COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bent, 2016 ONCA 651

DATE: 20160831

DOCKET: C59544

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Bent

Respondent

Craig Harper, for the appellant

Paul Calarco, for the respondent

Heard: April 18, 2016

On appeal from the acquittal entered on October 3, 2014 by Justice P. Daley of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1] The Crown appeals the respondent’s acquittal on a charge of sexual assault and related offences which were alleged to have occurred on July 3, 2009. The principal ground relates to the trial judge’s dismissal of a Crown application to admit similar fact evidence that formed the basis of the respondent’s conviction for a sexual assault in 2008. Other grounds are the sufficiency of the judge’s reasons for excluding the similar fact evidence and the effect, if any, of an erroneous instruction on consent.

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

i. THE FACTS

[3] I will begin by setting out the evidence of the complainant and the respondent. The complainant described a violent sexual assault. The respondent said there was consensual kissing which she initiated and he ended.

(a) The complainant’s evidence

[4] At the time of the alleged offence, the complainant, K.A., was 15 years old and attended high school in Brampton. She testified that in May 2009 the respondent approached her on bicycle as she walked home from school. He gestured to her to come over. She ignored his request and continued walking. The respondent then poked her and stated that he knew her from school and also knew two of her friends. K.A. had never seen him at school. The respondent rode alongside as she continued walking. She tried to ignore him, in the hope that he would leave her alone.

[5] On reaching her home, they spoke outside for a few minutes. The respondent asked K.A. if she would like to borrow a movie DVD. Hoping he would leave if she did so, she accepted the DVD.

[6] K.A. next saw the respondent on July 3, 2009. She was alone in her home when he appeared unannounced at the front door at approximately 2:15 p.m. He demanded she return his DVD. K.A. went inside to get the DVD, locking the door behind her. The respondent was angry and impatient. K.A. felt threatened by his behaviour.

[7] K.A. gave the DVD to him and attempted to close the door. He pushed his way into the covered front porch. K.A. asked him to leave. He became agitated, asking why she was being so rude. This frightened her. He asked for a glass of water and K.A. went to the kitchen to get it. He removed his shoes and walked further into the house.

[8] After drinking the water, the respondent complained about not receiving the DVD earlier, mentioning that he had stopped by K.A.’s home on a previous occasion, but that no one was home. Suddenly, he approached K.A. from behind, wrapping his arms around her. He covered her mouth with his hand, muffling her screams. He dragged her by her wrists, on her back, headfirst down the stairs to the basement. She tried, unsuccessfully, to hook her legs onto the staircase railing.

[9] At the bottom of the staircase, the respondent tried to remove her shirt, shorts and underwear. She struggled to keep her clothes on. The respondent pushed her onto the basement couch, face first. He removed her shorts and underwear and pulled her off the couch and onto her knees. He forced her legs apart and vaginally penetrated her from behind. He ordered her not to look at him. He pushed her onto her back, covered her face with a pillow and penetrated her again. K.A. estimated that these sexual acts lasted somewhere between six and seven minutes. She did not know whether the respondent used a condom or whether he ejaculated. K.A. testified that it was possible the respondent’s tongue had touched her chest, but said her memory was foggy on this point. After the assault ended, the respondent stood up and punched her twice on the left side of her chest and once or twice on the right arm.

[10] As he left, the respondent threatened to get “his boys” after K.A. if she told anyone what had happened. She remained downstairs for several minutes before checking to see if he had truly left.

[11] K.A. called her neighbour. After speaking with him and his parents at their home, K.A. called her mother who, in turn, called the police. K.A. was taken to hospital and examined.

(b) The respondent’s evidence

[12] The respondent was 21 years of age when he first met K.A. in May or early June 2009. He was riding his bike when K.A. called him over, saying he looked familiar. Although he did not recognize her, she insisted she knew him. They spoke for approximately 15 minutes. K.A. asked if he had ever attended her high school. He said he did. She told him she was in grade 12.

[13] They walked to K.A.’s home and went inside. K.A. asked him to remove his shoes at the front door. They watched television in the living room, then YouTube videos in the dining room. The respondent had four movie DVDs in his knapsack. K.A. wanted to watch one of the movies, so they returned to the living room and watched for approximately 15-20 minutes. The respondent told K.A. he had to leave to meet up with a friend. He loaned K.A. the DVD, saying he would return for it in a week or so. He did not tell K.A. his age or leave her with any contact information.

[14] The respondent testified that he visited K.A.’s home a second time to retrieve the DVD, but no one was there.

[15] The respondent went to K.A.’s home a third time on July 3, 2009 to collect the DVD. K.A. answered the door and invited him in. He removed his shoes and they walked to the living room where they sat on a couch watching DVDs he had brought with him. After about 30 minutes, they went to the kitchen where he asked for a glass of juice. They then went to the dining room and watched videos on K.A.’s laptop.

[16] The respondent testified that K.A. sat on his lap while he was sitting at the dining room table, and rubbed his arm while kissing him on the cheek, neck and lips. She started to unbutton his shirt. He responded by kissing her on the cheek, neck, lips, and then on the top of her left breast after she unbuttoned her shirt. She did not ask him to stop.

[17] The respondent testified that he “was not feeling the vibe” after kissing for several minutes. He told K.A. that he was not into large women and asked her to get off his lap. K.A. was angered by his remarks. After retrieving his DVDs from the living room, he tried to placate her, suggesting that she could dress herself up a bit more, perhaps by wearing earrings or changing her hairstyle. She was insulted by his suggestions. He told her he was leaving and she escorted him out of the home.

(c) Events following the incident

[18] On July 3, 2009, K.A. was examined by a sexual assault nurse at Trillium Hospital. The nurse took several swabs and collected blood, urine and fingernail scrapings. She did not observe any blood or rips on K.A.’s clothing. K.A. told the nurse that the respondent had licked her left breast and had punched her. During a physical examination, the nurse recorded bruising to K.A.’s right arm and left breast. She found no injuries to K.A.’s head and no bruising on her back, legs, hands or wrists.

