WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-04-21

Docket: C61370

Panel: Cronk, Rouleau and Miller JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Andrew Martin

Appellant

Counsel

Kristin Bailey, for the appellant

Kevin Rawluk, for the respondent

Hearing and Appeal

Heard: February 21, 2017

On appeal from: the conviction entered on May 19, 2015 and the sentence imposed on June 24, 2015 by Justice Gisele Miller of the Superior Court of Justice.

Decision

Miller J.A.:

Facts

[1] The appellant and the complainant had been long-standing friends. They had occasionally engaged in sexual activity, but had never understood themselves to be in a sexual relationship. On the evening of July 25, 2012, the complainant was out with friends to see a movie. She exchanged texts with the appellant, and arranged to meet up and go to his home. They ended up watching a video in the appellant's basement. The complainant decided to sleep over on his couch, as she had done many times before. The trial judge found that the complainant fell asleep while watching the video, and awoke to find the appellant on top of her, engaged in intercourse. She told him to stop and tried to push him off, but he persisted until she threatened to scream.

[2] The appellant's account, which the trial judge rejected, was different. At times, on his account, he had pursued a romantic relationship with the complainant and at other times she had pursued one with him, but neither accepted the other's suggestion. There was, he said, a pattern to their interactions, to which the night in question conformed: sometimes she would text him as a prelude to spending the night at his house, sometimes sleeping in his bed, sometimes sleeping on his couch, and sometimes engaging in sexual activity. On the night in question, he said, the two had engaged in consensual sexual activity short of intercourse, before the complainant suddenly froze and asked him to stop, which he immediately did. He attributed her change of heart to a moral crisis brought on by the realization that her actions were inconsistent with her desire to reconcile with a former boyfriend.

[3] The appellant was convicted of sexual assault and sentenced to two years' imprisonment. The appellant appeals his conviction and seeks leave to appeal sentence.

[4] The trial judge identified three bases for the finding of guilt beyond a reasonable doubt. First, she was satisfied beyond a reasonable doubt that the testimony of the complainant was truthful and accurate. Second, she had doubts about the appellant's credibility, arising from perceived infringements of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). Third, she found multiple inconsistencies in the appellant's evidence.

Conviction Appeal

[5] With respect to the conviction appeal, the appellant advances three grounds of appeal. He argues that the trial judge erred: (i) in her assessment of evidence of prior sexual activity between the appellant and the complainant; (ii) in her application of the rule in Browne v. Dunn; and (iii) by reversing the burden of proof.

[6] It is unnecessary for the disposition of this appeal to address all the grounds raised by the appellant. For reasons set out below, I agree that the trial judge erred in finding that the appellant breached the rule in Browne v. Dunn. Because the trial judge found the breaches to be relevant to her assessment of the appellant's credibility, and as they formed an integral part of the basis for her rejection of the appellant's testimony, I would allow the conviction appeal on this ground alone.

The Rule in Browne v. Dunn

[7] The appellant argues that the trial judge erred in finding that in two instances the appellant infringed the rule in Browne v. Dunn. In the first instance, the trial judge faulted the appellant for not having cross-examined the complainant on whether she had, as the appellant testified in cross-examination, asked him in December 2011 whether he was interested in pursuing a relationship with her, and whether he had, as he claimed, declined because he was pursuing a relationship with someone else. Similarly, in the second instance, the trial judge faulted the appellant for not having cross-examined the complainant on the proposition that the sexual encounter that he alleged had occurred in June 2012, and which the complainant had denied in cross-examination, had been initiated by a text from the complainant indicating that she wanted to have sex with him.

[8] The trial judge correctly noted that the rule in Browne v. Dunn does not require every detail of anticipated conflicting evidence be put to a witness, but that where the conflicting evidence is material, failure to do so "may have a negative impact on the accused's credibility". In her reasons, the trial judge twice stated that she used the Browne v. Dunn omissions to assess the weight of the appellant's testimony.

[9] With respect to evidence of the December 2011 conversation, the trial judge erred in finding a breach of the rule. The appellant testified at trial. The Crown cross-examined him, in part, to confirm an implicit premise: that the appellant had long pursued a sexual relationship with the complainant, and that she had not reciprocated. It was at this juncture in the cross-examination, when the appellant was pressed to give an example of an occasion when the complainant suggested they pursue a sexual relationship, that the appellant answered that the complainant had expressly done so in December 2011, and that he had declined.

[10] At this point, the complainant had already testified in-chief that there had been discussions between the two in June 2012 and earlier, about taking the relationship "to the next level". The complainant testified that the appellant had always been the one to raise the issue, and that her response was always the same: that she wished to remain friends.

[11] In these circumstances, there was no unfairness in not cross-examining the complainant on the alleged December 2011 conversation. Her evidence was clear: there had been multiple proposals to pursue a relationship, they had always been initiated by the appellant, and she had invariably told him that she wished to remain friends. Furthermore, the alleged December 2011 conversation was elicited by the Crown in cross-examination. This was not a case of the appellant unfairly choosing to lead evidence without having first put it to the complainant in cross-examination.

[12] With respect to the second breach found by the trial judge, the question of whether the complainant had sent the appellant a text in June 2012 to invite him to have sex with her was an immaterial detail in the context of the complainant's evidence. She had been cross-examined in great detail on the circumstances of a sexual encounter that the appellant claimed took place in June 2012. She not only denied having sex with the appellant in June 2012, she denied having seen him that month at all. In these circumstances, the fact that defence counsel did not put to the complainant that a text message preceded an encounter that she flatly denied had occurred is immaterial.

[13] It is significant that neither of these suggested infringements of the rule in Browne v. Dunn were raised by the trial Crown. The trial judge only raised the matter of the December 2011 evidence obliquely, in an exchange with the trial Crown, and without inviting submissions on the issue from defence counsel.

