Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211220 Docket: C66228 Watt, Roberts and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Juan Solorzano Sanclemente Appellant

Counsel: Zaire Puil, for the appellant Lisa Fineberg, for the respondent

Heard: April 22, 2021 by video conference

On appeal from the conviction entered on June 1, 2018 and the sentence imposed on January 28, 2019 by Justice Mario D. Faieta of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1] A plan and its execution do not always align. Even simple plans, uncomplicated in their execution. Like drug deals. A buyer with money. A seller with drugs. Cash for cocaine. Cocaine for cash.

[2] Sometimes, the problem is the buyer. A rip-off. Drugs for free. Other times, the snag is the seller. Take the money and run.

[3] M.C. wanted to buy some cocaine. Enough for an evening’s use at an event she planned to attend. The appellant had cocaine to sell, at his place. M.C. agreed to meet him there to conclude their deal.

[4] In the end, the drug transaction was completed. M.C., the buyer, got her cocaine. And the appellant, the seller, got his money. But before the deal was done, something happened. Something that M.C. and the appellant did not agree on. Sexual activity.

[5] The appellant was charged with sexual assault as a result of M.C.’s claim that she did not consent to the sexual activity that admittedly took place. The jury at the appellant’s trial agreed with M.C.’s characterization of what occurred. The jury rejected the appellant’s assertion that the activity was consensual, M.C. an enthusiastic participant.

[6] The appellant appeals his conviction and the blended sentence of a term of imprisonment followed by a period of probationary supervision imposed upon him. These reasons explain why I have concluded that, like the defence he advanced at trial, this appeal fails and should be dismissed.

The Background Facts

[7] The events upon which the prosecution was grounded took place over a few hours of the same day, in the same place, and involved the same people, M.C. and the appellant. Both testified at trial. No one else did.

[8] The narratives provided by M.C. and the appellant had much in common about what occurred in the appellant’s apartment on that day. However, their recollections differed about how some of the events unfolded, about who said what to whom, and their respective states of mind at different times.

[9] An overview of the relevant events will suffice to furnish the background necessary for an evaluation of the merits of the claims of error advanced. Where necessary, further detail will be added to assay the merits of individual grounds.

The Principals and Their Relationship

[10] M.C. was a university student. The appellant was a club promoter and drug dealer who lived with his girlfriend. M.C. was introduced to the appellant the previous summer by a friend. The introduction was at a dance club where the appellant worked. The appellant and M.C. met briefly on two other occasions.

The Text Message

[11] At about 4:00 p.m. on February 27, 2016, M.C. sent the appellant a text. She referred to him as “Papi” and herself by a diminutive of her name. She mentioned her relationship with her friend who had previously bought cocaine from him. M.C. denied that she considered “Papi” a term of endearment.

[12] In guarded language, M.C. told the appellant that she wanted to buy some cocaine. She offered to meet the appellant to complete the purchase. The appellant suggested that M.C. come to his apartment and provided his address. About two hours later, M.C. arrived at the appellant’s apartment building. The appellant opened the front door remotely from his unit and told her his apartment number.

The Entry

[13] When M.C. arrived at the door to the appellant’s apartment, he greeted her with a hug and invited her into his apartment. The appellant told M.C. to take off her shoes. The appellant took M.C.’s coat and hung it up in a closet. He offered to make some tea. M.C. declined, but the appellant said he would make some anyway.

[14] As the tea was brewing, M.C. told the appellant about her plans for the evening. She planned to attend a fetish event that evening – Subspace – where people dress up in bondage and latex then go out to drink and dance. She denied inviting the appellant to join her at Subspace.

The Balcony

[15] The appellant invited M.C. onto the balcony of his apartment to admire the view of the city from there. There, they talked. The appellant claimed, but M.C. denied, that they shared a kiss on the balcony.

The Return to the Apartment

[16] M.C. and the appellant returned to the apartment. They sat on the living room couch. The appellant asked for a backrub. M.C. said no. She explained that a backrub would feel as if she were stabbing him. The appellant repeated his request several times. M.C. eventually agreed and gave the appellant the massage he had repeatedly requested. She went along with it because she didn’t know what would happen if she continued to refuse.

The Activities on the Couch

[17] As M.C. and the appellant continued to sit on the couch, they smoked a marijuana joint and talked about Subspace. M.C. recalled that the appellant draped his arm around her neck and blew smoke in her face. She tried to pull away, then giggled, protested and said “no”. She tried to tell the appellant that she didn’t want his arm around her and that she had some place else to be. The smoke in her face bothered her. The appellant then leaned in and kissed her. She kissed him back. The initial kiss was gentle, but then the appellant’s kissing became more aggressive. Although she was not assertive in her reactions and comments, M.C. meant “no”.

[18] The appellant could not recall exactly what was said prior to the kissing although they continued talking about Subspace. There was no verbal communication from the moment they began “making out” until the sexual activity ended.

The Touching

[19] M.C. testified that the appellant had an erection. In a “sexual and breathy” tone of voice, he asked her to squeeze his genitals. She said “no”, not forcefully or in a serious tone, but she meant what she said. She tried to sound convincing about having some place else to go. But she realized that it may not have come out in precisely that way.

[20] M.C. recalled that the appellant then took her hand from outside his sweatpants and put it on his bare, erect penis under his pants. He repeatedly told her to squeeze it. She said “no” in the same tone of voice in which she had said the same thing to no avail previously. She did not pull her hand out of the appellant’s sweatpants or stand up.

[21] M.C. squeezed the appellant’s penis as he repeatedly told her to do. She was afraid to do otherwise. She was alone in his apartment, a place to which she had never previously been. He was a drug dealer. She did not know whether he may have had weapons around for his protection in his drug dealing business. The appellant did not appear to be catching on to her discomfort and paying any attention to “no”. She continued to laugh and giggle.

The Next Phase of Sexual Activity

[22] The parties differed about the circumstances in which fellatio occurred, but not that it did take place.

[23] M.C. gave evidence that the appellant stood up, exposed himself, and repeatedly told her to perform fellatio on him. She said “no”, giggled and moved away. He repeated his request in a harsher tone of voice, “barking” at her aggressively. Initially M.C. said that the appellant grabbed her head and forced his penis into her mouth for about 60 or 90 seconds. Later, she acknowledged that she leaned in and opened her mouth to perform fellatio without the appellant touching her head for the first 30 seconds of their 90 second encounter.

[24] The appellant testified that when he stood up, M.C. pulled his pants down, got on her knees, and began performing fellatio on him. He moaned. M.C. denied that she edged forward and got on her knees because she was actively engaged in performing fellatio on the appellant. Neither M.C. nor the appellant said anything.

The Sexual Activity Continues

[25] When M.C. stopped performing fellatio, she stood up and, along with the appellant, moved to the side of the couch. The appellant removed M.C.’s pants, then began to penetrate her digitally. She arched her back to facilitate the penetration. She moaned and made sexual sounds in an attempt to bring the appellant to climax and end the activity. She did not ask the appellant to stop or physically resist. She communicated as if she wanted to participate. She was trying to make noise and make the appellant ejaculate. She acted in this way because the appellant had not listened to any of her prior protests.

The Concluding Sexual Activity

[26] About a minute or so later, the appellant brought M.C. to the arm of the couch. She did not resist. She said nothing. The appellant bent M.C. over the arm of the couch and pulled her underwear down. The appellant penetrated her vaginally from behind. She said nothing. Each of them moaned. Sexual intercourse ended when the appellant said that he was ready to climax. M.C. got down on her knees and, once again, began to perform fellatio. She swallowed the ejaculate. M.C. acknowledged that the appellant did not ask her to perform this act of fellatio. She assumed that this was what he wanted to do so she complied.