[19] The swabs and two drinking glasses collected by police from K.A.’s home were submitted to the Centre of Forensic Sciences (CFS) for analysis. A report generated in September 2009 detected the DNA profile of an unidentified male on the swab taken from K.A.’s left breast. The profile was uploaded to the DNA databank.

[20] On September 3, 2009 and October 15, 2009, K.A. attended the Special Victims Unit of the Peel Regional Police to review photo lineups based on descriptors she had provided to the police. She failed to identify the respondent, whose photograph was in the September 3 lineup.

(d) The Crown’s case

[21] In the absence of the similar fact evidence, the Crown’s case rested on the credibility of the complainant. That evidence presented some challenges. There were no signs of a struggle in the area where the assault was alleged to have occurred. Although the complainant speculated that someone may have cleaned up after the incident, there was no evidence that had happened. Nothing was out of place. The pillows, one of which the complainant asserted had been used to cover her face, were in their places. There were no marks on the stairs, which the complainant claimed she was pulled down by her wrists, head first. Nor were the marks on the stairway wall. The defence argued that the pictures taken of the scene did not show signs of the violent struggle described by the complainant.

[22] While the complainant had some bruising on her arm and her left breast, there were no injuries, abrasions or bruises to her wrists, her back or her legs, in spite of her evidence that she had been dragged on her back down six carpeted steps and four wooden steps to the basement.

[23] There was no forensic evidence linking the respondent to a sexual assault on the complainant, other than his DNA on her breast, which he admitted kissing. There was no forensic evidence on the floor of the alleged scene of the crime and no forensic evidence on the complainant’s body, which was examined for evidence of semen or pubic hairs, which might identify the alleged attacker.

(e) The similar fact evidence

[24] On July 19, 2011, the respondent was convicted of sexually assaulting S.P., a 14-year-old girl, on February 23, 2008, approximately a year and a half before the K.A. incident.

[25] The respondent provided a DNA sample as one of the terms of his sentence. Peel Police were notified that the respondent’s DNA had registered a “hit” on the DNA databank, linking him to the K.A. matter. The respondent was arrested and a DNA warrant was executed. A CFS report dated January 17, 2013 concluded that the respondent could not be excluded as the source of the male DNA profile on the swab taken from K.A.’s left breast and from one of the drinking glasses in her kitchen.

[26] The following facts were admitted in evidence at the trial, on consent, as part of the basis for the similar fact application:[^1]

• S.P. was 14 years old at the time of the sexual assault. Communication between S.P. and the respondent began through an online chat website. S.P. knew the respondent as Junior Williams.

• The respondent advised S.P. that he was 16 years old and a student at her high school. He said he knew her because he had observed her playing basketball. At the time of these conversations, S.P. had never physically met the respondent.

• The respondent called S.P. one day as she was walking home from school. S.P. was on another call and let the respondent go. As she continued walking home she felt a push from behind. S.P. testified that she recognized the voice of the person who pushed her to be that of Junior Williams.

• S.P. continued walking home with the respondent. The respondent accompanied her to the porch where he kissed her. The respondent asked to come inside, but S.P. refused, saying that her mother would be coming home soon.

• The respondent continued to talk and said he wanted to give her something. At that point he tried to hand her something, but she declined it. At the time, S.P. believed it to be a camera.

• S.P. stayed home from school the next day. Around 2 or 3 p.m., the respondent called her and asked her if he could stop by. She said no, because her father would be coming home soon.

• Shortly thereafter the respondent knocked on her door. He attempted to read her a letter professing his love for her. He asked if he could come inside because he was cold. She permitted him into the front door area, but the respondent requested further entry into the house, which she granted. He removed his shoes and made his way to the couch where he read her the love letter.

• S.P. asked the respondent to leave because her father would soon be home. He did not believe her and asked to go to her bedroom. She said no, but he proceeded up the stairs. When he attempted to pull him back, he grabbed her hand and pulled her upstairs with him.

• The respondent asked S.P. if she was wearing a thong and she told him she was. He asked to see it and she showed it to him by pulling down the top part of her track pants. The respondent pulled down her pants. Ultimately, he removed her underwear and top. When S.P. attempted to redress herself, he slapped her hand away, pushed her down on the bed and digitally penetrated her.

• The respondent instructed S.P. to close her eyes. When she refused, he swore at her. She complied. The respondent put a condom on, and then forced vaginal intercourse on her.

• When the incident was over, S.P. asked the respondent to leave. He asked if she was going to stop talking to him. She stated that would not happen. The respondent then kissed her goodbye.

• The respondent made several subsequent phone calls to S.P.’s cell phone and attempted to contact her through the internet. She declined all of the calls but agreed to speak with him on one occasion, when he stated there was a reason he needed to see her. She declined to meet with him in person. The respondent told S.P. that she was not allowed to speak with other guys and threatened her if she did.

• The respondent made another call to S.P. and asked her if she was talking to other guys. It was at that point that S.P. disclosed the sexual assault to her mother, who then took S.P. to the police station.

[27] I turn to the trial judge’s reasons for excluding the similar fact evidence of S.P.

ii. THE TRIAL JUDGE’S REASONS

[28] The judge trial judge gave brief reasons for dismissing the similar fact application. As noted above, the sufficiency of his reasons forms one of the grounds of appeal. His reasons were as follows:

I will now provide my brief reasons with respect to the Crown’s application in respect of similar fact evidence. The Crown has brought an application to adduce evidence of prior discreditable conduct by the accused. The accused was convicted by Justice Miller of the offence of sexual assault upon a young woman, as outlined in her reasons for judgment of July 19th, 2011. The Crown seeks to adduce evidence from the victim of that sexual assault for the stated purpose of corroborating the testimony of the complainant in this matter and to establish the accused’s specific propensity towards teenage females and to rebut any potential defence of innocent association or accident.

With detailed reasons to follow, I have determined the result of this application and I have concluded that it must be dismissed. In reaching this conclusion I have examined the purpose for which the proposed evidence is to be used, its probative value, including similarities and dissimilarities to the evidence to be offered in this case and its strengths in terms of proving matters at stake in the trial.

