Her Majesty the Queen v. Steele

[Indexed as: R. v. Steele]

Ontario Reports Court of Appeal for Ontario van Rensburg, Benotto and Thorburn JJ.A. March 25, 2021 154 O.R. (3d) 721 | 2021 ONCA 186

Case Summary

Criminal law — Evidence — Credibility — Prior consistent statements — Complainant and accused engaging in sexual activity in abandoned trailer — Only issue was consent — Trial judge observing that complainant's unexplained decision to enter trailer was inconsistent with her testimony that she did not like accused — Trial judge also finding that complainant's subsequent communication with her father was inconsistent with having been assaulted — Trial judge left with reasonable doubt and acquitting of sexual assault — Crown's appeal allowed — Trial judge applied irrelevant stereotypical views about sexual assault victims under guise of common sense approach to credibility — Judge also erred in not admitting complainant's prior consistent statement during telephone call to friend just after the incident and also failed to consider evidence of her demeanour during call — New trial ordered.

Criminal law — Sexual assault — Consent — Complainant and accused engaging in sexual activity in abandoned trailer — Only issue was consent — Trial judge observing that complainant's unexplained decision to enter trailer was inconsistent with her testimony that she did not like accused — Trial judge also finding that complainant's subsequent communication with her father was inconsistent with having been assaulted — Trial judge left with reasonable doubt and acquitting of sexual assault — Crown's appeal allowed — Trial judge applied irrelevant stereotypical views about sexual assault victims under guise of common sense approach to credibility — Judge also erred in not admitting complainant's prior consistent statement during telephone call to friend just after the incident and also failed to consider evidence of her demeanour during call — New trial ordered.

The respondent was charged with sexual assault. He and the complainant had been introduced by their parents. The respondent was 23 and the complainant was 18. They had spent some time drinking alcohol together and both were intoxicated when it was time for the respondent to go home and the complainant said that she would walk him halfway. According to the complainant, they came upon an abandoned trailer and they entered at the respondent's suggestion. The respondent tried to kiss her, but she said she wanted to go home. He then held her down and penetrated her vaginally and anally. According to the respondent, they shared a kiss on the walk and the complainant did not resist. They entered the trailer at her suggestion, kissed some more, then had consensual vaginal and anal intercourse. There was evidence that the complainant's parents called her because she was taking too long in getting home. She eventually responded and told her father that she was near the Legion and would be home soon, but according to her mother it took longer to get home from there than it should have. The complainant testified that after leaving the trailer she immediately contacted her best friend, who told her to go to the police. The friend testified to the same effect and also described the complainant's demeanour during call. The trial judge concluded that both the respondent and the complainant were credible, but noted two areas of the complainant's testimony that raised concerns about her credibility. The first was that she could not explain her decision to enter the abandoned trailer and that the decision was inconsistent with her testimony that she did not like the respondent. The second related to an inconsistency regarding the phone conversation with her parents. The mother's testimony was consistent with the respondent's testimony that the complainant had talked to her father after the sexual activity and then took the 20-minute walk home, which meant that the complainant was not being candid with her father. The trial judge found that it was not the response of someone who had just been sexually assaulted and had been kept in a trailer against her wishes. The trial judge was not prepared to believe all of the respondent's evidence but was left with a reasonable doubt and entered an acquittal. The Crown appealed.

Held, the appeal should be allowed.

Per Benotto and Thorburn JJ.A.: The trial judge erred in law by applying irrelevant stereotypical views about the behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment. Although the trial judge referred to the inconsistency in the complainant's testimony of not liking the complainant but going into the trailer with him anyway as part of his credibility assessment, inherent in the analysis was a stereotypical assumption that consent could be inferred from the complainant's entry into the trailer. That was wrong in law. It was open to the judge to hold that the complainant's inability to answer why she entered the trailer impacted her credibility, but he went beyond assessing credibility and made an inference about consent because he could not imagine another reason to enter the trailer other than to have consensual sex. His use of the evidence concerning the phone call significantly crossed the line into impermissible reasoning. His finding that the complainant's conversation with her father did not appear to be the response of someone who was just sexually assaulted was a classic example of an assumption made by a trial judge as to what a victim of an assault would do. It is agreed that the trial judge also erred by failing to consider the substance of the telephone call with the complainant's best friend just after the incident and the evidence of the friend about the complainant's demeanour, for reasons set out in the concurring judgment.

A new trial was the appropriate remedy. The respondent submitted that the error was immaterial because there was an independent pathway to acquittal in that the judge was left in doubt by the respondent's evidence. However, the only issue before the judge was credibility. The evidence of the complainant was considered in relation to the respondent and assumptions were made as to her consent. Had the judge not made the errors that he did in assessing the complainant's credibility, he might have come to a different conclusion regarding the respondents' credibility and may not have been left with a reasonable doubt. The errors had a material bearing on the acquittal.

Per van Rensburg J.A. (concurring): The trial judge did not invoke impermissible myths and stereotypes in his analysis to infer consent from the complainant's entry into the trailer. The judge's treatment of the evidence about why the complainant and respondent entered the trailer was a proper, and in the circumstances necessary, part of his overall assessment of the evidence. The trailer was where the sexual contact occurred and the evidence of both parties about what happened before, during and after was relevant to the issue of consent. After concluding that the complainant's decision to walk the respondent home part way followed by her decision to enter the trailer with him was inconsistent with her testimony that she did not like him, the judge fairly commented that the complainant's inability to explain why she entered the trailer detracted from her credibility. That comment read in context did not imply that consent could be inferred from her entry into the trailer but rather was rooted in the evidence. However, the judge did engage in prohibited stereotypical reasoning in his analysis of the evidence concerning the complainant's call with her father. There was no evidentiary foundation for any inference or conclusion to be drawn about the credibility of the complainant's assertion that she had been sexually assaulted based on the lie she told her father. The trial judge apparently assumed, based on a hypothetical victim of a sexual assault who was kept in the trailer, that the complainant would have told her father the truth if she had been sexually assaulted. Lying to her father about her whereabouts, and not telling her parents she was at the trailer, was equally consistent with non-consensual as with consensual sex. The judge further erred by misapprehending and misapplying the law in deciding that the complainant's prior consistent statements were inadmissible. The judge considered only the admissibility of the complainant's statements to her friend as evidence to rebut an assertion of recent fabrication. He correctly concluded that such use could not be made because there was no recent fabrication. However, he ought to have considered whether the evidence as to the timing of the complainant's call to her friend and her emotional state during the call were admissible under the narrative as circumstantial evidence exception, and then, if admitted, evaluated the weight of such evidence and its effect on his assessment of the complainant's credibility. The combination of the trial judge's improper reliance on myths and stereotypes in assessing the evidence of the complainant's conversation with her father and his failure to consider the admissibility of the evidence of the friend constituted legal error in the assessment of the complainant's credibility that had a material bearing on the acquittals.