The Drug Transaction

[27] After the sexual activity ceased, M.C. and the appellant completed their drug transaction. They then watched a short video and sampled the cocaine. The appellant said that they didn’t talk much, but both were smiling. There was little subsequent contact. Three days later, M.C. went to the police and complained that she had been sexually assaulted.

The Grounds of Appeal

[28] The appellant challenges not only his conviction, but also the sentence imposed upon him.

[29] On the appeal from conviction, the appellant says that the trial judge erred in:

i. dismissing his application to introduce evidence of extrinsic and contemporaneous sexual activity of the complainant under s. 276 of the Criminal Code, R.S.C., 1985, c. C-46; ii. failing to instruct the jury on the defence of mistaken belief in communicated consent; iii. failing to exclude the video recorded interview of the appellant for a breach of s. 10(b) of the Charter; and iv. delivering a charge to the jury that was unbalanced.

[30] The appellant also contends that the trial judge erred in imposing a sentence that offended the principle of parity expressed in s. 718.2(b) of the Criminal Code.

The Appeal from Conviction

Ground #1: The Section 276 Application

[31] This ground of appeal alleges that the trial judge wrongly excluded evidence the appellant sought to adduce about M.C.’s sexual activity with him other than the sexual activity that formed the subject matter of the charge. The application, which was argued prior to jury selection, was governed by the statutory scheme then in force, not the current provisions in ss. 278.93 and 278.94.

[32] The application was based on the affidavit and testimony of the appellant who gave evidence as the only witness on the application.

[33] A brief reference to the evidence tendered for reception and the trial judge’s reasons for dismissing the application will provide the background necessary to evaluate the allegation of error.

The Application at Trial

[34] The circumstances alleged to constitute sexual assault took place at the appellant’s apartment on February 27, 2016. The appellant denied liability on the basis that sexual activity was consensual or that he honestly believed that the complainant, by her words and actions, had consented to what took place.

[35] The evidence of the complainant’s extrinsic sexual activity the appellant sought to elicit occurred at two different times, in two different places, and in dissimilar circumstances.

[36] The first incident occurred at a nightclub about six months before the offence alleged. The appellant was a promoter at the club. He could facilitate the entry of the patrons by by-passing the lineup and provide them with free bottle service at one of his booths. M.C. and one of her friends gained entry to the club in this way. M.C. was very flirtatious with the appellant. She complimented his clothing, danced with him in a sexually provocative way, and engaged in a brief “make out” session of kissing with him that lasted less than a minute.

[37] The second incident occurred at the appellant’s apartment on the day of the alleged offence. The subject-matter of the proposed evidence was a conversation the appellant had with M.C. about their individual sexual experiences, including a threesome, and their preferences.

[38] The appellant contended that the proposed evidence had significant probative value on several controverted issues at trial. Whether M.C. consented or the appellant honestly believed that M.C. consented to the sexual activity that occurred. The appellant’s subjective belief and state of mind at the relevant time. The credibility of M.C. And the narrative of relevant events.

The Ruling of the Trial Judge

[39] The trial judge dismissed the application at the conclusion of argument.

[40] In his written reasons released within days of the argument on the application, the trial judge found that the evidence about M.C.’s conduct with the appellant at the nightclub was evidence of prior sexual activity, its admissibility governed by s. 276 of the Criminal Code. However, the evidence had no probative value on the issue of consent and little or no probative value on the issue of honest but mistaken belief in communicated consent. Thus, the evidence lacked the “significant probative value” required to justify admission when balanced against the danger of prejudice to the proper administration of justice. Further, when considered on the issue of consent, the proposed evidence invoked the twin myth reasoning prohibited by s. 276(1)(a) of the Criminal Code.

[41] The evidence of the contemporaneous discussion of sexual preferences and prior sexual experiences was not evidence of specific instances of sexual activity of M.C. as required by s. 276(2)(c). Rather, it related to M.C.’s general sexual behaviour. Thus, it could not be admitted under the inclusionary exception to the exclusionary rule. Like the nightclub evidence, this evidence lacked significant probative value on whether the appellant honestly but mistakenly believed the complainant communicated her consent to the sexual activity with which the appellant was charged. And finally, there was no basis upon which to cross‑examine M.C. on her sexual preferences or prior sexual activities to attack her credibility.

The Arguments on Appeal

[42] The appellant says that, among the considerations of which a trial judge is to take account when evidence is tendered for admission under s. 276(2), are the right of the accused to make full answer and defence and whether there is a reasonable prospect the proposed evidence will assist in reaching a just determination of the case. The evidence must relate to a specific instance of sexual activity and be relevant to an issue at trial. When these requirements have been met, it is for the trial judge to say whether the proposed evidence not only has significant probative value, but also that its probative value is not substantially outweighed by its prejudicial effect on the proper administration of justice.

[43] In this case, the appellant continues, exclusion of this evidence of extrinsic sexual activity of M.C. deprived him of the opportunity to cross-examine M.C. on the specific issue of credibility in relation to her statement about the extent of her relationship with the appellant.

[44] The contemporaneous discussion about sexual experience, practices, and preferences was admissible on several discrete, but related bases. To provide context for the allegations. It was relevant to M.C.’s credibility because she had denied any prior sexual activity with the appellant. The proposed evidence showed her willingness to lie about the nature of their relationship. Further, the proposed evidence was also an essential part of the narrative and provided context for an evaluation of the appellant’s claim that he honestly believed that M.C. consented to the sexual activity that occurred.

[45] The respondent asserts the contrary. No error has been established. All that occurred was that the trial judge reasonably exercised his discretion to exclude evidence that fell short of what s. 276(2) requires to permit reception. This is essentially a relitigation of the findings of fact the trial judge made at first instance with no basis to do so.

[46] Section 276, the respondent submits, enacts a rule of presumptive inadmissibility for evidence of a complainant’s sexual activity extrinsic to that which is the subject-matter of the offence charged. The requirements for exceptional admission include that the proposed evidence be of specific instances of sexual activity that is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The use an applicant proposes to make of the proffered evidence must not invoke twin myth reasoning. Nor are claims that the evidence will provide context, assist in the completion of narrative, or help the trier of fact determine credibility sufficient to overcome the presumptive inadmissibility of this evidence.

[47] The respondent says that the trial judge was right to conclude that the proposed evidence about the interaction of the appellant and M.C. at the nightclub was inadmissible. Evidence of kissing and sexually provocative dancing six months earlier had no probative value on either defence advanced at trial – consent or honest but mistaken belief in communicated consent. And, as the authorities makes clear, unparticularized assertions that the evidence is relevant to complete the narrative, provide context or assist in determining M.C.’s credibility are inadequate to reverse the rule of presumptive inadmissibility. Further, there is no defence of implied or broad advance consent, only activity-specific contemporaneous consent to which the proposed evidence is not relevant.

[48] As for the evidence about contemporaneous discussions of sexual preferences and prior experiences, the respondent continues, this is not evidence of “specific instances of sexual activity” as s. 276 requires. In addition, the proposed evidence impermissibly tread on M.C.’s general sexual behaviour and engaged a prohibited chain of reasoning from prior conduct to the likelihood of consent. It provided no evidentiary support for a defence of honest but mistaken belief in communicated consent because it relied on the same prohibited chain of reasoning. The trial judge was right to exclude this evidence although, as the respondent points out, some of it trickled in during the appellant’s cross-examination.