I have also considered the prejudicial effect of the proposed evidence in terms of determining whether the evidence might be improperly and unfairly used by the jury. In considering the prejudicial effect I have examined the evidence in terms of how discreditable it is, the extent to which it may support an inference of guilt based solely on bad character, the extent to which it may confuse issues and the accused’s ability to respond to it.

Having weighed the probative value and the prejudicial effect of the proposed evidence, I have concluded that the prejudicial effect exceeds the probative value, and as such, the Crown’s application to introduce the proposed evidence is dismissed.

[29] Although the trial judge said he would give detailed reasons for his ruling, he did not do so.

iii. THE ISSUES ON APPEAL

[30] The Crown advances three grounds of appeal:

(a) the trial judge erred by excluding the similar fact evidence;

(b) the trial judge gave inadequate reasons for excluding the evidence; and

(c) the trial judge erred in failing to instruct the jury that the complainant, who was under 16, was incapable of legally consenting to sexual touching.

[31] I will deal with these in order.

iv. analysis

A. The Similar Fact Evidence

1. The framework for analysis

[32] The leading authority on the admissibility of similar fact evidence is the decision of the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[33] The starting point is that evidence linking the accused to other discreditable acts or conduct is presumptively inadmissible. This is due to the general exclusionary rule against the reception of evidence of general propensity, disposition or bad character: Handy at para. 36; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at p. 731-32.

[34] The onus is on the Crown to satisfy the trial judge on a balance of probabilities that the probative value of the evidence in relation to a particular issue sufficiently outweighs its potential prejudice. The analysis requires an assessment of (a) the probative value of the evidence; (b) its potential prejudicial effect; and (c) whether the probative value displaces the prejudicial effect.

[35] The analysis outlined in Handyprovides the structure for a consideration of the admissibility of the evidence. I will explain that structure and will then apply it to the facts and issues in this case.

(a) Probative value

[36] The probative value of the evidence is based on the improbability of coincidence between the similar acts and the acts at issue in the proceeding.

[37] In determining the probative value of the similar fact evidence, the court must consider the degree of its relevance to the facts in issue and the strength of the inferences that can be drawn from it. In Handy, at para. 42, Binnie J. noted that the “inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.” The threshold for probative value is very high. The connection must be so strong that “it would be an affront to common sense to suggest that the similarities were due to coincidence”: Handy at para. 41, quoting Sopinka J.’s dissenting reasons in B. (C.R.), at p. 751. However, the probative value of the evidence need not be so high that it is virtually conclusive of guilt, for a conclusiveness requirement would take the trial judge’s gatekeeper function too far into the domain of the trier of fact: Handy at paras. 94-97.

[38] The probative value analysis includes four inquiries.

[39] First, the evidence must relate to a specific issue, so that it is plainly not adduced merely to show that the defendant is of bad character. Evidence adduced merely to show that the defendant is a bad person who is likely to engage in criminal acts is inadmissible propensity evidence. As Binnie J. noted at para. 71 of Handy, the general disposition of the accused does not qualify as “an issue in question”.

[40] In assessing the probative value of the evidence, the court must identify the issue in question and ask how the similar acts tend to prove that issue. In Handy, Binnie J. noted that in cases such as this, where the issue is actus reus rather than identification, the degree of similarity required is not necessarily higher or lower, but rather the issue is different and the “drivers of cogency in relation to the desired inferences will therefore not be the same”: Handy at para. 78.

[41] Second, the court must determine whether the similar fact evidence is tainted by collusion, which undermines the improbability of coincidence.

[42] Third, the court should consider the similarities and differences between the evidence that forms the basis of the charge and the evidence of similar acts sought to be admitted. In considering the cogency of the similar fact evidence in relation to the inferences sought to be drawn, Binnie J. suggested, at paras. 82, 122, 128 and 132 of Handy, that the following factors may be examined:

• the proximity in time between past act and current offence: a greater lapse of time tends to undermine the premise of continuity of character or disposition; remoteness in time may also affect relevance and reliability;

• the extent to which the other acts are similar in detail to the charged conduct;

• the number of occurrences of the similar acts: an alleged pattern of conduct may gain strength if a greater number of instances compose it;

• the circumstances surrounding or relating to the similar acts: depending on the circumstances, these considerations could strengthen or weaken the probative value;

• any distinctive features unifying the incidents: greater distinctiveness would tend to increase the probative value;

• any intervening events: certain intervening events might undermine the probative value, such as evidence of supervening physical incapacity; and

• any other factor that would tend to support or rebut the underlying unity of the similar acts.

[43] Not all factors will exist or be necessary in every case.

[44] Fourth, the court must consider the strength of the evidence that the similar acts occurred. S. Casey Hill, David M. Tanovich and Louis P. Srezos, the authors of McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013) suggest at p. 10-8 that under this inquiry the court should consider the following questions:

• have the allegations been admitted in prior proceedings?

• are the allegations the subject matter of outstanding charges?

• by what method of proof are the acts to be proved?

• can the trier of fact fairly assess the evidence in the context of the trial without undue distraction?

• will the defence be able to fairly respond to the allegations in the context of the prosecution?

[45] The next question considered is the prejudicial effect of the evidence.

(b) Prejudicial effect

[46] The prejudicial effect of the similar fact evidence must be considered in the context of all the evidence in the case, both Crown and defence evidence. Prejudice takes two forms. The first is moral prejudice, which may cause the jury to convict the accused not on the basis of the evidence but on the basis that he is a bad person who deserves to be punished. The second form of prejudice, reasoning prejudice, diverts the jury from its task and risks the jury giving the evidence more weight than it deserves. The authors of McWilliams suggest at p. 10-9 the following factors should be considered when addressing prejudice:

• prejudice exists on a continuum – some evidence may be so repugnant that it raises real concerns about trial fairness, whereas other evidence may be at a lower level of prejudice;

• the evidence must be considered in the context of all the evidence in the case; and

• the prejudicial effect of the evidence does not necessarily diminish as its probative value increases.

(c) Does the probative value outweigh the prejudicial effect?

[47] The final step of the analysis requires an assessment of whether the probative value of the similar fact evidence outweighs its prejudicial effect. In R. v. B. (C.R.), McLachlin J., as she then was, stated at p. 732: “evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.”