Cases Considered:

• R. v. Khan (2017), 136 O.R. (3d) 520, [2017] O.J. No. 745, 2017 ONCA 114, 345 C.C.C. (3d) 419, 37 C.R. (7th) 157, 137 W.C.B. (2d) 558 [Leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 139]
• R. v. Morrissey (1995), 22 O.R. (3d) 514, [1995] O.J. No. 639, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436
• 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, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602, 1991 CCAN para. 10,012
• R. v. Roth, [2020] B.C.J. No. 1333, 2020 BCCA 240, 66 C.R. (7th) 107, distd

Other Cases Referred To:

• R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, 372 C.C.C. (3d) 301, 53 C.R. (7th) 306
• R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33, EYB 2019-311744, 376 C.C.C. (3d) 1, 435 D.L.R. (4th) 191, 54 C.R. (7th) 231, 86 Alta. L.R. (6th) 1, [2019] 7 W.W.R. 191, [2019] 4 C.N.L.R. 161, 2019EXP-1485
• R. v. Cepic, [2019] O.J. No 3398, 2019 ONCA 541, 376 C.C.C. (3d) 286, 57 C.R. (7th) 166
• R. v. Cooke, [2020] N.S.J. No. 364, 2020 NSCA 66
• R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, 422 D.L.R. (4th) 469, [2018] 4 W.W.R. 433, 65 Alta. L.R. (6th) 38, 43 C.R. (7th) 207, 144 W.C.B. (2d) 295, affg [2017] A.J. No. 746, 2017 ABCA 237, 422 D.L.R. (4th) 471, [2017] 11 W.W.R. 508, 55 Alta. L.R. (6th) 213, 353 C.C.C. (3d) 1, 40 C.R. (7th) 306, 140 W.C.B. (2d) 583
• R. v. Delmas, [2020] S.C.J. No. 39, 2020 SCC 39, 452 D.L.R. (4th) 371, affg [2020] A.J. No. 471, 2020 ABCA 152, 452 D.L.R. (4th) 375
• R. v. E. (M.), [2015] B.C.J. No. 254, 2015 BCCA 54, 368 B.C.A.C. 89, 120 W.C.B. (2d) 141, 319 C.C.C. (3d) 352
• R. v. Ewanchuk, [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, 1999 SCC 711, 169 D.L.R. (4th) 193, 235 N.R. 323, [1999] 6 W.W.R. 333, J.E. 99-543, 68 Alta. L.R. (3d) 1, 232 A.R. 1, 131 C.C.C. (3d) 481, 22 C.R. (5th) 1, 41 W.C.B. (2d) 122, 1999 CCAN para. 10,007
• R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, 69 W.C.B. (2d) 721, EYB 2006-104245, JCPQ 2006 -95
• R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, 421 N.R. 76, 283 O.A.C. 379, EYB 2011-196549, 2011EXP-3033, J.E. 2011-1701, 87 C.R. (6th) 213, 276 C.C.C. (3d) 197, 342 D.L.R. (4th) 347, 96 W.C.B. (2d) 356
• R. v. Lacombe, [2019] O.J. No. 6023, 2019 ONCA 938, 383 C.C.C. (3d) 114, 59 C.R. (7th) 390
• R. v. Luceno, [2015] O.J. No. 5826, 2015 ONCA 759, 331 C.C.C. (3d) 51, 341 O.A.C. 223
• R. v. MacKenzie, [1993] 1 S.C.R. 212, [1993] S.C.J. No. 7, 146 N.R. 321, JE 93-249, 118 N.S.R. (2d) 290, 78 C.C.C. (3d) 193, 18 C.R. (4th) 133, 18 W.C.B. (2d) 348, 1993 CCAN para. 10,003
• R. v. Mann, [2020] B.C.J. No. 2024, 2020 BCCA 353
• R. v. Mugabo, [2017] O.J. No. 1979, 2017 ONCA 323, 138 W.C.B. (2d) 316, 348 C.C.C. (3d) 265
• R. v. Murphy, [1977] 2 S.C.R. 603, [1976] S.C.J. No. 87, 70 D.L.R. (3d) 42, 9 N.R. 329, [1976] 5 W.W.R. 65, 29 C.C.C. (2d) 417, 35 C.R.N.S. 44
• R. v. Quartey, [2018] 3 S.C.R. 687, [2018] S.C.J. No. 59, 2018 SCC 59, 430 D.L.R. (4th) 377, affg [2018] A.J. No. 55, 2018 ABCA 12, 144 W.C.B. (2d) 292, 430 D.L.R. (4th) 381, 43 C.R. (7th) 359
• R. v. Seaboyer; R. v. Gayme (1991), 4 O.R. (3d) 383, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 83 D.L.R. (4th) 193, 128 N.R. 81, J.E. 91-1312, 48 O.A.C. 81, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117, 6 C.R.R. (2d) 35, 13 W.C.B. (2d) 624, 1991 CCAN para. 10,024
• R. v. Vézeau, [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, 66 D.L.R. (3d) 418, 8 N.R. 235, 28 C.C.C. (2d) 81, 34 C.R.N.S. 309, 1976 CCAN para. 10,009

Statutes Referred To:

• Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a)

Authorities Referred To:

• Dufraimont, Lisa"Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44:2 Queen's L.J. 316
• Paciocco, David M."The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181

Appeal by Crown from acquittals for sexual assault entered by Koke J. of the Superior Court of Justice, reported at [2019] O.J. No. 3015, 2019 ONSC 3207 (S.C.J.).

Counsel:

• John Patton, for appellant.
• Lindsay Board and Mark Halfyard, for respondent.

[1] BENOTTO J.A. (THORBURN J.A. concurring): — This is a Crown appeal from acquittals.

[2] The respondent, T.J., was charged with sexual assault against A.V. and two counts of breaching a recognizance. T.J. was 23 years old at the time of the alleged assault and A.V. was 18. The only issue at trial was consent. There were no witnesses to the alleged assault. Credibility was the main issue.

[3] The Crown submits that the trial judge erred by: (i) excluding the complainant's prior consistent statement; and (ii) improperly assessing the complainant's credibility by relying on stereotypes about victims of sexual assault.

[4] For the reasons that follow, I have concluded that the trial judge erred in law by relying on rape myths to assess the complainant's credibility. It is therefore not necessary to address the other ground of appeal.

Background

[5] A.V. lived in the small town of [name of town omitted], near [name of town omitted]. T.J. lived in [name of town omitted], but his parents lived in [name of town omitted]. In July 2018, T.J. went to [name of town omitted] and asked his mother about meeting people his age. His mother told him about A.V. T.J. sent A.V. a friend request on Facebook, they exchanged messages and agreed to meet when he was in [name of town omitted].

[6] They first met at a school yard. The next day they, together with a female friend of A.V.'s, went swimming at the local docks. While there, they drank alcohol. They then went to A.V.'s home, visited with A.V.'s parents and consumed more alcohol. They were both noticeably intoxicated when it was time for T.J. to go home. A.V. said she would walk him halfway.

