Her Majesty the Queen and J.M.

[Indexed as: R. v. M. (J.)]

Ontario Reports Court of Appeal for Ontario Pepall, van Rensburg and Brown JJ.A. March 11, 2021

154 O.R. (3d) 401 | 2021 ONCA 150

Case Summary

Criminal law — Evidence — Witnesses — Credibility — Judicial notice — Accused convicted on one count of sexual assault against his cousin arising from two incidents — In delivering reasons, trial judge drawing on personal experience as counsel to conclude it was commonplace for complainant not to distance herself from abuser in cases of interfamilial sexual crimes — Trial judge also referring to magazine article and drawing parallels with battered woman syndrome discussed in Supreme Court of Canada case, neither of which had been put before the court — Trial judge finding complainant credible — Appeal from conviction allowed and new trial ordered — Trial judge exceeded proper boundaries of judicial notice, denying accused a fair trial — Curative proviso not applicable — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (b)(iii).

Evidence — Judicial notice — Accused convicted on one count of sexual assault against his cousin arising from two incidents — In delivering reasons, trial judge drawing on personal experience as counsel to conclude it was commonplace for complainant not to distance herself from abuser in cases of interfamilial sexual crimes — Trial judge also referring to magazine article and drawing parallels with battered woman syndrome discussed in Supreme Court of Canada case, neither of which had been put before the court — Trial judge finding complainant credible — Appeal from conviction allowed and new trial ordered — Trial judge exceeded proper boundaries of judicial notice, denying accused a fair trial.

The accused was convicted on a single count of sexual assault arising from two separate incidents. The 20-year-old accused was alleged to have raped his 16-year-old cousin in a car. The next month the accused was at the complainant's house with other family members when, according to the complainant, she and the accused went to her bedroom and the accused assaulted her by unsuccessfully trying to have sexual intercourse with her. The accused testified and denied both incidents. He acknowledged three occasions of being sexually intimate with the complainant but with the sexual activity being consensual. Defence counsel challenged the complainant's credibility by contending that the complainant could have, but did not, disassociate herself from the accused. The trial judge rejected that submission. In addressing that point in his reasons, he considered a decision of the Alberta Court of Appeal and chose to "fine tune" the court's comments in two respects. First, drawing on his own experience as defence counsel, he observed that it was not unusual for a complainant not to distance herself from an abuser. Second, he disagreed with the Alberta Court of Appeal to the extent that it proposed a rigid rule of irrelevancy for evidence of after-the-event association of the complainant with the accused, and instead proposed that each case had to be looked at on its own footing. The trial judge commented that the complainant's emotional state of helplessness and paralysis during the bedroom incident displayed more than a few parallels with the psychology of battered woman syndrome as described by the Supreme Court in the R. v. Lavallee decision. He went on to state that the complainant's passivity during the bedroom incident was explained by social science research described in a recent article [page402] published in a popular science magazine. Neither party had placed the article before the court. The judge rejected the accused's evidence on several points, including his denial of the complainant's accusations. He concluded that the complainant's evidence was credible, confirmed, and that she was telling the truth. The accused appealed his conviction.

Held, the appeal should be allowed.

The trial judge overstepped the proper boundaries of judicial notice by drawing on his personal experience as counsel. The adversarial system imposed a necessary restraint on that which a trial judge could take into account when deciding contested issues, including the credibility of a party. Unless the criteria of notoriety or immediate demonstrability were present, a judge could not judicially notice a fact within his or her personal knowledge. The trial judge drew on his personal experience as counsel to conclude that in the case of interfamilial sexual crimes, instances in which a complainant failed to distance herself from an abuser were commonplace, a conclusion approximating a form of generalization. For the trial judge to accept that conclusion without a proper evidentiary foundation amounted to sidestepping the test for judicial notice. As well, the process that led him to that conclusion lacked transparency. Apart from a reference to two reported cases that had been filed with the court, the trial judge did not disclose to the parties what other personal experience he was drawing on to make the generalization that he did. Moreover, during final submissions he asked only Crown counsel whether it was permissible for him to rely on his pre-judicial experience, where fairness required that he solicit the views of defence counsel as well.

The trial judge's use in his reasons of the R. v. Lavallee decision and the magazine article was marked by several errors. No party submitted that as part of his credibility assessment of the complainant, the judge should have drawn a parallel between the complainant's conduct and the battered woman syndrome which had been the subject of expert psychiatric evidence in Lavallee. It was an error for the trial judge to raise that issue without affording the parties an opportunity to address and respond to it during the trial. Although judicial notice did not extend to an area requiring expert evidence, the trial judge effectively took judicial notice of expert evidence adduced in Lavallee and applied it to explain the conduct of the complainant. The judge also improperly and unfairly did not provide counsel with any notice of his intention to use the Lavallee evidence. The judge's use of the magazine article was a breach of the rules of natural justice in that he used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it. Also, in relying on the article as a source of expert evidence not properly before the court to assess the complainant's credibility, he exceeded the proper limits of judicial notice.

The impact of the errors was to deny the accused a fair trial. The trial judge's reasons disclosed that his errors did not relate to a peripheral issue. Instead, his erroneous use of his previous experience as counsel, the Lavallee decision, and the magazine article played important roles in his reasoning process regarding the complainant's credibility, which was a key issue at trial. Arguably the judge's use of his prior experience standing alone might have resulted in no substantial wrong or miscarriage of justice to allow for applying the curative proviso in the Criminal Code. However, taking all the errors together it was impossible to conclude that the errors were harmless and had no impact on the verdict. The trial judge's resort to judicial notice without giving the accused an opportunity to make submissions on the issue was procedurally unfair. A new trial was directed on the single count of sexual assault. [page403]

R. v. Hamilton (2004), 2004 ONCA 5549, 72 O.R. (3d) 1, [2004] O.J. No. 3252, 241 D.L.R. (4th) 490, 189 O.A.C. 90, 186 C.C.C. (3d) 129, 22 C.R. (6th) 1, 62 W.C.B. (2d) 510 (C.A.); R. v. Hernandez-Lopez, [2020] B.C.J. No. 39, 2020 BCCA 12, 384 C.C.C. (3d) 119, 61 C.R. (7th) 95, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 70, apld