The Governing Principles

[49] The application of s. 276 of the Criminal Code is governed by recent and well-settled precedent. An exegesis is not required. A brief discussion will suffice.

[50] First, s. 276 enacts a regime governing the reception of evidence of extrinsic sexual activity by the complainant in proceedings in respect of listed offences. The regime has two components. Rules of admissibility. And procedural requirements to be met when evidence of the complainant’s extrinsic sexual activity is offered for admission: R. v. Barton, 2019 SCC 33, at para. 64; R. v. R.V., 2019 SCC 41, at paras. 2, 36, 44. The procedural requirements included by reference in s. 276(2) have been amended since the appellant’s trial. These reasons refer to and apply the provisions in force at trial, as do the precedents on which reliance is placed.

[51] The evidentiary rule enacted by s. 276(1) is exclusionary in nature. The rule is one of inadmissibility engaged when its three components coalesce:

i. proceedings in respect of a listed offence; ii. a species of evidence, evidence of extrinsic sexual activity by the complainant; and iii. a specific purpose for which the evidence is tendered for admission.

The rule is unremitting in its exclusionary effect: Barton, at paras. 60, 80; R.V., at paras. 2, 44; R. v. Goldfinch, 2019 SCC 38, at paras. 40, 43, 90.

[52] Section 276(2) is primarily, but not exclusively exclusionary. It does permit the admission of evidence of the complainant’s extrinsic sexual activity provided the evidence proposed for admission satisfies the conditions precedent imposed by the subsection: Barton, at para. 61; R.V., at paras. 2, 45; Goldfinch, at para. 40. To engage the inclusionary exception, the evidence must be of specific instances of sexual activity relevant to an issue at trial. It must not be adduced to support an inference prohibited by the exclusionary rule of s. 276(1) and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In determining whether the evidence will be received, the trial judge must consider the factors in s. 276(3): Barton, at para. 63; Goldfinch, at para. 50.

[53] Second, the language “the complainant has engaged in sexual activity”, which appears in both ss. 276(1) and (2), designates the nature of the evidence which may be exceptionally admitted. But, as s. 276(2)(c) clarifies, it must be evidence “of specific instances of sexual activity”. Neither the term “specific instances” nor the term “sexual activity” are defined in or for the purposes of s. 276. However, when read purposively and contextually “specific instances” refers to discrete acts of sexual activity not general reputation. The degree of specificity required depends upon a variety of factors. The circumstances of the case. The nature of the activity. And the use proposed for the evidence: R.V., at paras. 48‑49; Goldfinch, at para. 53. The section enjoins broad exploratory questioning: R.V., at para. 47.

[54] Third, the requirement of relevance to an issue at trial in s. 276(2)(b).

[55] Evidence is relevant if it has some tendency, as a matter of logic and human experience, to make the proposition of fact for which it is advanced slightly more likely than that proposition would be without that evidence. The standard is not demanding: R. v. Calnen, 2019 SCC 6, at para. 108.

[56] Bare assertions that evidence of a complainant’s extrinsic sexual activity is relevant to provide context for other evidence, to amplify the narrative or to impugn the complainant’s credibility, fall short of the standard required by s. 276(2)(b): Goldfinch, at paras. 5, 40, 51, 95-96, 120, 124.

[57] Evidence of a complainant’s extrinsic sexual activity may be relevant to rebut evidence adduced by the Crown: R.V., at paras. 56, 66; Goldfinch, at paras. 57, 113. Or to a defence of honest but mistaken belief in communicated consent. However, that belief cannot simply rest upon evidence that the complainant consented at some time in the past. For that would implicate twin myth reasoning: Goldfinch, at para. 62. No proposed use of the evidence may invoke twin myth reasoning which is subject to the exclusionary rule of s. 276(1): Goldfinch, at paras. 51, 56, 58, 120.

[58] Fourth, an applicant who wishes to introduce evidence of a complainant’s extrinsic sexual activity will not succeed simply by showing that the proposed evidence is sufficiently specific and relevant to an issue at trial. The evidence must also have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice considering the factors enumerated in s. 276(3): R.V., at para. 60.

[59] A final point has to do with the reviewability of an order made on an application to admit evidence by exception under s. 276(2). Like other orders relating to the conduct of a trial, including those having to do with the admissibility of evidence, orders made under s. 276(2) may be varied or revoked should there be a material change in circumstances as the trial unfolds: Barton, at para. 65; R.V., at para. 74.

The Principles Applied

[60] A combination of factors persuades me that this ground of appeal cannot prevail.

[61] In assessing the validity of claims of error in rulings on the receivability of evidence, the context in which the claim arises is of critical importance. It is especially so where a deficit alleged in the evidence in issue is its relevance. After all, relevance is not an inherent characteristic of any item of evidence. Relevance does not exist in the air, rather as a relationship between the item of evidence in issue and the proposition of fact the proponent of the evidence seeks to establish by its admission.

[62] In this case, the items of evidence in issue have to do with extrinsic sexual activity of the complainant. Kissing and sexually provocative dancing with the appellant at a nightclub six months before the alleged offence. And discussions about prior sexual experiences and preferences prior to the beginning of the sexual activity that forms the subject matter of the charge. The evidence tendered in support of defences of consent and honest but mistaken belief in communicated consent.

[63] The nightclub evidence was not relevant to the defence of consent because, in addition to its temporal remoteness, no defence of advance or implied consent exists. Consent exists, if at all, in the here and now. Contemporaneous voluntary agreement to the specific touching at issue, its sexual nature, and the identity of the complainant’s sexual partner. On this issue, the events at the nightclub had nothing to say. Equally so, on the claim of honest but mistaken belief in communicated consent, where its only claim to relevance follows a path of prohibited twin myth reasoning.

[64] The failure of this evidence to satisfy the modest threshold required for relevance renders it inadmissible under s. 276(2) because it lacks significant probative value that is not substantially outweighed by the danger of prejudice (through twin myth reasoning) to the proper administration of justice.

[65] The evidence of the contemporaneous conversation about sexual experiences and preferences may not qualify as evidence of “specific instances of sexual activity” as s. 276(2)(c) requires. However, its relevance to the issue of consent and honest but mistaken belief in communicated consent could only be established by invoking a prohibited chain of twin myth reasoning. It also comes uncomfortably close to reputation evidence, the admissibility of which is barred by s. 277 when offered to challenge the credibility of the complainant.

[66] The trial judge correctly rejected this evidence when it was tendered for reception on a pre-trial application. Nothing that occurred during the trial warranted a re-evaluation of its admissibility, much less a contrary conclusion.

Ground #2: Honest but Mistaken Belief in Communicated Consent

[67] The second ground of appeal alleges judicial error in failing to instruct the jury on the defence of honest but mistaken belief in communicated consent. The parties and trial judge frequently discussed the availability of this defence at trial. In the end, the trial judge concluded that the evidence adduced was not up to the task set for it by the air of reality standard. He declined to instruct the jury on the defence.

[68] The evidentiary background has been canvassed earlier and requires no repetition here. A brief reference to the basis upon which the appellant relied to press the defence into service is sufficient for our purposes.

The Essential Background

[69] In support of his submission that the defence should be left to the jury, the appellant relied upon a mélange of his own and M.C.’s testimony about the applicable roles. The respondent does not gainsay the availability of this means of satisfying the evidentiary threshold, only the conclusion that should follow.

