in cross-examination that there was more than one reason why a woman may want a man to use a condom.
[15] Finally, the trial judge found that the level of pain felt by the complainant was not consistent with one thrust that hit the perineum, but rather forceful vaginal or anal intercourse, which the appellant denied. The appellant acknowledged that the complainant experienced great pain and that he apologized to her several times.
(d) The appellant was not a credible witness
[16] The trial judge found the appellant incredible as a witness. He denied all the suggestions the Crown made to him, even when they were consistent with his earlier evidence. The primary example was his insistence that he did not try to convince the complainant to have sex, although this was contradicted by his actions and the words he admitted to. Another example was his denial that they went to the bedroom in part because they were concerned about the noise disturbing his roommates. He said the living room was the farthest away from the bedrooms, while his roommate said the living room was next to the bedrooms they respectively occupied. The trial judge also rejected as illogical, the appellant’s testimony that he did not try to convince the complainant to stay over at his place after they stopped having sex in the early hours of the morning, which she said he did.
[17] In summary, the trial judge rejected the appellant’s evidence about what occurred in the bedroom and the discussion he subsequently had with the complainant. She also found that it did not give rise to a reasonable doubt, because it was neither credible nor plausible.
(3) The Complainant's Evidence
[18] The trial judge then turned to the complainant’s evidence. By the time of trial, the complainant had memorialized her story four times. The first was in a document referred to as the “Timeline,” which came into existence immediately after the event, when the complainant called a friend who then contacted the complainant’s brother who came over right away. Based on his experience working at a bank where he had learned to make contemporaneous reports of events, the brother asked the complainant to describe what had occurred, and he wrote down the story on her computer using his own language. The complainant did not read the notes over, and after about an hour of working on the Timeline, they left for the hospital.
[19] The second time the complainant made a record of her story was in a written statement she gave to the police. The third was a video statement to the police, and the fourth was her preliminary inquiry testimony.
[20] The result was that there were a number of inconsistencies in the accounts, where, for example, a detail was left out of one account but included in others. The complainant’s credibility was challenged through an extensive cross-examination based on her alleged inconsistencies, including between her testimony at trial or in the police statements, and the Timeline. The appellant argued, on one hand, that no weight should be given to the Timeline because it had been altered before it was disclosed, and on the other hand, that it could be used by the appellant to impeach the complainant. The Crown argued that much of the Timeline was consistent with the complainant’s trial account and should be used by the court as context to assess the complainant’s reliability and credibility. The trial judge ruled that she would not use it for either the appellant’s or the Crown’s purposes. She found that it had limited value for accuracy, because of the way it was created with the brother.
[21] The trial judge discounted most of the alleged inconsistencies in the complainant’s rendition of the event as minor and found that they did not affect the complainant's credibility. She addressed what she viewed as four more significant inconsistencies, and gave effect to one of them by rejecting the complainant’s evidence that she saw blood on her bathroom floor after she got home from the incident.
[22] Taking into account the one rejection of evidence together with the other minor inconsistencies, the trial judge found the complainant to be credible:
In my view, the inconsistencies in the complainant’s evidence about the assault itself are minor. They do not make her overall account less believable or reliable. The main points of her evidence have not changed over time. She has provided reasonable explanations for why she did not mention certain details in all of her previous accounts. I have no reason to think that she deliberately misrepresented what occurred. Although I have rejected her evidence about seeing blood after she got home, it does not put in doubt her testimony about the alleged assault.
(4) Conclusion
[23] The trial judge ultimately accepted the complainant’s evidence that when the appellant began to rub his penis near her vagina, she said no to intercourse without a condom, and rejected the appellant’s evidence that after he swore he was clean, she said “let’s just do it.” The trial judge found there was no consent to the digital penetration or to the vaginal or anal intercourse.
[24] The trial judge also found there was no basis for a defence based on honest but mistaken belief in consent in the following passages:
There is furthermore no basis for a defence based on honest but mistaken belief in the communication of consent. According to the complainant, before the defendant inserted two fingers into her vagina, they had a brief conversation about what was going to happen. She asked him if he thought they were going to have sex, he asked her if she wanted to, and the complainant said: “I don’t know, maybe.” On the basis of this evidence, which I accept, she did not consent to any sexual activity with the defendant. A “maybe” is not a “yes”. As the defendant admitted in cross-examination, the complainant’s answer indicates she was uncertain. Prior to touching the complainant’s vagina, the defendant took no further steps to ascertain if she was agreeing to sex and, if so, what specifically she was agreeing to. He did nothing to obtain her consent.
