WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

DATE: 20210531 DOCKET: C65992

Fairburn A.C.J.O., Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

W.E.G. Appellant

Counsel: Margaret Bojanowska, for the appellant Elena Middelkamp, for the respondent

Heard: January 28, 2021 by video conference

On appeal from the convictions entered by Justice Nancy J. Spies of the Superior Court of Justice, sitting with a jury, on June 26, 2018, and from the sentence imposed on October 22, 2018, with reasons reported at 2018 ONSC 6246.

Fairburn A.C.J.O.:

A. Overview

[1] The appellant was convicted of sexual assault, uttering a threat to cause death, and two counts of assault against the complainant, with whom he was in a domestic relationship. He appeals from those convictions.

[2] This was a two-witness jury trial: the complainant testifying for the Crown and the appellant testifying in his own defence. Credibility was the sole issue at trial. If the complainant was telling the truth, she was the victim of a serious sexual assault at the hands of the appellant, as well as multiple assaults and a threat to cause death. The appellant denied everything. He said that the complainant had fabricated the allegations because she wanted to obtain sole custody of their child and because she thought that her chances of obtaining immigration status would be improved if she made the false allegations.

[3] The appellant raises four grounds of appeal:

(1) the application judge, who was not the trial judge, erred in dismissing the appellant’s third-party records application on the basis that the records were not likely relevant;

(2) the trial judge erred in failing to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements;

(3) the trial judge erred in failing to adequately instruct the jury on issues of credibility; and

(4) the trial judge erred in failing to provide an adequate corrective instruction to the jury respecting improper aspects of the trial Crown’s submissions.

[4] In my view, the appeal must be allowed on the prior consistent statements issue. In light of that result, with one exception, there is no need to address the other grounds of appeal. The exception relates to the third-party records issue. As this issue may arise again at the new trial, for the sake of efficiency, I will explain in these reasons why the application judge did not err in her analysis.

B. The Prior Consistent Statements Issue

(1) Background Information

[5] The complainant and the appellant met in March 2012. After a few dates, the complainant moved in with the appellant, who resided in his parents’ home. Not long after moving in together, the complainant became pregnant. While she testified that everything was good at the beginning of their relationship, she said that this all changed when she was one to three months’ pregnant. By then, the appellant began to verbally abuse the complainant.

[6] Once their child was born, the verbal aggression escalated to physical assaults. This abuse continued over the course of their three-year relationship. The complainant testified that the appellant would yell at her, insult her, and strike her. She testified that on one occasion, the appellant threatened her with death, and on another occasion, he sexually assaulted her.

[7] The appellant challenged the complainant’s evidence on the basis of alleged inconsistencies between her trial testimony and things she had previously said in: (1) a statement she had given to the police; (2) her testimony at the preliminary inquiry; and (3) a document she had filed in the context of a family court proceeding. Many of the alleged prior inconsistent statements were put to the complainant during cross-examination by the defence counsel.

[8] In an effort to rehabilitate the complainant during re-examination, the trial Crown took her to different parts of the same three prior statements, drawing her attention to things that she had purportedly said to others and things she had re-enacted for the police (collectively referred to in these reasons as the “prior consistent statements”), all of which the trial Crown maintained were consistent with her trial testimony. As these prior consistent statements lay at the core of the appellant’s complaint about the jury charge, a few examples are offered in the following paragraphs.

(a) The Choking Incident

[9] In her examination-in-chief, the complainant testified about having been choked by the appellant in their bedroom. She testified that once the appellant grabbed her by the neck, she stood up from the bed and he leaned her against the wall. During cross-examination, the defence counsel confronted the complainant with a transcript excerpt from her police statement, suggesting that she had previously told the police that the choking incident took place while she was seated on the bed with her back against the wall.

[10] In re-examination, the trial Crown read out from the transcripts of the police statement and the preliminary inquiry and played a portion of the complainant’s videotaped police statement. These were said to be the complainant’s prior consistent statements relating to the choking incident. By way of example, during re-examination, the trial Crown played a 44-second video clip of the police statement, involving the complainant acting out the alleged choking incident, a re-enactment that showed the complainant in a standing position.