[70] The appellant described M.C. as a willing participant in the several incidents of sexual activity that occurred. She did not say “no”, indeed initiated some of the activity herself, including the acts of fellatio, then positioned herself in such a way as to facilitate digital penetration and vaginal intercourse. This signalled to the appellant that M.C. was a consenting partner, or at the very least, led him to honestly believe that by her conduct that M.C. was consenting to what was taking place.

[71] M.C. said “no” when the appellant asked for a kiss. Although she meant “no”, she did not speak in a serious tone. She laughed, giggled and smiled, her usual conduct when flirting with someone. She meant “no” even though she kissed the appellant back. She reacted the same way when he asked her for fellatio. When he repeated his requests in a “barking” tone, she complied.

[72] As the sexual activities continued, progressing to digital penetration, vaginal intercourse, and further fellatio, M.C. said that she played along, moaned, and pretended that she enjoyed and wanted what was happening. She “put on a show”, hoping that this would prompt the appellant to ejaculate so that she could get her drugs and leave.

The Arguments on Appeal

[73] The appellant submits that the trial judge erred in failing to leave the defence of honest but mistaken belief in communicated consent to the jury. There was evidence that satisfied the air of reality standard. And both parties, albeit for different reasons, agreed on the availability of the defence.

[74] The trier of fact, the appellant says, can accept or reject some, none, or all of any witness’s testimony. A defence may be cobbled together in this way by taking bits and pieces of evidence from different sources and assessing their combined force against the air of reality standard. Although the trial judge was aware of this means of satisfying the standard, he erred in its application to the evidence adduced at trial.

[75] In this case, the appellant urges, the trial judge failed to consider several relevant aspects of M.C.’s evidence. That her “no” was not “no” spoken in a serious tone, although she meant what she said. Her body language was consistent with flirting and communicated a willingness to participate in sexual activity. She was “acting” throughout, moaning and making sexual sounds whose purpose was to make the appellant reach a sexual climax earlier.

[76] The appellant adds that the trial judge’s failure to instruct the jury on the defence that he honestly but mistakenly believed that M.C. communicated her consent as to the sexual activity was exacerbated when the jury asked and the trial judge answered a question during deliberations. The question clearly indicated that the jury was struggling with this very issue even though they had never been instructed about it. The appellant sought a mistrial. The Crown agreed. But the trial judge continued with the trial, erring further and causing a miscarriage of justice.

[77] The respondent supports the trial judge’s conclusion not to leave the defence to the jury. M.C. said “no” to the various forms of sexual activity. The appellant’s attempts to invoke honest but mistaken belief in communicated consent are foreclosed for several reasons. He took no reasonable steps to find out whether M.C. consented. He was reckless or wilfully blind to the absence of consent.

[78] In this case, the central issue involved the credibility of the authors of two competing versions about sexual conduct that was largely uncontroversial. M.C. said she did not consent to the activity. If believed with the necessary degree of certainty, her evidence was dispositive of the issue of consent as an element of the actus reus. The appellant’s perception of M.C.’s state of mind was of no consequence on this issue.

[79] The Crown also had to prove the fault element in sexual assault. This required evidence to establish that the appellant intended to touch M.C. and at that time knew, was reckless, or was wilfully blind that M.C. did not consent to the touching. It was to this element that the claim of honest but mistaken belief in consent related. If the appellant honestly believed that M.C., by her words or conduct or some combination of both, communicated her consent to engage in each specific sexual activity alleged, he was entitled to be acquitted.

[80] The respondent says that, like any defence, whether honest but mistaken belief in communicated consent can be considered by the trier of fact depends on whether the evidence adduced at trial provides an air of reality for the defence. And that requires that there be evidence on the basis of which the trier of fact, acting reasonably, could find that the appellant took reasonable steps to ascertain M.C.’s consent and honestly believed M.C. communicated her consent to the relevant activity. And the belief must not originate in a state of self-induced intoxication, recklessness, or wilful blindness.

[81] In this case, according to the respondent, the defence was unavailable. There was no evidence that the appellant took any reasonable steps to determine whether M.C. consented to the sexual activity. She said “no”. He asked no questions. He simply did not listen to, instead ignored, her opposition. Nor does M.C.’s evidence support any reasonable steps on the appellant’s part.

[82] The respondent accepts that the jury’s question related to the appellant’s state of mind. After all, the Crown must prove as an essential element of the offence that the appellant knew that M.C. did not consent to the sexual touching in issue, or was reckless or wilfully blind as to whether she consented. This is a different question that required and received a correct response. That it was asked does not mean that the trial judge should have instructed the jury on the defence asserted. The availability of defences depends on an air of reality, not jury questions.

The Governing Principles

[83] The principles that inform our assessment of this ground of appeal derive from two sources. The first describes the standard required to satisfy the air of reality requirement to put a defence in play at trial. And the second defines the scope of the specific defence in issue – honest but mistaken belief in communicated consent.

[84] The air of reality standard requires a trial judge to consider all of the evidence adduced at trial and to assume the evidence an accused relies upon in support of a defence in issue to be true: R. v. Cinous, 2002 SCC 29, at para. 53. The test is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous, at paras. 49, 82; R. v. Gauthier, 2013 SCC 32, at para. 23; R. v. Mayuran, 2012 SCC 31, at para. 21.

[85] A trial judge’s threshold determination about an air of reality does not target the substantive merits of the defence, justification, or excuse in issue. The reason is simple: that issue falls within the exclusive province of the jury. And so it is that the trial judge does not:

i. make determinations about the credibility of witnesses; ii. weigh the evidence; iii. make findings of fact; or iv. draw determinate factual inferences.

Whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day is beside the point for the trial judge: Cinous, at para. 54.

[86] Where the defence, justification, or excuse upon which an accused relies depends upon circumstantial evidence, or contains an objective (reasonableness) component, the trial judge’s task is to examine the field of factual inferences that can reasonably be drawn from the evidence. This field of factual inferences must extend to those necessary for the defence to succeed: Mayuran, at para. 21, citing Cinous, at para. 91.

[87] The fault element in sexual assault consists of the intention to touch the complainant knowing that, or being reckless or being wilfully blind to, a lack of consent on the part of the complainant: Barton, at para. 87, citing R. v. Ewanchuk, at para. 42.

[88] For the purposes of the defence of honest but mistaken belief in communicated consent, “consent” means that the complainant, by words, conduct, or a combination of both, affirmatively communicated her agreement to engage in the sexual activity alleged with the accused. In other words, the question to be answered is whether the accused honestly believed the complainant effectively said “yes” through her words and/or conduct: Barton, at para. 90, citing Ewanchuk, at para. 49.

[89] The requirement for the defence that an accused have an honest but mistaken belief that the complainant actually communicated consent by words, conduct, or both means that the principal considerations in determining its availability are:

i. the complainant’s actual communicative behaviour; and ii. the totality of the relevant and admissible evidence explaining how the accused perceived the complainant’s behaviour to communicate consent.

See, Barton, at para. 91, citing R. v. Park, at para. 44.

[90] The availability of the defence of honest but mistaken belief in communicated consent is circumscribed by the provisions of s. 273.2. Those limitations include restrictions on the source or origins of the appellant’s belief and the requirement in s. 273.2(b) that the accused take reasonable steps, in the circumstances of which the accused was aware at the time, to ascertain that the complainant was consenting to the sexual activity in which they were engaged. No reasonable steps, no defence: Barton, at para. 104.

[91] The reasonable steps requirement in s. 273.2(b) includes both objective and subjective elements. The steps of the accused must be objectively reasonable. The reasonableness of those steps must be assessed in the circumstances as they were then known to the accused: Barton, at paras. 101, 104.