Although she subsequently participated in oral sex, the complainant did not communicate, simply by doing so, that she also consented to vaginal or anal intercourse. The complainant in fact actively refused consent to intercourse. I accept her evidence that, when she realized that the defendant was getting ready to penetrate her vaginally, she said “No, I’m not doing this, especially without a condom”. This was a clear denial of consent.
Based on this evidence, I cannot find that the defendant had an honest but mistaken belief that the complainant communicated consent to vaginal touching or vaginal and anal intercourse.
[25] Because there was no hospital record of injury, despite the severe pain the complainant suffered, the trial judge was not satisfied that the charge of bodily harm had been made out. However, she was satisfied beyond a reasonable doubt that the appellant was guilty of sexual assault.
D. Issues on the Appeal
[26] The appellant raises the following issues on appeal:
- Did the trial judge err by failing to give proper effect to the Timeline and by failing to account for the inconsistencies in the complainant’s evidence, as revealed by a comparison with the Timeline?
- Did the trial judge err in her credibility assessment of the complainant by failing to give proper effect to the numerous inconsistencies in her various accounts of the event, other than in the Timeline?
- Did the trial judge apply different standards to the assessment of the credibility of the appellant and of the complainant?
E. Analysis
(1) Overview
[27] As is apparent from the three broad issues for appeal, the entire basis for this appeal is an attack on the credibility findings of the trial judge. Under each heading, the appellant has identified a number of alleged inconsistencies in the complainant’s accounts of the event, which he submits should have been given more weight by the trial judge, and should have led her to reject the evidence of the complainant or to have had a reasonable doubt about the guilt of the appellant.
[28] This is not a case where the complaint is that the trial judge failed to address the alleged inconsistencies or misapprehended the evidence. Rather, the appellant is challenging the trial judge’s assessment of the evidence and her decision whether to accept or reject it.
[29] It is trite law that an appellate court is required to give considerable deference to the factual findings of a trial judge and particularly to the trial judge’s credibility findings: see R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 32; R. v. DaCosta, 2017 ONCA 588, at para. 19; R. v. Chhina, 2016 ONCA 663, 340 C.C.C. (3d) 496, at para. 21; R. v. Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34; R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 21; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. Unless the trial judge has arrived at an unreasonable verdict based on the evidence, it is not the role of an appellate court to reassess the evidence or to substitute its view of the credibility of the parties for the view of the trial judge.
[30] Even where the trial judge fails to consider a prior inconsistent statement by the complainant, the Supreme Court of Canada recently stated in R. v. Smith, 2021 SCC 16, that when assessing a complainant’s credibility and reliability, the error must have affected the outcome and caused a miscarriage of justice to warrant a new trial.
[31] At trial, both parties agreed that the massaging and oral sex were consensual. They also agreed that vaginal intercourse occurred. What they did not agree on was whether the complainant consented to have vaginal sex and anal sex, and whether the anal sex occurred. The trial judge did not believe the appellant’s version, which was that when the complainant asked about a condom, he answered that he was clean, and she then said: “If you want to do it, let’s just do it.” Instead, the trial judge accepted the complainant’s evidence that she said no to sexual intercourse without a condom and that after his response about being clean, the appellant immediately thrust his penis into her vagina. The trial judge also accepted the complainant’s evidence that the appellant penetrated her anally.
[32] The appellant’s position on appeal is that the trial judge should have doubted the credibility and reliability of the complainant generally.
[33] The appellant also submits that the trial judge applied a stricter standard when assessing the appellant’s credibility than when assessing the complainant’s credibility. As I have found that the trial judge made an error of law in her assessment of the appellant’s credibility requiring a new trial, I will turn directly to the third ground of appeal.
(2) The trial judge's relative scrutiny of the parties’ evidence
[34] The appellant submits that the trial judge subjected the evidence of the two parties to different standards of scrutiny, minimizing the impact of the inconsistencies in the complainant’s evidence, while misapprehending or exaggerating the impact of the inconsistencies in the appellant’s testimony.
[35] It is important to set this submission within the current legal framework for this type of error. Following the oral argument in this case, the Supreme Court of Canada released its decision in R. v. Mehari, 2020 SCC 40, 452 D.L.R. (4th) 410, an appeal from the Court of Appeal for Saskatchewan in which the appellant argued uneven scrutiny of the evidence. In brief reasons, the court stated:
This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.
[36] In this case, the trial judge gave a number of reasons for why she rejected the appellant’s evidence, outlined at paras. 8-16 above.
[37] One of the appellant’s challenges is to the trial judge’s treatment of the condom discussion. He objects that contrary to the trial judge’s finding, he was forthright about the condom discussion when he was asked about it in cross-examination. When asked why he had not mentioned the condom discussion in his examination-in-chief, he said he was just answering his lawyer’s questions, and denied that the reason he left it out was because he thought it would make him look horrible.