(b) The Assaults in Bed

[11] During cross-examination, the defence counsel suggested that there was an inconsistency between the complainant’s trial testimony and her prior statements regarding the alleged assaults that took place in bed. Specifically, the defence counsel said that the complainant’s police statement did not refer to the appellant punching the complainant in the leg.

[12] The trial Crown attempted to rehabilitate the complainant on this point in re-examination by playing a 1 minute and 22 second portion of the video from the police statement, showing another re-enactment for the police, with the complainant demonstrating “two different gestures”. The trial Crown suggested to the jury that the complainant’s video re-enactment was consistent with the complainant’s testimony at trial.

(c) Whether the Appellant’s Family Intervened

[13] During cross-examination, the complainant testified that while the appellant’s family never witnessed any of the alleged assaults, they would come to her defence when the appellant became verbally aggressive.

[14] The complainant was then confronted with passages from a document that she had filed in a family court proceeding involving the custody of the complainant and appellant’s child. This document was said to reflect inconsistencies between what the complainant testified to at trial and what she said in the family court proceeding about the appellant’s family’s response to his abusive behaviour. Specifically, the document referenced the fact that she had “no trust in the [appellant’s] family, as they did not try to stop the [appellant’s] abusive behaviour.” The complainant attempted to explain that the family court document was referring to abusive conduct other than the abusive conduct forming the subject of the trial.

[15] In re-examination, the trial Crown read the same passages from the family court document aloud. One of those passages follows:

During the time living together, the [appellant] verbally, physically and sexually abused her. Besides using derogative and profane language at her, he also made death threats towards her. He physically pushed her. He physically hit her and pushed her …. He acted violently and aggressively in front of the child. The child witnessed this abusive behaviour.

[16] After reading from the document, the trial Crown attempted to explore with the complainant what the “other abusive behaviour” was that she had referred to during cross-examination. The trial judge intervened to stop the complainant from answering the question, the re-examination came to an end, and the complainant left the witness stand.

[17] The trial judge then gave the jury a mid-trial instruction about how to approach prior inconsistent statements. The content of this mid-trial instruction will be discussed shortly. Following the mid-trial instruction, the trial Crown closed the prosecution’s case, the defence counsel provided an opening address, and the appellant testified.

(d) The Positions of the Parties

[18] The appellant argues that the trial judge committed a reversible error by failing to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements. While the respondent agrees that there was an absence of a limiting instruction in the jury charge, and that as a general rule an instruction should be given, the respondent points to a number of factors that demonstrate that the absence of the instruction in this case did not constitute a reversible error. Respectfully, I do not accept that the matter is as benign as the respondent suggests.

(2) The Governing Principles

[19] A lie can be repeated just as easily as the truth. Accordingly, the fact that a complainant says something prior to trial that is consistent with what that complainant testifies to at trial does not make that complainant’s evidence more likely to be true. This is why prior consistent statements are generally inadmissible at trial.

[20] Like most rules of evidence, there are notable exceptions. Some exceptions relate to where the prior consistent statements properly form the subject of narrative, serve to rebut allegations of recent fabrication, and serve to refute alleged prior inconsistent statements: see R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 77-78; R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at paras. 45-47.

[21] When prior consistent statements properly form part of the trial record, the trial judge is generally required to instruct the jury on both the permitted and prohibited uses of those prior consistent statements: M.P., at paras. 79-80. The trial judge is required to warn the jury that a concocted statement will remain concocted despite the number of times that it is repeated. As Watt J.A. puts it in his model jury instruction, “Once a lie, always a lie”: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 419 (Final 35-D).

[22] Therefore, the trial judge is generally required to inform the jury that what the witness said before the trial about the same events described in the witness’s testimony cannot be used as evidence of the truth of what was said. It also cannot be used to bolster the witness’s credibility. Put a different way, the trial judge should instruct the jury that repetition of what is said to have happened does not lend truth to a witness’s account. Nor does the repetition act as independent evidence of what occurred. The trial judge should also instruct the jury on the limited use that can be made of the prior consistent statements, which permitted use will be informed by the particular exception that is engaged: M.P., at para. 79.

