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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 2023-12-06 Docket: C67499

Tulloch C.J.O., Feldman and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

H.S. Appellant

Counsel: Megan Savard and Shailaja Nadarajah, for the appellant Amy Alyea, for the respondent

Heard: November 7, 2023

On appeal from the conviction entered on May 31, 2019 by Justice Tamarin M. Dunnet of the Superior Court of Justice.

Monahan J.A.:

A. OVERVIEW

[1] Following a judge-alone trial, the appellant was convicted of one count of sexual assault and one count of assault against his ex-girlfriend. He was acquitted of a second count of sexual assault.

[2] The appellant appeals his convictions on the following three grounds:

(i) the trial judge wrongly dismissed the appellant’s application to reopen the case and cross-examine the complainant on an alleged material inconsistency between her trial testimony in relation to the sexual assault and her Victim Impact Statement (VIS);

(ii) the trial judge wrongly dismissed the appellant’s s. 276 application to introduce evidence regarding the sexual character of his relationship with the complainant; and

(iii) the trial judge conducted a flawed credibility analysis, rejecting the appellant’s evidence based on speculative assumptions and failing to resolve major problems with the complainant’s evidence.

[3] For the reasons that follow, I would dismiss the appeal.

B. BACKGROUND

(1) The Three Incidents

[4] The relationship between the appellant and the complainant began in 2012, when they were both in grade 10, and continued after high school, when the complainant was a student at a nearby community college.

[5] The complainant testified to three incidents involving the appellant. The first occurred when she went to the appellant’s parents’ home after the end of the school year. The complainant alleged that although she told the appellant that she was not ready to have sex, he proceeded to remove her clothes and penetrated her without her consent. The appellant agreed that they had sexual intercourse on this occasion but said that it was consensual.

[6] The second incident described by the complainant occurred on November 9, 2015. The complainant said that she met the appellant at a bus stop on her way to school and he convinced her to go to his house. Her evidence was that once there, he pulled off her clothes, pulled her closer to him and penetrated her.

[7] In his evidence, the appellant denied meeting the complainant at the bus stop and said, instead, that the complainant met him at his parents’ house. They had an argument during which he grabbed her by the shoulders and hung onto her for a few minutes. However, the appellant said they both had their clothes on throughout this incident and did not engage in any sexual activity.

[8] The third incident described by the complainant took place on April 5, 2016. The complainant said she saw the appellant waiting for her at the bus stop. He grabbed her cell phone, boarded the bus, and then used it to persuade her to come with him to his parents’ home. Once there, he carried her to his room, pinned her down on the bed and choked her.

[9] The appellant’s evidence was that on this occasion the complainant came to his parents’ house by herself. They were in his bedroom together, but he did not choke her, nor did they engage in any sexual activity. Their interaction was no different from their other times together.

[10] Following the April 5, 2016 incident, the complainant said that the appellant repeatedly showed up at her work and messaged her friends to find out where she was. This led the complainant’s mother to call the police on April 21, 2016.

[11] The complainant provided a statement to police in which she said that the appellant had choked her at his parents’ home on April 5, 2016, and had sexually assaulted her in 2014. However, she did not disclose the November 9, 2015 incident.

[12] In 2017, while reviewing voice memos on her phone, the complainant discovered a forgotten recording of a conversation she had had with the appellant on November 10, 2015, the day after the second incident. On the recording, the appellant admitted to hurting the complainant and having sex with her against her will. Upon finding the recording, the complainant disclosed it to the police and told them about the November 9, 2015 sexual assault incident.

(2) The s. 276 Application

[13] The appellant sought leave to introduce evidence that he and the complainant had regularly engaged in consensual sexual intercourse as part of their romantic relationship. The appellant claimed that this evidence would permit him to challenge the credibility of the complainant who, he argued, had implicitly claimed that they had never had a sexual relationship. The appellant also argued that this evidence would permit him to challenge the complainant’s assertion that their relationship had dwindled away after the November 9, 2015 incident.

[14] The trial judge found that the complainant had made no prior statement regarding consensual sexual activities with the appellant. The trial judge further found that evidence of other sexual encounters between the parties had no probative value other than to invite the inference that, because of this sexual activity, the complainant was more likely to have consented to the specific acts alleged in the charges. The trial judge pointed out that s. 276 expressly prohibits evidence adduced for this purpose.

[15] Since the evidence sought to be introduced had no other probative value, and would be prejudicial to the complainant’s dignity, privacy and to the proper administration of justice, the trial judge ruled that the evidence was inadmissible and dismissed the application.

(3) Reasons for Judgment

[16] The trial judge found that the complainant was forthright in her evidence in relation to the first incident. However, the trial judge also found that the complainant’s description of the assault itself was “rife with contradictions”. She was therefore left with a reasonable doubt as to the guilt of the appellant in relation to this incident and acquitted him of this count in the indictment.