[38] I do not accept the submission that the trial judge should have found that the appellant was forthright about the condom discussion. It was a key part of the interchange between him and the complainant, and was the point where she said she did not want to have intercourse, at least without a condom. The complainant testified that the appellant did not have a condom but went ahead with intercourse anyway after swearing on his nephew’s head that he was clean. The appellant agreed that the complainant asked about a condom and that he responded the way she said, but on his account, the complainant did not state that she would not have intercourse without a condom and was the one who initiated the vaginal sex after that.
[39] The trial judge rejected the appellant’s evidence and found that, based on the condom discussion as described by the complainant, that she had not consented to intercourse. The trial judge was entitled to find that the appellant’s failure to mention the condom discussion in his initial description of their interchange could well undermine his credibility.
[40] However, as mentioned above, there is another problem with the finding and approach of the trial judge to the appellant’s evidence on this issue. The trial judge found that the fact that the appellant suddenly remembered this critical detail only later in the cross-examination ‘”raises a doubt in my mind about whether his evidence is genuine or whether he is reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue.”
[41] First, it is unclear on what basis the trial judge would view the appellant’s delayed reference to the condom discussion as a fabrication by him. To the contrary, he initially failed to acknowledge this important part of their interaction even though it was described by the complainant, then eventually acknowledged that it occurred but denied its significance.
[42] When Crown counsel asked the appellant in cross-examination why he had not brought up the condom discussion earlier, the appellant stated that he was just responding to his lawyer’s broad question, “what happened after that?” The Crown suggested to the appellant that he omitted the condom discussion because it would reflect badly on him, making it look like he was trying to convince the complainant to have sex. The appellant denied this.
[43] The credibility issue for the trial judge to resolve therefore was whether the appellant’s failure to mention the condom discussion in his initial recitation of what happened between him and the complainant undermined his credibility, not whether he had fabricated a conversation that both parties agreed occurred.
[44] Second, the effect of the trial judge’s comment was that she disbelieved the appellant, not for the reasons suggested by the Crown, but because she used his right to be present at his trial against him, by suggesting that he may have fabricated or reconstructed the condom discussion after he heard the complainant say it earlier.
[45] This court has recently reiterated that such an error by a trial judge, accusing an appellant of effectively tailoring his evidence to the evidence heard in court, undermines the appellant’s right to be present at his trial and to make full answer and defence: see R. v. M.D., 2020 ONCA 290, 392 C.C.C. (3d) 29; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14.
[46] The issue first arose in R. v. White (1999), 42 O.R. (3d) 760 (C.A.), a jury trial where the Crown suggested to the accused in cross-examination that his answers were crafted around the disclosure he had received. Doherty J.A. acknowledged that if a witness appears to have tailored his evidence to respond to information provided to him, there is a tendency to infer that the evidence is suspect. However, it is an illegal inference when drawn against an accused, who is entitled to hear about and defend against the Crown’s case. As Doherty J.A. explained, at pp. 767-68:
[T]here may be considerable force to the suggestion that a person who gets full advance notice of the other side’s evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons.
[47] This court has applied similar reasoning in the context of judge-alone trials: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230. In R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, the trial judge discounted the accused’s evidence in her assessment of his credibility because he had the benefit of listening to the legal arguments presented by his counsel and by the Crown on the voir dire. On appeal, this court again confirmed that even though there may be a “natural temptation” to reason the way the trial judge did, that temptation must be resisted. It subverted the accused’s right to be present at his trial under s. 650(1) of the Criminal Code, as well as his s. 7 right to a fair trial and his s. 11 (d) right to full answer and defence under the Canadian Charter of Rights and Freedoms: at para. 12.
[48] The jurisprudence on tailoring evidence applies to the case at hand. The trial judge committed a legal error when she discounted the appellant’s credibility on the basis that he had “reconstructed” or “fabricated” the condom discussion after attending his trial and hearing the complainant’s evidence. The trial judge’s reasoning turned the appellant’s constitutional rights into an evidentiary trap.
[49] As the error was not raised by the appellant except as part of the uneven scrutiny issue, the court sought submissions at the hearing on whether the error occurred. Although the Crown did not ask this court to apply the proviso, as the error was raised by the court, it is appropriate for the court to also consider whether the proviso should be applied.
[50] I would not apply the proviso in this case. The parties’ credibility was the significant issue at trial. The trial judge gave three main reasons for rejecting the appellant’s evidence and finding that it did not raise a reasonable doubt, and his testimony about the condom discussion was one of them. The error therefore appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred.
F. Conclusion
[51] In the result, I would allow the appeal and order a new trial.
Released: June 2, 2021 Feldman J.A. I agree. Tulloch J.A. I agree. Hourigan J.A.