WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kuzmich, 2020 ONCA 359

DATE: 20200609

DOCKET: C65800

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Kuzmich

Appellant

Erin Dann, for the appellant

Mabel Lai, for the respondent

Heard: February 11, 2020

On appeal from the conviction entered on May 23, 2018 by Regional Senior Justice Bonnie R. Warkentin of the Superior Court of Justice, sitting without a jury, with reasons reported at 2018 ONSC 3215.

Trotter J.A.:

A. introduction

[1] The appellant was charged with a single count of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. It was alleged that, during consensual sexual intercourse, the complainant told him to stop. He did so briefly, but then continued without her consent.

[2] At the preliminary inquiry, and in the absence of an application under s. 276 of the Criminal Code, defence counsel asked the complainant, E.S., whether she previously had sex with the appellant. She said that she had not. The Crown did not object to this line of questioning. Ultimately, the appellant was committed to stand trial.

[3] The trial judge heard two interrelated pre-trial applications. First, the defence applied under s. 276 of the Criminal Code to adduce evidence of other sexual activity between the appellant and E.S. The proposed evidence included the appellant’s claim that he had sexual intercourse with E.S. numerous times, and also that E.S. had performed fellatio on him. He produced a video recording of one episode of fellatio. The appellant wished to cross-examine E.S. on her preliminary inquiry testimony in which she denied previous sexual activity with the appellant.

[4] However, E.S. passed away before the trial. The Crown applied under s. 715 of the Criminal Code to admit E.S.’s preliminary inquiry testimony at trial. The appellant resisted this application, claiming that he did not have a full opportunity to cross-examine E.S. at the preliminary inquiry, particularly on the other sexual activity that he alleged.

[5] The trial judge dismissed the s. 276 application but admitted E.S.’s prior testimony under s. 715. The appellant testified at trial. He was found guilty and sentenced to imprisonment for 15 months.

[6] The appellant appeals his conviction. He submits that the trial judge erred in how she decided both pre-trial applications, and in how she assessed the evidence.

[7] I would dismiss the appeal. The trial judge did not err in concluding that the evidence of prior sexual history was inadmissible. In addition to the reasons given by the trial judge, the application could also have failed because it was based on an improper foundation – E.S.’s answers to impermissible questions at the preliminary inquiry. The trial judge properly admitted E.S.’s preliminary inquiry testimony under s. 715 of the Criminal Code and made no errors in her assessment of the evidence as a whole.

B. general background

[8] E.S. was 53 years old when she testified at the preliminary inquiry. She had known the appellant “for a couple years”. She bought marijuana from him “a couple of times” or “many times”.

[9] On May 11, 2016, around 11 p.m., she went to the appellant’s rooming house to buy marijuana. She had recently broken her right wrist and had a cast. She took some cans of beer with her. E.S. intended to get the marijuana then visit with her friend, Seppo, who lived next door to the appellant.

[10] When E.S. arrived at the appellant’s room, he told her to sit on his bed. He left the room to get the marijuana. The appellant returned to the apartment and gave E.S. the marijuana. She gave him $20. When E.S. got up to leave, the appellant blocked her way. He said something to her, but she could not hear what he said because loud music was playing. Nonetheless, she knew that he wanted sex. E.S. remembered that the appellant lifted her onto the bed and penetrated her vagina, but she could not recall how her pants were removed. E.S. experienced pain and asked him to stop. He did so for a few minutes, but then resumed penetration, even though she tried to push him off. After the appellant finished, he helped E.S. off the bed. She got dressed and went to Seppo’s room. The entire incident lasted for about 15 minutes.

[11] E.S. told Seppo what had just happened. Seppo suggested she call the police. E.S. was initially scared because the appellant was a drug dealer and she was concerned he would “get somebody else after me.” Seppo ended up calling the police. The police arrived and E.S. was taken to the hospital in an ambulance. She was accompanied by a police officer, Constable Brayden Beck.

[12] As already noted, E.S.’s preliminary inquiry testimony was admitted at trial under s. 715 of the Criminal Code. The Crown also led the evidence of Constable Beck, who recounted aspects of E.S.’s statements from that night, some of which were inconsistent with her preliminary inquiry testimony. For instance, she told the officer that she had a beer and smoked a joint with the appellant before the sexual assault. She also told the officer that the appellant told her to remove her pants, and when she asked why, he said he was “going to fuck [her]”. E.S. said the appellant then pulled her pants down.

[13] During his testimony, the appellant said that he had known E.S. since 2005. She often visited the rooming house to see her relatives and Seppo. He denied ever selling marijuana to E.S.

[14] On the night of the incident, he saw E.S. in the hallway. She was carrying cans of beer. She offered him one and they drank in his room. The appellant left the room to use the washroom down the hallway. When he returned, E.S. had removed her pants. She then removed her underwear, got onto the bed, spread her legs, and patted her vagina. The appellant got on the bed and penetrated her. About five seconds later, E.S. asked him to stop. He did so right away. E.S. got up, put her underwear on, and draped her pants over her casted arm. As she was leaving with her beer, the appellant asked her if he could have one. She said “no.”

[15] The trial judge observed that the evidence of E.S. and the appellant was consistent on the point that the sexual intercourse was painful for E.S. and she asked the appellant to stop. The Crown and the defence agreed that E.S. had withdrawn her consent to sexual intercourse after first consenting. The trial judge framed the central issue in the trial as follows, at para. 8: “If I find that the accused stopped when asked, then he would be found not guilty of sexual assault. If I find that he did not stop when he was asked to stop, then he will be found guilty of sexual assault.”

[16] The trial judge accepted E.S.’s account given at the preliminary inquiry. She rejected the appellant’s evidence and ultimately concluded that the Crown had proved the charge beyond a reasonable doubt.

C. prior Sexual history

(1) Introduction

[17] I agree with the trial judge that evidence of previous sexual activity between the appellant and E.S. was inadmissible under s. 276 of the Criminal Code. In view of the narrow contentious issue – continued penetration in the face of withdrawn consent – the proposed evidence had, at best, minimal probative value. However, it impacted significantly on E.S.’s equality, privacy, and security interests.