[14] I conclude, with respect, that the trial judge erred in finding violations of the rule in Browne v. Dunn, and in drawing a negative inference about the appellant's credibility as a result of those violations.

The Impact of the Browne v. Dunn Error

[15] The Crown argues that if the trial judge erred in finding infringements of the rule in Browne v. Dunn, these errors are harmless as the trial judge had already rejected the appellant's evidence and found it did not raise a reasonable doubt. Before conducting the Browne v. Dunn analysis, the trial judge noted that a trier of fact may reject the testimony of an accused if satisfied beyond a reasonable doubt of the credibility of evidence that conflicts with that of the accused: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.).

[16] The difficulty with this submission is that although the trial judge referred to J.J.R.D. and found the complainant's evidence truthful "beyond a reasonable doubt", she did not clearly apply J.J.R.D. The trial judge states:

[63] A trier of fact nonetheless must be satisfied on the totality of the evidence that there is no reasonable doubt as to the guilt of the accused. (W.(D.), at paragraphs 26-28.)

[64] In this case I am satisfied beyond a reasonable doubt that the testimony of L.C. with respect to the events of July 25, 2012 is truthful and accurate. I do not reject Andrew Martin's testimony in respect of those events solely on that basis, as there are material internal and external inconsistencies in Andrew Martin's testimony that cause me to have significant concerns about its veracity.

[17] The issue, therefore, is whether the trial judge relied exclusively on the credibility of the complainant's evidence to reject the appellant's evidence and find that it did not raise a reasonable doubt. I cannot conclude, from these paragraphs, that she did so.

[18] As this court held in J.J.R.D., at para. 53: "(a)n outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence." The ultimate question is not, on this analysis, whether the complainant's evidence is accepted as credible, but whether the allegations are proved beyond a reasonable doubt.

[19] In J.J.R.D., although the trial judge found the complainant to be credible, the analysis had to go further. It was only after considering all the evidence that the trial judge accepted, including the complainant's evidence and "the credibility enhancing effect" of the complainant's diary, that the trial judge was satisfied of the accused's guilt beyond a reasonable doubt, despite the accused's denials. It was sufficient, in that case, for the trial judge to set out that the basis of his rejection of the accused's evidence was his reasoned acceptance beyond a reasonable doubt of the truth of the complainant's evidence. This reasoned acceptance of the complainant's evidence was not merely a matter of finding the complainant to be credible. Despite finding the complainant to be credible, the trial judge was only able to conclude that the accused was guilty beyond a reasonable doubt for some of the offences for which he was tried and not others.

[20] As in J.J.R.D., the question before the trial judge in this case was not simply whether the complainant was credible, but whether the trial judge was left with a reasonable doubt of the guilt of the accused. It was open to her, as it was to the trial judge in J.J.R.D., to explain her rejection of the appellant's evidence in terms of her reasoned acceptance of the evidence to the contrary.

[21] Here, the trial judge stated that she accepted beyond a reasonable doubt the veracity of the complainant's evidence (particularly, that she was asleep at the time the appellant commenced intercourse with her and was therefore not consenting). She did not, however, end there, and in the paragraph following the reference to J.J.R.D., instructed herself on the need to consider whether on the totality of the evidence a reasonable doubt was raised, before stating that she did not reject the appellant's testimony "solely" on the basis of the complainant's evidence.

[22] It was at this point that the trial judge canvassed the Browne v. Dunn issue in 10 paragraphs, twice stating she was using the appellant's breach of the rule to assess the weight of the appellant's testimony. There can be no doubt that this error adversely impacted the appellant's credibility as a witness. Thereafter, the trial judge catalogued, in a further 10 paragraphs, inconsistencies and other statements of the appellant that she found troubling or implausible. She then addressed inconsistencies in the complainant's testimony identified by counsel for the appellant, and found these to be peripheral and insignificant.

[23] Read in the context of her reasons as a whole, I cannot conclude that the trial judge rejected the appellant's testimony solely on the basis of the complainant's testimony. The reasons are ambiguous and indicate either: (1) the testimony of the complainant was sufficient in itself for rejecting the evidence of the appellant, but there were additional grounds for rejecting the appellant's contrary testimony, or (2) the testimony of the complainant was not sufficient reason to find that the appellant's testimony did not raise a reasonable doubt, and that the finding of guilt was therefore dependent on the evidence as a whole, including her assessment of the appellant's evidence.

[24] If the complainant's testimony was not taken to be sufficient in itself, there is a real risk that the erroneous finding on the Browne v. Dunn issue, and the adverse credibility finding that flowed from it, influenced the trial judge's assessment of the appellant's evidence and tipped the scale in favour of a finding of guilt beyond a reasonable doubt.

[25] The concern that the adverse credibility finding flowing from the Browne v. Dunn error may have influenced the ultimate finding of guilt is further compounded by the trial judge faulting the appellant for not providing specific corroborative evidence that she thought ought to have been available to substantiate his claim that he spent time with the complainant in June 2012: records from his workplace and receipts from an Esso station where he claimed to have refueled and from a Tim Horton's restaurant where he claimed the complainant made a purchase for him. The appellant was under no obligation to provide this evidence.

[26] In light of these considerations, the conviction cannot stand and the conviction appeal must be allowed.

Sentence Appeal

[27] Given the disposition of the conviction appeal, I do not reach the appellant's proposed sentence appeal.

Disposition

[28] I would allow the appeal from conviction, quash the conviction and order a new trial.

Released: April 21, 2017

"B.W. Miller J.A."

"I agree. E.A. Cronk J.A."

"I agree. Paul Rouleau J.A."