(3) The Absence of a Necessary Instruction

[23] In this case, the trial Crown’s purpose for taking the complainant through some of her prior consistent statements in re-examination, including what were said to be consistent video re-enactments, was to endeavour to rehabilitate her following the defence attack on her credibility in cross-examination, an attack that was at least partially predicated upon prior inconsistent statements. In other words, the prior consistent statements were used to rebut the defence assertion that the complainant had been inconsistent in her prior statements: see R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 36.

[24] The appellant acknowledges that the prior consistent statements, including the video re-enactments, were admissible for that purpose. Therefore, admissibility is not the issue on appeal. Rather, the issue is focused upon the trial judge’s failure to instruct the jury about the limited use they could make of the prior consistent statements and the fact that they could not infer that the complainant was telling the truth or that the alleged events happened, simply because she had said the same things on previous occasions.

(a) Responding to the Respondent’s Arguments

[25] While the respondent fairly acknowledges that the prior consistent statement instruction should have been given to the jury in this case, the respondent goes on to emphasize that perfection is not the standard by which to measure the adequacy of a jury charge. The respondent stands on solid ground with this submission.

[26] Undoubtedly, perfection is not the standard by which jury charges should be assessed: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The task of an appellate court is not to ensure that a jury received a perfect instruction, but to ensure that the trial judge’s instructions properly and adequately prepared the jury for deliberation: Araya, at para. 39; R. v. Barrett, 2016 ONCA 12, 346 O.A.C. 1, at para. 13. As Moldaver J. said in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8, a functional approach in reviewing a jury charge on appeal is required, one that asks whether the jury charge as a whole “enabled the trier of fact to decide the case according to the law and the evidence”. See also R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31.

[27] In applying a functional approach, the respondent encourages this court to rely upon the criteria set out in M.P., at para. 80, for assessing the effect of a trial judge’s failure to properly apprise a jury about the limited use to be made of prior consistent statements. As noted in M.P., while “[e]ach case falls to be decided according to its own idiosyncratic facts”, there are five relevant considerations to be taken into account when determining whether the absence of the instructions constitute a reversible error: (1) the nature of the prior consistent statements; (2) how many prior consistent statements were introduced or repeated; (3) who introduced the evidence; (4) whether the party introducing the prior consistent statements relied upon them for an improper purpose; and (5) whether there was an objection to either the introduction of the prior consistent statements or the failure to provide an instruction to the jury limiting their use: M.P., at para. 80.

[28] The respondent emphasizes that the bulk of the evidence involving the complainant’s prior statements was introduced by the defence in an attempt to discredit the complainant by putting alleged prior inconsistencies to her in cross-examination. Therefore, the trial Crown’s references to the prior consistent statements in re-examination were introduced and advanced for a proper purpose: to respond to the defence attack on the complainant’s credibility.

[29] The respondent also points out that the trial Crown did not invite the jury to use the prior consistent statements for an improper purpose, such as inferring credibility from the complainant’s consistency. Indeed, the trial Crown specifically told the jury in his closing address that he was not relying on consistencies between the trial evidence and the prior statements for any purpose other than rebutting the suggestion of inconsistencies on various material points.

[30] The respondent also points to the trial judge’s proper jury instructions as they related to what the jury should make of the alleged prior inconsistent statements, including that the jury was instructed that those prior inconsistent statements could not be used for the truth of their contents.

[31] Finally, the respondent notes the lack of an objection at trial by the defence counsel in relation to the absence of any instruction to the jury as it related to prior consistent statements.

[32] A failure to object is a factor on appellate review, because it “may be indicative of the seriousness of the alleged violation”, but it is not dispositive of a ground of appeal predicated on an erroneous jury charge: Daley, at para. 58. See also Thériault v. The Queen, [1981] 1 S.C.R. 336, at pp. 343-44; Calnen, at paras. 37-40; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38. While a failure to object will often be taken as a reflection of the overall accuracy of the instructions and the seriousness of the error alleged for the first time on appeal, from time-to-time, a failure to object can simply constitute a serious oversight on the part of trial counsel.