[18] Although not specifically addressed by the trial judge, I would also reject this ground of appeal because the s. 276 application was fundamentally flawed. It was based on an improper foundation – E.S.’s answers to impermissible questions at the preliminary inquiry. The trial judge properly admitted E.S.’s preliminary inquiry testimony under s. 715 of the Criminal Code and made no errors in her assessment of the evidence as a whole.[^1]

[19] Nor am I persuaded by the appellant’s alternative submission that, even without the evidence of E.S.’s denial of previous sexual activity with the appellant, the evidence was admissible. The contention is that E.S. placed her credibility in issue by mispresenting the true nature of her relationship with the appellant (i.e., that he was her drug dealer, and nothing more). The only way that the appellant could dispel this misconception, and preserve his own credibility at trial, was through evidence of their prior sexual history. This submission, which is really just a variation on the same theme pursued at trial, was not made to the trial judge. Moreover, the misrepresentation that the appellant seeks to attribute to E.S. was not borne out by the evidence.

(2) Evidence at The Preliminary Inquiry

[20] The preliminary inquiry was held on March 27, 2017, roughly 10 ½ months after the incident. At the beginning of E.S.’s testimony, the Crown asked her the following questions:

Q.: [E.S.] do you know Kevin Kuzmich?

A.: Yes.

Q.: How do you know him?

A.: I buy, I buy weed from him.

Q.: Have you ever had a romantic relationship with him?

A.: No.

[21] In cross-examination, the following exchange occurred:

Q.: So you told the Crown that you've never had sex with Kevin before?

A.: I never had sex with him.

Q.: Before?

A.: No.

Q.: Is that correct?

A.: Yeah.

Q.: That was the first time that you had sex with him?

A.: As far as I remember.

The Crown did not object; the preliminary inquiry judge did not intervene.

(3) The s. 276 Application at Trial

[22] The appellant filed an application under s. 276. In his affidavit in support of the application, he said that he engaged in consensual sexual activity with E.S. five times before the events giving rise to the sexual assault charge. Three incidents involved sexual intercourse; others involved fellatio. The appellant tendered a video recording of E.S. performing fellatio on him in March 2016, before the offence date of May 11, 2016. During cross-examination on his affidavit, the appellant acknowledged making the video recording. The Crown advised the trial judge that she had reviewed the recording with E.S., who confirmed that it was authentic.

[23] In his submissions, defence counsel stressed that the Crown was responsible for raising the issue of prior sexual history at the preliminary inquiry. Counsel submitted that he asked his questions of E.S. (set out in para. 21, above) to have E.S. “confirm what she meant by a romantic relationship, was a sexual relationship, which was first asked by the Crown”. Defence counsel continued:

And it’s important to note that the issue of prior romantic or sexual activity is prohibited by either counsel from asking questions about that activity without first going through a section 276 application. It should be noted that the defence did not open the door, and this door was opened by the crown attorney. [Emphasis added.]

[24] He reinforced this point later in his submissions:

Be reminded, Your Honour, that the issue was introduced by the Crown in examination in-chief. If the crown had not asked those questions, I would never have been able to ask those questions, even to clarify what she meant by a romantic relationship at a hearing, whether it’s a preliminary hearing or a trial, without going through a 276 application. [Emphasis added.]

[25] Defence counsel submitted that he did not seek to admit the evidence for either of the twin myth purposes prohibited by s. 276(1) (i.e., that E.S. was more likely to have consented to the sexual activity that forms the subject matter of the charge, or that she was less worthy of belief). He sought to challenge E.S.’s credibility by contradicting her answers to questions he asked at the preliminary inquiry. He said, “it does show that the complainant may have lied under oath to the Crown at a preliminary inquiry”.

[26] The Crown submitted that her “romantic relationship” question did not engage considerations of sexual activity, nor was it intended to do so. In relation to the impugned cross-examination, the Crown submitted:

There’s no indication of what Ms. S. understood the word “sex” to mean and in a colloquial sense the word “sex” means sexual intercourse. She wasn’t specifically asked about fellatio.

In my submission there is no inconsistency insofar as she says she didn’t have sex with him and then there’s this video. The video was never put to her.

[27] The Crown further submitted that, given the narrow issue in the case – whether the appellant recommenced penetration after E.S. withdrew her consent – the evidence was irrelevant. The Crown argued that, even if the evidence impacted on E.S.’s credibility, standing alone, this was an insufficient basis for admission under s. 276, and that the issue was otherwise collateral.

(4) The Trial Judge’s Reasons

[28] The trial judge ruled on the ss. 276 and 715 applications in the same judgment: R. v. Kuzmich, 2017 ONSC 7430. She recognized that, if she allowed the s. 276 application, the Crown’s case would be at an end because E.S. was not available for cross-examination on her prior sexual history. Similarly, if the s. 715 application were denied, the Crown would be unable to proceed.

[29] After setting out the applicable framework under s. 276, including the factors to be weighed under s. 276(3), the trial judge provided the following analysis of this issue, at paras. 19-24:

While it was not part of the hearing before me, I question whether the Crown did "open the door" to cross-examination of prior sexual activity when she asked the complainant if she and the Applicant had a romantic relationship. The denial of a romantic relationship on the facts of this case, where the Applicant was the supplier of drugs to the complainant, is not sufficient to entitle the defence to introduce evidence of prior sexual activity between the Applicant and the complainant.

Similarly the questions posed in cross-examination to the complainant at the preliminary inquiry do not rise to the level of inconsistency regarding evidence of a prior sexual encounter that would make evidence of a prior sexual encounter under s. 276 admissible in order to enable the Applicant to make full answer and defence.

In the hearing before me, the Crown conceded that there had been at least one instance of a prior sexual encounter in the form of one act of fellatio. The Crown disputed that the complainant's testimony at the preliminary inquiry was inconsistent with this evidence because she was asked about whether she had had sex with the Applicant. She was not asked about fellatio.