[92] Some things are not reasonable steps. For example, any steps grounded in rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. Reliance on a complainant’s silence, passivity, or ambiguous conduct cannot constitute a reasonable step: Barton, at paras. 107, 109.

[93] In some cases, the reasonable steps requirement will be elevated. Such as the invasive nature of the sexual activity in issue. Or the enhanced risk posed to health and safety of those involved. Or the lack of familiarity between the participants: Barton, at para. 108.

[94] Where an accused seeks to rely on the defence of honest but mistaken belief in communicated consent, he must establish first that there is an air of reality to the defence. In concrete terms, this means that the trial judge must first consider and decide whether there is any evidence on the basis of which a reasonable trier of fact acting judicially could find that the accused:

i. took reasonable steps to ascertain the complainant’s consent; and ii. honestly believed the complainant communicated consent.

See, Barton, at para. 121.

The Principles Applied

[95] I would not give effect to this ground of appeal. In my respectful view the trial judge properly concluded that the evidence adduced at trial, taken as a whole, fell short of the air of reality threshold required to put this defence in play.

[96] Honest but mistaken belief in communicated consent is a mistake of fact defence. A mistake of fact defence operates where an accused mistakenly perceives facts that negate or raise a reasonable doubt about the fault element in an offence. It is a defence that is rarely invoked. It does not arise by necessary implication in every case in which a complainant says sexual assault and an accused says consent. The evidence, taken as a whole, must satisfy the air of reality standard to put the defence in play in light of the statutory limitations imposed on its availability.

[97] To satisfy the air of reality threshold and require submission of the honest but mistaken belief in communicated consent defence to the jury, the trial judge must be satisfied, on the basis of the evidence taken as a whole, that there is evidence on the basis of which a reasonable trier of fact, acting judicially, could find that the appellant:

i. took reasonable steps to ascertain that M.C. voluntarily agreed to each physical act, its sexual nature, and that it occurred with the appellant as her sexual partner; and ii. honestly believed M.C. communicated her consent.

[98] In this case, there was no evidence to satisfy the air of reality standard in relation to the reasonable steps requirement. M.C. testified that she said “no” to the appellant’s sexual demands. But he proceeded nonetheless, repeating his demands in a “barking” tone. The appellant claimed that M.C. was an active participant who initiated much, if not most, of the sexual activity. Nothing was said as the activity progressed through its various stages.

[99] In addition, the appellant’s claim of honest but mistaken belief in communicated consent is flawed because it appears grounded, in some respects at least, on impermissible mistakes of law, not permissible mistakes of fact. An assumption of implied consent based on the appellant’s evidence that M.C. never said “no”, thus impliedly consented to any and all sexual activity. A failure to consider that M.C.’s consent had to be contemporaneous and activity-specific, not an agreement to all activity of an undefined scope.

[100] This is also a case in which the threshold for satisfying the reasonable steps requirement was elevated. The sexual activity was invasive in nature. There was an enhanced risk to M.C.’s health because of unprotected sexual intercourse. The parties were not all that familiar with each other, never having been alone on any previous occasion. The risk of miscommunication, misunderstanding and mistake was palpable.

[101] The jury’s question does not mandate a different answer to whether the trial judge erred in failing to instruct the jury on the defence of honest but mistaken belief in communicated consent. What triggers the obligation to instruct the jury on a defence, justification, or excuse is the capacity of the evidence adduced at trial to satisfy the air of reality standard for each and every element of that defence, justification, or excuse. A question posed by a deliberating jury has nothing to say about the adequacy of the evidentiary record to meet the standard required.

[102] The jury’s question related to the fault element the Crown was required to prove to establish the appellant’s guilt of sexual assault. It was answered correctly and is of no consequence to this ground of appeal.

Ground #3: The Section 10 Charter Infringement

[103] This ground of appeal challenges the correctness of the ruling made on a pre-trial application to exclude evidence of a video recorded post-arrest interview of the appellant. The ruling was made at the conclusion of a blended voir dire in which the Crown sought to have it declared voluntary so that the appellant could be cross-examined on it if he testified. Defence counsel sought its exclusion for all purposes because of various Charter infringements, among them ss. 10(a) and (b).

[104] In written reasons released about eight months after argument on the application, the trial judge was satisfied beyond a reasonable doubt that the interview was voluntary. He was not persuaded that the interview was the product of any Charter infringement. This ground of appeal contests the correctness of the ruling in relation to the infringement of s. 10 of the Charter.

The Essential Background

[105] The sexual assault of M.C. took place on February 27, 2016. She reported it to police within a few days. Her report included reference to the appellant’s supply and her purchase of cocaine. Within a matter of weeks, the police began an investigation of the appellant’s involvement in drug trafficking.

The Undercover Drug Buy

[106] On April 12, 2016, about three days after the drug investigation began, the appellant sold 3.5 grams of cocaine. The transaction occurred in a motor vehicle in the parking lot of an apartment building. The motor vehicle belonged to the police service conducting the investigation. The purchaser was an undercover police officer.

The Arrest

[107] After the drug transaction had been completed, two men approached the vehicle. They were police officers dressed in plainclothes. They identified themselves as police officers and told the appellant he was under arrest. The appellant, who said he was concerned that the men may have been robbers, resisted. He was taken to the ground, a single elbow strike delivered to his forehead to distract him from resistance. The blow was not intended to hurt him.

The Charter Advice

[108] The appellant was handcuffed and taken to a police van. There, an officer explained to him that he had been arrested on two counts of trafficking and two counts of possession of the proceeds of crime. The officer also read the appellant his right to counsel, including his right to free legal advice from duty counsel, in relation to the drug charges. The officer understood that the appellant would be investigated further by officers from the Sex Crimes Unit while he was in custody, but he did not mention any potential charges when he read the appellant his s. 10 Charter advice.

[109] The appellant told the police that he wanted to speak to duty counsel.

The Transport to 51 Division

[110] On the way to 51 Division, the appellant cried. He said he was scared. His mother would be devastated when she learned of his arrest. He complained of pain because the handcuffs were too tight. During the 45-minute trip to 51 Division, the officers did not try to elicit any information from the appellant.

The Booking Procedure

[111] At the booking desk at 51 Division, the appellant was again advised of the reasons for his arrest – charges of trafficking and possession of the proceeds of crime – and his rights under s. 10(b) of the Charter. He accepted the police offer to speak with duty counsel. He was also told that, since he had been arrested for drug trafficking, he would be required to undergo a strip search. When asked about any injuries, his only complaint had to do with the tightness of the handcuffs and the anxiety from which he suffered.

[112] When the strip search had been completed, officers brought the appellant back to the booking area where he could be put in contact with Duty Counsel.

The Discussion with Duty Counsel

[113] DC Peck, an officer with the Sex Crimes Unit, called Duty Counsel at 9:17 p.m. She left a message explaining that the appellant was at 51 Division after his arrest on two counts of each of sexual assault, trafficking, and proceeds of crime. When Duty Counsel called back at 9:23 p.m., he and the appellant spoke for about four minutes. Duty Counsel, the parties agreed, did not tell the appellant about the charges on which he had been arrested.

The Police Interview

[114] DC Peck escorted the appellant from the holding cells to the interview room. As they walked along, she told the appellant that M.C. and another woman had alleged that he had sexually assaulted them. The only sexual offence with which the appellant was charged was the sexual assault on M.C.

