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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. N.H., 2020 ONCA 694
DATE: 20201104
DOCKET: C63612
Simmons, Watt and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
N.H.
Appellant
Margaret Bojanowska, for the appellant
Philippe Cowle, for the respondent
Heard: September 29, 2020 by video conference
On appeal from the convictions entered on September 23, 2016 by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury and from the sentence imposed on April 21, 2017.
REASONS FOR DECISION
A. Introduction
[1] Following a jury trial, the appellant was convicted of three counts of sexual assault and one count of assault. He was sentenced to a total of four years’ imprisonment. He appeals his convictions and seeks leave to appeal sentence.[^1]
[2] The complainant is the appellant’s former wife. She is from a Sikh family; the appellant’s mother is Muslim. The two were married in a Muslim ceremony on June 30, 2013. The complainant’s parents did not approve of the marriage and did not attend the ceremony. The couple separated on March 22, 2014 when the appellant asked the complainant to leave their home following a confrontation with the complainant’s brother. Shortly thereafter, the complainant went to the police and alleged that the appellant sexually assaulted her by forcing her to participate in oral sex and intercourse on three occasions: December 20, 2013; December 28, 2013; and February 18, 2014. In addition, the complainant said the appellant had assaulted her by punching a wall and threatening her in January 2014.
[3] According to the complainant, the couple’s relationship deteriorated quickly following their marriage. The appellant was abusive and controlling. By September 2013, the complainant suspected he was having an affair. When the December sexual assaults occurred, their relationship was very bad: she was sleeping on a couch that was not in the couple’s bedroom. At the time of the February sexual assault, the complainant had returned to the bedroom, but the relationship was tense. The appellant came home drunk and she did not agree to have sex with him on that occasion. During cross-examination, the complainant acknowledged that prior to the February 2014 incident, she told the appellant she thought she was pregnant and that both were happy at the prospect of having a child. However, she testified that the appellant became angry a few days later after she told him she realized that she was not in fact pregnant.
[4] The appellant testified at trial and denied the offences. Although he acknowledged having sexual relations with the complainant on the dates in question, he maintained that the complainant consented and that the couple was attempting to conceive a child. Much of the tension in the marriage was due to the complainant nagging him about infidelity, an accusation he denied. The defence theory at trial was that, after the appellant asked her to leave the home, the complainant fabricated her allegations out of spite and to save face because the marriage had failed.
[5] During the trial, the trial judge dismissed an application by the appellant under s. 276 of the Criminal Code to lead evidence that the couple was attempting to have a baby between December 2013 and February 2014. In a further ruling, the trial judge permitted the Crown to lead evidence of other discreditable conduct by the appellant.
[6] The appellant raised five issues on his conviction appeal and, in addition, sought to lead fresh evidence in relation to his sentence appeal. For the reasons that follow, we dismiss the conviction appeal, grant leave to appeal sentence but dismiss the fresh evidence application and the sentence appeal.
B. discussion
(1) Admission of other discreditable conduct evidence and jury instruction concerning other discreditable conduct
[7] As his first ground of appeal, the appellant argued that the trial judge erred in allowing the Crown to call extensive evidence of other discreditable conduct and further erred in failing to properly caution the jury concerning the use to be made of that evidence.
[8] In her ruling on this issue, the trial judge permitted the Crown to call evidence relating to the following conduct on the part of the appellant:
• shouting and derogatory names directed at the complainant;
• taking $2,500 of wedding gift money and telling the complainant she was living off of him for free;
• disputes over the quality of the complainant’s cooking and cleaning and payment of rent;
• the complainant’s belief that as of September 2013 the appellant was cheating on her and the conflicts that arose because of this;
• kicking the complainant out the bedroom at the end of February 2014, moving her belongings to the furnace room and installing a lock on the bedroom door; and
• threatening to call immigration authorities if the complainant did not leave the home on March 22, 2014.