I agree with the Crown. The evidence from the preliminary inquiry is not sufficiently contradictory to engage the very limited ways in which prior sexual encounters of a complainant may be admissible. To permit the defence to cross-examine the complainant on a prior sexual encounter with the Applicant and to permit the video of that prior encounter into evidence would prejudice the complainant's personal dignity and right of privacy.

I find that the interests of justice would not be served in this case by admitting this evidence. I also find that this evidence is not of significant probative value and admitting it would prejudice the proper administration of justice. Evidence of a prior act of fellatio is irrelevant to whether or not the complainant consented to the incident giving rise to these charges and is not sufficiently probative of the complainant's credibility so as to interfere with the Applicant's ability to make full answer and defence.

The defence application under s. 276 is therefore dismissed. [Emphasis added.]

(5) Analysis

(a) Introduction

[30] I am not persuaded that the trial judge erred in the exercise of her discretion under s. 276 of the Criminal Code. She understood the basis of the appellant’s submission that he was not seeking to invoke twin myth reasoning, and that he only wished to use the evidence to contradict E.S.’s assertion at the preliminary inquiry that she had never previously had sex with the appellant. She disagreed that a significant inconsistency had been established on the evidence at the preliminary inquiry. Moreover, the trial judge “[questioned] whether the Crown did ‘open the door’ to cross-examination of prior sexual history”. It was open to the trial judge to reach these conclusions on the record before her. I address these issues in the discussion below. I also consider the significance of non-compliance with s. 276 at the preliminary inquiry, as well the appellant’s alternative basis for admissibility, raised for the first time on appeal.

(b) An Improper Foundation

[31] The s. 276 application rested squarely on E.S.’s answers to the questions posed to her in cross-examination about whether she had previously had sex with the appellant. As noted above (see paras. 23-24), during his submissions on the application, defence counsel acknowledged that he had not complied with s. 276, but argued that he was not required to do so because the Crown introduced the issue through her questions of E.S. in-chief. The Crown did not respond to this issue in her submissions; the trial judge did not address the issue in her reasons.

[32] Ms. Dann for the appellant submits that this issue need not be addressed because the trial judge did not decide the application on this basis. However, she submitted that, given the Crown’s failure to object when the questions were asked, the defence was entitled to rely on E.S.’s answers. Ms. Lai for the Crown relies heavily on what she asserts was an improper foundation for the s. 276 application.

[33] In my view, the propriety of the preliminary inquiry questions must be addressed. It goes to the heart of what happened in this case. The court had the benefit of full argument and the record is complete for the purpose of deciding this issue.

[34] Defence counsel was correct in acknowledging that s. 276 applies at a preliminary inquiry. The opening words of s. 276(1) of the Criminal Code signal its broad reach. The section applies to “proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273.” In my view, the plain wording of the section – “proceedings in respect of” – is not restricted to trial proceedings alone. The expression is more expansive and may include other proceedings, such as preliminary inquiries, or bail proceedings under Part XVI of the Criminal Code: see Daniel Brown and Jill Witkin, Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook (Toronto: Emond Montgomery Publications Limited, 2018), at p. 272.

[35] It is likely that tactical considerations dissuade counsel from bringing s. 276 applications at preliminary inquiries or during bail proceedings. Even if successful, evidence of the complainant’s prior sexual history will be of no value at a preliminary inquiry in terms of committal; nor will it have much, if any, impact on the apparent strength of the Crown’s case in the context of bail proceedings. Nonetheless, the interests protected by s. 276 – “the equality, privacy and security rights of complainants” (R. v. Goldfinch, 2019 SCC 38, 380 C.C.C. (3d) 1, at para. 1) – are no less important in these earlier stages of the criminal trial process.

[36] The broad reach of s. 276, at least in relation to preliminary inquiries, is supported by the jurisprudence of this province. In R. v. Alibhai (1998), 1998 CanLII 14941 (ON SC), 123 C.C.C. (3d) 556 (Ont. Ct. J. (Gen. Div.)), McCombs J. held that s. 276 applied to preliminary inquiries. At the textual level, he found that the broad expression “in proceedings in respect of” included the preliminary inquiry: Alibhai, at p. 559. McCombs J. acknowledged the undesirability of s. 276 applications being brought at preliminary inquiries and its attendant impact on the privacy rights of complainants, citing R. v. T. (W.S.), [1996] B.C.J. No. 2609 (Sup. Ct. J.); however, he concluded that, “there is no principled reason to deny jurisdiction to hear applications under [s. 276] at a preliminary inquiry”.

[37] This holding was endorsed by Feldman J.A., in dissent on another issue, in R. v. D. (V.) (1999), 1999 CanLII 9315 (ON CA), 141 C.C.C. (3d) 541 (Ont. C.A.), at para. 23. The proposition was undisputed by the majority.

[38] I also refer to R. v. Derksen, 2013 CarswellMan 267 (Q.B.), in which it was argued on a s. 276 application at trial that the complainant had triggered the issue of her prior sexual history with the accused by her testimony at the preliminary inquiry. The trial judge, Joyal C.J.Q.B. disagreed, and wrote, at para. 22: “[T]he complainant has not, in this case, opened any such door. And to the extent that the cross-examination at the preliminary inquiry may have done so, counsel for the defence has properly conceded that it was done inappropriately and without the rigour of the necessary Section 276 application.”

[39] Conversely, in R. v. S. (M.P.), 2014 BCCA 338, (2014), 338 C.C.C. (3d) 200, the British Columbia Court of Appeal held that s. 276 has no application at a preliminary inquiry. Relying on T. (W.S.), Groberman J.A. held, at para. 68, that “[n]othing in the current s. 276 and ancillary provisions compels an interpretation that would apply the exception in s. 276(2) at a preliminary inquiry.” He concluded that Alibhai was wrongly decided. Referring to the split in D. (V.), he said, at para. 71: “In my view, the majority reasons in that case are not of assistance to the accused, and I am not persuaded to the view espoused by the dissenting judge.”