Other cases referred to

Hearn v. McLeod Estate, [2019] O.J. No. 4458, 2019 ONCA 682, 439 D.L.R. (4th) 217; Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, 2013EXP-288, J.E. 2013-141, EYB 2013-216977, 439 N.R. 1, [2013] W.D.F.L. 746, [2013] W.D.F.L. 814, [2013] W.D.F.L. 776, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191; R. c. Désaulniers, [1994] J.Q. no 1206, 93 C.C.C. (3d) 371, 65 Q.A.C. 81, J.E. 94-1339 (C.A.), leave to appeal to S.C.C. refused, [1995] 1 S.C.R. vii; R. v. Ashley, [2012] O.J. No. 1894, 2012 ONSC 1678 (S.C.J.), affd [2012] O.J. No. 4141, 2012 ONCA 576; R. v. B. (R.G.), [2012] M.J. No. 17, 2012 MBCA 5, 275 Man. R. (2d) 119, [2012] 4 W.W.R. 697, 287 C.C.C. (3d) 396, 100 W.C.B. (2d) 630; R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, 144 W.C.B. (2d) 295, 43 C.R. (7th) 207, [2018] 4 W.W.R. 433, 65 Alta. L.R. (6th) 38, 422 D.L.R. (4th) 469, affg [2017] A.J. No. 746, 2017 ABCA 237, 55 Alta. L.R. (6th) 213, 422 D.L.R. (4th) 471, [2017] 11 W.W.R. 508, 353 C.C.C. (3d) 1, 40 C.R. (7th) 306; R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, 191 D.L.R. (4th) 60, 259 N.R. 156, J.E. 2000-1894, 136 O.A.C. 201, 148 C.C.C. (3d) 41, 36 C.R. (5th) 261, 47 W.C.B. (2d) 311, REJB 2000-20289; R. v. Diabas, [2020] O.J. No. 2040, 2020 ONCA 283, 387 C.C.C. (3d) 223; R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, 199 D.L.R. (4th) 193, 269 N.R. 149, J.E. 2001-1099, 146 O.A.C. 236, 154 C.C.C. (3d) 97, 42 C.R. (5th) 1, 82 C.R.R. (2d) 247, 49 W.C.B. (2d) 595; R. v. G. (A.V.), [2015] B.C.J. No. 3050, 2015 BCPC 438; R. v. Ghaleenovee, [2015] O.J. No. 1310, 2015 ONSC 1707, 19 C.R. (7th) 154 (S.C.J.); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Lavallee, [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, 108 N.R. 321, [1990] 4 W.W.R. 1, J.E. 90-735, 67 Man. R. (2d) 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329, 10 W.C.B. (2d) 101; R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34, 375 C.C.C. (3d) 431, 433 C.R.R. (2d) 248, 434 D.L.R. (4th) 631, 54 C.R. (7th) 325, EYB 2019-312010, 2019EXP-1537; R. v. M. (J.), [2018] O.J. No. 188, 2018 ONSC 344 (S.C.J.); R. v. Mabior, [2012] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47, 268 C.R.R. (2d) 39, 96 C.R. (6th) 1, 434 N.R. 341, 284 Man. R. (2d) 114, 2012EXP-3544, J.E. 2012-1903, EYB 2012-212075, [2012] 11 W.W.R. 213, 290 C.C.C. (3d) 32, 352 D.L.R. (4th) 619, 103 W.C.B. (2d) 905; R. v. Paszczenko (2010), 103 O.R. (3d) 424, [2010] O.J. No. 3974, 2010 ONCA 615, 272 O.A.C. 27, 100 M.V.R. (5th) 1, 81 C.R. (6th) 97; R. v. Potts (1982), 36 O.R. (2d) 195, [1982] O.J. No. 3207 (C.A.), leave to appeal to S.C.C. refused [1982] S.C.C.A. No. 301; R. v. S. (L.), [2017] O.J. No. 4586, 2017 ONCA 685, 354 C.C.C. (3d) 71, 141 W.C.B. (2d) 414, 40 C.R. (7th) 351; R. v. S. (R.D.), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 151 D.L.R. (4th) 193, 218 N.R. 1, J.E. 97-1839, 161 N.S.R. (2d) 241, 1 Admin. L.R. (3d) 74, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 35 W.C.B. (2d) 520, REJB 1997-02451; R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686, [2006] S.C.J. No. 54, 2006 SCC 54, 274 D.L.R. (4th) 75, 355 N.R. 1, J.E. 2006-2331, 309 N.B.R. (2d) 199, 214 C.C.C. (3d) 161, [2007] 1 C.N.L.R. 359, 50 R.P.R. (4th) 1, 71 W.C.B. (2d) 424, EYB 2006-111617; R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, 259 D.L.R. (4th) 474, 342 N.R. 126, J.E. 2005-2230, 206 O.A.C. 150, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, 135 C.R.R. (2d) 318, 67 W.C.B. (2d) 504, EYB 2005-98281; R. v. T. (M.), [2012] O.J. No. 3418, 2012 ONCA 511, 289 C.C.C. (3d) 115, 294 O.A.C. 111, 95 C.R. (6th) 223, 103 W.C.B. (2d) 71; R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, [page404] 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602; R. v. Williams, [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, 159 D.L.R. (4th) 493, 226 N.R. 162, [1999] 4 W.W.R. 711, J.E. 98-1315, 107 B.C.A.C. 1, 56 B.C.L.R. (3d) 390, 124 C.C.C. (3d) 481, [1998] 3 C.N.L.R. 257, 15 C.R. (5th) 227, 52 C.R.R. (2d) 189, 38 W.C.B. (2d) 295; Reference Re: Alberta Legislation, [1938] S.C.R. 100, [1938] S.C.J. No. 2, [1938] 2 D.L.R. 81

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 271 [as am.], 275 [as am.], 276(1) [as am.], 277 [as am.], 686(1) (b)(iii), 715.1 [as am.]