[9] In addition to asserting that the trial judge erred in admitting much of the foregoing evidence, the appellant contends that the trial judge erred in permitting additional evidence of other discreditable conduct to seep into the trial. Among the most egregious examples were the following:
• evidence given by the complainant’s brother that he had been told the appellant threatened to kill the complainant in these words: “I will kill you and nobody will ever know”;
• evidence of yelling and aggressive behaviour directed at the complainant’s brother and his two companions on March 22, 2014 including a threat to bury the complainant’s brother six feet underground; and
• evidence of advice to the complainant that he and his sister paid the rent and that he could kick the complainant out at any time.
[10] The appellant submits that the evidence of events that post-dated the allegations that was permitted by the trial judge was irrelevant to any issue at trial and the trial judge erred in admitting it. Further, the unvetted evidence was highly prejudicial as it painted a picture of the appellant as aggressive and violent and a “horrible” person. Moreover, the sheer volume of discreditable conduct evidence may have overwhelmed the jury, distracted them from the central issue and generated impermissible reasoning supporting findings of guilt.
[11] While acknowledging that the trial judge instructed the jury on the permissible and impermissible uses of this type of evidence, the appellant submits the caution given was inadequate in the circumstances. The caution failed to identify all the discreditable conduct evidence that was adduced at trial. It failed to explain to the jury their first task was to determine if the evidence was true. It failed to instruct the jury the appellant was not on trial for the conduct identified in the discreditable conduct evidence. Most importantly the caution failed to make it clear that the jury could not infer guilt from the other discreditable conduct evidence.
[12] We did not call on the Crown to respond to these submissions. We see no error in the trial judge’s ruling concerning the evidence she admitted. She found the evidence admissible to help the jury understand the nature of the parties’ relationship and the context in which the alleged abuse occurred. Further, it was capable of demonstrating animus or motive on the part of the appellant and a history of controlling behaviour, which could help explain why the complainant did not go to the police sooner. In rejecting the appellant’s submission that the evidence was more prejudicial than probative, the trial judge noted the offences charged were far more serious than the conduct described in the proposed evidence.
[13] The appellant cited no authority for the proposition that evidence of discreditable conduct occurring after the date of the alleged offences is inadmissible. In our view, such evidence was equally relevant to the issues of motive, animus, assisting in understanding the parties’ relationship and why the complainant did not go to the police sooner as the evidence of conduct that pre-dated the offences. We note as well that some of the impugned evidence (in particular the evidence concerning the March 22, 2014 events) formed part of the Crown’s original application and that defence counsel at trial withdrew any objection to it being heard.
[14] Although it would have been preferable had the Crown applied in its pre-trial motion to introduce all the discreditable conduct evidence eventually adduced at trial, we note there was no objection at trial to the additional evidence. Further, we are satisfied that to the extent the impugned evidence constituted other discreditable conduct evidence[^2] it was admissible on the same basis as the evidence on which the trial judge ruled. It was relevant to the issues of animus and motive and/or could assist the jury in understanding the nature of the parties’ relationship and why the complainant did not leave the relationship sooner. Like the trial judge, we observe that the additional evidence of conduct that did not form part of the Crown’s original application was far less serious than the conduct charged. The likelihood of it giving rise to prejudice was therefore reduced.
[15] Turning to the caution given by the trial judge, we are satisfied it was adequate. The trial judge cited some examples of the discreditable conduct led at trial and said she was required to caution the jury about the use it could make of this type of evidence. The jury would have understood that the trial judge had not recited all the evidence to which the instruction applied. After explaining to the jury the use they could make of such evidence, the trial judge said the following:
I must caution you that you may not use this evidence of [the appellant’s] behaviour toward [the complainant, her brother or his companions] to draw the conclusion that [the appellant] is generally a bad person or the sort of person who is likely to have committed the offences against [the complainant].