[7] Up until this point in the narrative the evidence of A.V. and T.J. was consistent. It then diverged.

[8] A.V. testified as follows. During the walk, T.J. attempted to kiss her, but she pushed him away. Further along the walk, they came upon an abandoned trailer. T.J. suggested they go inside. When they entered the trailer, T.J. tried to kiss her, but she told him she just wanted to go home. T.J. then kissed her, came up behind her, grabbed both of her wrists and held them while pulling her shorts down. He then penetrated her vaginally and anally while she repeatedly asked him to stop and insisted that she wanted to go home. T.J. was bigger than she was, and she could not get away from him. T.J. called her a "bitch", ordered her to "shut up", and told her that he could provide for her and buy a house for her.

[9] T.J. testified as follows. They shared a kiss on the walk, and A.V. did not resist or push him away. A.V. suggested they go inside the trailer. He was reluctant to go inside because it was someone else's property. They kissed some more. Once inside the trailer, A.V. took off her clothes, he did the same and they then had vaginal and anal intercourse for about 30-40 minutes. They hugged goodbye before they separated.

[10] A.V.'s parents started calling her because she was taking too long. She eventually responded and told her father that she was near the legion and would be home soon. Her mother testified that after the phone call it took A.V. longer to get home than it should have if she was at the legion.

The Trial Judge's Credibility Assessment

[11] The trial judge concluded that both T.J. and A.V. were credible, but there were two areas of A.V.'s testimony that raised questions about her credibility:

(1) A.V. could not provide a reason or explanation for her decision to enter the abandoned trailer. The trial judge said she could not have been motivated by curiosity because she had been inside the trailer previously and also noted that she did not say she was coerced into the trailer. The trial judge found that A.V.'s decision to walk T.J. part-way home and enter the trailer was inconsistent with her testimony that she did not like T.J.

(2) There was inconsistency with respect to the phone call with A.V.'s parents. A.V.'s parents had been calling her to find out where she was because it was getting dark. When A.V. returned the call, she told her father she was close to home, by the legion. A.V.'s mother testified that it took quite a while for A.V. to get home even though the legion was only a few minutes from her home. The testimony of A.V.'s mother was consistent with T.J.'s testimony that A.V. talked to her father after they had engaged in sexual activity and then walked home, which was about a 20-minute walk. The trial judge found that this meant A.V. was not being candid with her father. The trial judge found that this was not [at para. 74] "the response of someone who has just been sexually assaulted and has been kept in a trailer against her wishes".

[12] The trial judge relied on R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, and found that while he was not prepared to believe all of T.J.'s evidence, he was left with a reasonable doubt. The trial judge entered acquittals on all counts.

Position of the Parties

[13] The Crown submits that it was an error for the trial judge to demand a reason for the complainant's decision to go into the trailer. The Crown submits that A.V. did not have to advance a reason for going into the trailer because a location does not imply consent to sexual activity. The Crown submits that the fact that A.V. entered the trailer with T.J. is not inconsistent with her testimony that she did not like T.J. in a sexual way. The complainant explained her decision to walk T.J. home as being polite. The Crown submits that the entire topic of why A.V. went into the trailer was irrelevant to whether she consented to sexual contact with the respondent. As such, the trial judge erred in drawing an inference that the complainant wanted to have sex with T.J. based on her decision to enter the trailer. The Crown submits that this conclusion was based on stereotypical and myth-based reasoning.

[14] The Crown submits that the trial judge also erred in finding that A.V.'s conversation with her father was not consistent with how someone who had been sexually assaulted would act. The trial judge's comments amount to a direct violation of the fundamental legal principle that there is no inviolable way a victim of crime, in particular a victim of a sexual crime, may react. The Crown submits that any reaction to sexual violation, including selective or delayed disclosure, is personal and should have no bearing on whether a complainant should be believed.

[15] The respondent submits that the trial judge did not demand a reason for entering the trailer. The trial judge concluded that A.V.'s decision to enter the trailer was inconsistent with her evidence that she did not like the respondent. The respondent submits that this was an appropriate and necessary line of reasoning as to credibility.

[16] The respondent acknowledges that the trial judge's language was not ideal with respect to the A.V.'s conversation with her father. However, the respondent submits that the trial judge's finding was one that was available to him based on the larger context of the complainant's evidence and considering the respondent's contrary evidence. The respondent submits that the trial judge's challenged remarks should not be viewed in isolation and relies on R. v. Morissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193, at p. 203 C.C.C., for the following: "[w]here a phrase in a trial judge's reasons is open to two interpretations, the one which is consistent with the trial judge's presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application".

Analysis

[17] The Crown's right of appeal from acquittals is restricted to questions of law alone: s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. An assessment of the evidence on a wrong legal principle constitutes and error of law: R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, at para. 29; R. v. Luceno, [2015] O.J. No. 5826, 2015 ONCA 759, 341 O.A.C. 223, at para. 34. Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, at para. 2.

[18] R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at para. 95, demonstrates that the law has been seeking to eradicate myths about the appropriate behaviour of victims of sexual assault for decades:

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.

[19] The use of a common-sense approach to credibility assessment is fraught with danger for it can "mask reliance on stereotypical assumptions": R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 7.

[20] Here, the trial judge applied irrelevant stereotypical views about the behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment. He did this twice: first when considering A.V.'s evidence about why she went into the trailer; second when discussing her call with her parents.

A.V.'s reasons for entering the trailer

[21] The trial judge said this [at paras. 66 and 70]:

. . . A.V. was unable to provide the court with a reason or an explanation for her decision to enter the abandoned house trailer with T.J. She could not have been motivated by curiosity...she testified that she had been inside the trailer previously. Also, she did not suggest that she was "talked into" or in any way coerced into entering the trailer by T.J.

In my view, A.V.'s decision to walk T.J. partway home, for no discernable reason, followed by her decision to enter the trailer with [him] especially at that late hour, is inconsistent with her testimony that she did not like T.J. Her refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility.

(Emphasis added)

[22] Although the trial judge refers to the inconsistency in A.V.'s testimony -- not liking T.J. but going into the trailer with him anyway -- as part of his credibility assessment, inherent in the analysis is a stereotypical assumption. The implication in the trial judge's reasons is that consent can be inferred from the complainant's entry into the trailer. This is wrong in law.

[23] In the emphasized text above, the trial judge went beyond assessing credibility and made an inference about consent because he could not imagine another reason to enter the trailer other than to have consensual sex. It was open to the trial judge to hold that the complainant's inability to answer impacted her credibility, but he went further. In so doing, he relied on stereotypes and assumptions -- that a woman would not enter a building at night with a man unless she wanted sex -- to conclude that the complainant wanted to have sex.

[24] It may be that a person's reasons for entering a premise -- whether a trailer or a hotel room -- may have relevance to a credibility assessment. I recognize the subtlety. But stereotypical assumptions are often couched as credibility assessments. Significantly, this was not the trial judge's only use of stereotypical reasoning. His use of the evidence concerning the phone call significantly crosses the line into impermissible reasoning and compounds my concern about his use of the complainant's reasons for entering the trailer.