Authorities referred to

Dufraimont, Lisa, Myth, Inference and Evidence in Sexual Assault Trials (2019), 44:2 Queen's L.J. 316 Hill, S. Casey, Tanovich, David M. & Strezos, Louis P., McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Carswell, 2019) Lederman, Sidney N., Bryant, Alan W. & Fuerst, Michelle K., Sopinka, Lederman & Bryant : The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) Paciocco, David M., Paciocco, Palma & Stuesser, Lee, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) Watt, David, Watt's Manual of Criminal Evidence 2020 (Toronto: Carswell, 2020)

APPEAL from conviction by D. E. Harris J., reported at [2018] O.J. No. 188, 2018 ONSC 344 (S.C.J.).

Mark Halfyard, for appellant. Rebecca Schwartz, for respondent.

The judgment of the court was delivered by

BROWN J.A. : —

I. Overview

[1] The appellant, J.M, appeals his conviction on a single count of sexual assault, for which he received a custodial sentence of three and one-half years.

[2] The main issue on this appeal concerns the trial judge's use of judicial notice, including his personal experience as counsel, as part of his credibility assessment of the complainant.

[3] For the reasons set out below, I conclude that, in making findings that were central to his assessment of the credibility of the complainant, the trial judge erred by exceeding the bounds of judicial notice, including the proper limits of drawing on previous personal experience as counsel. As a consequence, his credibility findings were materially infected by those improper considerations. Given those errors on the key issue at the trial, I would allow the appeal, set aside the conviction, and direct a new trial. [page405]

II. Background

[4] The single count against the appellant encompassed two separate incidents that took place in November and December 2014.

[5] The complainant and the appellant were second cousins. At the time of the incidents the complainant was 16 years old; the appellant was 20 years old.

[6] The complainant alleged that in November 2014, she went out with the appellant for bubble tea. He drove her to a parking lot next to a small building and asked her to get into the back seat. She did so, and he followed. According to the complainant, without warning and without saying anything, the appellant then raped her. The complainant testified that she resisted and screamed throughout.

[7] The December 2014 incident took place at the complainant's house. According to the complainant, the appellant came over to her house and watched TV for a while with the complainant, her father, and some of her siblings. The complainant and appellant left and went into another room, where the appellant groped her. They then went upstairs to her bedroom, where he assaulted her by trying to have sexual intercourse. He was unsuccessful. The complainant testified that she was passive during the assault and the appellant had put a blanket in her mouth to muffle any screams.

[8] The appellant testified. He denied that either incident occurred. He acknowledged that he had been sexually intimate with the complainant on three occasions -- two involving oral sex and one attempted intercourse -- but on each occasion the sexual activity was consensual.

[9] Entered into evidence was the thread of a Snapchat conversation between the appellant and complainant in April 2015, around the time that she disclosed the incidents. It was alleged that during the course of the exchange the appellant wrote: "Did you get prego?" The trial judge held that statement was made by the appellant and constituted an implicit admission of sexual intercourse with the complainant: at para. 102.

[10] The trial judge rejected the appellant's denial of the incidents, concluded that it did not raise a reasonable doubt, and accepted the complainant's evidence as credible and confirmed by the Snapchat conversation: at paras. 114-116. The trial judge found the appellant guilty on the single count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.

III. Trial Judge's Reasons

[11] Later in these reasons I will review in detail the specific portions of the trial judge's reasons that relate to the appellant's [page406] grounds of appeal. For the present, an overview of the reasons will suffice.

[12] At trial, the Crown called five witnesses: the complainant; a friend of the complainant and one of her teachers on the issue of the timing of the complainant's disclosure of the incidents; the complainant's father; and a police constable who testified about chat data extracted from the complainant's cellphone. The appellant testified in his defence. No expert evidence was led by either party.

[13] The trial judge started his reasons with some reflections on how to apply the principle in R. v. W. (D.), 1991 SCC 93. He then turned to the evidence, beginning his review and analysis with the complainant's evidence. He regarded the trial as turning "principally on credibility, not reliability": at para. 45.

[14] In the course of dealing with defence arguments regarding the credibility of the complainant's evidence about the December incident in her bedroom, the trial judge examined a key submission of the appellant. The defence argued that it was implausible the complainant would not distance herself from her abuser after the rape in the car. The defence's argument was part of a broader submission encompassing both incidents of sexual assault. The defence contended that the complainant could have, but did not, disassociate herself from the appellant and this weighed against her credibility: at paras. 54-55.

[15] The trial judge considered the defence's submission but rejected it. His explanation for doing so contained several parts.

[16] First, he considered the judgment of the Court of Appeal of Alberta in R. v. D. (A.R.J.), [2017] A.J. No. 746, 2017 ABCA 237 ("A.R.J.D. (AB)"), which was subsequently affirmed on appeal to the Supreme Court of Canada: R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, ("A.R.J.D. (SCC)"). The majority of the Court of Appeal of Alberta held that evidence of a lack of avoidant behaviour by a complainant can tell a trier of fact nothing about a sexual assault allegation: A.R.J.D. (AB), at para. 39.

[17] The trial judge wrote that he would "fine tune" the comments of the Court of Appeal of Alberta in two respects. First, drawing on his experience as counsel on cases before this court, he stated that instances in which a complainant fails to distance her or himself "from the abuser are not unusual": at para. 59.

[18] Second, the trial judge disagreed with one aspect of A.R.J.D. (AB). To the extent that the majority of the Court of Appeal of Alberta was proposing a "rigid rule of irrelevancy" for evidence of after-the-event association of the complainant with [page407] the accused, he did not think such a proposition was correct: "There can be no blanket rule: each case must be looked at on its own footing": at para. 66. He went on to state, at para. 68:

The important point is that the question about association has to be asked; the judge must be alive and open to the psychology, but there is no prescribed answer. A very careful examination of the evidence is required.

[19] On appeal, the Crown describes the trial judge's reasoning on this point as "sound". Although open to a different interpretation, the trial judge's position appears to be consistent with the subsequent, very brief endorsement by the Supreme Court in A.R.J.D. (SCC), in which it stated, at para. 2:

We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant's avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant's credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. [^1]

(Emphasis added)

[20] The trial judge next reviewed the complainant's evidence about her association with the appellant. He prefaced his review with his conclusion that he did not believe her continued association with the appellant indicated that the assaults did not happen nor did it detract from her credibility: at para. 69. He charged himself that he had "to look carefully at her psychology and the situation she found herself in": at para. 70. While "[m]uch of the complainant's behaviour may have been irrational", on "a full understanding, it makes perfect sense psychologically and emotionally": at para. 73.