[16] Defence counsel at trial did not object to the instruction. Although not determinative, the failure to object is some indication of the overall impact of the evidence, the trial judge’s instructions and whether it was desirable for the trial judge to identify each item of discreditable conduct evidence. In our view, itemization of all the discreditable conduct evidence would not have enured to the appellant’s benefit and the language used by the trial judge was adequate to convey to the jury that they could not use any evidence they accepted to jump to a conclusion of guilt based on bad personhood.
(2) Was the Crown's cross-examination of the appellant unfair?
[17] As his second ground of appeal, the appellant argued that the trial Crown’s cross-examination of him was improper in several respects to the point that it rendered the trial unfair. The appellant says the most significant problem was the trial Crown’s repeated suggestions that the appellant was lying or attempting to mislead the jury. The appellant maintains that many of these suggestions were not a fair reflection of his evidence. Further, as much of the cross-examination focused on the other discreditable conduct evidence with extensive questioning devoted to, for example, the appellant’s alleged infidelity and the threatening comment to the complainant’s brother, these suggestions that the appellant was lying to the jury fed into that evidence and heightened the prejudice occasioned by it. In oral submissions, the appellant identified several occasions on which he submits the trial Crown made unfair suggestions that he was lying or attempting to mislead the jury.
[18] In addition, the appellant submitted that, on more than one occasion, the Crown made suggestions that were either not founded in the evidence or constituted a misstatement of the evidence and that this contributed to the overall unfairness of the cross-examination.
[19] We do not accept these submissions. While we agree that the trial Crown misstated the evidence on occasion when putting suggestions to the appellant and that it might have been preferable had he refrained from use of the word “lying”, overall we are not persuaded that the appellant’s cross-examination was such as to prejudice the appellant in his defence or bring the administration of justice into disrepute.
[20] Defence counsel at trial was alert to the issue of misstatements of the evidence and objected appropriately on several occasions when this occurred. Apart from that objection, defence counsel made no objection to the tenor of the cross-examination – appropriately so in our view, as he had suggested to the complainant on several occasions that she was lying. In closing submissions, defence counsel submitted to the jury that the complainant was a liar. Particularly in the context of a hard fought trial where the credibility of both the complainant and the appellant were central issues, the Crown was entitled to mount a vigorous challenge to the appellant’s evidence. Ultimately, it was for the jury to assess whether the suggestions made by defence counsel and the trial Crown were accurate.
[21] That said, in our view, counsel would do well to consider whether more judicious language and a more measured approach would better serve the overall administration of justice. Credibility problems can often be better illustrated through a more subtle approach than the explicit suggestion that a witness is lying. Moreover, the latter approach can easily backfire if perceived by the trier of fact as inaccurate, unfair or frivolous. Here, the trial Crown’s cross-examination of the appellant about the patently incorrect dates[^3] in the appellant’s affidavit filed on the s. 276 application is but one example of an ill-conceived line of cross-examination.
(3) The trial judge’s dismissal of the appellant’s s. 276 application
[22] As his third ground of appeal, the appellant argued that the trial judge erred in dismissing his application under s. 276 of the Criminal Code.
[23] In his s. 276 application, the appellant sought to adduce evidence that the couple was attempting to conceive a child during the time frame of the allegations. He relied on statements to that effect in his affidavit[^4] as well on statements in undated text messages[^5] exchanged between the couple relating to the best time to conceive. The appellant argued that the evidence of the couple’s desire and attempts to have a baby was relevant and admissible to provide a context in which to evaluate the complainant’s overall credibility.
[24] The trial judge accepted the Crown's submission that the application lacked the specificity and particulars necessary to meet the requirements of s. 276.1(2) of the Criminal Code.[^6] Apart from the dates of the alleged sexual assaults, the appellant provided no specifics of other occasions on which the couple attempted or discussed getting pregnant.