[40] Respectfully, the reasoning in Alibhai, in Derksen, and the views of Feldman J.A. in D. (V.), are persuasive, supported by the language and the purpose of s. 276. Had Parliament intended to limit the reach of this section, it could have done so, including in its substantial amendments to this procedure in 2018 (S.C. 2018, c. 29, s. 25), and in its more sweeping amendments to the Criminal Code in 2019, which contained a minor amendment to s. 276(1): S.C. 2019, c. 25, s. 100.

[41] The predominant purpose of the preliminary inquiry is to “screen out meritless allegations”: R. v. R.S., 2019 ONCA 906, at para. 50; see also R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30. As noted above, it will rarely (if ever) be productive to pursue a s. 276 application at that stage. However, this is no reason to interpret s. 276 in a manner that lifts the shield of protection for sexual assault complainants at a critical juncture of the criminal trial process: see S. Casey Hill, David M. Tanovich, and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2017) (loose-leaf updated 2018, release 5), at pp. 16-40 to 16-41.

[42] The appellant obtained evidence in violation of the requirements of the Criminal Code; the question becomes whether he was entitled to rely on the fruits of this improper inquiry on his s. 276 application at trial. There is little authority that is directly on point. Nonetheless, there are two persuasive reasons that prevent the use of evidence obtained in violation of s. 276.

[43] First, at a general level, counsel should not be permitted to benefit by ignoring provisions designed to protect complainants in sexual offence prosecutions. This was essentially the holding of Joyal C.J.Q.B. in Derksen.

[44] He took the same approach when he was an appellate judge. In R. v. A.J.B., 2007 MBCA 95, 225 C.C.C. (3d) 171, the appellant was convicted of sexual assault. On appeal, the appellant asserted that the trial judge ought to have considered the defence of honest but mistaken belief in consent, even though this was not raised at trial. The court rejected this ground of appeal, partly on the basis that the appellant’s claim was based on testimony that was inadmissible – it touched on past sexual activity with the complainant, in the absence of a s. 276 application. Joyal J.A. (as he then was) said, at para. 49, that the appellant was “grounding his position in inadmissible evidence”. He elaborated further, at para. 51:

Without prior judicial consideration of the issue and a determination under s. 276.1, no evidence of the complainant's past sexual activity should have been adduced. The fact that it was adduced by the accused without objection from the Crown or comment by the trial judge does not render it admissible. The evidentiary foundation for finding an air of reality to a defence like honest but mistaken belief cannot be based upon the inadmissible parts of a witness's testimony. [Emphasis added.]

I would apply the same approach in this case.

[45] Second, the procedural framework created by s. 276 renders reliance on the preliminary inquiry evidence improper in this case. When E.S. was asked questions at the preliminary inquiry about her prior sexual history, she effectively became a compellable witness on the s. 276 application brought at trial. This is prohibited. As s. 276.2(2) provided at the time:[^2] “The complainant is not a compellable witness at the hearing.”

[46] The protection in s. 276.2(2) is a fundamental feature of this process. Its importance was considered in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. Writing for a unanimous court, Gonthier J. said, at para. 68:

To compel the complainant to be examined on her sexual history before the subject has been found to be relevant to the trial would defeat two of the three purposes of the law, as articulated and upheld in Seaboyer. It is an invasion of the complainant’s privacy and discourages the reporting of crimes of sexual violence. [Citations omitted.]

[47] When E.S. was asked about sexual activity with the appellant on previous occasions, the issue of admissibility had yet to be determined. Presumably unaware of the protection to which she was entitled under s. 276 of the Criminal Code, E.S. answered defence counsel’s questions. After all, the Crown failed to object and the preliminary inquiry judge did not say anything. When E.S. answered, her equality, privacy, and security rights were impacted immediately. The subsequent use of this testimony would turn E.S. into a compellable witness on the s. 276 application at trial.

[48] Defence counsel believed that, given the Crown’s “romantic relationship” question at the preliminary inquiry, he was at liberty to ask E.S. the questions that he did, and then to rely upon the answers in his subsequent s. 276 application. In his view, because the Crown had “opened the door”, all bets were off and s. 276 no longer applied. I turn to this issue now.

(c) Opening the Door?

[49] Although the trial judge did not resolve the issue definitively, she expressed some doubt that the Crown had opened the door to sexual history questioning (see para. 29, above). In oral argument, Ms. Dann approached the issue from a slightly different perspective. Instead of emphasizing the Crown’s “romantic relationship” question, she submits that the Crown’s failure to object to defence counsel’s questions in cross-examination, coupled with the absence of an intervention by the preliminary inquiry judge, entitled defence counsel to use E.S.’s testimony on the s. 276 application. I disagree.

[50] Viewed in its proper context, the Crown’s “romantic relationship” question was not a request for information about sexual activity. It was nothing more than an attempt to provide some context to the nature of their relationship. Based on her submissions on the application, the Crown never intended to open the door. Why would she? The Crown would gain no advantage whatsoever, whether tactical or otherwise, in triggering this issue at the preliminary inquiry (or at any stage, for that matter). Whether intentional or not, it did not matter. It did not have the effect of suspending the operation of s. 276 throughout the preliminary inquiry. The subsequent inaction of the Crown and the preliminary inquiry judge during cross-examination did not deprive E.S. of the protections to which she was entitled, both at the time the questions were asked, and when defence counsel sought to use these answers on the s. 276 application.

[51] Since the trial concluded, Supreme Court of Canada jurisprudence has clarified the issue. In R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, the Crown alleged that the victim was murdered in the course of a sexual assault. In its opening address, the Crown told the jury that the victim was a sex-trade worker and that she had been killed by Barton in the course of her work. Barton later testified about his prior sexual interactions with the victim, without any objection by the Crown.

[52] Writing for the majority, Moldaver J. held, at para. 80, that while s. 276(2) only applies to defence-led evidence, the common law principles articulated in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 apply when the Crown attempts to lead such evidence. The justices who dissented in part, Wagner C.J.C., Abella and Karakatsanis JJ., did not disagree with this foundational statement.