A.V.'s communication with her parents

[25] The evidence surrounding A.V.'s communication with her parents was imprecise at best.

[26] A.V. testified that she texted her father that she would be home soon. She did not recall speaking to either parent but testified that she did not speak to either parent when she was in the trailer.

[27] T.J. testified that they had sex for 30-40 minutes. He said that A.V. got a call and declined it, then she got another phone call and answered it. In chief he said"I think it was her dad, and he said where are you, and she's like I'm at the Legion, I'll be home soon." In cross-examination he said he was not sure if it was the father or the mother.

[28] A.V.'s mother -- who was not on the call -- testified. The father did not. The mother said her husband was told that A.V. was close to the Legion and would be home in a few minutes.

[29] The trial judge said this about A.V.'s communication with her parents [at paras. 71-74]:

The second area of concern I have about A.V.'s testimony is in relation to her conversation with her father. A.V.'s mother testified that after noticing how dark it was becoming she called A.V. on her cell phone, but did not receive an answer. She then called 10 to 15 minutes later and again no answer. Later, her husband called A.V. and A.V. returned his call, informing him that she was close to home, by the legion and would be home shortly. Notwithstanding the fact that the legion was only a several minute walk from her home, her mother testified that it was "quite a while" before A.V. returned home.

Her mother's testimony with respect to the phone call is consistent with the evidence of T.J., who testified that after they had engaged in sexual activities for about 30-40 minutes A.V. received a call from her father and informed him that she would be home soon. Immediately thereafter, she put her clothes back on and started her walk home, which was about a 20 minute walk.

If I accept her mother's evidence about the phone calls, which I do, I can only come to the conclusion that A.V. was not being candid with her father when she informed him that she was close to the legion, only minutes away and would be home shortly. Given the time it would have taken her to walk home from the trailer, it would appear that she was still in the trailer when she spoke to her father, but for some reason she did not want him to know this.

In my view, A.V.'s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes. It is more consistent with the response of someone who is attempting to conceal her activities and whereabouts from her parents.

(Emphasis added)

[30] The comments emphasized above reflect the use of an impermissible assumption.

[31] Relying on R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, the respondent submits that a complainant's conduct after an alleged assault can be considered in the context of a particular set of facts. In Roth, the complainant testified that she was being assaulted by the accused when she realized that she left her phone in a taxi. The accused allowed her to call the taxi company and go to the door to get her phone provided that she say nothing about the assault. She testified that she answered the door, leaving it only partly open and remained inside fearing that the accused was nearby. Consequently, she said nothing to the taxi driver. The taxi driver testified that the complainant had come outside and closed the door behind her to keep her dogs from getting out. Under these circumstances, the court said at paras. 129-130:

Let me pause here to note that the judge correctly rejected defence counsel's improper suggestion, based on this evidence, that the "mere fact" the complainant did not say something about a sexual assault to the driver (or call the police), undermined her credibility on the issue of consent. It is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous "common sense" assumptions about how a sexual assault complainant is expected to act, including that they would immediately disclose the fact of an assault or seek assistance.

However, this does not mean that the evidence surrounding the driver's attendance at the home, including the complainant's conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it. The risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case's particular "factual mosaic". In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

(Citations omitted)

[32] Roth is of no assistance here. There were no assumptions about the reason for the complainant's conduct. There was no suggestion that the complainant was acting in an unexpected way for a victim of sexual assault. Rather, the complainant's evidence that she did not ask the cab driver to call the police because she was afraid of the appellant was inconsistent with the cab driver's evidence that she was outside of the house and the door to the house was closed. The distinction is significant.

[33] Here the trial judge specifically found [at para. 74] that A.V.'s conversation with her father "does not appear to be the response of someone who has just been sexually assaulted". This is a classic example of an assumption made by a trial judge as to what a victim of an assault would do.

Impact of the Error

[34] I do not agree with the respondent that regardless of the trial judge's misuse of stereotypes, ultimately his W. (D.) analysis resolved the case. The respondent points to para. 77, where the trial judge states:

In this case I find that both T.J. and A.V. generally presented as credible witnesses, notwithstanding the fact that A.V.'s evidence raised some questions and concerns in my mind . . . In the circumstances, although I am not prepared to find that I believe all of the evidence of T.J., his evidence does leave me with a reasonable doubt, and in the circumstances, I must acquit him.

[35] The trial judge's articulation of A.V.'s failure to explain her decision to enter the trailer and his description of her communication to her father, were based on the legally impermissible assumptions that: (i) by going into the trailer A.V. must have consented to sex; and (ii) A.V. did not disclose to her father because she had consented. The compounding effect of these two references defeats the respondent's reliance on Morissey.

[36] I now turn to remedy.

[37] To overturn an acquittal, the Crown must show, to a reasonable degree of certainty, that the verdict might have been different had the error not been made: R. v. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1977] S.C.J. No. 71, at p. 282 S.C.R.; R. v. MacKenzie, 1993 149 (SCC), [1993] 1 S.C.R. 212, [1993] S.C.J. No. 7, at pp. 247-48 S.C.R.

[38] As this court said in R. v. A. (A.B.), supra, at para. 15:

The Crown does not have to establish that the verdict would necessarily have been different. In R. v. Graveline, 2000 CSC 16, 2000 SCC 16, [2006] 1 S.C.R. 609, at para. 14, Fish J. for the majority held that the Crown must establish that the errors "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal", and elaborated as follows:

It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[39] The respondent submits that any alleged error is immaterial because there was an independent pathway to acquittal -- the trial judge was left in doubt by the respondent's evidence. Therefore, on the W. (D.) analysis, T.J. would have been acquitted. I do not agree that the issue of materiality can be so easily solved.

[40] The only issue before the trial judge was credibility. The result turned on his weighing the evidence of the complainant and the respondent. The evidence of the complainant was considered in relation to the respondent and assumptions were made as to her consent. For example: T.J. testified that A.V. initiated the visit to the trailer. The trial judge said that his evidence suggests that she intentionally chose the privacy of the trailer to engage in sex with him before returning home.

[41] Had the trial judge not made the errors that he did in assessing A.V.'s credibility, he might have come to a different conclusion with respect to T.J.'s credibility and may not have been left with a reasonable doubt as to the respondent's guilt.

[42] The trial judge assessed the complainant's credibility by applying stereotypical views about how victims of sexual assault would behave. The reasonable doubt that he found in the respondent's evidence was inextricably linked to his credibility assessment of A.V. This assessment was fundamentally flawed.

[43] I am satisfied that the errors had a material bearing on the acquittals.

[44] I have read my colleague's concurring reasons. I agree with her articulation of the error of the trial judge in refusing to admit the evidence of the complainant's call with C.D. In my view, this error exacerbates his improper use of the stereotypical reasoning I have described.