[25] Further, the trial judge concluded that the claimed relevance of the evidence as providing the background of events gave rise to the potential for the prohibited reasoning that because the complainant consented to sexual activity on other occasions it was more likely that she consented in relation to the alleged offences. The trial judge noted that under s. 276(2)(c) of the Criminal Code, she was required to consider a number of factors and engage in a balancing exercise to determine whether the proposed evidence had significant probative value not substantially outweighed by the danger of prejudice to the proper administration of justice. Although she found the proposed evidence could have some relevance to evaluating the complainant’s evidence, she concluded that even with an instruction to the jury, “the danger of biased and discriminatory reasoning could mark the jury’s deliberations and derail the interests of justice.”
[26] Accordingly, apart from permitting cross-examination of the complainant concerning whether she was attempting to get pregnant at the time of the alleged sexual assaults, the trial judge dismissed the appellant's application.
[27] Relying on R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, the appellant submits that trial judge erred in finding his application lacked the specificity and particulars necessary to meet the requirements of s. 276. Further, he argues that the trial judge erred in failing to recognize the value of the proposed evidence to credibility issues in that it would have supported the appellant's version of events and demonstrated that, as late as February 2014, the complainant was happy to become pregnant with the appellant. Finally, the appellant submits that given the trial judge's ruling allowing discreditable conduct evidence to be presented, the s. 276 ruling permitted a skewed picture of events to go before the jury.
[28] We did not call on the Crown to respond to these submissions. Even assuming the trial judge erred in holding that the appellant’s proposed evidence lacked the specificity necessary to support its admission, we see no error in the trial judge’s ruling. Apart from giving rise to the prohibited inference that because she consented to sexual relations on other occasions, the complainant was more likely to have consented on the dates of the alleged offences, the proposed evidence had limited value to assessing the complainant’s overall credibility.
[29] The complainant gave specific evidence about the state of the parties’ relationship at the time of the alleged offences and of the manner in which she alleged the offences occurred. Evidence that the complainant consented to having sexual relations on other unspecified dates because she wanted to try to conceive a child with the appellant was of minimal value in assessing the complainant’s evidence about the state of the relationship at particular times or whether she consented to sexual relations on the dates of the alleged offences. We note that, in any event, defence counsel at trial was permitted to ask the complainant about her emotional state, and the appellant’s, during the period when she thought she was pregnant. She agreed they were happy. However, as we will explain the predicted problem arose: in his closing address to the jury, defence counsel at trial attempted to use this evidence to invite prohibited twin myths reasoning.
[30] Further, we reject the submission that in light of the trial judge’s ruling permitting the Crown to lead other discreditable conduct evidence, this ruling permitted the Crown to present a skewed picture of the events. As we have said, defence counsel was permitted to elicit evidence that the complainant was happy when she believed she was pregnant and the appellant testified that the couple was attempting to conceive at the time of the alleged offences. In any event, in the absence of evidence of specific discussions or attempts to get pregnant with specific probative value in relation to a particular allegation, general evidence that the complainant was prepared, and even happy, to conceive a child with the appellant had little probative value in relation to either the alleged offences or as a response to the discreditable conduct evidence.
(4) The trial judge’s instructions correcting defence counsel’s closing
[31] As his fourth ground of appeal, the appellant argued that the trial judge erred in the manner in which she corrected certain alleged legal and factual errors made by defence counsel in his closing submissions. Although the appellant submitted that defence counsel did not make some of the factual errors to which the trial judge referred, his primary submission is that the trial judge erred in instructing the jury defence counsel made a legal error.
[32] We did not call on the Crown to respond to this submission.
[33] As we have said, during cross-examination of the complainant, defence counsel was permitted to ask questions in response to which the complainant confirmed that both she and the appellant were happy in February 2014 when they believed the complainant was pregnant. In his closing address, defence counsel said the following about that evidence:
Remember … [the complainant] places this conversation about … February 14th? Well that’s just a few days before February 18th. She’s happy to be pregnant with [the appellant]. Right? Remember, I took her to that point in the preliminary hearing, “We were happy. We were happy to be pregnant”. … So you see how the evidence in terms of them trying to be pregnant, it’s – which includes December 20th and 28th dates – those are included in that because when you look at the context of the February discussion, clearly the only conclusion is that they were trying to get pregnant on December 20th and 28th. Because even logically, why are you happy to have a child with this person when you’ve just been assaulted twice by him – sexually assaulted twice. It doesn’t make sense. Or, at the very least, it raises a reasonable doubt. [Emphasis added.]