[48] Absent an error in principle, substantial deference should be given to the trial judge’s balancing of probative value versus prejudicial effect. This deference recognizes that the trial judge is best equipped to assess the impact of the evidence on the jury, in the context of the issues and evidence at trial. See: Handy at para. 153; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; R. v. B (C.R.) at p. 733.

2. Application to this case

[49] The Crown submits that the trial judge erred in excluding highly probative similar fact evidence of the respondent’s specific propensity to sexually assault female teenagers in their homes after school before the workday ends and parents return home. The evidence clearly links the respondent to such conduct in the case of S.P. It is clearly discreditable and prejudicial and it is clearly caught by the presumption that it is inadmissible unless the Crown discharges its burden of proving, on the balance of probabilities, that its probative value outweighs its prejudicial effect.

(a) Probative Value

[50] The first question in relation to probative value addresses the issue to which the similar fact evidence is directed. What is it intended to prove? The Crown argued that the similar fact evidence was directed to the actus reus. It would enable the jury to make the “double inference”: first, the inference that the respondent had a sexual attraction to young teenaged girls, a method of approaching them and gaining entry to their homes and a propensity to sexually assault them. Second, that this propensity gave rise to the further inference that he proceeded in that fashion with the complainant in this case. Thus, the evidence would be used to establish the actus reus – that the appellant sexually assaulted K.A. Indirectly, it would support K.A.’s credibility by confirming her evidence that the sexual assault occurred in the manner she described.

[51] The second question is whether the evidence is tainted by collusion. There is no suggestion that it was and no evidence that it was. The two complainants were unknown to each other.

[52] The third question concerns the similarities and dissimilarities between the events. Each complainant reported that the respondent followed her home after making some kind of connection with her, and gained entry to her house on a school day afternoon when her parents were out, presumably at work. He returned uninvited at a later date, talked or pushed his way into the house and once inside carried out a sexual assault.

[53] The following similarities exist between K.A.’s allegations and the evidence admitted at the respondent’s trial for the sexual assault of S.P.:

• both girls were white and approximately the same age (14 and 15);

• during their first personal encounter, the respondent approached both girls while they walked home from school, and either pushed or poked them in order to get their attention;

• the respondent told both girls that he was a current student at their high school;

• the respondent told both girls that he knew them – he told K.A. he knew her during their first encounter, and had told S.P. he knew her during their initial online and telephone contact;

• the respondent walked both girls to their respective homes during their first encounter;

• the respondent offered each girl something during their first encounter – he offered a DVD to K.A. and something else to S.P.;

• he asked each girl for something in order to make his way inside their homes – he asked K.A. for water and S.P. if he could come inside for warmth;

• at a later date, the respondent showed up uninvited at the home and attacked each girl while she was home alone;

• the respondent removed his shoes on entering each home;

• both attacks were in mid-afternoon, at approximately 2-3 p.m., a time when parents would be at work;

• the respondent forcefully dragged or pulled both girls to different locations of the home where he carried out the assault;

• the respondent undressed both girls;

• the respondent sexually assaulted both girls through forced vaginal penetration;

• the respondent instructed both girls to avoid looking at him during the sexual assaults; and

• the respondent threatened both girls after the attacks.

[54] There were some differences between the two sets of allegations:

• there was online communication between the respondent and S.P. before their first meeting – she had given him her phone number and they had spoken on the phone and he had identified her address. There was no similar telephone or online contact between the respondent and K.A.;

• when the respondent and S.P. reached her home, the respondent kissed her. He did not kiss K.A. during their first meeting;

• the day after their first meeting, the respondent called S.P. asking if he could come over. He made no such call to K.A., though he did not have her telephone number;

• the respondent returned to K.A.’s home approximately two months after he was first there. He returned to S.P.’s home the day after he was first there;

• the day of the attack on S.P., the respondent attempted to read her a letter in which he professed his love for her. He had no such letter for K.A.;

• the respondent forcibly digitally penetrated K.A. before vaginal penetration. He did not digitally penetrate S.P.;

• S.P. recalled the use of a condom. K.A. did not know whether a condom was used or not;

• the respondent contacted S.P. by telephone after the attack. He did not subsequently contact K.A.;

• though the respondent threatened both girls, the nature of the threat differed. He warned S.P. not to speak to other guys and warned K.A. not to tell anyone about the sexual assault and threatened to get his boys after her; and

• there was no gratuitous violence directed to S.P. after the sexual assault. After assaulting K.A., the respondent punched her twice on the left side of her chest and once or twice on the right arm.

[55] The purpose of the analysis of the similarities and differences between the similar fact evidence and the acts that form the subject of the charge is to assess the strength or cogency of the evidence to support the desired inferences – its probative value.

[56] In R. v. B. (C.R.), McLachlin J. noted at p. 735 that, in considering whether to admit similar fact evidence, the trial judge “must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused”.

[57] There are some obvious similarities and some equally obvious differences between the evidence of K.A. on the one hand and the evidence on which the respondent was convicted following the S.P. trial on the other hand. The similarities and differences are of varying degrees, ranging from the general to the specific. This is important, because as Binnie J. observed at para. 87 of Handy, “[C]ogency increases as the fact situation moves further to the specific end of the spectrum.” The more general the similarities, the less the cogency of the evidence in support of the inference and the greater the likelihood of coincidence.

[58] Some of the similarities arise at a high level of generality. For example, the conversations and events leading up to the entry into each girl’s home are the kind of mundane activities that take place in routine interactions between young people after school on a daily basis. The appellant’s removal of his shoes is a common innocuous, even courteous, act.

[59] There are two aspects of the similar fact evidence that reduce its cogency.

[60] First, there is only one “similar act” – the attack on S.P. As Binnie J. noted in Handy, an alleged pattern of conduct may gain strength if it emerges from a number of similar instances. The likelihood of coincidence diminishes. By the same token, the cogency of the evidence is significantly reduced by only one instance of propensity. As this court observed in R. v. J.M., 2010 ONCA 117 at para. 91, “the cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances.” While a single similar act may be admissible, depending on the circumstances, it may have less cogency than a series of acts.