[45] I would allow the appeal and order a new trial.

[46] VAN RENSBURG J.A. (concurring): -- I have read my colleague's reasons for allowing the Crown's appeal in this case. I agree that the appeal should be allowed, however, I reach this result for different reasons.

[47] The Crown raised two issues on appeal, having to do with: (1) the trial judge's reliance on prohibited stereotypical reasoning in two areas of the complainant's testimony; and (2) his refusal to admit evidence of the complainant's prior consistent statements. Both errors are said to have affected the trial judge's assessment of the complainant's credibility in a fundamental way, such that the Crown would meet its heavy burden of showing that there is a reasonable possibility that, if the errors had not been made, the verdict would have been different.

[48] As I will explain, I disagree with my colleague that the trial judge relied on stereotypical assumptions about how victims of sexual assault behave in his treatment of A.V.'s evidence about why she entered the trailer, where the alleged sexual assault occurred. I do however agree that the trial judge crossed the line into impermissible stereotypical reasoning in his treatment of A.V.'s lie about her whereabouts in her conversation with her father. Because in my view this error standing alone would not be sufficient to undermine the trial judge's assessment of the complainant's credibility, I find it necessary to also address the Crown's second ground of appeal: that the trial judge erred in refusing to admit evidence of the complainant's call with C.D.

[49] In my view, the trial judge erred when he considered only whether A.V.'s prior consistent statement to C.D. was admissible to rebut an allegation of recent fabrication, and he did not address the Crown's argument that the evidence of the call should be admitted as "narrative as circumstantial evidence" to assist in the assessment of the complainant's credibility. Nor did the trial judge consider the admissibility of the evidence of A.V.'s emotional state when she made the call.

[50] I am satisfied that, when these legal errors are considered together, the Crown has met its burden to satisfy this court that the errors "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal": see R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at para. 14.

[51] I will begin my concurring reasons by discussing the trial judge's alleged reliance on impermissible myths and stereotypes, explaining where my views differ from those of my colleague. Then, I will address the trial judge's decision not to admit the evidence of A.V.'s conversation with C.D. I will conclude by explaining why the errors in this case are sufficient to warrant allowing the Crown's appeal, setting aside the acquittals and directing a new trial.

(1) The Trial Judge's Alleged Reliance on Impermissible Myths and Stereotypes

[52] This case highlights the challenge that appellate courts can face in distinguishing between prohibited lines of reasoning and reasonable, context-specific inferences drawn by a trial judge in assessing credibility in sexual assault cases. I begin with a summary of the principles that in my view inform the consideration of this ground of appeal.

[53] The point of departure is that evidence of the surrounding circumstances, including the complainant's conduct, leading up to, during and after an alleged sexual assault can be relevant to the determination of whether or not a complainant consented. Because consent, which is part of the actus reus of the offence, is subjective, the court must determine the complainant's state of mind at the time of the sexual activity. Although the complainant's testimony is typically the only direct evidence regarding her subjective state of mind"credibility must still be assessed by the trial judge, or jury, in light of all of the evidence": see R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at para. 29. As the majority of the Supreme Court observed, in defending a sexual assault allegation"[i]t is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place": at para. 29. The trial judge will consider "whether the totality of the complainant's conduct is consistent with her claim of non-consent": at para. 30.

[54] Accordingly, it is appropriate and necessary for the trier of fact to consider the circumstances surrounding the alleged sexual assault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to and following the incident. Circumstantial evidence can assist the defence in raising a reasonable doubt on the issue of consent; it can also assist the Crown in proving non-consent: see Lisa Dufraimont"Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44:2 Queen's L.J. 316, at pp. 328-29.

[55] It is, however, an error for the trier of fact to rely on erroneous myths and stereotypes about how a sexual assault complainant is expected to act. "It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies grounded in a search for 'expected' post-sexual assault behaviour": R. v. D. (A.R.J.), [2017] A.J. No. 746, 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 64, affd [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6. Triers of fact may rely on "reason and common sense""life experience" and "logic" in making assessments of credibility; however, they fall into error if they rely on prejudicial or stereotypical reasoning in making such assessments: see R. v. Delmas, [2020] A.J. No. 471, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, affd [2020] S.C.J. No. 39, 2020 SCC 39, 452 D.L.R. (4th) 371.

[56] The concern arises when the trier of fact draws inferences based on generalizations about human behaviour; it is in this process that drawing a common-sense inference may mask stereotypical or discriminatory reasoning: see D. (A.R.J.), at paras. 6-7; R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 7; and R. v. Cepic, [2019] O.J. No 3398, 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 13. Stereotypical reasoning is a substitute for reasoning that is grounded in the evidence: see R. v. Mann, [2020] B.C.J. No. 2024, 2020 BCCA 353, at paras. 64, 70-72. See also R. v. Quartey, [2018] A.J. No. 55, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, affd [2018] 3 S.C.R. 687, [2018] S.C.J. No. 59, 2018 SCC 59.

[57] It is a fact-finder's reliance on myths and stereotypes as part of the credibility assessment that is objectionable, and not the consideration of evidence of the complainant's conduct itself. A trial judge is entitled to draw reasonable inferences which are rooted in the evidence to assess the complainant's conduct as part of the credibility analysis. In R. v. Roth, [2020] B.C.J. No. 1333, 2020 BCCA 240, 66 C.R. (7th) 107, after noting that it is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous "common sense" assumptions about how a sexual assault complainant is expected to act, DeWitt-Van Oosten J.A. observed at para. 130:

The risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case's particular "factual mosaic". In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

(Emphasis added; citations omitted)

[58] It can be difficult on appeal to determine whether a trial judge crossed the line from drawing legitimate inferences from circumstantial evidence to reliance on stereotypical reasoning. See, for example, the majority and dissenting reasons in the Alberta Court of Appeal and the Supreme Court in Delmas about whether the trial judge relied on myths and stereotypes in his assessment of the evidence of the appellant who was convicted of sexual assault. As Pepall J.A. observed in R. v. Lacombe, [2019] O.J. No. 6023, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 55, express identification by the trial judge of the impugned assumptions is unnecessary; a review of the trial judge's reasons may demonstrate that impermissible stereotypical sexual and myth-based reasoning was employed in assessing a complainant's credibility and reliability. Trial judges may rely on stereotypical reasoning, even where they have instructed themselves appropriately to avoid such reasoning: see, e.g., A. (A.B.), at para. 8. In determining the issue, the trial judge's reasoning must be taken as a whole and viewed in context: see Mann, at para. 72.

[59] It is helpful in conducting the analysis of whether impermissible reasoning has occurred to specifically identify the myth or stereotype that the trial judge is said to have relied on. A non-exhaustive list of common myths and stereotypes about victims and perpetrators of sexual assault is set out in R. v. Seaboyer; R. v. Gayme (1991), 4 O.R. (3d) 383, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at pp. 651-54 S.C.R. The central issue is to determine whether the trier of fact has drawn inferences that are rooted in the particular facts of the case and supported by the evidence or has drawn inferences based on generalizations about human behaviour that on closer examination reveal stereotypical reasoning.