[21] As part of his consideration of the complainant's testimony regarding her helplessness and paralysis during the December bedroom incident, the trial judge drew an analogy with the psychology of battered woman syndrome described by the Supreme Court decision in R. v. Lavallee, 1990 SCC 95. The trial judge found that the complainant's emotional [page408] state displayed "more than a few parallels with the psychology of battered wife syndrome": at para. 80.

[22] After commenting on the Lavallee decision, the trial judge stated that the complainant's passivity at the time of the attempted rape in her bedroom was also explained by social science research described in a recent article published in the Scientific American magazine. The parties had not placed this article before the court.

[23] At para. 84, the trial judge expressed the following conclusion about the evidence of the complainant's continued association with the appellant:

In conclusion, the evidence of after-the-fact association with the accused does not detract from the complainant's credibility. It is true that it does not enhance her credibility either. The evidence is neutral towards proof of guilt. However, as Crown counsel pointed out, the complainant's credibility was at least to some extent reinforced by her candor recounting her passivity during the second incident. On its face, this passivity might appear to undercut her credibility. Giving this evidence is some credit to the complainant's truthfulness.

[24] The trial judge proceeded to consider and reject the appellant's evidence that he had consensual sexual contact with the complainant on three occasions: at paras. 86-91. He then reviewed the Snapchat conversation between the complainant and the appellant in April 2015, concluding that part of the exchange constituted an implicit admission by the appellant of sexual intercourse with the complainant with penetration and ejaculation: at paras. 102 and 106. In his view, that confirmation by implicit admission was powerful support for the complainant's version of events: at para. 109. The words of the appellant, which amounted to an admission, were of significant weight: at para. 115.

[25] The trial judge rejected the appellant's evidence on several points, including his denial of the complainant's two accusations. He concluded that the complainant's evidence was credible, confirmed, and she was telling the truth with respect to the allegations: at paras. 115-116. He was convinced of the appellant's guilt beyond a reasonable doubt.

IV. Issues on Appeal

[26] The appellant submits that the appeal puts in issue how far a trial judge can go in drawing on judicial notice, including his prior experience as counsel in assessing issues in dispute. The appellant raises three grounds of appeal:

(i) the trial judge misapplied the decision in A.R.J.D. (AB) in finding that the complainant's post-offence association with the appellant did not impact her credibility by relying on his own anecdotal experience as defence counsel; [page409]

(ii) the trial judge erred in drawing parallels between the complainant's emotional state and the psychology of battered woman syndrome in rejecting the defence submission that she willingly engaged in one of the sexual acts; and

(iii) in respect of the question posed by the appellant during the Snapchat conversation, "Did you get prego?", the trial judge improperly took judicial notice that a "pregnancy scare" could only arise if the appellant had sex with the complainant and ejaculated.

[27] In my view, the appeal can be disposed of by considering only the first two grounds of appeal. My analysis will proceed in the following manner. First, I will consider the general principles regarding the use of judicial notice to prove facts, including a judge drawing on his personal experience as counsel. Next, I will apply those principles to the use the trial judge made of judicial notice. I conclude that the trial judge erred in his use of judicial notice. Finally, I will consider whether that error had any material impact on his findings regarding the complainant's credibility.

V. General Principles Regarding Judicial Notice

[28] Canadian law has adopted several rules concerning the admissibility of evidence and the use of proven facts when assessing the credibility of a complainant in a sexual assault prosecution. For example: rules relating to evidence of recent complaint have been abrogated (Criminal Code, s. 275); a complainant's delay in disclosure, standing alone, can never give rise to an adverse inference against his or her credibility as there is no inviolable rule on how those who are the victims of trauma like a sexual assault will behave (R. v. D. (D.), 2000 SCC 43, at para. 65); evidence of sexual reputation is not admissible for the purpose of challenging or supporting the credibility of a complainant (Criminal Code, s. 277); and evidence that a complainant has engaged in sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (Criminal Code, s. 276(1)).

[29] However, the use of judicial notice to dispense with the proof of facts in a sexual assault prosecution is not subject to any distinctive rules. The general principles regarding judicial notice apply.

[30] Those principles are well settled, although their application can prove challenging on occasion as the limits of judicial [page410] notice are inexact: S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Carswell, 2019) ("McWilliams"), at §26.10. The principles have both substantive and procedural dimensions.

The substantive dimension

[31] The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:

(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) ("Paciocco"), at p. 573;

(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams, 1998 SCC 782, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant : The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) ("Sopinka") at §19.16;

(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find, 2001 SCC 32, at para. 48;

(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find, at para. 48; and

(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons (R. v. Mabior, 2012 SCC 47, at para. 71; Reference Re: Alberta Legislation, 1938 SCC 1, at p. 128 S.C.R.; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (Attorney General) v. A., 2013 SCC 5, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko, 2010 ONCA 615, at paras. 65-66.

[32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat [page411] more nuanced as the expression "judicial notice" captures several different forms of judicial notice:

(i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial; [^2]

(ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and

(iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: See, for example, Quebec (Attorney General), at para. 239; R. v. Le, 2019 SCC 34, at paras. 83-88. To this category of "social framework facts" others would add "legislative facts", which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used: Quebec (Attorney General), at para. 239.

[33] The current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that "merely paint the background to a specific issue:" Le, at para. 85. The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability: Le, at para. 85; R. v. Spence, 2005 SCC 71, at para. 60; Paciocco, at p. 577. [^3]

[34] The first category of judicial notice cases -- those in which judges employ tacit judicial knowledge -- contains an internal tension. Canadian law recognizes that judges will have been [page412] shaped by, and have gained insight from, their different experiences and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench: R. v. S. (R.D.), 1997 SCC 324, at para. 38. Judges who decide factual matters necessarily are conversant "with a library of facts or information acquired through experience, education, reading, etc.": McWilliams, at §26:20.10. However, this fund of general knowledge is different from reliance on personal knowledge in a particular case: Sopinka, at §19.47; McWilliams, at §26:20.10. While it may prove difficult in some cases to know where to draw the dividing line, the general view is that unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within his or her personal knowledge, even if it has been proved before the judge in a previous case: Sopinka, at §19.46.

