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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220225 Docket: C67631

Miller, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

C.T. Appellant

Counsel: C.T., acting in person Andrew Furgiuele, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: February 7, 2022 by video conference

On appeal from the convictions entered on April 21, 2017 and the sentence imposed on October 30, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice.

Reasons for Decision

[1] It is an error of law for a trial judge to discount the credibility of an accused’s evidence on the basis that it was tailored to fit Crown disclosure, or evidence or argument heard in court prior to the accused testifying. Drawing the inference that advance notice of the case against the accused has allowed the tailoring of evidence and thus made it suspect, though a natural temptation, is impermissible. It would create a constitutional trap, turning the right to be present at trial under s. 650(1) of the Criminal Code , R.S.C. 1985, c. C-46 and the rights to full answer and defence under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms against the accused : R. v. White (1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20; R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, at para. 12; 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; R. v. B.L., 2021 ONCA 373, at paras. 44-47.

[2] The trial judge committed exactly that error in this case.

[3] The trial judge convicted the appellant of one count of sexual assault under s. 271 of the Code relating to events in December of 2013. He convicted the appellant of a second count of sexual assault and one count of assault under s. 266 relating to events in March of 2014. Finally, he convicted the appellant of one count of criminal harassment under s. 264(1) relating to events in April of 2014.

[4] The complainant on each of the charges was J.S., with whom the appellant had been in a romantic and sexually intimate relationship.

[5] J.S. and her mother were the only Crown witnesses. The appellant testified in his own defence. The trial judge noted, at the outset of his reasons: “There were stark contrasts between the evidence of these events related by the two Crown witnesses and the accused. Accordingly, credibility required very careful examination”. He also observed that the appellant’s evidence was exculpatory and accepting it, or finding it raised a reasonable doubt, would require acquittal on all charges.

[6] The trial judge’s analysis of the credibility of the appellant’s evidence, his rejection of it and his finding it raised no reasonable doubt, leaned heavily and repeatedly on the trial judge’s inference that his evidence had been tailored to fit disclosure or prior evidence.

[7] In the introductory portion of his reasons, the trial judge stated:

I found the evidence of the accused was fundamentally unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity, once detected, becomes like the thirteenth chime of a clock. It cast doubt upon the twelve that preceded it. There were aspects of his evidence that I did accept but only if adequately corroborated by other sources. On the whole, I concluded that he told the truth only where it suited his purpose while the remainder of his evidence was carefully tailored to fit, however awkwardly, the evidence of which he was aware . [Emphasis added.]

[8] In the section of his reasons entitled “General Comments on Credibility”, the trial judge returned to the same impermissible reasoning. He stated:

While smoothly recounted and never lacking in complete confidence as to the smallest of details recalled in the most vivid terms three years after the fact, the tale that [the appellant] spun became increasingly implausible as layer upon layer of detail was added. At length, I reached the conclusion that [the appellant] could not be relied upon to tell the truth at all. He appeared to be looking to fit his evidence to the disclosure he had received rather than to be recalling things from his own lived experience . [Emphasis added.]

[9] In addition to these general comments, applicable to the credibility assessment in relation to all of the charges, the trial judge used this reasoning when dealing with specific events. In rejecting the appellant’s version of what occurred in relation to the December 2013 offences, the trial judge stated: “ This was one instance and not the only one where I formed the view that [the appellant] sought to tailor his evidence to suit ” (emphasis added). When dealing with the offences in March 2014, the trial judge took the same approach: “ Once again I found [the appellant’s] version of these events to be a product of fantasy or a deliberate fabrication to fit disclosed evidence. I am unable to afford any credence at all ” (emphasis added).

[10] The Crown argues that the trial judge’s error was harmless, as his reasons make it clear that he had numerous grounds for rejecting the credibility of the appellant’s evidence. The comments about the appellant tailoring his evidence should, in the Crown’s submission, be viewed as a mere afterthought and the curative proviso in s. 686(1)(b)(iii) of the Code should be applied.

[11] We are not persuaded by this argument. The trial judge made his inference of tailoring to fit disclosure a feature of his credibility assessment at the outset of his reasons. He returned to it as an important consideration in his general findings on credibility, and then repeated its importance in his more granular analysis of important events. The proviso will not be applied where the impermissible tailoring inference “appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred”, even if there were other reasons for that rejection: B.L., at para. 50.

[12] The Crown fairly concedes that there is no case where this court has applied the proviso to uphold a conviction where this sort of error has occurred.

[13] In Jorgge, Laskin J.A. stated, at paras. 18-19:

The context for these three cases [ White , Schell and Thain ] differs from the case before us, but the underlying principle is the same. In those other cases, either the Crown or the trial judge improperly used an accused’s right to disclosure to discredit the accused’s testimony. In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so.

This error figured prominently in the trial judge’s adverse assessment of the appellant’s credibility. Credibility was the significant issue at trial, in the light of the differing versions of events given by the appellant and the complainant. In Thain, at para. 38, Sharpe J.A. said “[t]he appellant was entitled to have his credibility fairly assessed without being trapped by the exercise of his constitutional rights”. Similarly, Mr. Jorgge was entitled to have his credibility fairly assessed without being trapped by the exercise of his statutory right to be present at his trial. Thus, his convictions cannot stand.

[14] The same approach is required here. The appeal is allowed, and a new trial is ordered. Accordingly, we do not reach the sentence appeal.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“ B. Zarnett J.A.”