[34] Immediately following completion of the defence closing and again in her closing instructions, the trial judge instructed the jury in strong terms that defence counsel erred in law in inviting the jury to infer that the complainant likely consented to sexual relations with the appellant on two occasions in December 2013, (and by inference on February 18, 2014), because she acknowledged she was happy to be pregnant with the appellant on February 14, 2014. Among other things, the trial judge said:
Following the defence closing:
The defence’s submission is not in accordance with the law on sexual assault in Canada.
In the closing instructions:
Defence counsel’s submission is not in accordance with Canadian law on sexual assault.
Defence counsel made a further submission about another instance of consensual sex prior to the alleged assaults that is also not permissible.
[35] The appellant submits that the trial judge's corrections were not only wrong in law – because defence counsel’s closing did not invoke prohibited twin myths reasoning – but they were also derogatory and constituted an unfair personal attack on defence counsel. In addition to being an error in law, the appellant submits the nature of the trial judge’s comments rendered the trial unfair.
[36] We did not call on the Crown to respond to these submissions. As a starting point, we agree with the trial judge that the defence closing invoked impermissible twin myths reasoning. The clear implication of defence counsel’s submission was that because the complainant was happy to have a child with the appellant, and thus must have consented to having sexual relations with him on some occasion, she must have consented to sexual relations on the dates of the alleged offences. Given the submission by defence counsel, the trial judge was required to give the jury a strong caution making it clear to them that they could not engage in prohibited reasoning.
[37] We acknowledge that the caution could have been framed differently to downplay the role of counsel and avoid any possibility the jury might infer impropriety on his part. In our view, however, contrary to the appellant’s submission, the caution was objective and did not imply impropriety. In this regard, we note that defence counsel did not raise the objection concerning the derogatory nature of the instruction at trial that has now been raised on appeal. We can only assume he did not perceive it as such.
(5) Defence of honest but mistaken belief in communicated consent[^7]
[38] As his fifth ground of appeal against conviction, the appellant argued that the trial judge misdirected the jury with respect to the defence of honest but mistaken belief in consent. Although the trial judge initially told the jury correctly that it was for the Crown to prove the appellant held no such belief, the appellant submits she subsequently shifted the onus to the appellant by saying he was required to show he took reasonable steps to ascertain whether the complainant's participation represented actual consent to each sexual act.
[39] We did not call on the Crown to respond to this argument. In our view, there was no air of reality to the defence, it should not have been left with the jury and any error the trial judge may have made in her instructions gave rise to no substantial wrong or miscarriage of justice.
[40] On the complainant’s evidence concerning the sexual assaults, her relationship with the complainant was poor at the time of all of the alleged offences to the point she was sleeping on the couch as of December 20 and 28, 2013. The complainant testified that: she did not verbally agree to engage in sexual activity at the time of any of the alleged offences; she expressly said no on both December 28, 2013 and February 18, 2013; the appellant physically manoeuvered her body to force her to engage in sexual activity on all three occasions and she tried to resist on both December 20, 2013 and February 18, 2013.
[41] The appellant acknowledged the complainant was sleeping on the couch as of December 20 and 28, 2014. According to the appellant, he and the complainant were attempting to have a child on each of the three dates; they had specific discussions to that effect sometime before engaging in sexual activity on December 20, 2013 and immediately prior on February 18, 2014. Further, he claimed that although the complainant initially declined his invitation to come upstairs to their bedroom on December 28, 2013, she later came upstairs, which led to the couple engaging in sexual activity. The appellant asserted that the complainant never gave any physical or verbal indication that she was not consenting to sexual activity on any of the three occasions.