[53] In terms of the respective roles and responsibilities of the trial judge and the Crown, Moldaver J. said, at para. 68:

While the Crown did not object to Mr. Barton's testimony about Ms. Gladue's prior sexual activity, in my view, its failure to do so was not fatal. The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown. After all, it is the trial judge, not the Crown, who is the gatekeeper in a criminal trial. Moreover, I simply cannot accept that a complainant's dignity, equality, and privacy rights, which the s. 276 regime is meant to protect, may be waived by mere Crown inadvertence. There is nothing in the record suggesting that the Crown made a deliberate attempt to avoid the application of the s. 276 regime, and indeed it had no reason to. It certainly gained no tactical advantage as a result of non-compliance — quite the opposite. And in any event, given the important objectives underlying s. 276, the Crown should refrain from commenting on a complainant's prior sexual history unless necessary. [Emphasis added.]

[54] These related themes – the restraints on the Crown and the responsibilities of the presiding judge – were echoed in Goldfinch. Writing for the majority, Karakatsanis J. held, at para. 75:

Much of the evidence that ultimately came out in this case was adduced during the Crown's examination of the complainant and, to a lesser degree, its cross-examination of Goldfinch. This requires two observations. First, I note that Crown counsel would not have adduced this evidence but for the s. 276 application, which I have concluded should not have been granted. While the parties did not have the benefit of this Court's recent holding in Barton, I would reiterate that Crown-led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer. Second, proper management of evidence which falls within the scope of the s. 276 regime requires vigilance from all trial participants, but especially trial judges — the ultimate evidentiary gatekeepers. [Emphasis added. Citations omitted.]

See also R. v. R.V., 2019 SCC 41, 378 C.C.C. (3d) 193, per Karakatsanis J., for the majority, at paras. 71-82.

[55] Applying these principles to this case, it did not matter whether the Crown opened the door with her “romantic relationship” question. Although the preliminary inquiry judge may have missed possible warning signs triggered by the Crown’s opening question, it became abundantly clear in cross-examination that prior sexual history was squarely in issue. The Crown should have objected to this line of questioning. The preliminary inquiry judge should have intervened to inquire into the propriety of these questions and, perhaps, the possibility of an application under s. 276. It is now clear from Barton, Goldfinch, and R.V. that this inaction did not transform the improper into the proper, nor did it have the effect of confiscating E.S.’s equality, privacy, and security rights.

[56] Moreover, defence counsel’s submission on the application – that he was merely attempting to clarify E.S.’s answer – is unconvincing. He did not ask E.S. to clarify what she understood by the expression “romantic relationship”. Instead, he went straight to the leading question, “So you told the Crown that you’ve never had sex with Kevin before?” This was not what E.S. said in-chief. Defence counsel followed up with, “That was the first time that you had sex with him?” His belief that he could ask these questions because the Crown had opened the door was mistaken.

[57] There was much debate at trial, and to a lesser extent on appeal, on the issue of whether E.S. understood defence counsel’s questions about “sex” to include fellatio. In the excerpt from the trial judge’s reasons reproduced at para. 29, above, the trial judge accepted the Crown’s position that there was no inconsistency.

[58] In my view, this was more of a side issue. The trial judge and counsel were no doubt focused on this issue because of the prominence the video recording had assumed on the application. It was undisputed evidence that an act of fellatio had taken place. However, the s. 276 application was brought on a broader basis. The appellant alleged five previous sexual episodes, some of which involved sexual intercourse. If these acts had occurred, the contradiction would have been apparent. But even if the trial judge approached this aspect of the case too narrowly, it does not undermine her ultimate conclusion because defence counsel was not entitled to set up this contradiction in the first place.

(d) The Remedy

[59] Given my conclusion that E.S. was effectively compelled to provide evidence relating to her prior sexual history, contrary to s. 276.2(2), it was unavailable for consideration on a s. 276 application at trial. In reaching this conclusion, I rely on the reasons given in Derksen and A.J.B.discussed above.

[60] Grounded more firmly in the statutory provision, s. 276 requires judges to determine the admissibility of evidence of other sexual activity “in accordance with the procedures in this sections 276.1 and 276.2”. Permitting the defence to rely upon evidence that was improperly obtained, effectively in violation of s. 276.2(2), runs afoul of this prescription.

(e) Was the evidence otherwise admissible?

[61] In the alternative, Ms. Dann submits that the s. 276 application could have succeeded without reference to questions posed in cross-examination at the preliminary inquiry about sexual activity. She contends that E.S.’s evidence about how she knew the appellant – as her drug dealer – misrepresented the true nature of their relationship, one that involved sex. Relying on R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.), she submits that, in order to dispel this mischaracterization, the appellant was entitled to contradict this evidence by establishing that their relationship was sexual in nature. Being prevented from doing so, the appellant’s claim in his trial testimony that he never sold drugs to E.S. was destined to fail.

[62] In Harris, the complainant testified that she was shocked at the appellant’s sexual advances on the night of the alleged sexual assault because their relationship was strictly platonic, there having been nothing of a sexual nature between them. The appellant wished to dispute this claim by adducing evidence of a sexual encounter the week before. When he made his application under s. 276, it was predicated on an assertion of mistaken belief in consent. It was dismissed, largely because the trial judge found that there was no air of reality in the mistaken belief contention.

[63] In allowing the appeal, Moldaver J.A. (as he then was) held, at para. 42: “By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue. Accordingly, in order to be able to make full answer and defence, the appellant was entitled to lead evidence designed to rebut the complainant’s testimony.” He further held that, once the complainant testified, evidence of the previous event became “highly probative of the issue of credibility” and that to exclude the evidence would be “potentially devastating” to the appellant’s position: Harris, at paras. 49-50.

[64] This issue was also addressed in Goldfinch. Karakatsanis J. referred to Harris and R. v. Temertzoglou (2002), 2002 CanLII 2852 (ON SC), 11 C.R. (6th) 179 (Ont. Sup. Ct. J.) and said, at para. 63:

Evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the very existence of a sexual relationship with the accused. There were no such contradictory statements from the complainant in the record at the time of the voir dire and Goldfinch did not proceed on this basis. [Emphasis added. Citations omitted.]