[61] I compare this case to the facts in this court’s decision in R. v. Whitehead, 2004 32255 (ON CA), [2004] O.J. No. 4030, 190 O.A.C. 264. There, the appellant was charged with sexual assault, unlawful confinement and uttering a death threat. The complainant testified that she had admitted the appellant to her home to service a computer. After the work was done, he grabbed her from behind and told her he had a knife and would cut her if she struggled. He then dragged her to her bed and raped her.

[62] Twelve years earlier the appellant had pleaded guilty to four counts of sexual assault with a weapon and one count of attempted sexual assault with a weapon. Three of the victims of the prior offences testified at his trial. The court noted that the similarities between the similar acts and the subject charges arose from the appellant’s modus operandi: a legitimate pretext to gain entry to the victim’s home; a sneak attack from behind; the use of a knife; and the use of a threat of physical harm with the knife. Armstrong J.A. described the similar fact evidence as relevant and compelling.

[63] The cogency in that case arose from the nature of the similarities and the number of occurrences. Here, there is only one previous event.

[64] The second reason why cogency is reduced in this case is that, while there are similarities between the two events, as I have noted, many occur at a high level of generality. In Handy, at para. 127, Binnie J. observed that “[s]exual activity may not show much diversity or distinctiveness. Not every dissimilarity is fatal, but … substantial dissimilarities may dilute probative strength and, by compounding the confusion and distraction, aggravate prejudice.” Even the nature of the descriptions of the sexual acts, but for one distinguishing feature, are at a level of generality – taking the victim to another room, removing her clothes, forced sexual acts. The more specific similarity relates to S.P.’s evidence that the respondent told her to close her eyes and K.A.’s evidence that the respondent told her not to look at him and then covered her face with a pillow. This similarity, if established, has a higher level of cogency and reduces the possibility of coincidence. However, it must be considered in the context of the cogency of all the other evidence to determine whether the inference is made out.

[65] That being said, as this court observed in J.M. at para. 11, the underlying unity between the similar acts and the offence at issue “need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.” Here, broadly speaking, the unity lies in the timing of the two encounters, the development of familiarity with the complainant and the method of gaining entry to the home.

[66] The fourth question considers the strength of the evidence of the similar acts, the manner in which they will be proven, the effect of the evidence on the trier of fact and the ability of the accused to respond.

[67] This question really asks whether the proposed similar fact evidence is capable of supporting the inferences sought by the Crown. Here, the Crown proposed to call S.P. as a witness and to adduce her evidence from the witness box. It did not propose to introduce evidence of the respondent’s conviction. The evidence that she was assaulted in the manner she described was obviously strong, in light of the respondent’s conviction.

(b) Prejudicial Effect

[68] In my view, there was a risk of both moral prejudice and reasoning prejudice through the introduction of the similar fact evidence. As to moral prejudice, the jury might well conclude, as a result of the evidence of S.P., that the respondent was a bad person who deserved to be punished. Or, not knowing the outcome of the S.P. allegations, they might conclude that he was guilty of those allegations and he ought to be punished for at least one of the incidents.

[69] The risk of reasoning prejudice also existed. The respondent’s conviction for the assault on S.P. followed a contested trial, although he did not testify. If he did not admit the sexual assault of S.P., the jury would be called on to decide whether the attack actually occurred. There was a real risk that the jury could convict the respondent based on melding the evidence of the two incidents – using the K.A. incident, the very fact at issue, to find a pattern or propensity. Alternatively, the jury might conclude that if they were satisfied beyond a reasonable doubt that the respondent sexually assaulted S.P., they could also be satisfied that he sexually assaulted K.A.

[70] There is a risk of another form of reasoning prejudice in this case. There was only one prior incident and many of the similarities in the underlying facts were generic. This was not strongly suggestive of a situation-specific propensity to sexually assault young women. But there was a real risk that the jury would give the evidence more weight than it deserved because of the repugnant nature of the similar fact evidence.

(c) Does the probative value outweigh the prejudicial effect?

[71] Before engaging in the balancing exercise, it is appropriate to remind ourselves that by reason of its prejudicial effect propensity evidence is presumptively inadmissible and it is admitted only where its probative value in relation to the issue is so high that it displaces the heavy prejudice that inevitably arises when it is put before the jury.

[72] It is also necessary to conduct the balancing exercise – probative value balanced against prejudicial effect – in the context of all the evidence in the case. The Crown’s case depended entirely on the credibility of the complainant.

[73] While similar fact evidence may tip the scales past a reasonable doubt and in favour of conviction, the risk in this case was clearly that it would do so not on its own strength but by painting the respondent as a bad person and distracting the jury from the other evidence on the charges before them.

[74] In my view, the cogency of the similar fact evidence is relatively low. First, the existence of only one set of similar acts does not establish a “pattern”. Second, most of the similarities arise at a high level of generality. There is, on the other hand, a real risk of prejudice. The appellant, a 21-year-old man, was charged with sexually assaulting a young and vulnerable teenaged girl, in her home. Evidence of the prior sexual assault would run a risk of inflaming the jury, causing them to give the similar fact evidence more weight than it deserved, diverting them from the evidence on the charge in issue, and judging the appellant on a blending of the evidence of S.P. and the evidence of K.A.

(d) Conclusion

[75] The trial judge identified the correct test, made no error in principle in its application, and was in the best position to assess the nature of the similar fact evidence and its impact on the jury. I agree that the risk of prejudice associated with the similar fact evidence outweighed its probative value. I would not give effect to this ground of appeal.

B. The Sufficiency of Reasons

[76] I turn to the second ground of appeal: the sufficiency of the judge’s reasons for excluding the similar fact evidence.

[77] The Crown acknowledged that this was a subsidiary ground of appeal. He submitted that if we found legal error in the trial judge’s similar fact analysis we could conduct our own analysis and find that the probative value of the similar fact evidence outweighs its prejudicial effect. In that event, he submitted, we should order a new trial because the judge’s error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609, at para. 14.