[42] In our view, neither the complainant’s nor the appellant’s evidence creates an air of reality for a defence of honest but mistaken belief in communicated consent.
[43] The complainant’s evidence was that she did not consent to sexual activity on the dates of the alleged offences and further that, on all three occasions, she either said no or tried to resist. The essence of the appellant’s evidence was that the appellant consented to sexual activity on all three occasions. However, in general, an accused’s evidence that the complainant verbally expressed consent to engage in sexual activity and never withdrew that consent – as the appellant asserts here in relation to the December 20, 2013 and February 18, 2013 incidents – does not give rise to a defence of honest but mistaken belief in consent. Rather it goes to the issue of consent.
[44] In this case, apart from his evidence that he and the complainant specifically discussed attempting to conceive on December 20, 2013 and February 2014 (which goes to the issue of consent), the appellant gave no evidence of reasonable steps to ascertain if she was consenting on those occasions or on December 28, 2013. Concerning the December 28, 2013 incident, the complainant testified that after declining the appellant’s invitation to join him upstairs, she went upstairs to go to the bathroom. She also said she resisted. The appellant’s testimony that the complainant never gave any verbal or physical indication of lack of consent, standing alone, could not give rise to a defence of honest but mistaken belief in communicated consent, as that claim would be based on a mistake of law: R. v. Barton, 2019 SCC 33, 435 DLR (4th) 191, at para. 107.
[45] Although we acknowledge there is no indication on the record before us that the trial Crown objected to the defence being left, lack of objection cannot create an air of reality for a defence that is not otherwise available on the evidence.
(6) The Sentence Appeal and the Application to Introduce Fresh Evidence
[46] Turning to the sentence appeal, the appellant submits that the trial judge erred in finding he was in a position of trust and authority over the complainant and in treating that as an aggravating factor. In addition, he submits that the trial judge erred in identifying the following matters as aggravating factors:
• the complainant gave up her relationship with her family to marry the appellant;
• the appellant threatened to have the complainant deported if she did not comply with his directions;
• the appellant threatened the complainant's brother; and
• the appellant forced the complainant to leave the home after nine months of marriage.
[47] Further, the appellant submits that although the trial judge recognized the appellant had no prior criminal record, she erred in failing to take account of the fact that this would be not only his first custodial sentence but also his first penitentiary sentence.
[48] Finally, the appellant seeks to introduce fresh evidence on appeal to demonstrate that the complainant made false claims in her victim impact statement that the trial judge relied upon in sentencing: in particular, the complainant’s assertions that she could no longer trust anyone or have a relationship with anyone and that she suffers back problems because of prolonged sleeping on the couch.
[49] We do not accept these submissions. As a starting point, we conclude the fresh evidence is inadmissible. Further, even assuming the trial judge made any of the errors relied on by the appellant, in our view, the sentence of four years’ imprisonment was entirely fit.
[50] The fresh evidence consisted of an affidavit sworn by a legal assistant to appellant’s counsel based on information received from appellant’s counsel. Attached as exhibits to the affidavit were what the affiant described as screenshots from the complainant’s Facebook page, her Instagram page and the Facebook page of the complainant’s new spouse. These screenshots purported to disclose, among other things, that the complainant and her new spouse became engaged prior to the date of the complainant’s victim impact statement, that they were married prior to the appellant’s sentence hearing and that the complainant was able to go horseback riding soon after her marriage.
[51] The affiant deposed that counsel had been advised of the complainant’s Facebook profile name as of a date prior to the appellant’s sentence hearing. The screenshots at issue purported to be dated after the appellant’s sentencing. The appellant submits the affidavit is admissible under s. 723(5) of the Criminal Code, which provides that hearsay is admissible on a sentence hearing.