[17] In her analysis of the second incident, the trial judge found it troubling that the complainant did not tell the police about this incident during her initial police statement in April 2016. However, the trial judge noted that in the recorded conversation on November 10, 2015, the appellant confessed to having had sex with the complainant the previous day when she was not willing to do so.

[18] The appellant had attempted to explain his tape-recorded confession on the basis that he was merely giving the complainant what she wanted in the hope that they would continue their relationship. The trial judge rejected this explanation on the basis that it was inconsistent with the dialogue captured on the recording and made no sense. The trial judge also found that the complainant was being truthful about discovering the voice memo by accident in 2017. The trial judge accepted the complainant’s explanation that she did not realize in April 2016 that she had the recording.

[19] With regards to the second incident, the trial judge found that the complainant’s evidence as to what occurred on November 9, 2015 to be credible, honest and forthright. She accepted the complainant’s evidence and found the appellant had sexually assaulted her on this occasion.

[20] In her analysis of the third incident, the trial judge found that the appellant had taken the complainant’s phone because he was suspicious of her infidelity and wanted to examine the text messages on the phone. When the complainant refused to show him the text messages, he took the phone into his bedroom where he assaulted her. The complainant also had some marks on her neck, which she said were caused by the appellant choking her. The trial judge rejected the appellant’s evidence that these were love marks and found that the marks were the result of his tightening his grip around her neck so that she could not breathe properly. She was satisfied beyond a reasonable doubt that the appellant assaulted the complainant on April 5, 2016 and convicted him of this count in the indictment.

(4) The VIS and the Appellant’s Motion to Reopen the Trial

[21] The complainant provided a detailed VIS at the appellant’s sentencing. In the course of that VIS, she explained that she had been unable to graduate from her community college program since “I was not able to sit in a quite [sic] lecture while my mind was roaring so loud about the November incident that changed my life forever.”

[22] The appellant argued that this statement contradicted the complainant’s trial testimony since, according to him, she had testified that she had forgotten about the November 2015 incident at the time of her April 2016 statement to the police. Based on this, the appellant applied to reopen the case so that the complainant could be cross-examined about the alleged inconsistency between her trial testimony and this statement in the VIS.

[23] The trial judge found that there was no real inconsistency between the complainant’s trial evidence explaining the delayed disclosure of the November 2015 incident and her VIS statement about its impact. The trial judge pointed out that in her Reasons for Judgment, she had not found that the complainant had forgotten about the November 2015 sexual assault at the time of her statement to the police in April 2016. Rather, the complainant’s explanation for not telling the police about the November 2015 incident in her April 2016 statement was that everything was happening so fast, and she had difficulty talking about it.

[24] Further, the trial judge interpreted the impugned sentence in the VIS as an attempt by the complainant to describe in a general and emotional way the fact that the complainant was unable to finish her community college program because of the November 2015 sexual assault. Her description of the incident “roaring” in her mind was an expression of her perception of the impact that the offence had on her.

[25] The trial judge therefore concluded that the impugned passage in the VIS did not amount to a material inconsistency sufficient to reopen the trial. Moreover, even if it could be said that there was some inconsistency between the complainant’s trial evidence and the VIS, the complainant had been cross-examined extensively on the reasons why she did not report the November 2015 incident in her April 2016 police statement. Thus, permitting further cross-examination on the matter could not reasonably have affected the result. The trial judge therefore dismissed the appellant’s application to reopen the trial.

C. DISCUSSION

(1) The Trial Judge Did Not Err in Dismissing the Application to Reopen the Trial

[26] In my view, there is no basis for this court to interfere with the trial judge’s discretionary decision not to reopen the trial on the basis of the complainant’s VIS.

[27] As this court recently affirmed in R. v. A.I.B, 2023 ONCA 557, at para. 22, the power of a trial judge to vacate an adjudication of guilt after a trial, and before a sentence is imposed, should only be exercised in exceptional cases and where its exercise is clearly called for. This should occur only in very rare cases, given the justice system’s strong interest in finality, as well as institutional concerns arising from the fact that trial courts ought not to assume the functions of an appellate court: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 21 and 23-24.

[28] The principle that trial judges should vacate a conviction only in “very rare cases” applies with particular force where an accused seeks to reopen the case based on a complainant’s VIS. Parliament’s purpose in providing for the introduction of such statements was to give victims a voice in the criminal justice process, to provide a way for them to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. If victims could routinely be cross-examined based on an alleged inconsistency between their VIS and their trial evidence, they would be discouraged from offering such statements and risk being revictimized through any subsequent cross-examination: R. v. W. (V.), 2008 ONCA 55, 89 O.R. (3d) 323 (C.A.), at para. 28.

[29] Given these concerns, it is unsurprising that appellant’s counsel was unable to identify any reported case over the past 30 years where a conviction had been vacated on the basis of an allegedly inconsistent VIS tendered during sentencing.