[115] The police interview of the appellant began about 20 minutes after the appellant had spoken to Duty Counsel. The appellant confirmed that he had spoken to Duty Counsel and had been advised to say nothing to the police. However, and despite this advice, he agreed to speak to DC Chin who said that he was from the Sex Crimes Unit and was not there to talk about the drug charges. The appellant did not deny that he had been advised of the two charges of sexual assault and told the names of the complainants. He knew one of them (not M.C.) but could not recall the name of the other (M.C.).

[116] DC Chin explained the meaning of sexual assault to the appellant. They canvassed the allegations of the second complainant. The appellant repudiated sexual activity with her. They also discussed M.C.’s allegations. The appellant denied that M.C. had visited him at his apartment. He also denied that M.C. rubbed his back and his penis and that she performed fellatio on him, or that they had sexual intercourse.

[117] At no time during the police interview did DC Chin advise the appellant of his right to counsel or read either the primary or secondary police caution to him on the sexual assault charge. The appellant denied any police threats. At the end of the interview, the appellant asked DC Chin for a hug. The officer obliged. He also facilitated a telephone call between the appellant and his girlfriend.

The Ruling of the Trial Judge

[118] The trial judge concluded that the Crown had proven the voluntariness of the appellant’s interview beyond a reasonable doubt. This, he decided, entitled the Crown to cross-examine the appellant on any statements made during the interview that were inconsistent with his testimony at trial should he give evidence in his own defence.

[119] Turning to the allegation of Charter infringement, the trial judge was satisfied that the appellant had been advised of the reasons for his arrest as required by s. 10(a). DC Peck had told him about the two charges of sexual assault, including the names of the complainants, before the interview with DC Chin began. This occurred shortly after completion of the booking on the drug related charges. The judge rejected the appellant’s evidence that he had not been advised of his right to counsel until after he had spoken to duty counsel. The appellant had failed to establish, on a balance of probabilities, a breach of s. 10(b) of the Charter.

The Arguments on Appeal

[120] In support of this claim of error, the appellant asks that we keep in mind that ss. 10(a) and (b) of the Charter work together. Section 10(a) requires that a detainee be advised promptly of the reasons for their detention. Section 10(b) requires prompt advice about the right to counsel and demands that police facilitate access to counsel when the detainee requests it. And hold off eliciting evidence from the detainee until legal advice has been provided. The combination ensures that the detainee is aware of the extent or nature of their jeopardy and thus is in a position, with the benefit of legal advice, to make a meaningful and informed decision about whether to cooperate or decline to participate in subsequent investigative requests.

[121] Where a detainee’s jeopardy changes, as it did here when the investigation turned to allegations of sexual assault, police have a duty to readvise the detainee of the reasons for their detention and of their right to retain and instruct counsel. In each case, the duty is to be discharged promptly. Here, neither duty was discharged as it should have been. The advice about the reasons for detention was not provided in a timely way, rather casually at best after the appellant had spoken to duty counsel about the drug charges. And the record is barren of any evidence that the appellant was advised of his right to the advice of counsel on the sexual assault charge.

[122] The appellant says that the trial judge erred in concluding that there had been no breach of either ss. 10(a) or (b) of the Charter. Serious breaches of both occurred. These breaches had a significant impact on the appellant’s Charter-protected interests. In combination, these factors warranted exclusion of the video recorded interview as evidence, no matter the manner in which the Crown used it to advance its case.

[123] The respondent contends that the critical findings of fact made by the trial judge were reasonably available to him on the evidence adduced on the pre-trial application. These findings are entitled to deference in this court. The appellant has failed to demonstrate any error in the application of the governing legal principles to those factual findings. As a result, this ground of appeal should be rejected.

[124] In this case, the respondent says, the trial judge was entitled to find that the appellant was not a credible witness and that his evidence on the relevant issues was unreliable. Equally available on the evidence was a finding that the appellant had been properly informed about the reasons for his arrest, in particular, the allegations of sexual assault, before he spoke with duty counsel and was advised to say nothing to the police. Likewise, findings that the appellant understood the nature and extent of his jeopardy and whether he should speak to investigators or decline to participate in any questioning.

[125] In the alternative, the respondent submits that any s. 10 breach that may have occurred was minor and had a minimal impact on the appellant’s Charter-protected interests. These two factors, as well as society’s interest in the adjudication of the case on its merits, would result in reception of the evidence under s. 24(2) of the Charter.

The Governing Principles

[126] In this court, the appellant restricts his complaint about the ruling admitting the video recorded interview as evidence to complaints about infringements of ss. 10(a) and (b) of the Charter.

[127] Among other things, s. 10(a) of the Charter is an adjunct to the right to counsel for which s. 10(b) provides. This is so because an arrested or detained person can only exercise their rights under s. 10(b) in a meaningful way if the person knows the nature and extent of their jeopardy: R. v. Evans, at p. 887.

[128] In determining whether there has been a breach of s. 10(a), what controls is the substance of what the detainee can reasonably be supposed to have understood from what they were told, not the formalism of the precise words used in the advice. The question is whether what the detainee was told, viewed reasonably in all the circumstances of the case, was enough to permit them to make a reasonable decision to undermine the right to counsel: Evans, at p. 888.

[129] Breaches of s. 10(a) can occur in either or both of two ways. A temporal breach of s. 10(a) occurs when the detainee is not promptly advised of the reasons for their detention. An informational breach takes place if the reasons for their detention are not communicated in a way that permits the detainees adequate understanding: R. v. Roberts, 2018 ONCA 411, at para. 63. When the reason for a person’s detention has changed, police are required to re-perform their s. 10 duties including those of s. 10(a): Roberts, at para. 71.

[130] The purpose of the right to counsel in s. 10(b) of the Charter is to allow a detainee, apprised of the reasons for their detention under s. 10(a), not only to be informed of their rights and obligations under the law, but also, equally if not more important, to obtain advice about how to exercise those rights: R. v. Sinclair, 2010 SCC 35, at para. 26.

[131] Section 10(b) fulfills its purpose in two ways. The first is by requiring that the detainee be informed of their right to counsel. This is the informational component. The second is by requiring that the detainee be given a reasonable opportunity to exercise their right to consult counsel. This is the implementational component: Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, at paras. 29-30. The implementational duty also includes a requirement that police hold off in their questioning or other conduct designed to elicit evidence from the detainee until the detainee has had a reasonable opportunity to exercise their right to counsel: Willier, at paras. 32-33.

[132] The emphasis in the right to counsel is on assuring that any decision by the detainee to cooperate in the investigation, or to decline to do so, is at once voluntary and informed by legal advice. Section 10(b) does not guarantee a wise decision by the detainee or a decision free of the influence of subjective factors, only an opportunity to access legal advice to inform that decision: Sinclair, at para. 26.

[133] A one-time only consultation rule is inadequate to fulfill the purpose of s. 10(b). And so it is that a detainee is entitled to speak to a lawyer again, and be advised of the right to do so, when a change in circumstances, such as a change in the nature and extent of jeopardy faced by the detainee, occurs: Sinclair, at paras. 48, 51; R. v. McCrimmon, 2010 SCC 36, at para. 21.

The Principles Applied

[134] I would not give effect to this ground of appeal. It largely recycles arguments advanced to and rejected by the trial judge and invites us to substitute findings of fact for those made at first instance.

[135] It is beyond controversy that the appellant’s arrest and initial advice in compliance with ss. 10(a) and (b) of the Charter related to drug transactions in which he had engaged with an undercover police officer. The drug sale was opportunistic. It entitled the police, aware of a concurrent investigation into allegations of sexual assault, to arrest the appellant, take him into custody, and make him available for questioning by officers from the Sex Crimes Unit should he choose to do so.