[35] Finally, matters of which judicial notice may be taken and those that require expert evidence are not compatible. Matters that are the proper subject of expert evidence are, by definition, neither notorious nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco, at p. 579.

The procedural dimension

[36] The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request.

[37] More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: "Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:" at §19.61.

[38] Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: Paciocco, at p. 582. [page413]

VI. First Ground of Appeal: The Trial Judge's Use of His Personal Experience as Counsel

The issue stated

[39] Crown counsel's closing submissions spanned two days. At the end of the first day, Crown counsel argued that the defence submission that the complainant's continued association with the appellant after the first alleged assault weighed against her credibility was a "very standard rape myth". At that point, Crown counsel handed up the decision in A.R.J.D. (AB) and took the trial judge through several passages.

[40] The trial judge read the decision overnight. On resuming the following day, he stated that the decision was "a fascinating case" and questioned Crown counsel about it:

COURT: And I just want to throw something out there for counsel, just out of the sense of procedural fairness. And there may be not much you can say about it, but I'll just throw it out there. And there may be not much you can say about it, but I'll just throw it out there. In another life, I was a criminal lawyer and argued law of sexual assault cases in the Court of Appeal. And in many of those cases, they were interfamilial sort of situations, like this one is, in a way. Maybe not as strongly as some, but it was not unusual that there would be a feature like the one in this case, the non-avoidance, I think, is what the Court of Appeal in Alberta called it, but there's different ways to term it. And it was all quite counterintuitive, I felt, that the alleged victim was seemingly attracted to the accused as opposed to repelled by the accused. And that was a difficult thing for the jury to get their head around and for me to get my head around as counsel. Nonetheless, it was a common feature, not in all of them, but in many of them. For example, in the M.T. case, which is in your 276 case book.

MS. HACKETT: Yes.

THE COURT: I looked at the factum for that one, and that was a situation where the complainant actually asked to go over to her uncle's place, her uncle being the appellant, on a regular basis where she was abused.

MS. HACKETT: Yes.

THE COURT: So, she asked to go over there. W.D. itself, as well, page 400 of the CCC version of the judgment, Justice Cory at letter F, or it's Justice Sopinka in dissent actually. He goes through the evidence. Justice Cory doesn't. And, again, the complainant after being abused went back to the accused's house after it was in the car that she was allegedly abused, and then she went back to his house because she left her purse behind on two occasions. So, those are just two examples, but many more examples from the jurisprudence. So, the question is for you, can I rely on my experience in, as a lawyer in this field and, or is it impermissible to do that? [page414]

So, sort of a long-winded question, but, as I said, more throwing it out there for any submissions on it. Can I rely on my experience? And we're talking about, I think, we're not talking about bolstering the complainant's credibility. We're just talking about understanding what might be argued and has been argued here to be something against her credibility, that hits against her credibility. So, it's neutralizing that, as opposed to enhancing her credibility. So, that's sort of what's on my mind here a little bit. I'm not sure there's much you can really say about it, but I have to look if I can rely on my experience in these sorts of situations from when I was a lawyer.

(Emphasis added)

[41] The trial judge had acted as counsel for the appellants in both R. v. W. (D.) and R. v. T. (M.), [2012] O.J. No. 3418, 2012 ONCA 511, 289 C.C.C. (3d) 115.

[42] Crown counsel advised the trial judge that she had not done any research on the question he was posing:

. . . [B]ut my initial response is just on a more broad and perhaps logical one, is that every person who's a judge brings with them their lifetime of experiences, and I think that's accepted. And I wouldn't, unless there's a case that says otherwise, I wouldn't see why your past life experience as a lawyer would generally be taken out or separated from that.

[43] During the balance of the trial, the trial judge did not ask defence counsel for submissions on whether he could draw on his experience as counsel in sexual assault cases.

[44] As noted earlier, in his reasons the trial judge wrote that he would "fine tune" comments made by the majority in A.R.J.D. (AB) in two respects. The first he explained at para. 59:

. . . I would go one step further than the judgment with respect to the association evidence. In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace. I am confident that trial and appellate judges, and counsel who deal with these cases, would agree. Despite such strong after-the-fact evidence of association, juries have been known to convict in these circumstances.

(Emphasis added)

[45] The trial judge believed that he could place some reliance on his prior empirical experience because "[i]t is the same as a judge relying on their judicial experience": at para. 61. [^4] [page415]

[46] On appeal, the appellant submits that by drawing on his personal experience as counsel, the trial judge used the wrong starting point for his analysis of the complainant's credibility. His experience as counsel led him to express the view that cases in which a complainant fails to distance her or himself from the abuser are commonplace. That view moved the needle of the burden of proof against the appellant. Using a methodology that draws on personal pre-judicial experience to examine the evidence was dangerous when dealing with a key issue in dispute between the parties -- the credibility of the complainant -- because it circumvented the safeguards built into the proper application of the principle of judicial notice, namely notoriety or immediate demonstrability.

[47] In response, the Crown submits that the trial judge referenced his prior experience as counsel merely to demonstrate the fallacy of the myths and stereotypes upon which defence counsel relied, namely that the complainant's continued association with the appellant after the assaults was inconsistent with her allegations of assault. The trial judge's conclusion that instances in which a complainant fails to distance her or himself from the abuser are commonplace was not an adjudicative fact reflecting the trial judge's personal views, but a recognition of the general social context in which sexual assault law operates. In any event, there was no prejudice to the appellant because elsewhere in his reasons the trial judge rejected a "rigid rule of irrelevancy", explaining that "after the fact association with the accused can, in some instances, weigh against the complainant's credibility:" at para. 66.

Analysis

[48] No judge comes to the bench a tabula rasa. We all bring varied experiences that, one hopes, assist us in fairly adjudicating the variety of legal disputes presented by the parties who appear before us. Invariably we examine, in some fashion, the legal disputes before us through the lens of that prior general experience.