[65] Karakatsanis J. expressed caution in approaching this type of evidence. She said, at para. 51: “Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2).” Moreover, noting that “credibility is an issue that pervades most trials”, she said that “generic references to the credibility of the accused or the complainant” will not suffice for the purposes of s. 276(2): Goldfinch, at para. 56.

[66] In applying Harris and Goldfinch, I start with the observation that this precise basis of admissibility was not advanced at trial. However, in some ways it is very similar to what was advanced before the trial judge. Instead of specifically relying upon instances of sexual activity, the appellant now emphasizes more general notions of his “relationship” with E.S. – whether he was her drug dealer and nothing more. Despite reframing the issue in this way, the appellant’s submission faces the same obstacles involved in his reliance on prior sexual activity with E.S.

[67] Moreover, the purported contradiction that the appellant seeks to rely upon had not materialized at the time of the voir dire. In her evidence at the preliminary inquiry, E.S. was not categorical in her description of her relationship with the appellant. As noted above (at para. 20), when asked how she knew the appellant, E.S. said, “I buy weed from him”. This topic was explored with E.S. in cross-examination in two places. First, E.S. was asked why she went to the rooming house, and she said it was to get marijuana. She was asked a second time immediately after the questions and answers about whether this was the first time she had sex with the appellant:

Q.: But you said you, you’ve gone to his place many times….

A.: Yeah.

Q.: …to buy marijuana?

A.: To go get dope yeah.

Q.: And how have you paid for it?

A.: My common law keeps givin’ me money to go get my weed for me, to get my weed.

[68] Considering E.S.’s evidence as whole, it did not amount to a categorical assertion that the only interactions that she ever had with the appellant was when she bought drugs from him. Moreover, her evidence that their sexual encounter that night was initially consensual undermined the relevance of appellant’s claim on appeal that E.S. gave misleading evidence about her relationship with the appellant. E.S.’s evidence did not amount to the type of “inconsistent statements regarding the existence of a sexual relationship” as contemplated in Goldfinch.

[69] Nor is this case like Harris. On the evidence that was before the trial judge at the time of the s. 276 application, the positions of the appellant and E.S. regarding the nature of their relationship did not differ greatly. They were in agreement that they had engaged in consensual sexual intercourse. The nature of their relationship that night was sexual. Whether they had sex on other occasions was not probative on the issue of whether the appellant resumed penetration after he stopped at the appellant’s request. It was not so fundamental to E.S.’s credibility that the exclusion of this evidence was, in the words of Harris, “potentially devastating” to the appellant’s credibility. Without this foundation, the evidence could only have been used in a manner that was contrary to one of the twin myths prohibited by s. 276(1).

[70] Ms. Dann submits that, even if it could be said that E.S.’s answers were equivocal on the nature of the relationship, the trial judge treated them differently. She points to the following passage in Kuzmich (trial), at paras. 32-33:

In addition, she was not shaken on her evidence of what her plans had been the night in question or that she only ever visited the accused to purchase marijuana from him. She admitted to having smoked marijuana and shared a beer with the accused in the past, however, it was clear from her evidence that the accused was her supplier and not a friend with whom she partied.

Conversely, I did not find the evidence of the accused to be believable. In particular, the fact that he claimed not to be a supplier of marijuana to E.S. His testimony on this point does not make sense because there was no other reason for E.S. to be in his apartment. The accused confirmed in his evidence that he and E.S. were only acquaintances who saw each other in the hallway on occasion when E.S. visited his neighbour, Seppo. [Emphasis added.]

[71] Standing alone, the trial judge’s reference that E.S. “only ever visited the accused to purchase marijuana from him” is more categorical than the evidence suggests. However, taken as a whole, the first paragraph in this passage presents an accurate rendition of E.S.’s evidence about the nature of her relationship with the appellant.

[72] Moreover, the manner in which the trial judge resolved the competing claims in the evidence about the nature of the relationship does not reveal any unfairness in the s. 276 ruling. The appellant submits that his assertion of not being E.S.’s drug dealer was unfairly undermined in the above-quoted passage. However, this takes us back to the manner in which the issue was litigated at trial. On his s. 276 application, the appellant did not explicitly deny selling drugs to E.S. It was not until he gave evidence at trial that he made this claim. Although it was undoubtedly the appellant’s right to proceed in this fashion, he cannot now claim that it rendered the s. 276 ruling unfair. Moreover, the appellant did not seek to reopen or readdress the issue after he testified: see R.V., at para. 74, concerning the ability of a trial judge to reconsider a s. 276 ruling based on a material change of circumstances.

[73] On a more general level, Ms. Dann further submits that the trial judge’s findings were unfair to the appellant because she was aware of the evidence from the voir dire concerning the prior sexual relationship, particularly the video recording, which was indisputable evidence of prior sexual activity. I disagree that there was anything improper in the trial judge’s approach. Having made her decision on the s. 276 application, the trial judge demonstrated discipline in deciding the case solely on the admissible evidence at trial. Had the case been tried by a judge and a jury, the jury would not have known about the video recording or the appellant’s affidavit evidence suggesting other sexual activity. The trial judge placed herself in the same position in deciding the ultimate issue in this case, disabusing her mind of what she had learned on the voir dire, as she was required to do.

[74] I would dismiss this ground of appeal.

D. Section 715 issue

(1) Introduction

[75] Had the trial judge allowed the appellant’s s. 276 application, it would have ended the trial because E.S. could not be cross-examined on the alleged instances of prior sexual history. However, because the s. 276 application was dismissed, the trial judge was required to determine whether E.S.’s preliminary inquiry testimony was admissible under s. 715 of the Criminal Code.

[76] The trial judge gave very brief reasons for allowing the application. As she said, at para. 28: “Because I have denied the s. 276 application, the defence argument that they did not have a full opportunity to cross-examine the complainant fails. Therefore the evidence of the complainant from the preliminary inquiry may be admitted under s. 715 of the Code, with the exception of the questions and answers regarding a prior sexual relationship with applicant.”