[136] At the booking desk, the reasons for the appellant’s arrest were reconfirmed. Likewise, that he had been advised and had chosen to exercise his right to counsel on those charges. A strip search followed in light of his arrest and detention on trafficking charges.

[137] The trial judge concluded that DC Peck had advised the appellant of the sexual assault allegations shortly after the booking and strip search procedure had been completed on the drug and proceeds charges. She also advised duty counsel in the message she left that the appellant was detained on two counts of each of sexual assault, trafficking, and possession of the proceeds of crime. Thus, duty counsel was aware of the sexual assault allegations when he and the appellant spoke and he advised the appellant to say nothing to the police. The appellant’s awareness of the charges was confirmed at the outset of the interview with DC Chin when he offered no demur to the officer’s mention of what he wanted to talk to the appellant about.

[138] Despite the absence of any evidence from DC Peck about the details of any advice she gave the appellant about the sexual assault charges, the appellant admitted that she had told him about the allegations. This informal admission afforded a sufficient basis to find the required notice. It was the appellant’s burden to establish an infringement of the components of s. 10(b). The trial judge, for understandable reasons, rejected the appellant’s denial that he had received the requisite advice. In other words, the appellant failed to establish an infringement on a balance of probabilities.

[139] This ground of appeal fails.

Ground #4: The Unbalanced Charge to the Jury

[140] The final ground of appeal from conviction challenges the objectivity of the charge to the jury. The claim is grounded on an alleged disparity in the frequency of direct references to the evidence of the principals and a failure to balance a reference to the admitted lies of the appellant in his police interview with mention of what is said to be M.C.’s perjury at trial. Assessment of this ground of appeal requires brief reference to two aspects of the evidence adduced at trial and a portion of the charge to the jury.

The Essential Background

[141] In recounting her memory of the act of fellatio which she said lasted 60 to 90 seconds, M.C. initially testified that the appellant forced her mouth onto his penis by putting his hands on her head and shoving her head down to begin the act. When cross-examined on her testimony about the same events at the preliminary inquiry, M.C. accepted that the appellant had not touched her for the first 30 seconds although he did so for the balance of that sexual activity. The appellant characterizes this discrepancy as “perjury”.

[142] On four occasions, the trial judge referred to the fact that the appellant admitted having lied to the police during the video recorded interview. He was not under oath. Nor had he been warned about the obligation to tell the truth or the consequences of lying.

[143] The second inclusion alleged to have disrupted the balance necessary in the charge was a reference to some evidence elicited inadvertently in the trial Crown’s cross-examination of the appellant.

[144] The response revealed that another complainant had alleged that the appellant sexually assaulted her. When the evidence was adduced, defence counsel asked the trial judge, in the absence of the jury, to declare a mistrial. The trial judge refused.

[145] In the charge to the jury, a written copy of which was provided to the jury, the trial judge included a summary of this evidence under the heading “Irrelevant Evidence”. He explained that jurors were to completely disregard the fact of a second complaint of sexual assault against the appellant and assign it no weight in determining whether the appellant was guilty of the offence charged. The appellant says this reference, which recalled evidence likely long forgotten by the jury, contributed to an imbalanced charge.

The Arguments on Appeal

[146] The appellant accepts that an accused is entitled to a proper, but not a perfect charge. An essential component of a proper charge is a fair and balanced recital of the evidence that is relevant to the controverted issues at trial, in this case, consent. But the jury did not receive their entitlement. Instead, the jury was provided with numerous direct references to the testimony of M.C. and sparse mention of the appellant’s version of events. This imbalance could only have signalled that M.C.’s testimony was entitled to greater weight in deciding what verdict to render than that of the appellant.

[147] The trial judge repeatedly told the jury that the appellant lied and admitted that he lied to the police. He was not under oath nor warned about the consequences of lying at the outset of the interview. This would suggest to the jury that his evidence could not be believed. After all, he was an admitted liar. But M.C. had also lied. And her lies were under oath. She committed perjury in testifying about the early stages of fellatio. The trial judge should have counterposed his reference to the appellant’s lies with a citation of M.C.’s perjury. His failure to do so contributed to an imbalance in the charge.

[148] The trial judge’s reference to the sexual assault allegations of another complainant also contributed to an imbalance in the charge. This evidence, inadvertently disclosed by the appellant in cross-examination, was irrelevant, immaterial, and offended the admissibility rule relating to extrinsic misconduct. It invited propensity reasoning. Nothing should have been said about it in the charge. Instead, the trial judge reminded the jury of its substance before telling them not to use it in their deliberations. The recitation of the conduct nullified the prohibited use aspect of the instruction.

[149] The appellant accepts that a trial judge is entitled to comment on the evidence of witnesses and factual controversies at trial. But the comments must amount to advice, not direction, and not leave the impression that the jury should make certain findings of fact. The references here fell foul of that distinction.

[150] The respondent rejects any suggestion of imbalance in the charge to the jury. The charge was proper as is the appellant’s entitlement. That it may not have been perfectly congruent with the appellant’s perception of his due is of no moment. Perfection is the right of neither party.

[151] In assessing the adequacy of final instructions to the jury, an appellate court applies a functional approach to determine whether those instructions achieve their purpose. And that purpose is to ensure that the jury understands the factual issues they are required to resolve; the legal principles to be applied to determine those issues; the positions of the parties; and the evidence relevant to the positions of the parties on those issues. There is no requirement of equal time in the review of the positions of the parties, nor any obligation to review all the evidence. Trial judges are entrusted with a discretion that permits them to decide the nature and content of the final instructions best suited to the needs of the case.

[152] In this case, the respondent says, a functional approach to an assessment of the adequacy of the charge demonstrates that it conveyed the defence position fairly and adequately. The trial judge explained that it was the jury’s duty to make their own findings of fact. These findings were to be made on the basis of the evidence as a whole, not just on those portions of the evidence the judge reviewed in his charge. Further, the jury was free to ignore any comments the judge made or opinions he expressed about issues of fact.

[153] The trial judge’s approach to the evidence, the respondent urges, was fair and balanced. The issue for the jury to decide was whether the Crown had proven the allegations contained in the count beyond a reasonable doubt. The evidence on which the Crown relied was the testimony of M.C. The critical issue – consent – had to do with M.C.’s state of mind. Thus, the need to review her evidence at some length. The same could be said about the importance of consent in connection with the fault element in sexual assault. Where appropriate, the trial judge summarized the contrary evidence of the appellant and fully and fairly recited the position of the defence in language of defence counsel’s own choosing.

[154] The respondent dismisses the appellant’s claim of imbalance based on the trial judge’s failure to counterbalance his references to the appellant’s lies to the police with a mention of M.C.’s “perjury”. M.C. was cross-examined on her evidence at the preliminary inquiry about the early stages of the fellatio in which she engaged with the appellant. She adopted a portion of that evidence as true. This was simply cross-examination on a prior inconsistent statement, a commonplace in criminal trials. The trial judge instructed the jury in terms to which no objection is or could be taken about the evidentiary value of the prior statements, including the effect of their adoption by a non-accused witness. Adoption of a prior inconsistent statement by a witness, without more, is not perjury. It follows that the trial judge did not err in failing to characterize it as such or to juxtapose it to the appellant’s admitted lies.

[155] No imbalance was created, the respondent submits, by the instruction recalling the inadmissible evidence about the second allegation of sexual assault with which the appellant was not charged. Not only did this reference cause the appellant no prejudice, its mention, which included a prohibition against evidentiary use, was essential to ensure clarity and stifle any tendency, if left untutored, to propensity reasoning.