[60] I turn now to address the two areas where the trial judge is alleged to have relied on impermissible myths and stereotypes in his assessment of the complainant's credibility. The first has to do with the evidence about the entry of A.V. and the respondent T.J. into the abandoned trailer where the sexual contact took place. The second is said to arise in the trial judge's treatment of the complainant's lie in a conversation with her father.

(a) A.V.'s reasons for entering the trailer

[61] The Crown argued, and my colleague agrees, that inherent in the trial judge's analysis is a stereotypical assumption that consent could be inferred from A.V.'s entry into the trailer, and that the trial judge went beyond assessing credibility and drew an inference about consent because he could not imagine that a woman would enter a building at night with a man unless she wanted to have sex.

[62] I disagree. In my view, the trial judge's treatment of the evidence about why A.V. and the respondent entered the trailer was a proper, and in the circumstances of this case necessary, part of his overall assessment of the evidence. The trailer was where the sexual contact took place and the evidence of A.V. and T.J. about what happened before, during, and after they entered the trailer was relevant to the issue of consent.

[63] A.V. testified that she had no problem when her mother refused her request that the respondent sleep over because she did not want T.J. at her home in the first place, he was loud and obnoxious, she was pretty sure he had asked her father for marijuana, and he was giving her "weird vibes". She explained that she had offered to walk the respondent partway home because she did not want to be rude, and that they left the house around 8:00 p.m. A.V. testified that T.J. tried to kiss her as they were walking past the Legion (about a minute away from her house), and she had pushed him away.

[64] A.V. testified that when they were about 20 minutes away from her house, they came upon a trailer that was about 20 feet off the road in a field. She knew the trailer had been abandoned for years and she had been in it before. When asked whose idea it was to go to the trailer, A.V. responded that it was T.J.'s idea. She added, however, that she "walked to the trailer willingly" (in contrast to the police statement put to her in cross-examination, in which she said she had been taken or brought to the trailer). When the Crown asked why she walked to the trailer A.V. replied"I do not know . . . We just kind of walked there." She was asked what her thoughts were when T.J. asked her about the trailer before they entered it. She responded"I didn't think anything of it at all." Under cross-examination A.V. reiterated her response about why she thought she would be entering the trailer"[n]othing, there was no thought about it". When asked what she was expecting to do in the trailer, she said: "Nothing, we were just looking around."

[65] T.J.'s evidence was that he and A.V. had shared a kiss by the Legion and that it was mutual, that it was A.V. who suggested they go inside the trailer, and that they had kissed for a while on the road in front of the trailer before entering it.

[66] The Crown points to para. 70 of the reasons for judgment as revealing reliance on impermissible myths and stereotypes where the trial judge stated:

In my view, A.V.'s decision to walk T.J. partway home, for no discernable reason, followed by her decision to enter the trailer with [T.J.], especially at that late hour, is inconsistent with her testimony that she did not like T.J. Her refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility.

(Emphasis added)

[67] The Crown's first argument about this passage is that the trial judge erred in demanding a reason from A.V. for why she entered the trailer when no explanation was required. The Crown submits that "the entire topic" of why A.V. entered the trailer was irrelevant. I disagree. "Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible": Roth, at para. 131, citing Dufraimont, at p. 353; R. v. Cooke, [2020] N.S.J. No. 364, 2020 NSCA 66, at para. 29. In the circumstances of this case what was in A.V.'s mind when she entered the trailer -- which is where the alleged sexual assault took place -- was something that was appropriate for the trial judge to consider.

[68] The Crown also contends that the trial judge's reference to A.V. not providing a reason for entering the trailer demonstrates a reliance on the assumption or myth that a woman would not enter a building at night with a man unless she wanted sex to then conclude that A.V. consented to the sex.

[69] I do not read the trial judge's reasons in this way. In my view, the trial judge was properly assessing A.V.'s testimony that she did not like T.J. and was only walking him partway home to be polite against the fact that she had gone into the trailer with him at a late hour "for no reason" when she was expected home. In para. 69 of his reasons the trial judge referred to A.V.'s testimony that she had no problem with her mother's refusal to permit T.J. to spend the night because she did not want him at her home that evening in the first place, that she did not like the way he talked to her parents, that he was loud and obnoxious, and that she was pretty sure that he asked her dad for pot. It was in the context of his assessment of this evidence that the trial judge stated [at para. 66] that the complainant "was unable to provide the court with a reason or an explanation for her decision to enter the abandoned house trailer with T.J.". He had observed that A.V. could not have been motivated by curiosity, as she had testified that she had been inside the trailer previously, and that "she did not suggest that she was 'talked into' or in any way coerced into entering the trailer".

[70] After concluding that A.V.'s decision to walk T.J. partway home followed by her decision to enter the trailer with him, especially at that late hour, was [at para. 70] "inconsistent with her testimony that she did not like T.J.", the trial judge fairly commented that A.V.'s "refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility". This final comment about A.V.'s credibility, when read in context, does not imply that consent could be inferred from her entry into the trailer. As my colleague acknowledges"[i]t was open to the trial judge to hold that the complainant's inability to answer impacted her credibility". The trial judge's statement about A.V.'s credibility was rooted in the evidence and did not invoke stereotypical assumptions.

[71] I therefore disagree with my colleague's conclusion that the trial judge invoked impermissible myths and stereotypes in his analysis to infer consent from A.V.'s entry into the trailer based on assumptions that a woman would not enter a building at night with a man unless she wanted sex.

(b) A.V.'s communication with her parents

[72] The second area of concern about A.V.'s evidence identified by the trial judge is in relation to her having told her father she was at the Legion and would be home soon, when she was still in the trailer with the respondent. In asserting that the trial judge improperly relied on stereotypical myths, the Crown focuses on the statement in the trial judge's reasons [at para. 74] that "A.V.'s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes". The Crown asserts that the trial judge improperly compared the complainant to a "typical" sexual assault victim who would have told her father the truth about her whereabouts.

[73] I begin by observing that while this statement considered in isolation may suggest that there was stereotypical reasoning (because it compares the complainant with "someone who has just been sexually assaulted") the statement must be considered in context to determine whether, as the respondent submits, this was simply an unfortunate choice of words in circumstances where the trial judge was properly considering a possible lie and inconsistency in assessing the complainant's credibility.

[74] The evidence about A.V.'s communications with her parents while she was in the trailer was inconsistent and somewhat confusing.

[75] A.V. testified that at the relevant time, in terms of outgoing communications, she could only send messages by text on her cell phone; and that, although she could receive calls, she could not make an outgoing call except by using her data. In her evidence-in-chief A.V. did not mention any text messages or calls with her parents. Under cross-examination A.V. said that, not long after she and the respondent got to the trailer, her parents started calling her. She testified that she thought she had responded to the first call with a text to her father saying that she would be home soon. She testified that her parents had called back 15 or 20 minutes later, but she could not remember speaking to her mother before she got home that night. In re-examination A.V. testified that her mother had called before she was assaulted, while she was in the bedroom of the trailer, and that she had ignored the call. She testified that she did not remember her mother calling and telling her mother that she was near the Legion and would be home shortly, and she denied having spoken to her parents while she was in the trailer.