[33] In this case, the failure to object to the inadequacy of the jury charge as it related to the prior consistent statements appears to fall into this latter category.

[34] In addition to the transcripts of the police statement and the preliminary inquiry being read to the complainant in front of the jury, the video clips of the complainant’s police statement, where she re-enacted the choking incident and the assaultive behaviour in bed, were played for the jury. This all occurred during re-examination. Accordingly, some of the most central aspects of the complainant’s version of events described in her examination-in-chief were reinforced through prior consistent statements, which were the very last things the jury heard from the complainant right before the trial Crown closed the prosecution’s case.

[35] Therefore, while I agree with the respondent that the prior consistent statements were only elicited because of the defence use of alleged prior inconsistent statements, those statements were the last thing that the jury heard during the Crown’s case and they went to the heart of the allegations. They called out for instructions on their permitted and prohibited uses.

[36] Instead, the only instruction the jury received was in relation to the alleged prior inconsistent statements elicited by the defence. In my view, that instruction aggravated the error.

(b) The Impact of the Prior Inconsistent Statements Instructions

[37] The jury received two instructions regarding the proper approach to prior inconsistent statements.

[38] First, immediately following the complainant’s evidence, and just prior to the trial Crown announcing that the prosecution’s case was closed, the trial judge provided the jury with a mid-trial instruction relating only to the alleged prior inconsistent statements.

[39] That instruction included the standard direction often given to juries when forced to consider allegedly inconsistent statements: common sense may suggest that when a person says things at trial that are different from what they have said before, this difference may be important in deciding “whether or how much you believe of or rely upon” the witness’s testimony. The jury was then told to consider the “nature and extent of any differences” in the statements to decide whether they will believe or rely upon the witness’s testimony. Finally, the jury was instructed as follows:

You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied that the witness accepted it as true while in the witness box in this courtroom.

[40] Second, during the final jury charge, a whole section was devoted to the complainant’s prior statements, prefaced with the heading: “Prior Statements of [the complainant] to Police, Her Evidence at the Preliminary Inquiry and Her Application to the Family Court.” The instructions that followed provided a somewhat detailed recounting of both the allegedly inconsistent and consistent prior statements, including, but not limited to, a suggestion to the jury that they “consider what [they] observed when [the trial Crown] played those portions of the videotaped interview.” The passage from the document filed in the family court proceeding cited by the trial Crown at the end of re-examination, and set out earlier in these reasons, was also read out again in the jury charge.

[41] The review of the prior statements – both the inconsistent and consistent portions of those statements – was followed by a legal instruction focused only on how to approach the alleged prior inconsistent statements. That instruction loosely tracked the specimen instruction provided in Watt’s Manual of Criminal Jury Instructions and, to a large extent, repeated the mid-trial jury instruction on prior inconsistent statements, as just previously reviewed. The instruction concluded with the following legal direction:

Whatever you choose to make of the differences, you can only use the evidence given under oath in this trial as evidence of what actually happened. You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box.

[42] If anything, the mid-trial and final jury instructions regarding how to approach the prior inconsistent statements aggravated the prejudice arising from the failure to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements.

[43] In the case of the mid-trial instruction, it immediately followed the complainant’s evidence, where the jury had heard both inconsistent and consistent prior statements. In the case of the final jury instructions, the legal direction to the jury immediately followed the trial judge’s review of both the consistent and inconsistent statements. Yet, both legal instructions only addressed how to approach the alleged prior inconsistent statements.

[44] The instructions relating to the prior inconsistent statements, contrasted with the silence relating to the prior consistent statements, may well have left the jury with the mistaken impression that they could use the consistent statements as they pleased – perhaps as independent evidence of the truth of their contents and/or evidence that could serve to bolster the complainant’s credibility. Clearly, neither of these options was available to the jury, but they needed to be instructed on that legal rule.