[78] Reasons serve three purposes: to explain to the losing party why they have lost; to satisfy the public that justice has been done – or not done; and to permit meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-25; R. v. Kendall (2005), 2005 21349 (ON CA), 75 O.R. (3d) 565 (C.A.), at para. 38.

[79] The issue here is whether the reasons permit appellate review. As Binnie J. observed in Sheppard, if deficiencies in the reasons in a particular case do not foreclose meaningful appellate review, but on the contrary allow for its full exercise, the deficiency will not justify interference under s. 686 of the Code.

[80] In my view, this is such a case. Notwithstanding the brevity of the reasons, there was full argument of the issue before us, based on a record that was not in dispute. The brevity of the reasons was not an impediment to our review. It is clear from the trial judge’s reasons that he applied the correct test and simply concluded that the prejudicial effect of the similar fact evidence exceeded its probative value.

[81] For these reasons, I would dismiss this ground of appeal.

C. The Instruction on Consent

[82] The age of consent was raised from 14 to 16 in 2008. K.A. was 15 at the time of the alleged assault by the respondent in 2009 and therefore incapable of consenting.

[83] The trial judge’s instruction on the sexual assault charge failed to explain that K.A.’s consent was not a defence because she was incapable of providing legal consent. In fact, the trial judge compounded the error by instructing the jury that they must be satisfied beyond a reasonable doubt that the complainant did not consent to the force applied.

[84] The Crown asserts that these errors are important because the jury may have concluded that K.A. engaged in consensual sexual touching, thereby leading to the respondent’s acquittal.

[85] While the respondent concedes that the trial judge erred, he submits that there was no substantial wrong. I agree.

[86] There are several reasons, but the principal one is that the jury acquitted the respondent on the sexual interference count, on which it was properly instructed. The sexual interference count was particularized: that the respondent “did for a sexual purpose touch K.A., a person under the age of sixteen years directly with a part of his body, to wit: his penis”. The jury was instructed that it did not matter whether the complainant consented to the sexual touching.

[87] During deliberations, the jury asked whether they had to find that the respondent’s penis touched the complainant in order to convict the respondent of sexual interference. The trial judge answered their question by explaining that the charge was particularized in that way and that in order to convict on that count they had to find as a fact that the respondent had touched the complainant for a sexual purpose with his penis.

[88] The trial judge also repeated the instruction in his charge on the sexual interference count that the jury must find as a fact that that the complainant was under 16 at the time of the alleged offence. In his original instruction, the trial judge told the jury that it did not matter whether the complainant consented to the touching.

[89] It is not disputed that the jury was properly instructed on the sexual interference and the common assault counts. In acquitting the respondent on the sexual interference count, the jury must have had reasonable doubt about whether the respondent touched the complainant with his penis. The acquittal on the common assault charge indicates similar concerns with other aspects of the complainant’s evidence.

[90] As I have indicated earlier, the jury clearly had concerns about whether any kind of attack, sexual or otherwise, occurred. While the respondent admitted kissing the complainant on the breast, the indictment referred only to touching with the penis. The Crown in its closing said that on the respondent’s own evidence he was guilty of sexual assault because the complainant could not consent to a kiss on the breast. The Crown continued, “But like I said we’re not advocating. Our theory is that a violent sexual assault occurred; a violent rape that is corroborated by evidence, ladies and gentlemen.” This, in my view, explains the jury’s acquittal on the sexual assault count.

[91] The Crown acknowledges that, given the jury’s acquittal on the sexual interference count, it would not seek a new trial if the appeal is not allowed on the similar fact ground. This was an appropriate concession. In the circumstances, the failure to properly instruct the jury on the issue of consent caused no substantial wrong.

v. disposition

[92] For these reasons, I would dismiss the appeal.

“G.R. Strathy C.J.O.”

“I agree G. Pardu J.A.”

Gillese J.A. (Dissenting):

[93] I have had the privilege and advantage of reading the reasons of Strathy C.J.O. Respectfully, I do not agree that the trial judge’s reasons are adequate. In his reasons, the trial judge stated that he was dismissing the similar fact application (the “Application”) and that detailed reasons would follow. No further reasons were ever provided. Those that were given fail to explain why he dismissed the Application. Thus, the reasons are inadequate and not entitled to deference. The Crown has satisfied me that the verdict would not necessarily have been the same had the Application been granted and that there is merit to the Application. Consequently, in my view, the appeal should be allowed and a new trial ordered on all counts. I would leave it to the new trial judge to hear and decide the Application.

[94] I need make only brief comments on the jury’s acquittal on the sexual assault count. It cannot stand. I begin by noting that unlike the sexual interference count, the sexual assault count was not particularized.

[95] The complainant, K.A., was 15 years of age at the time of the incident while the respondent was 21. The respondent admitted during cross-examination that he responded to the complainant’s alleged sexual advances by kissing her mouth, neck and breast. (The DNA testing confirmed that the respondent’s saliva was found on the complainant’s breast.)

[96] Section 150.1(1) of the Criminal Code provides that “it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge” where the complainant is under the age of 16 years. Section 150.1(2.1) sets out certain exceptions where a complainant is 14 years of age or more but under the age of 16. As the respondent is more than five years older than the complainant and not married to her, the exceptions do not apply.[^2]

[97] Section 150.1(4) provides that an accused’s belief that the complainant was 16 years of age or more at the time the offence was alleged to be committed is not a defence unless the accused “took all reasonable steps to ascertain the age of the complainant”. The respondent testified that he did not ask K.A. how old she was nor did he advance a defence at trial that he had taken reasonable steps to ascertain her age.

[98] As both parties acknowledge, the trial judge failed to instruct the jury that because the complainant was under the age of 16, she could not legally consent to sexual touching. This was an error. The trial judge further erred by instructing the jury that they were to acquit the respondent if his testimony were believed. In light of these errors and the respondent’s admissions, the jury’s acquittal on the sexual assault charge must be set aside.

THE REASONS ARE INADEQUATE

[99] The object of reasons is to tell the parties not only what the trial judge decided but also why he or she made that decision. What is required is a logical connection between the “what” and the “why” so that the foundation of the decision is discernible: see R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525; quoted with approval in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. In my view, the trial judge’s reasons say what was decided – namely, that the Application was dismissed – but they do not say why he decided it that way. Further, the foundation of his decision is not discernible.