[76] A.V.'s mother testified that, after noticing how dark it was, she made two calls to her daughter, receiving no answer and that later A.V. had returned a call from her father in which she told him she was "close to the Legion and she'll be home in a few minutes". It was, however "a while after she'd made the call" before A.V. got home.

[77] The trial judge noted that the mother's testimony with respect to the call was consistent with the respondent's evidence -- he testified that A.V. received a call from her father while they were in the trailer, that she had responded that she would be home soon, and that she immediately got dressed and left the trailer.

[78] It would have been appropriate for the trial judge to consider the evidence about the calls in assessing A.V.'s credibility -- for example, in determining whether the timing of the calls and A.V.'s response was consistent with her narrative of how the sexual assault had unfolded. In assessing the evidence of the text messages and calls and its impact on A.V.'s credibility, however, the trial judge focused only on the fact that during a call (that A.V. did not remember), she had lied to her father. His conclusion about how this affected the complainant's credibility is stated at para. 74 of his reasons:

In my view, A.V.'s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes. It is more consistent with the response of someone who is attempting to conceal her activities and whereabouts from her parents.

[79] The problem with the trial judge's reasoning is that there was no evidentiary foundation for any inference or conclusion to be drawn about the credibility of the complainant's assertion that she had been sexually assaulted based on the lie she told her father. She was not questioned about why she might have lied, because she did not remember the call, and she denied having talked to her parents when she was in the trailer. The trial judge appears to have assumed, based on a hypothetical victim of a sexual assault who was kept in the trailer, that the complainant would have told her father the truth if she had been sexually assaulted. He compared A.V.'s lie, with what he would have expected a victim of sexual assault to have done. However, there was nothing in the evidence to support the conclusion that A.V. would have told her parents the truth about her whereabouts if she had been sexually assaulted. Lying to her father about her whereabouts, and not telling her parents she was at the trailer, was equally consistent with non-consensual as consensual sex.

[80] For these reasons, while I do not agree with my colleague that the trial judge engaged in stereotypical reasoning in relation to the evidence about why the complainant entered the trailer, I agree that he engaged in such prohibited reasoning in his analysis of the evidence concerning the complainant's call with her father. I turn to consider the second ground of appeal: that the trial judge erred in excluding evidence of the complainant's prior consistent statements.

(2) The Trial Judge's Exclusion of A.V.'s Prior Consistent Statements

[81] The Crown contends that the trial judge misapprehended and misapplied the law in deciding that A.V.'s prior consistent statements were inadmissible.

[82] A.V. testified that after leaving the trailer she had immediately called her best friend C.D. through her data, that she told C.D. what happened, and that C.D., who had to go to work the next day, told her to go to the police. C.D. testified that she received a call from A.V. the night of the alleged assault in which A.V. said that T.J. raped her. C.D. testified that A.V. was clearly upset and crying very hard, and she had the impression A.V. was "pretty intoxicated".

[83] A.V. also testified that she had texted her sister and her ex-boyfriend on the way home, that both had called her back, and that she had told them what had taken place. She also stated that after she returned home, she had talked to her neighbour and had told him what had happened. There was no other evidence at trial about these calls or conversations, and the sister, ex-boyfriend, and neighbour were not called as witnesses at the trial.

[84] At trial Crown counsel argued that the court should consider the evidence of C.D., which included the fact of the telephone call and its timing, the substance of what A.V. said, and the complainant's demeanour during the call. The Crown argued that A.V.'s statements to C.D. were admissible to rebut an allegation of recent fabrication. The Crown also relied on the narrative as circumstantial evidence exception recognized in R. v. Khan (2017), 136 O.R. (3d) 520, [2017] O.J. No. 745, 2017 ONCA 114, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 139 to argue that the trial judge could use the statement as context and background to assist in his assessment of the complainant's credibility. Finally, the Crown argued that C.D.'s evidence about A.V.'s emotional state so close in time to the incident was "very probative" evidence.

[85] On appeal Crown counsel makes two arguments. First, he submits that the trial judge erred in failing to determine the admissibility of all of the complainant's prior consistent statements, which included A.V.'s evidence that she had called her ex-boyfriend and her sister and had told them she had been raped, and that she had spoken with her neighbour after she got home. The trial judge addressed only the admissibility of A.V.'s prior consistent statement to C.D. in his reasons for judgment, when he should have considered all of A.V.'s prior consistent statements which demonstrated a "nuanced disclosure pattern".

[86] Second, Crown counsel submits that the trial judge erred in considering the admissibility of C.D.'s evidence only as evidence to rebut recent fabrication, and that he failed to consider the other viable ground argued by the Crown -- that the evidence should be admitted under the "narrative as circumstantial evidence" exception. In addition, the trial judge failed to consider the evidence that C.D. provided of the complainant's emotional state during the call, which occurred just after she left the trailer.

[87] The respondent asserts that the trial judge addressed and properly rejected both grounds for the admission of C.D.'s evidence, and that he may well have considered the post-offence demeanour evidence that the complainant was crying and upset when she called C.D. in his assessment of the complainant's credibility, giving it the weight, it deserved.

[88] I would not give effect to the Crown's argument that the trial judge erred in failing to consider the admissibility of the evidence of prior consistent statements made by A.V. to her sister, former boyfriend and neighbour. The trial judge did not rule on the admissibility of this evidence because he was not invited to do so, nor did the Crown at trial make an argument about the complainant's disclosure pattern. The Crown's submissions at trial on prior consistent statements were all directed to the evidence of C.D. Since the statements to the sister, former boyfriend and neighbour were presumptively inadmissible, and the Crown did not argue for their admissibility for any purpose -- whether to show a "nuanced disclosure pattern" or at all -- the trial judge cannot be faulted for failing to address the admissibility of the complainant's prior consistent statements other than those made to C.D.

[89] I do however agree with the Crown that the trial judge erred in failing to consider the admissibility of C.D.'s evidence about the conversation with A.V. under the narrative as circumstantial evidence exception and as post-event demeanour evidence. Contrary to the respondent's submission, the trial judge's reasons cannot be read as having addressed these bases for admission of the evidence. The trial judge referred only to the Crown's submissions on rebutting an allegation of recent fabrication and his reasons only respond to that argument.

[90] The trial judge stated at paras. 61 and 62 of his reasons:

The Crown submits that the statements to C.D. should be admitted on the basis that their admission is intended to rebut a suggestion by the defence of a recent fabrication.