[45] As well, both the mid-trial and final jury instructions contained the following legal direction: “You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box”. While there is nothing wrong with this instruction when it comes to the prior inconsistent statements, the jury may well have been left thinking that they could also use the prior consistent statements – which were obviously accepted as true by the complainant – as evidence of “what actually happened”. They would have been wrong if they proceeded on that mistaken belief.

[46] It is true that this court has previously dismissed appeals where an instruction relating to prior consistent statements has been missed: see M.P., at paras. 84-88; L.O., at para. 38; M.A.J., at paras. 63-66. However, this case is distinguishable, as it turns on its own facts, including the nature of the prior consistent statements, the timing of those statements and where they sat in the context of the trial as a whole, and the importance of the absent instructions when considered against the instructions that were actually provided to the jury regarding the prior inconsistent statements.

(c) Conclusion

[47] While the respondent is right that the trial Crown told the jury that he was not inviting them to infer credibility based on the complainant’s prior consistent statements, and this comment may have helped soften the blow arising from the absence of the instruction, the fact remains that the jury was left without guidance on how to use this potentially powerful and highly problematic evidence.

[48] Ultimately, this was a two-witness trial where credibility lay at the core of what the jury needed to resolve. The complainant was the only Crown witness, and her prior statements formed a significant portion of both the defence counsel’s cross-examination and the trial Crown’s re-examination. On the most central issue at trial, the jury required proper instructions. Failing to instruct the jury on the fact that the prior consistent statements could not be used as proof of what happened or as evidence of credibility ran a significant risk of misuse.

[49] In the circumstances of this case, the absence of an instruction to the jury regarding the permitted and prohibited uses of the complainant’s prior consistent statements constitutes a reversible error. Therefore, I would allow the appeal and order a new trial.

C. Third-Party Records Issue

[50] As I would order a new trial in this matter, there is no need to deal with the grounds of appeal pertaining to other alleged difficulties with the trial judge’s instructions to the jury. This comment should not be taken as suggesting that those grounds of appeal had any traction. However, since the third-party records issue may arise again at a new trial, for the sake of efficiency, I will briefly address this issue.

[51] Prior to his convictions, the appellant brought a third-party records application, which was dismissed by Justice Wailan Low on June 7, 2018, with reasons dated June 28, 2018.

[52] The complainant came to Canada from El Salvador in 2009. She was eventually denied refugee status, but she continued in her efforts to obtain permanent residency in Canada.

[53] The appellant brought a pre-trial application to obtain “[a]ll records in the possession of the Immigration and Refugee Board of Canada” pertaining to “any claim made by [the complainant].”

[54] The appellant filed an affidavit from his sister, dated May 8, 2018, as evidence on the application. His sister attested to the fact that about one month before the complainant went to the police to disclose the allegations of abuse, the complainant had told the appellant’s sister that she had been advised by someone else that if she reported that she had been abused in Canada, it would improve her chances of staying in the country. The appellant’s sister deposed as follows: “I believe that [the complainant] has fabricated the allegations against [the appellant] to obtain some benefit with respect to her immigration claim that the application has changed to Humanitarian and Compassionate Grounds.”

[55] The application judge dismissed the third-party records application, concluding that the appellant has not established that the third-party records were “likely relevant” within the meaning of s. 278.5(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[56] The appellant claims that the application judge misunderstood the central nature of the application when she found that, “[o]bjectively speaking”, the making of a claim of abuse in Canada would “not likely have” the effect of improving the chances of allowing someone to remain within Canada. As the appellant puts it in his factum on appeal, “The issue was not whether the allegation of abuse would, in the eyes of the Immigration and Refugee Board, affect the application, but whether the complainant believed the allegation could affect the outcome and was motivated to make an allegation based on her belief” (emphasis in original).

[57] As well, the application judge is said to have erred by concluding that the defence only wanted the third-party records to challenge the complainant’s credibility, when in fact those records were necessary to show that the complainant had a motive to fabricate the allegations.

[58] I see no error in the application judge’s conclusion that the third-party records were not likely relevant.