[49] But here the appellant does not complain about the trial judge using his general prior experience. The appellant complains that the trial judge impermissibly drew upon his personal experience as counsel in specific types of cases to assist him in deciding a key issue in the present case: the credibility of the complainant. [page416]

[50] When a judge intends to draw upon specific experiences in his or her pre-judicial experience to determine a contested issue in a case, procedural fairness demands both judicial restraint and judicial transparency.

[51] The adversarial system imposes a necessary restraint on that which a trial judge can take into account when deciding contested issues, including the credibility of a party. The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule: Paciocco, at p. 573; Justice David Watt, Watt's Manual of Criminal Evidence 2020 (Toronto: Carswell, 2020) at §14.01. As this court cautioned in R. v. Potts (1982), 36 O.R. (2d) 195, [1982] O.J. No. 3207 (C.A.), at p. 204 O.R., leave to appeal to S.C.C. refused [1982] S.C.C.A. No. 301, "a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more". Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge: Sopinka, at §19.46.

[52] During the course of his exchange with Crown counsel about the decision in A.R.J.D. (AB), the trial judge mentioned two cases in which he had been counsel that involved complainants who continued to associate with the accused following assaults. If the trial judge had left the matter there, the appellant would have no cause to complain. The transcript of the hearing reveals that both authorities had been filed by counsel during the trial and were available for counsel to make submissions on the point. Even in cases where trial judges refer counsel to jurisprudence not placed before them, the age of smartphones and free case searches on provide counsel with the tools to respond quickly to such judicial reflections or musings. And counsel can always ask for a break if they require more time to respond.

[53] But the trial judge's reasons disclose that he went much further than reflecting on two reported cases in which he had acted as counsel. By the time of his reasons, the trial judge had drawn on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes, instances in which a complainant fails to distance her or himself from the abuser are not unusual but "commonplace", a conclusion approximating a form of generalization.

[54] I am persuaded by the appellant's submission that for the trial judge to accept, without a proper evidentiary foundation and in reliance on his personal experience, that the complainant's conduct in continuing to associate with the appellant reflected [page417] "commonplace" conduct by complainants in sexual assault cases amounted to "sidestepping" the test for judicial notice. Whether a witness is credible is a question of fact: A.R.J.D. (AB), at para. 28; R. v. B. (R.G.), [2012] M.J. No. 17, 2012 MBCA 5, 100 W.C.B. (2d) 630, at para. 59. The trial judge's conclusion was based on his personal experience rather than an assessment of either criterion for taking judicial notice of facts: notoriety or immediate demonstrability.

[55] As well, the process that led him to that conclusion lacked transparency. Apart from his mention of two reported cases that had been filed with the court, the trial judge did not disclose to the parties what other personal experience he was drawing upon to make the generalization that he did. The parties were left in the dark about the content and scope of the trial judge's personal experience that formed the basis for an element of his assessment of the complainant's credibility, and they had no opportunity to respond to the information that drove the judge's decision on this point.

[56] Moreover, although during the final submissions the trial judge asked Crown counsel for her position on whether it was permissible for him to rely on his experience as counsel, he did not solicit the views of defence counsel. Fairness required that he should have. Although the Crown submits that the trial judge's initial question to Crown counsel during her closing submissions also amounted to an invitation to defence counsel to make submissions, optimally the trial judge should have specifically invited submissions from defence counsel. The trial judge had the opportunity to remedy that oversight. About a month after closing submissions, counsel re-attended before the trial judge to hear his judgment. Instead, the trial judge requested further submissions on an issue relating to the Snapchat evidence. That would have been an ideal opportunity for the trial judge to ask defence counsel for her position on the permissibility of drawing on his experience as counsel.

[57] Accordingly, I conclude that, in the circumstances of this case, the trial judge erred in drawing on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes instances in which a complainant fails to distance her or himself from the abuser are not unusual but "commonplace". He overstepped the proper boundaries of taking judicial notice -- even tacit judicial notice -- of a fact that informed his assessment of the credibility of the complainant.

[58] I will assess the impact of that error after considering the appellant's second ground of appeal. [page418]

VII. Second Ground of Appeal: The Trial Judge's Assessment of the Complainant's Passivity

The issue stated

[59] During his examination of the complainant's evidence about her continued association with the appellant after the first assault, the trial judge remarked on comments made by the police officer who conducted the Criminal Code s. 715.1 interview of the complainant. The trial judge observed that the officer "made it plain that he did not believe her because of her admitted acquiescence and lack of resistance in the second incident of sexual assault": at para. 79. The trial judge was highly critical of the officer's interview of the complainant.

[60] The trial judge then continued, at paras. 80-82:

Examining the complainant's emotional state, there are more than a few parallels with the psychology of battered wife syndrome explained by Justice Bertha Wilson in R. v. Lavallee, 1990 SCC 95. There was reference there to the administration of a shock which leads to a motivational state of "learned helplessness." In the interfamilial context, a phenomenon may occur known as "traumatic bonding" between a dominant person and a subjugated individual such as a child. In Lavallee, the process of "traumatic bonding" as explained by expert evidence, was adopted by the court at para. 60:

The less powerful person in the relationship -- whether battered woman, hostage, abused child, cult follower, or prisoner -- becomes extremely dependent upon, and may even come to identify with, the more powerful person. In many cases, the result of such dependency and identification is that the less powerful, subjugated persons become "more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person." As this "cycle of dependency and lowered self-esteem" is repeated over time, the less powerful person develops a "strong affective bond" [traumatic bonding] to the more powerful person in the abusive relationship.

It is this psychology which helps to explain the complainant's quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault. Her testimony that she just wanted to give the accused what he wanted and the admission of kissing him back once, together with a several month delay in disclosing the assault, is suggestive of a process similar to that in Lavallee referred to as "traumatic bonding."