[30] I conclude that, where an appellant seeks to vacate a conviction on the basis of a complainant’s VIS, the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, for adducing fresh evidence should be applied with the following considerations in mind: (i) the alleged inconsistency between the VIS and the complainant’s evidence at trial should be plain and obvious; (ii) the relevant portions of the complainant’s trial evidence must have played a central and essential role in the trial judge’s reasoning leading to a conviction; and (iii) the obviously inconsistent statement(s) in the VIS, had they been known at the time of the trial, would likely have affected the result.

[31] I would add that the determination by the trial judge whether to vacate the conviction based on the Palmer test, taking into account the considerations described above, is entitled to deference and should be overturned only in cases of a palpable and overriding error.

[32] In light of these governing principles, there is no basis to interfere with the trial judge’s refusal to vacate the appellant’s conviction based on the VIS.

[33] The trial judge found that there was no material inconsistency between the complainant’s trial evidence and the statement in the VIS that the November 2015 incident had been “roaring” in her mind while she was attending community college. As noted above, the trial judge did not find that the complainant forgot about the November 2015 incident and, instead, accepted her evidence that she didn’t tell the police about it in her April 2016 statement because everything was happening so fast, and she had difficulty talking about it.

[34] The trial judge also found that the complainant’s failure to report the November 2015 incident in her April 2016 statement had been thoroughly canvassed at trial. Thus, even if the VIS was in some way inconsistent with her trial evidence, this could not reasonably be expected to have affected the result.

[35] The trial judge properly identified and applied the Palmer principles, and her application of those principles is entitled to deference. Moreover, any alleged inconsistency between the VIS and the complainant’s trial evidence is at best merely arguable and falls far short of being plain and obvious which, as discussed above, is the threshold that must be met before vacating a conviction on the basis of a VIS.

[36] I would therefore dismiss this ground of appeal.

(2) The Trial Judge Did Not Err in Dismissing the Appellant’s s. 276 Application

[37] The appellant sought to introduce evidence of his sexual relationship with the complainant on the basis that she had “implied” that they did not have such a sexual relationship and, further, to rebut her suggestion that their relationship had “dwindled away” after December 2015.

[38] In her s. 276 ruling, the trial judge accepted that evidence of sexual activity can be used to challenge the credibility of a complainant where the complainant puts the nature of the relationship at issue or mischaracterizes the relationship as platonic. But that is not what occurred in this case since the complainant had not claimed that their relationship was platonic. Thus, the sexual relationship evidence could not be adduced to rebut a claim that the complainant had not in fact made. In fact, as the trial judge noted, it was not disputed that the complainant and the appellant were boyfriend and girlfriend and had been in a romantic relationship for some years.

[39] Nor was the sexual relationship evidence probative of whether or not their relationship had dwindled after December 2015. Despite the trial judge’s s. 276 ruling, it remained open to the respondent to claim that their relationship continued after December 2015, without the necessity of describing any sexual activity that might have occurred between them. Moreover, neither the appellant nor the complainant claimed that they engaged in sexual activity on April 5, 2016. The appellant also claimed that they did not engage in sexual activity during the November 2015 incident. Thus, the sexual relationship evidence which the appellant sought to adduce had minimal probative value with respect to the factual issues in dispute in relation to these two incidents, other than to suggest that the complainant was somehow less worthy of belief, an inference which is expressly prohibited by s. 276.

[40] I, therefore see no error in the trial judge’s ruling on the s. 276 application and would dismiss this ground of appeal.

(3) The Trial Judge Did Not Err in Her Credibility Analysis

[41] The appellant claims that the trial judge relied on irrelevant and speculative factors, and failed to consider relevant factors, in her credibility assessment, which led her to reject the evidence of the appellant and accept that of the complainant.

[42] As the Supreme Court recently emphasized in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 76, a trial judge’s findings of fact are entitled to great deference on appeal, particularly in sexual assault cases where the matters in dispute typically turn on assessments of credibility.

[43] In my view, the trial judge did not reject the appellant’s evidence based on speculation, or on generalized assumptions about human relationships that were not grounded in the evidence. Based on the record before the trial judge, it was open to her to reject the appellant’s evidence and to accept that of the complainant. Nor did the trial judge fail to consider and resolve inconsistencies in the complainant’s evidence, including the fact that the complainant did not disclose the November 9, 2015 incident in her first police statement.

[44] The appellant fails to identify any error of principle or misapprehension of the evidence in the trial judge’s reasons, but merely invites us to substitute our own findings in place of those made by the trial judge. Were we to accept the appellant’s submissions on this ground of appeal, we would be committing the very error that the Supreme Court of Canada warned against in G.F.

[45] I would therefore dismiss this ground of appeal on the basis that the trial judge made no reversible error in her credibility analysis.

D. DISPOSITION

[46] I would dismiss the conviction appeal.

Released: December 6, 2023 “M.T.” “P.J. Monahan J.A.” “I agree M. Tulloch C.J.O.” “I agree K. Feldman J.A.”