[59] A third-party records application involves two stages. Within the first stage, there are two steps, the first being whether the subject records are “likely relevant”: Criminal Code, s. 278.5(1)(b). If the third-party records are likely relevant, then there must be a determination as to whether it is “necessary in the interests of justice” to produce the records to the court for review: Criminal Code, s. 278.5(1)(c). This application started and ended at the first step of the first stage, the one involving likely relevance.

[60] Likely relevance means that there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (emphasis in original): R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 22, per Lamer C.J. and Sopinka J. (dissenting, but not on this point); R. v. Mills, [1999] 3 S.C.R. 668, at para. 45. This is a higher threshold than the very modest threshold test for regular Crown disclosure: Mills, at para. 45; R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 72.

[61] The application judge understood this legal threshold. She simply found that there was no evidence that there was anything in the complainant’s refugee claim file that could be relevant to the issues to be decided at trial. Indeed, the appellant acknowledged during oral submissions before the application judge that there would not be anything in the complainant’s file supporting the claim that the abuse allegations were falsified.

[62] When pressed by the application judge to articulate the likely relevance of the third-party records, the appellant indicated that the records would not assist with determining whether the complainant falsified her allegations but would assist with determining a “timeline of events”. As the defence counsel put it:

What I’m suggesting is that what it may provide us with is some corroboration of what my client’s position would be with respect to the timeline of events that occurred in the months preceding these allegations being brought. I don’t think that those records are going to substantiate that she admitted to my client’s sister that she fabricated something.

[63] In order to support the allegation of a motive to fabricate, the third-party records would have had to reference the advice that the complainant was said to have received about her refugee claim being strengthened by making an allegation of abuse. The application judge was right that there was no evidence that the complainant’s refugee file would contain information that would be relevant to determine the trial issues. Indeed, the defence counsel conceded that the file would not support the claim that the allegations were fabricated.

[64] I do not agree that the application judge erred by failing to appreciate the nature of the application. While the application judge made passing reference to the fact that reporting an assault occurring in Canada would not likely improve one’s chances of remaining in Canada, this observation was rooted in viva voce evidence given by the record holder before the application judge. The application judge was well aware of the defence position that the third-party records were relevant to the allegation that the complainant believed that making a claim of assault would improve her chances of remaining in Canada. Indeed, during a back-and-back exchange with counsel, the application judge accurately summarized the defence position concerning motive to fabricate.

[65] Nor do I accept the appellant’s suggestion that the application judge erred by characterizing the relevance of the third-party records as going only to the “credibility of the complainant”, as opposed to a motive to fabricate. At its core, an allegation of a motive to fabricate is, in fact, an allegation that the witness is lying – that the witness lacks credibility. Regardless, the application judge understood the appellant’s position that the complainant “made a false allegation against the [appellant] in order to further her claim for refugee status.” Clearly, the application judge understood the core nature of the appellant’s claim. She simply rejected it on the basis that she had no information before her that would suggest that there would be anything in the third-party records to support that claim.

[66] Finally, I would highlight the following observation made by the respondent on appeal. The fact is that the appellant was able to advance his claim of motive to fabricate at trial without the third-party records. During cross-examination, the complainant confirmed that she had initiated an immigration claim prior to meeting the appellant, that she had a hearing in 2012, and that her claim had been denied later that year. She also acknowledged that her claim was ultimately allowed on October 31, 2017, after which she became a permanent resident of Canada. Finally, she acknowledged that she referenced her allegations against the appellant in her renewed claim.

[67] Accordingly, the defence counsel was able to achieve through cross-examination at trial what she had hoped to achieve with the third-party records: she established a timeline of the immigration procedures; and she received an acknowledgement that the renewed claim for immigration status included the criminal allegations against the appellant.

[68] Therefore, the application judge made no error in concluding that the third-party records were not likely relevant and by dismissing the appellant’s third-party records application.

D. Disposition

[69] For the reasons above, I would allow the conviction appeal, set aside the convictions, and order a new trial.

[70] Although the Notice of Appeal contains reference to an appeal from sentence, given the need for a new trial, there is no reason to address the sentence appeal.

Released: “JMF May 31, 2021”

“Fairburn A.C.J.O.”

“I agree David Watt J.A.”

“I agree Grant Huscroft J.A.”