The complainant's passivity at the time of the attempted rape is also explained by more recent social science research in the area: see Francine Russo, Sexual Assault May Trigger Involuntary Paralysis (August 4 2017), online: Scientific American, https://www.scientificamerican.com/article/sexual-assault-may-trigger-involuntary-paralysis/

(Emphasis added)

[61] The appellant submits that the trial judge erred in drawing parallels between the complainant's emotional state and "the psychology of battered wife syndrome" in rejecting the [page419] defence submission that she willingly engaged in one of the sexual acts. The appellant argues that: at trial no party raised the applicability of the concepts of "learned helplessness" and "traumatic bonding" discussed in Lavallee; the complainant was not a battered spouse; and no expert evidence was adduced at trial on how the concepts would apply to the circumstances of the complainant. The trial judge compounded those errors by relying on the Scientific American article that neither party had put before him. According to the appellant, the trial judge's extrapolation from Lavallee and use of the Scientific American article violated the narrow confines of judicial notice. The trial judge improperly used those sources to assist him in making findings of fact regarding the complainant's credibility, a dispute specific to the criminal proceeding.

[62] The Crown responds that the trial judge's comments about battered woman syndrome were directly responsive to defence counsel's myth-based submission that the complainant's passivity during the second sexual assault raised a reasonable doubt about lack of consent. While it might have been preferable for the trial judge to canvass the battered woman syndrome analogy with counsel, in the circumstances of this case, his failure to do so did not prejudice the appellant in any way. The conclusions the trial judge ultimately drew were legally correct: a victim's passive response to a sexual assault is not inconsistent with lack of consent; and the assumption that active resistance is the "normal" or "typical" reaction is a sexual stereotype that has no place in our criminal justice system.

Analysis

[63] The trial judge's use in his reasons of the Lavallee decision and the Scientific American article was marked by several errors.

(a) The use of the Lavallee decision

[64] First, no party submitted that as part of his credibility assessment of the complainant the trial judge should draw a parallel between the complainant's conduct and the battered woman syndrome which had been the subject of expert psychiatric evidence in Lavallee. It was an error for the trial judge to raise that issue without affording the parties an opportunity to address and respond to it during the trial. The comments made by this court in R. v. Hamilton (2004), 2004 ONCA 5549, at para. 69, in the context of a sentencing hearing apply with equal force to the liability stage of a criminal trial:

Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination [page420] of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue. If counsel takes the position that the issue is relevant, then it should be left to counsel to produce whatever evidence or material he or she deems appropriate, although the trial judge may certainly make counsel aware of materials known to the trial judge which are germane to the issue. If counsel takes the position that the issue raised by the trial judge is not relevant on sentencing, it will be a rare case where the trial judge will pursue that issue.

[65] The Crown submits that the trial judge's comments about battered woman syndrome were directly responsive to defence counsel's submission that the complainant's passivity during the second assault raised a reasonable doubt about lack of consent. I would note that at trial Crown counsel did not respond to the defence's closing by drawing parallels with the syndrome. If the trial judge thought there might be a parallel, he was obliged to raise the issue with counsel before the trial concluded and afford counsel an opportunity to respond. His failure to do so was an error.

[66] Second, since expert evidence is, by definition, neither notorious nor capable of immediate and accurate demonstration, judicial notice does not extend to an area that requires expert evidence: McWilliams, at §26:10. Yet, the trial judge, in effect, took judicial notice of expert evidence adduced in the Lavallee case and applied it to explain the conduct of the complainant in the present case. Such use of the Lavallee decision constituted an improper use of judicial notice.

[67] In Lavallee, the accused had pleaded self-defence to the charge that she had murdered her common-law partner. The accused adduced expert psychiatric evidence to assist the jury in understanding two elements of her defence: her reasonable apprehension of death; and the lack of possibility to otherwise preserve herself from death. In addressing that second element, the psychiatrist attempted to explain why the accused had remained with her violent partner. It was in that context that the psychiatrist testified about the condition of "learned helplessness", which Wilson J., writing for the majority, noted was related in the psychological literature to the concept of "traumatic bonding": at p. 886 S.C.R.

[68] In the present case, the trial judge drew on that part of the Lavallee decision to fashion an explanation for "the complainant's quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault": at para. 81. The trial judge did so in the absence of any evidence from an expert who had examined the complainant and could provide an opinion explaining the complainant's passivity at times during the second [page421] assault. Nor was there any expert evidence regarding the permissibility of using psychiatric evidence from a case about the conduct of a battered woman to explain the conduct of a person in the complainant's circumstances.

[69] The trial judge also did not provide counsel with any notice of his intention to use the evidence referred to in Lavallee in the present case. That was improper and unfair. As the Supreme Court stated in R. v. Sappier; R. v. Gray, 2006 SCC 54, at para. 71: "[I]t is generally wise not to incorporate evidence submitted in other cases without disclosing it to the parties and allowing them the possibility of challenging it or presenting contrary evidence".

(b) The use of the Scientific American article

[70] The final error was specific to the trial judge's use in his reasons of an article that appeared in the August 4, 2017 edition of Scientific American. The trial judge used the information in the article as evidence that the complainant's passivity at the time of the attempted rape was explained by more recent social science research in the area.

[71] Scientific American is a popular science magazine available in many retail outlets and online. According to the online reference, the article, "Sexual Assault May Trigger Involuntary Paralysis", was written by a journalist who specializes in psychology and behaviour. The article did not constitute original research. Instead, it summarized the results of a 2017 Swedish study that reported a majority of female rape survivors who had visited a Stockholm emergency clinic reported that they did not fight back. As well, the article noted a 2005 study with similar results and reported comments made by an Australian psychiatrist about the Swedish study.

[72] The parties did not provide the trial judge with the article; his inclusion of a reference to the article in his reasons was the result of his own research. The trial judge did not invite the parties to make submissions about the article; they first discovered that the trial judge considered the article upon reading his reasons.

[73] The Crown concedes that it was an error for the trial judge to refer to the Scientific American article without canvassing counsel. That was a proper concession for the Crown to make. In my view, the trial judge's use of the article in his reasons as part of his assessment of the complainant's credibility amounted to an error for two reasons.