[77] The appellant argues that the trial judge erred by approaching the question from a perspective that was too narrow. Moreover, although the trial judge addressed certain aspects of s. 715, she failed to consider the residual discretion afforded under this section to address fair trial considerations.

[78] The respondent acknowledges that the trial judge failed to consider the residual discretion as a reason for refusing the application. However, Ms. Lai submits that, once the s. 276 application had been dismissed, there was nothing about this case that was remarkable in terms of trial fairness considerations.

(2) Discussion

[79] Section 715(1) of the Criminal Code provides:

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [Emphasis added.]

[80] An earlier version of this section survived a Charter challenge in R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525. As Wilson J. stated, at p. 553, the purpose of the section is to ensure that “evidence, even important and highly probative evidence, is not lost because of the unavailability of a witness at trial”.

[81] The Court outlined a two-step process, one based on the textual pre-conditions for admissibility under the section, as well as a broad residual discretion to refuse admission of the prior testimony.

[82] At the first stage, the disputed issue is typically whether there was “full opportunity to cross-examine” the witness. This was the main frame of reference before the trial judge in this case. In R. v. Lewis, 2009 ONCA 874, 249 C.C.C. (3d) 265, this court discussed the scope of the “full opportunity” requirement in s. 276. As Moldaver J.A. (as he then was) said, at para. 68:

The better approach, in my view, is to limit consideration of the "full opportunity" requirement to cases where, for example, a witness refuses to answer questions in cross-examination, a witness dies or disappears in the midst of cross-examination, or where the presiding judge curtails cross-examination by imposing improper limitations or restrictions. It should not apply where the failure to cross-examine stems from an accused person's ignorance of potentially useful information, no matter the cause or reason. Those situations, in my view, are best dealt with under trial fairness, where, as I have indicated, the reason for the missing information can properly be taken into account as a factor. [Emphasis in original.]

[83] In terms of the “opportunity to cross-examine” factor, the situation in this case did not fall within any of the scenarios contemplated by Moldaver J.A. in Lewis. In his affidavit sworn in response to the Crown’s s. 715 application, defence counsel identified the areas in which he would have sought to cross-examine E.S. had she not passed away before the trial. In addition to prior sexual history, counsel would have explored, “her credibility and her relationship with the rest of the tenants in the building and her relationship with the tenants with respect to the buying and selling of drugs.” Crucially, defence counsel admitted that, “[a]ll of these questions in cross-examination were not put to the witness for tactical reasons in order to test her credibility and reliability at a trial stage and not at the preliminary hearing stage.” Defence counsel did have an opportunity to cross-examine on these issues. He chose not to.

[84] The appellant’s claims are better suited to consideration under the residual discretion discussed in Potvin and Lewis. In describing this discretion, Wilson J. prescribed a cautious approach. She said, at p. 548: “I hasten to add, however, that such circumstances will be relatively rare and that the discretion to prevent unfairness is not a blanket authority to undermine the object of [s. 715(1)] by excluding evidence of previous testimony as a matter of course.” Subsequent decisions of this court continue to endorse this approach: see R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 78; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at para. 43; and R. v. Headley, 2018 ONCA 915, 368 C.C.C. (3d) 308, at para. 10.

[85] Wilson J. had in mind two “main types of mischief” at which the discretion might be aimed: (1) where unfairness arises from the manner in which evidence is obtained; and (2) where admission of the prior testimony impacts on the fairness of the trial. Only the latter is engaged in this case.

[86] As noted above, defence counsel at trial decided against pursuing certain lines of cross-examination based on tactical considerations. Wilson J. addressed this issue in Potvin, at p. 546:

As for the detriment an accused might suffer from the tactical decision of his or her counsel not to press certain issues at the preliminary inquiry with a witness who may subsequently become unavailable at trial, I am in complete agreement of the observation of Martin J.A. in R. v. Davidson [(1988), 1988 CanLII 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.)], at p. 298:

In my view, an accused is not deprived of "full opportunity" to cross-examine a witness at the preliminary hearing merely because his counsel, for tactical reasons, has conducted the cross-examination of a witness differently than he would have conducted the cross-examination at the trial, provided that there has been no improper restriction of the cross-examination by the provincial judge holding the preliminary hearing.

[87] See also R. v. Ingraham (1991), 1991 CanLII 11719 (ON CA), 66 C.C.C. (3d) 27 (Ont. C.A.), at p. 30.

[88] Wilson J., as Martin J.A. did, addressed tactical considerations under the rubric of a “full opportunity to cross-examine”. After Lewis, this is more appropriately considered under the residual discretion. But even when transplanted into this less rigid framework, the same result should obtain. A trier of fact should not be deprived of important evidence merely because defence counsel decided to keep his powder dry at the preliminary inquiry. Section 715 attempts to preserve valuable evidence that would otherwise be lost; it is not designed to permit counsel to second-guess tactical decisions made earlier in the proceedings.

[89] In conclusion, although the trial judge decided the s. 715 application on a narrow basis, the record does not support the conclusion that the admission of E.S.’s preliminary inquiry testimony impacted adversely on the fairness of the trial. My conclusion is fortified by the fact that the appellant’s complaint is largely concerned with being deprived of the opportunity to cross-examine on evidence that was improperly obtained at the preliminary inquiry, as discussed above.

[90] I would reject this ground of appeal.

E. assessment of credibility

[91] The appellant submits that the trial judge made several errors in making her credibility findings, including: (1) she misapprehended the evidence; (2) she relied upon stereotypical reasoning in making her credibility findings; and (3) she relied on a distorted view of the appellant’s relationship with E.S. I would reject these arguments.

[92] The trial judge was keenly aware of the challenges posed in assessing the weight of E.S.’s preliminary inquiry testimony. This theme is evident throughout her reasons at trial. As she said, “In this trial, there is the added issue of whether or not the evidence of E.S. should be provided the weight it would have had she been present and testified at trial and had been subject to cross-examination at trial”: Kuzmich (trial), at para. 13.