[100] The trial judge’s reasons for dismissing the Application consist of a total of four paragraphs. For ease of reference, the reasons, in their entirety, are set out below.

I will now provide my brief reasons with respect to the Crown’s application in respect of similar fact evidence. The Crown has brought an application to adduce evidence of prior discreditable conduct by the accused.

The accused was convicted by Justice Miller of the offence of sexual assault upon a young woman, as outlined in her reasons for judgment of July 19th, 2011. The Crown seeks to adduce evidence from the victim of that sexual assault for the stated purpose of corroborating the testimony of the complainant in this matter and to establish the accused’s specific propensity towards teenage females and to rebut any potential defence of innocent association or accident.

With detailed reasons to follow, I have determined the result of this application and I have concluded that it must be dismissed. In reaching this conclusion I have examined the purpose for which the proposed evidence is to be used, its probative value, including similarities and dissimilarities to the evidence to be offered in this case and its strengths in terms of proving matters at stake in the trial. I have also considered the prejudicial effect of the proposed evidence in terms of determining whether the evidence might be improperly and unfairly used by the jury. In considering the prejudicial effect I have examined the evidence in terms of how discreditable it is, the extent to which it may support an inference of guilt based solely on bad character, the extent to which it may confuse issues and the accused's ability to respond to it.

Having weighed the probative value and the prejudicial effect of the proposed evidence, I have concluded that the prejudicial effect exceeds the probative value, and as such, the Crown's application to introduce the proposed evidence is dismissed.

[101] The first paragraph of the reasons does nothing more than state that the Crown brought a similar fact application.

[102] In the second paragraph, the trial judge briefly notes the nature of the proposed evidence and the purposes for which the Crown brought the Application.

[103] In the third paragraph, the trial judge says that detailed reasons will follow and that he has concluded the Application should be dismissed. He then states some of the general legal principles that are to be used when assessing the probative value of the proposed evidence and the prejudice that could flow from admitting it.

[104] In the fourth paragraph, the trial judge simply repeats his conclusion that the Application should be dismissed.

[105] The respondent rightly notes that the adequacy of reasons must not be measured based on their length. However, it is not the mere brevity of the trial judge’s reasons that leads me to conclude that they are inadequate. Although the reasons refer to some of the applicable legal principles, they are devoid of substantive analysis. They make no reference to the evidence. They give no indication as to what the trial judge considered to be the similarities and dissimilarities between the proposed evidence and the evidence to be led in the case before him. The reasons do not explain how he viewed the probative value of the proposed evidence or give reasons for that view. And, while the trial judge states that he considered that admission of the proposed evidence would be prejudicial, his reasons do no more than set out some of the legal principles that apply when considering prejudice: they do not tell us what prejudice to this accused the trial judge thought might ensue from admission of the proposed evidence. Finally, the reasons do not explain why the trial judge concluded that the prejudicial value of the proposed evidence exceeded its probative value.

[106] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28, Binnie J., writing for the court, says that reasons are inadequate when the appellate court is unable to determine the correctness of the trial decision. These reasons do not permit me to determine the correctness of the trial judge’s decision on the Application. Indeed, the trial judge himself appears to have recognized that more detailed reasons were necessary to properly dispose of the Application because he promised that they would follow. However, the promised reasons were never provided. It may be that oversight, in failing to provide the promised “detailed reasons”, explains the deficiencies in the reasons.

[107] In assessing the adequacy of reasons, I am to read the reasons as a whole and within the context in which the trial judge made his decision. In this case, the Application was heard at the outset of trial, before any evidence had been called. No oral evidence was called on the voir dire. The trial judge had the Crown application, which included both a summary of the prospective evidence in this case and of the facts which underlay the sexual assault for which the respondent had been convicted. He also had the respondent’s factum on the Application and books of authorities from both parties. As well, the trial judge had the relevant trial and video evidence transcripts relating to the prior conviction, plus the reasons for conviction. Both sides made oral submissions on the Application. The Crown made it clear that she sought to introduce the oral evidence of the victim of the sexual assault for which the respondent had been convicted but not evidence of the conviction itself.

[108] To the extent that the record illuminates the reasons, the interjections of the trial judge during the Application hearing suggest that he misapprehended certain of the applicable legal principles and that the misapprehensions informed his decision on the Application.

[109] During the Crown’s submissions on the Application, the trial judge expressed concern that a high degree of similarity between the proposed evidence and that which would be given by the complainant would enhance the prejudicial value of the proposed evidence, militating against its admission. He asked the Crown:

[A]re there any cases that say where the similarities are so – or may be considered as high in terms of their level that that can be a militating factor taking away from the ability of the Crown to use it because that triggers the moral prejudice and reasoning prejudice thought process?

[110] This concern was misguided because the high degree of similarity enhanced the probative value of the proposed evidence. As Binnie J. explained in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 48, the more similar the facts in the proposed evidence are to the allegations underlying the charges (i.e., the more situation specific), the more cogent is the proposed evidence’s probative value.

[111] Further, the trial judge appears to have a misplaced concern about the respondent’s right to respond to the proposed evidence, given that he had been convicted of the offences against S.P. The trial judge asked the Crown:

[H]ow do you suggest that the evidence of [S.P.] would be dealt with in the context of the fact she – there’s a conviction already in place with respect to [the respondent] so that effectively no evidence to the contrary of [S.P.] could be led.

[112] I begin by noting that the Crown did not propose to lead evidence of the conviction registered against the respondent. Further, as the Crown indicated in response to the trial judge, the respondent was free to cross-examine S.P. Finally and very significantly, while the fact of the conviction would undoubtedly have made it harder for the respondent to challenge S.P., that does not mean that admission of the proposed evidence rendered the trial unfair. Moldaver J., writing for the majority in R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at para. 52, explains:

[A] prior conviction constitutes strong proof that the similar act conduct in question occurred. In that sense, it has greater probative value than an unproven allegation. While a conviction may be harder to respond to than an unproven allegation, that does not make the conviction inadmissible. Just because a piece of evidence operates unfortunately for an accused does not of itself render the evidence inadmissible or the trial unfair. [Citations excluded.]