In my view, the statements to C.D. should be excluded. A.V. testified that on the way to her home from the trailer she spoke by telephone not only to C.D., but also to her sister and to a former boyfriend. She confirmed that she told all of them that she had been "raped". I find that A.V.'s statements that she was the victim of a sexual assault was consistent from the time of the trailer incident and thereafter, and that there is no evidence of recent fabrication. In the circumstances I cannot accept as evidence her statements to C.D. that she was raped as proof of their contents. Also, I cannot accept her statements to C.D. as evidence in support of her credibility. As was noted by the Court in R. v. Divitaris (2004), 2004 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28"a concocted statement, repeated on more than one occasion, remains concocted".

[91] It is apparent from this passage that the trial judge only considered the admissibility of the statements to C.D. as evidence to rebut an assertion of recent fabrication. He concluded, correctly in my view, that such use could not be made because there was no recent fabrication. Defence counsel had suggested that the complainant's motives to fabricate (to protect her reputation and in the hope of getting back together with her ex-boyfriend) occurred immediately, and before she spoke to C.D. The trial judge concluded that in the circumstances he could not accept the complainant's statements for the proof of their contents (I note that the Crown did not seek to admit the statements for their truth) or in support of her credibility. The trial judge concluded with the quotation from Divitaris, suggesting that his focus was on preventing the improper use of a prior consistent statement -- as enhancing credibility by mere repetition.

[92] The trial judge did not however refer to or address the Crown's argument that C.D.'s evidence, including the prior consistent statements made by A.V., were admissible as circumstantial narrative for the limited purpose of assisting with the assessment of the credibility of the complainant.

[93] The narrative as circumstantial evidence exception was explained by Hourigan J.A. in Khan, at paras. 31-34. It applies when there is something in the circumstances of the making of the statement that can assist in the assessment of the credibility or reliability of the witness's in-court claims: see Khan, at para. 31; David M. Paciocco"The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181, at p. 199. If admitted, the evidence can be used to assess a complainant's credibility, but not for the prohibited inference that consistency enhances credibility or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony. "The probative value of the statement lies in the inferences that can be drawn from the timing and circumstances of the statement, rather than the simple fact that the complainant has said the same thing before": R. v. E. (M.), [2015] B.C.J. No. 254, 2015 BCCA 54, 319 C.C.C. (3d) 352, at para. 46. In the circumstances of this case, the trial judge ought to have considered whether the evidence as to the timing of A.V.'s call to C.D. and A.V.'s emotional state during the call were admissible under the narrative as circumstantial evidence exception, and then, if admitted, evaluated the weight of such evidence and its effect on his assessment of A.V.'s credibility.

[94] Post-event demeanour evidence of a sexual assault complainant can serve as circumstantial evidence to corroborate the complainant's testimony: see R. v. Mugabo, [2017] O.J. No. 1979, 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25; R. v. Murphy, 1976 198 (SCC), [1977] 2 S.C.R. 603, [1976] S.C.J. No. 87, at pp. 612, 616 S.C.R. C.D.'s evidence about how A.V. sounded during the call, if accepted, may have served to corroborate the complainant's evidence that she had not consented to the sexual contact in the trailer. Contrary to the respondent's submissions, I see nothing in the trial judge's reasons to suggest that he considered and rejected or discounted such evidence. Indeed, he concluded at para. 77 that there was "an absence of available corroborating evidence to support the testimony of either [the complainant or the respondent]".

[95] In my view, the trial judge erred when he applied too narrow a test in determining the admissibility of C.D.'s evidence and A.V.'s prior consistent statement to C.D. If he had considered the relevant permissible uses of C.D.'s evidence, he may have concluded that C.D.'s evidence was admissible, not for the truth of the contents of the prior consistent statement made by A.V., but as relevant circumstantial evidence to assist in his assessment of A.V.'s credibility.

(3) Do the Trial Judge's Errors Meet the Threshold for a New Trial?

[96] In an appeal from an acquittal, to obtain a new trial, the Crown must demonstrate that the error might reasonably be thought to have had a material bearing on the acquittal, or in other words, that had the error not been made, the verdict might have been different: see Graveline, at paras. 14-17; R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 160; and R. v. MacKenzie, 1993 149 (SCC), [1993] 1 S.C.R. 212, [1993] S.C.J. No. 7, at pp. 247-48 S.C.R.

[97] The respondent argues that, even if the trial judge made the errors alleged by the Crown, the verdict would have been the same. According to the respondent, the errors can only be relevant to the trial judge's assessment of the credibility of the complainant, however, the trial judge stated that he found both A.V. and T.J. to be credible and that he decided the case based on the second branch of W. (D.) (R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26).

[98] The trial judge stated at para. 77:

In this case I find that both T.J. and A.V. generally presented as credible witnesses, notwithstanding the fact that A.V.'s evidence raised some questions and concerns in my mind. Also, there is an absence of available corroborating evidence to support the testimony of either of them. In the circumstances, although I am not prepared to find that I believe all of the evidence of T.J., his evidence does leave me with a reasonable doubt, and in the circumstances I must acquit him.

[99] In A. (A.B.), this court allowed a Crown appeal from acquittal in a sexual assault case where the trial judge had relied on impermissible myths and stereotypes in her assessment of the complainant's credibility, notwithstanding that the trial judge acquitted the respondent based on the first prong of W. (D.). Justice Pardu noted [at para. 16] that the trial judge "gave several reasons for believing [the respondent] which were independent of her assessment of the complainant's testimony", however, she also noted that the trial judge's assessment of the complainant's credibility played a prominent role in her determination of whether to believe the respondent.

[100] Similarly, in the present case, although the trial judge acquitted the respondent based on the second branch of W. (D.), this does not mean that his assessment of the complainant's credibility had no bearing on his reasoning. To the contrary, the trial judge did not explain why the respondent's evidence raised a reasonable doubt, nor had he specifically addressed the respondent's credibility earlier in his reasons, apart from a general observation that both the complainant and the respondent had given testimony in a calm manner with few inconsistencies and that the essence of their testimony remained unchanged despite rigorous cross-examination. He had, however, discussed two areas of A.V.'s testimony which raised questions about her credibility. He referred to these "questions and concerns" when coming to his conclusion on the verdict.

[101] And, as I have already noted, the trial judge pointed to the absence of corroborating evidence. C.D.'s evidence, if admitted, could have been considered as circumstantial evidence of A.V.'s mental state after the sexual contact, and supportive of her testimony that she had been sexually assaulted. This could have been a factor in assessing A.V.'s credibility, especially on the issue of consent, that could have helped the trial judge to resolve conflicting evidence and not be left with a reasonable doubt by the respondent's evidence.

(4) Conclusion

[102] In my view, the combination of the trial judge's improper reliance on myths and stereotypes in assessing the evidence of A.V.'s conversation with her father and his failure to consider the admissibility of the evidence of C.D. as circumstantial narrative constituted legal error in the assessment of the complainant's credibility that"in the concrete reality of" this case, had a material bearing on the acquittals, such that the Crown's appeal should be allowed.

Appeal allowed.