[93] The trial judge accepted the defence position that there were tactical reasons why defence counsel did not cross-examine E.S. on the inconsistencies between her statement to Constable Beck and her preliminary inquiry evidence. Even though she rejected this as a basis for dismissing the s. 715 application, the trial judge agreed that it was relevant to the weight to be accorded E.S.’s evidence: see R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at paras. 68-69, 71. The trial judge relied upon David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), Mid-Trial 8-A, which provides guidance to the trier of fact in dealing with evidence admitted under s. 715. The key part of this instruction provides: “When you consider this evidence, however, remember that you did not see or hear this witness testify. Consider as well whether there is any dispute about what [the witness] said in his/her evidence.”

[94] After reviewing the transcript of E.S.’s evidence and listening to the audio recording of her testimony, the trial judge said, “E.S. appeared to be having some difficulty understanding some of the questions posed to her about who drank her beer and when. This is interspersed throughout her evidence”: Kuzmich (trial), at para. 22. She did not identify any other points of confusion in E.S.’s evidence, nor did counsel on appeal. The trial judge viewed the discrepancies identified by defence counsel as “relatively minor and insignificant and not sufficient to undermine the reliability or credibility of E.S. as to the alleged behaviour of the accused” and stated, “I find these inconsistencies as well as the others identified by the defence to be minor in light of the evidence I do accept”: Kuzmich (trial), at paras. 28, 31.

[95] In evaluating the discrepancies between E.S.’s testimony and her statement to Constable Beck, the trial judge focused on E.S.’s core allegation – that the appellant did not stop when she asked him to do so. The trial judge said, “The defence did not point to any discrepancy in her testimony on this point as it pertained to the statement she provided to Constable Beck”: Kuzmich (trial), at para. 35. She rejected the appellant’s evidence “in light of the evidence that I do accept”: Kuzmich (trial), at para. 36.

[96] The appellant submits that the trial judge misapprehended the evidence when she made the following statement: “In summary, I do not accept the evidence of the accused that he stopped engaging in sexual intercourse when asked to do so. I did not find his evidence on this point to be credible or reliable in light of the evidence that I do accept”: Kuzmich (trial), at para. 36. The appellant submits that even E.S. testified that the appellant did stop for a while before penetrating her again.

[97] The trial judge did not misapprehend this evidence. She was aware that E.S. alleged that the appellant stopped when asked, but then continued despite her resistance. Two paragraphs earlier, in para. 34, the trial judge said just that: “I accept the evidence of E.S. that she attempted to have the accused stop, that he did briefly, but then resumed the sexual contact.”

[98] The appellant also objects to the trial judge’s finding, also in para. 34, that the appellant’s testimony that he stopped when asked “does not ring true.” Ms. Dann submits that this finding reflects that the trial judge presumed the appellant’s guilt. In his factum, the appellant submits that, “Given that society expects reasonable individuals to respect the wishes of others when they withdraw their consent during sex, the trial judge’s criticism of the Appellant for testifying that he did exactly that was unreasonable.”

[99] The trial judge’s finding was not made in the abstract; nor is it undermined by resort to normative claims about good citizenship. The trial judge considered the appellant’s claim in light of all of the evidence, particularly that which she did accept, which was E.S.’s version of events on the critical issue of what occurred after she had withdrawn her consent. This was a finding that was available on the evidence: see R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.

[100] The remaining submissions about the trial judge’s reasons focus on para. 33 of the trial judge’s reasons (which is reproduced, in part, in para. 70, above), in which the trial judge says the following:

Conversely, I did not find the evidence of the accused to be believable. In particular, the fact that he claimed not to be a supplier of marijuana to E.S. His testimony on this point does not make sense because there was no other reason for E.S. to be in his apartment. The accused confirmed in his evidence that he and E.S. were only acquaintances who saw each other in the hallway on occasion when E.S. visited his neighbour, Seppo. That E.S. would stop at the accused's apartment on this occasion and without encouragement, undress, climb on the bed with a broken wrist and then invite the accused to have sex with her is equally not believable. [Emphasis added.]

[101] The appellant submits that the last underscored part of this passage reflects stereotypical reasoning by the trial judge – i.e., that it is unlikely that a woman would initiate sex with a man in the manner described. As I read this passage, the trial judge was assessing the likelihood of this having happened in light of the trial evidence that touched on the relationship between the appellant and E.S. It was in this context that the trial judge rejected the appellant’s evidence, not because of stereotypical assumptions about gender roles in sexual situations.

[102] The appellant’s real complaint with this paragraph is that it ignores what he claims was the true nature of the relationship between E.S. and the appellant, one that involved previous sexual contact. This is just another attack on the trial judge’s s. 276 ruling, which I have already addressed above.

[103] I return to the critical issue at trial and on appeal – whether the appellant continued to penetrate E.S. without her consent, after he initially stopped at her request. There was no doubt that E.S. consented to sexual intercourse with the appellant. It is common ground that he stopped when asked. The only issue is whether he continued after that. Whether they had sex on previous occasions, or whether the appellant was more than just her supplier of marijuana was not helpful one way or the other in resolving this issue. The trial judge’s reasons are faithful to this reality of the case.

[104] I would dismiss this ground of appeal.

F. disposition

[105] I would dismiss the appeal.

Released: “PL” June 9, 2020

“Gary Trotter J.A.”

“I agree. P. Lauwers J.A.”

“I agree. Fairburn J.A.”

[^1]: The Criminal Code was amended (S.C. 2018, c. 29, s. 25) such that the procedural framework for applications that was set out in ss. 276.2 through 276.5 has now been relocated to ss. 278.93 through 278.97. These provisions were not in force until December 13, 2018, which was after the trial. The successor to s. 276.2(2) is s. 278.94(2). Unless otherwise specified, further references in this judgment are to the pre-amendment version.

[^2]: Section 278.94(2) now provides: “The complainant is not a compellable witness at the hearing but may appear and make submissions.”