[74] First, its use compromised the integrity and fairness of the trial process. By relying on a popular scientific publication that [page422] was not put into evidence or referred to at the hearing, the trial judge breached the rules of natural justice. He used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it: Hearn v. McLeod Estate, 2019 ONCA 682, at para. 28; R. v. Désaulniers, 93 C.C.C. (3d) 371 (C.A.), at p. 377 C.C.C., leave to appeal to S.C.C. refused [1995] 1 S.C.R. vii. As was put by Goldstein J. in R. v. Ghaleenovee, 2015 ONSC 1707, at para. 21:

Checking indisputable facts [on the Internet] is one thing. Conducting an investigation and drawing inferences -- especially without giving the parties an opportunity to respond -- is another.

[75] Second, it constituted an improper use of judicial notice. In R. v. Hernandez-Lopez, [2020] B.C.J. No. 39, 2020 BCCA 12, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 70, the British Columbia Court of Appeal saw no error in a trial judge using the parts of an academic article on the evidence of children that merely outlined generally understood and common features of the evidence of children, already reflected in judicial commentary and practice. The concepts described in the article did not lie outside the general knowledge that judges are required to apply in assessing the evidence of witnesses: at paras. 17-22.

[76] The court in Hernandez-Lopez went on to note that the trial judge did not rely on the article to furnish critical evidence or as an instruction manual for assessing the evidence of children: at paras. 14 and 21. However, that is how the trial judge in the present case used the Scientific American article. His reasons disclose that he relied on the article as a source of expert evidence that was not properly before the court to assess the veracity of the complainant. It was an error for him to do so; he exceeded the proper limits of judicial notice.

VIII. The Impact of the Errors

[77] As his reasons disclose, the errors identified above played an important role in the trial judge's assessment of the complainant's credibility.

[78] The trial judge structured his reasons to begin with an examination of the complainant's evidence, commenting on her credibility: at para. 21. In dealing with her evidence about the assault in the bedroom, the trial judge acknowledged that the defence argument that the complainant's credibility was adversely affected by her failure to disassociate herself from the appellant [page423] "was part of a broader submission encompassing both incidents of sexual assault": at para. 55. The trial judge treated the defence's submission as a relevant one, requiring analysis. He stated, at para. 56:

It is completely understandable that the defence would make this argument and it has more than just a superficial attraction. However, in the circumstance of this case, I disagree that this evidence detracts from the complainant's credibility.

[79] The trial judge then referred to the decision in A.R.J.D. (AB), stating that he "would go one step further than the judgment with respect to the association evidence": at para. 59. It was at this point that the trial judge drew upon his experience as counsel to conclude that instances in which a complainant fails to distance herself from the abuser are not unusual but commonplace: at para. 59. That conclusion informed, in part, the rest of his analysis of the complainant's credibility.

[80] After next reviewing some of the specifics of the complainant's testimony, the trial judge examined her emotional state. It was at this point that he drew the parallel with the battered woman syndrome considered in the Lavallee decision. After quoting from Lavallee, he continued, at para. 81, by stating that: "It is this psychology which helps to explain the complainant's quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault" (emphasis added). The trial judge then immediately referred to the Scientific American article, as support for his further conclusion that "the complainant's passivity at the time of the attempted rape is also explained by more recent social science research in the area": at para. 82 (emphasis added). Shortly thereafter, at para. 84, the trial judge concluded that "the evidence of after-the-fact association with the accused does not detract from the complainant's credibility".

[81] Accordingly, the trial judge's reasons disclose that his errors did not relate to a peripheral issue. Instead, his erroneous use of his previous experience as counsel, the Lavallee decision, and the Scientific American article played important roles in his reasoning process regarding the complainant's credibility, which was a key issue at the trial.

[82] The Crown submits that if the trial judge erred in taking judicial notice of matters not in evidence, no substantial wrong or miscarriage of justice was occasioned, relying on the curative proviso in Criminal Code, s. 686(1)(b)(iii). I do not accept this submission.

[83] Arguably the trial judge's use of his prior experience standing alone could attract the application of the proviso. However, [page424] taken together with his other errors, I am unable to conclude that this is a case where the errors were harmless and had no impact on the verdict: R. v. Khan, 2001 SCC 86, at para. 26. An error in taking judicial notice is a legal error and may be enough, on its own, to require an appeal to be allowed: Paciocco, at p. 577. As I concluded above, the trial judge's erroneous use of judicial notice played an important role in his reasoning process regarding the complainant's credibility.

[84] Nor is this a case where the evidence is so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error: Khan, at para. 26. As the trial judge noted, the trial turned principally on credibility, not reliability: at para. 45.

[85] Finally, the trial judge's resort to judicial notice without giving the appellant an opportunity to make submissions on the issue was procedurally unfair. It violated the procedural requirements of judicial notice. As a result, it denied the appellant a fair trial. In that circumstance, the curative proviso does not apply: Khan, at para. 27.

IX. Disposition

[86] For the reasons set out above, I would allow the appeal, set aside the appellant's conviction, and direct a new trial on the single count of sexual assault.

Appeal allowed.

Notes

[^1]: Given the Crown's position, I see no need on this appeal to offer a view on what legitimate inferences the Supreme Court's brief decision in A.R.J.D. (SCC) permits a trial judge to draw from the evidence, or lack of evidence, of a complainant's after-the-fact conduct. In recent years, this court has grappled with the issue in two decisions: R. v. S. (L.), [2017] O.J. No. 4586, 2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 88-89; and R. v. Diabas, [2020] O.J. No. 2040, 2020 ONCA 283, 387 C.C.C. (3d) 223, at para. 38. See also Professor Lisa Dufraimont, in Myth, Inference and Evidence in Sexual Assault Trials (2019), 44:2 Queen's L.J. 316. [^2]: See, also, Sopinka, at §19.16: "[T]he tacit judicial notice that surely occurs in every hearing is indispensable to the normal reasoning process." [^3]: See also, Paciocco, at p. 581: "The fact that judicial notice of social context facts tends to have less impact on the adversarial function does not mean that the requirements of notoriety or incontrovertibility are immaterial." [^4]: In support of this proposition the trial judge cited the cases of R. v. G. (A.V.), [2015] B.C.J. No. 3050, 2015 BCPC 438, at para. 41, and R. v. Ashley, [2012] O.J. No. 1894, 2012 ONSC 1678 (S.C.J.), affd [2012] O.J. No. 4141, 2012 ONCA 576.

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