[113] To conclude, the trial judge’s reasons do not permit me, on appellate review, to discern why he found that the prejudicial value of the proposed evidence exceeded its probative value and whether his findings and reasoning were sound. The reasons are, therefore, inadequate and the trial judge’s decision to exclude the similar fact evidence is not entitled to deference.

THE VERDICT WOULD NOT NECESSARILY HAVE BEEN THE SAME

[114] A new trial is the normal result of a successful appeal on the basis of insufficient reasons: R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414. However, on an appeal by the Crown from an acquittal, the Crown is also required to satisfy the court that the verdict would not necessarily have been the same had the error not occurred: R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609, at paras. 14-16. I am satisfied that a trial judge applying the relevant legal principles to the evidentiary record could well have admitted the similar fact evidence. Had that evidence been admitted, the verdict would not necessarily have been the same.

[115] Unfortunately, the insufficiency of the trial judge’s reasons renders the foundation of his decision not discernible and has foreclosed proper appellate review. In the circumstances, I would order a new trial and leave it to the new trial judge to hear and decide the Application. Accordingly, I will offer only brief reasons to show why there is merit to the Application. The facts and applicable legal principles are thoroughly set out in the reasons of the majority and need not be repeated.

[116] I address first the probative value of the evidence.

[117] The sexual assault against S.P. took place on February 12, 2008. The incident involving K.A. was relatively proximate in time. It took place on July 3, 2009, approximately 16 months after the incident involving S.P. There were no intervening events between the two incidents that undermined the proposed evidence’s probative value. Identity was never in issue and there was no suggestion of any collusion or collaboration between K.A. and S.P. Indeed, defence counsel expressly clarified that collusion was not in issue.

[118] The proposed evidence bore materially on the central issue of whether K.A.’s account of events was true. The respondent had been convicted of sexually assaulting S.P., after a trial on the merits. A prior conviction constitutes strong proof that the similar act conduct occurred and has greater probative value than an unproven allegation: Jesse, at para. 52.

[119] In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 52, Binnie J., writing for the majority, states that the similarities between the alleged offence and the proposed evidence lay not in the physical sexual acts themselves but “in the modus operandi employed by the accused to create sexual opportunities”.

[120] That statement applies equally in the present case. While there are some similarities between the assaultive behaviour against S.P. and that which K.A. alleged took place, in my view, the real similarities lie in the time of day, location and manner in which the respondent first physically approached K.A. and S.P., and the design by which he worked his way into their homes. The similarities reveal a strategy for finding young women who were home, alone, in the hours after school let out and before the normal work day was over and, using a pretext, returning on a later date during that same time frame and gaining entry into their homes.

[121] S.P. and K.A. lived within walking distance of the high schools which they attended. Those high schools were in the same neighborhood, adjacent to one another. The respondent approached each of S.P. and K.A. as they walked home from school. He accompanied them as they walked home and thus knew where they lived. He told them that he went to Fletcher’s Meadow high school, one of the high schools in question. He told them other things that would make them believe that he was a fellow student and let down their guards. He told one that he had seen her playing basketball at school. He told the other that he had seen her around school and knew friends of hers, whom he referred to by name. In the first encounter between the respondent and each of S.P. and K.A., on reaching their homes, the respondent engaged them in conversation for a period of time sufficient to allow him to have a good sense of whether anyone else was home at that time of day. The time in question was approximately 3pm, when working parents are often not at home. He offered each of K.A. and S.P. something in the first encounter, thereby creating an excuse for him to return to their homes. The respondent returned to each of their homes, uninvited, at approximately the same time of day (i.e. when no one else was likely to be present).

[122] There are dissimilarities in the circumstances surrounding the offences, however. For example, S.P. “met” and engaged with the respondent online before their first in-person encounter, while K.A. had no such interactions. Further, there is but one similar fact incident. These factors reduce the proposed evidence’s probative value.

[123] In terms of prejudice, I see little risk of reasoning prejudice. Admission of the proposed evidence is not likely to distract the jury from their proper focus on the charge itself. Distraction takes many forms, including the consumption of the jury’s time in dealing with allegations of multiple incidents involving two victims in divergent circumstances: Handy, at para. 144. Here, there was only a single similar fact incident for the jury to consider, which reduced the chance that the jury would be distracted from their proper focus.

[124] Distraction can also arise from the court’s need to avoid unfairness to the right of the accused to respond to the proposed evidence: Handy, at para. 146. However, as I have explained, this concern is lessened because the respondent was convicted of the offences against S.P. While the fact of the conviction would undoubtedly have made it harder for the respondent to challenge S.P., that does not render the proposed evidence inadmissible or the trial unfair: Jesse, at para. 52.

[125] As for moral prejudice, the conviction is not conduct of a more morally repugnant nature than that for which the respondent stood trial. It is essentially the same conduct. Nonetheless, admission of the proposed evidence does raise the spectre of moral prejudice. Although the Crown sought to have the proposed evidence admitted to show a specific propensity on the respondent’s part, there is no question that it could lead to impermissible disposition reasoning – i.e. that the respondent must be guilty of the charges in respect of K.A. because he had been convicted of sexual assault against S.P. However, a strict limiting instruction might well have contained this type of possible prejudice.

[126] In the end, I am satisfied that the similar fact evidence could have been admitted and, if admitted, the verdicts would not necessarily have been the same.

DISPOSITION

[127] For these reasons, I would allow the appeal and order a new trial on all counts.

Released: “GRS” August 31, 2016

“E.E. Gillese J.A.”

[^1]: These facts have been edited to remove identifying information.

[^2]: At the time the appellant was charged, s. 150.1(2.1) allowed for a defence of consent where the accused was married to the complainant. As the accused was not married to the complainant in this case, this provision is not relevant. For the sake of completeness, however, I would note that an amendment to s. 150.1(2.1) repealing the marriage exception came into force on July 17, 2015. A transitional exception was added as s. 150(2.3) providing that if, on the day before the amendment came into force, “the accused referred to in subsection (2.1) is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.”