The Governing Principles

[156] Our approach to allegations of error in final instructions to the jury is functional. We test the instructions against the purpose for which they are given. Those purposes include ensuring that the jury understands what is and what is not evidence. And that the jury appreciates the value and effect of the evidence on the positions put forward at trial, especially, but not only, the position of the defence. Instructions do not warrant appellate intervention simply because more could have been said. Or because what was said could have been phrased differently or more felicitously: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 233.

[157] A jury charge must leave the jury with a clear understanding of:

i. the factual issues to be decided; ii. the legal principles governing the factual issues and the evidence received at trial; iii. the positions of the parties; and iv. the evidence relevant to the positions of the parties.

See, Evans, at para. 227.

[158] The charge to the jury is a critical feature of every jury trial. Its strength is its objectivity. It is not the place for the taking of sides. Jury education. Not jury indoctrination. A charge must be fair and balanced so as not to compromise the actual or apparent fairness of the trial. It ought not promote unduly the case for the Crown. Nor should it effectively ignore and denigrate the defence case: Evans, at para. 229.

[159] A trial judge is under no obligation to review every piece of evidence received at trial. Non-direction on an item of evidence amounts to reversable error only where the single item of evidence omitted from the charge is the foundation of a defence advanced at trial: R. v. Daley, 2007 SCC 53, at para. 55, citing R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436, aff’d on other grounds, , [1978] 1 S.C.R. 538.

[160] The extent to which a trial judge must review the evidence in their final instructions to the jury will depend on the circumstances of each case. The test is one of fairness. An accused is entitled to a fair trial at which they can make full answer and defence. They are not entitled to a perfect trial or the fairest trial possible. Provided the salient parts of the evidence are put to the jury so that the jury is able to fully appreciate its value and effect and the defence put forward, the charge is adequate: Daley, at para. 57.

The Principles Applied

[161] In my respectful view, this ground of appeal lacks substance. I reach this conclusion for several reasons.

[162] First, claims of imbalance in a jury charge cannot be sustained on the basis of a microscopic scrutiny of isolated portions of the charge. Imbalance can only be established, if at all, on a review of the charge as a whole and in the context of other trial events, such as the positions put forward and the addresses of counsel.

[163] Imbalance in a jury charge is not determined as if it were an accounting exercise undertaken to produce a balance sheet. Debits on the one side of the ledger. Credits on the other. Precedent establishes no fixed number or ratio of evidentiary references among witnesses whose evidence is divergent. Fairness or balance is about assessing the whole to determine whether, in substance or effect, the instruction unduly promoted the case for the Crown and denigrated the defence case to such an extent that it was not fully presented to the jury.

[164] In this case, the appellant relies upon three aspects of the charge to fund his claim of a lack of balance:

i. the discrepancy in the number of times the trial judge referred to M.C.’s evidence, as compared to the evidence of the appellant; ii. the failure to point out M.C.’s “perjury” but repeated reference to the appellant’s lies to the police; and iii. the repetition of the substance of the inadmissible evidence about the other sexual assault allegation.

[165] Whether they are considered singly or in combination, I am satisfied that these alleged deficiencies fall well short of what is required to establish the ground of appeal advanced.

[166] This was a two witness case. The onus was on the Crown to prove the essential elements of the offence alleged beyond a reasonable doubt. Whether the Crown met or fell short of the standard of proof required depended on the jury’s acceptance of the testimony of M.C. That more frequent reference would be made to M.C.’s testimony in these circumstances is unremarkable. Without more, the mere fact that there were fewer mentions of the appellant’s testimony does not render the charge, considered as a whole in the context of this trial, unbalanced. This is all the more so when we consider the scope of the trial judge’s obligation to review the evidence and the standard applicable when we review a charge alleged to be deficient for failure to refer to items of evidence.

[167] The charge also included repeated instructions that the jury was to consider the evidence as a whole in coming to their conclusion, not simply those portions of the evidence the trial judge rehearsed for them in his charge. In addition, they were told that it was their exclusive responsibility to find the facts from the evidence received at trial. And in this exercise they were required to ignore any views expressed directly or indirectly by the trial judge.

[168] It is uncontroversial that the appellant’s evidence about a second allegation of sexual assault made against him was inadmissible. Trial counsel considered it sufficiently likely to induce propensity reasoning if left on its own that they sought a curative instruction or, failing which, a mistrial. The trial judge declined to provide a mid-trial corrective instruction or to declare a mistrial. In the trial judge’s view, a curative direction in the charge would be a sufficient prophylactic to prevent improper jury use of the evidence.

[169] A commonplace occurrence in criminal jury trials is the inadvertent disclosure of inadmissible evidence. Depending upon its nature and extent and the other circumstances of individual cases, a trial judge, confronted with the unexpected, will often scan the jury and counsel to assess their reaction. Sometimes, the best course is to say and do nothing. On other occasions, some direction is required. But when? Immediately? After a short discussion with counsel, but still shortly after the evidence has been adduced? Or in the charge? Or both?

[170] Whether to say anything, what to say, and when to say it are all issues for the trial judge to decide. They are the eye and ear witnesses to the proceedings, well versed in the trial environment. Their decisions on these issues are entitled to deference from those of us at one remove from the trial. And that is as it should be.

[171] When intervention is left to await the charge, any instruction given will begin with a recital of the substance of the inadmissible evidence. Depending on the time that has elapsed between the two events, the substance of the evidence may have disappeared from the memories of the jurors. Thus, the instruction repeats the inadmissible evidence, only to direct the jury not to consider it in deciding the case. In other words, repeat the prejudice before removing it. But timing and repetition alone are not dispositive of whether the instruction caused any or irremediable prejudice.

[172] In this case, the instruction headed “Irrelevant Evidence”, was brief as was the evidence to which it related. The prohibition against use was pointed and direct. It left no doubt that this evidence had no role to play in the jury’s decision. It caused the appellant no prejudice and did not cause the charge to be unbalanced.

[173] This ground of appeal fails, likewise the appeal from conviction.

The Appeal from Sentence

[174] The trial judge imposed a blended sentence of a term of imprisonment of 20.5 months (26 months less 5.5 months credit for pre-trial custody and stringent release conditions) to be followed by a period of probation for three years. The appellant asks that we reduce the sentence to a term of imprisonment of 15 months.

[175] The appellant identifies a single error in principle as the basis upon which we should intervene, set aside the sentence imposed at trial, and substitute the term of imprisonment he suggests. The principle is that of parity in s. 718.2(b) of the Criminal Code. It holds that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[176] The trial judge made specific reference to the principle of parity in his reasons for sentence. It was for the trial judge to weigh that principle among others and impose a sentence that was proportionate to the gravity of the offence and the degree of responsibility of the appellant as the person who committed it. That another judge or this court might have assayed the influence of parity differently than the trial judge affords no basis for our intervention: R. v. Lacasse, 2015 SCC 64, at para. 49.

[177] This sentence sits comfortably within the range of sentence imposed upon first offenders convicted of similar offences committed in similar circumstances. It gives proper effect to the fundamental principle that the sentence be proportionate to the gravity of the offence, which here included non-consensual unprotected sexual intercourse, and the degree of responsibility of the appellant as the principal offender.

[178] I would grant leave to appeal, but dismiss the appeal from sentence.

Disposition

[179] For these reasons, I would dismiss the appeal in its entirety.

Released: December 20, 2021 “D.W.” “David Watt J.A.” “I agree. L.B. Roberts J.A.” “I agree. B. Zarnett J.A.”