[52] In our view, the latter submission falls far short of establishing the admissibility of the fresh evidence. Significantly, the affiant did not disclose any of the following information: i) from whom counsel received advice about the complainant’s Facebook profile name; ii) any basis on which the affiant or counsel confirmed the profile photographs were in fact photographs of the complainant; iii) who took the screenshots; iv) when and on what device the screenshots were taken; iv) whether the screenshots had been altered since being taken; v) when and how, the appellant or anyone associated with him, learned of the complainant’s alleged new relationship, her engagement and her marriage.
[53] Leaving aside the propriety of appellant’s counsel appearing as counsel and proffering an affidavit based on information received from her, the proposed fresh evidence does not meet the admissibility requirements as set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 and consolidated in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
[54] First, the proposed evidence fails to meet the due diligence requirement because it does not establish when the appellant or anyone associated with him learned of the complainant’s alleged new relationship. Second, the evidence fails to meet the cogency requirement because it does not address, let alone establish, the authenticity of the screenshots.[^8] We therefore decline to admit the fresh evidence on the sentence appeal.
[55] Further, even assuming the trial judge made the errors alleged and those errors affected her decision on sentencing, we would not impose a sentence different from that imposed by the trial judge.
[56] We acknowledge that the appellant was relatively young (28 years old at trial); that he had no prior criminal record and thus had never previously served a custodial sentence let alone a penitentiary sentence. We further acknowledge that up until the time of these offences, the appellant was a productive member of society and had a supportive family. However, the offences for which he was sentenced were extremely serious. They consisted of three serious sexual assaults, all involving oral sex and intercourse, committed in the context of a domestic relationship. Such offences demand a significant penitentiary sentence to properly reflect proportionality as well as the principles of denunciation and both general and specific deterrence. A four-year penitentiary sentence was entirely fit in the circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 12.
C. disposition
[57] Based on the foregoing reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted but the fresh evidence application and the sentence appeal are dismissed.
“Janet Simmons J.A.”
“David Watt J.A.”
“L.B. Roberts J.A.”
[^1]: During oral argument at the appeal hearing, the appellant abandoned his request to have the fresh evidence admitted in relation to his conviction appeal.
[^2]: For example, the appellant complains about the evidence that he lived in a home that was part of an Ontario Housing complex and submits societal bias exists about individuals who live in such accommodation. Even assuming that may be correct, such evidence was given by the appellant in-chief and hardly qualifies as evidence of other discreditable conduct.
[^3]: The dates mentioned were long after the parties had separated. See footnote 4.
[^4]: In his affidavit the appellant stated, “From the beginning of December 14th through to the end of February 15, we were trying to have a baby. On New Year’s Eve of 2015, she told everyone she was pregnant, however she soon after told me and my family she was wasn’t.” For the purpose of the s. 276 application, the trial judge accepted the appellant made an error in setting out the dates and had intended to say the couple were trying to have a baby from December 2013 to February 2014.
[^5]: The appellant was unable to produce the actual text messages on the application. Instead, he produced an e-mail dated April 21, 2014 in which he had reproduced the text messages. In his evidence he was unable to confirm exactly when the text messages were sent. At the preliminary inquiry, the complainant confirmed sending some text messages about pregnancy but did not confirm the date they were sent.
[^6]: The s. 276 application in this case was decided in 2016, prior to amendments made to s. 276 and related sections of the Criminal Code in 2018: Criminal Code, as amended by S.C. 2018, c. 29, ss. 21(1)-22. For consistency with the reasons below, we have cited to the provisions that were in force at the time of the application.
[^7]: Although framed as honest but mistaken belief in consent at trial and in the parties’ factums, as discussed in R. v. Barton, 2019 SCC 33, 435 DLR (4th) 191, at paras. 91-93, the defence is now properly referred to as honest belief in communicated consent.
[^8]: Sections 31.1, 31.2, and 31.3 of the Canada Evidence Act prescribe the manner in which electronic documents can meet the common law authenticity and best evidence rules, which impose threshold requirements for the admissibility of documents at a trial.