WARNING This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:
278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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: 20220527 DOCKET: C67610
Feldman, van Rensburg and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
H.P. Appellant
Counsel: Mark C. Halfyard, for the appellant Christine Bartlett-Hughes, for the respondent
Heard: November 4, 2021 by video conference
On appeal from the conviction entered by Justice Breese Davies of the Superior Court of Justice on May 16, 2019, with reasons at 2019 ONSC 3058.
Feldman J.A.:
[1] The appellant was convicted by the trial judge of sexual assault of his then girlfriend at a New Year’s Eve party. The complainant was in bed asleep when the appellant initiated sexual intercourse. She woke up and screamed for him to stop after about ten seconds, which he did. His position was that she indicated by her non-verbal responses to his touching that she was consenting. Her position was that she did not consent and that she was asleep until the intercourse awakened her.
[2] A voir dire was held under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, to determine whether the appellant would be permitted to adduce evidence at the trial of their sexual relationship prior to and following the evening in question, on the basis that that evidence was necessary to establish his defences of consent or honest but mistaken belief in communicated consent. He filed two affidavits on the voir dire and was cross-examined extensively by Crown counsel. The trial judge used discrepancies in his voir dire and trial evidence as part of the basis to make adverse credibility findings against him.
[3] The appellant appeals his conviction on three bases: 1) the Supreme Court of Canada’s finding in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, that an accused’s testimony on a s. 276 voir dire is not compelled is no longer good law, following the Supreme Court’s decisions in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, and R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, and therefore the trial judge erred in law by using the appellant’s compelled voir dire testimony against him, contrary to s. 13 of the Canadian Charter of Rights and Freedoms; 2) the trial judge erred in law by allowing the appellant to be cross-examined on the voir dire very broadly on his affidavits, contrary to the Supreme Court’s direction in Darrach; and 3) the trial judge erred in law by finding there was corroboration of the complainant’s evidence.
[4] For the reasons that follow, I would not give effect to any of the grounds of appeal. I would therefore dismiss the appeal. [1]
Factual Background
[5] The appellant and the complainant had been in a relationship beginning in October 2016. He was a security guard applying to become an RCMP officer and she was a student. On the day of New Year’s Eve, they attended a wedding together out of town, returning by 6:00 pm. The complainant’s plans were to attend a New Year’s Eve party at a friend’s apartment, then to go downtown to a club with friends. The appellant was originally going to stay home, but eventually decided to join the complainant at her friend’s party.
[6] Before the party, the complainant drank a bottle of sparkling wine as well as two shots. She then drank more at the party. She left the party with two friends to go to the club, but she was extremely intoxicated in the Uber and vomited when she got out. Her friends decided to send her back to the party and called another Uber. When she arrived back at her friend’s apartment building, she either passed out or fell asleep on the stairs up to the apartment where someone at the party discovered her. The appellant came and carried her up to the apartment and put her in bed.
[7] Later, at around 1:00 or 1:30 a.m., the appellant came into the bed and had sexual intercourse with the complainant. He said it was consensual, which was communicated through her active responses to his approach to her; she said she was asleep until she woke up when he penetrated her. She told him to stop and he did. She was upset and yelling at him. The appellant asked one of the complainant’s friends to console her, and a short time later that friend asked him to leave the party. On his way home, he called a mutual friend, J.H., and told him what happened and that the complainant was upset.
[8] On January 3, 2017, the appellant texted the complainant and apologized for betraying her trust. A few days later, they got together to talk. He apologized again and promised he would stop drinking. In mid-January, they resumed their relationship but also had a number of arguments. They broke up in mid-March. But a few days later, the complainant and J.H. showed up at the appellant’s apartment in the middle of the night. They had both been drinking. They banged on his door, called, and texted him. Eventually he let them in. The complainant was very upset and the appellant suggested they continue their conversation at a later time.
[9] Two days later, the complainant and J.H. came back to the appellant’s apartment, where J.H. surreptitiously taped their conversation. The complainant asked the appellant why, when he saw her lying unconscious, he decided to rape her. The appellant responded that he did not know why he did it and apologized again. She responded that an apology “doesn’t take away from the fact that you violated me and you raped me” and he responded, “you are right.” She also asked him to tell her what happened on New Year’s Eve, and he said that when he went upstairs to eat pizza that he had ordered, he saw her on the bed and got on top of her.
[10] The following day, the complainant reported the alleged assault to the police. She also called the appellant’s employer and the RCMP human resources office and told them he had sexually assaulted her.
Findings by the Trial Judge
[11] At the opening of the trial, the appellant brought an application under ss. 276 and 278.93 of the Criminal Code to adduce evidence of his sexual relationship with the complainant prior to and following the evening in question. He filed two detailed affidavits regarding the events of that evening and the sexual activity they had engaged in prior and subsequent to that evening, and he was cross-examined extensively by Crown counsel on the affidavits. The complainant did not participate in the voir dire.
[12] The trial judge gave oral reasons for her decision regarding the admissibility of the proposed evidence, followed by written reasons. In her trial reasons, she also considered differences between the appellant’s voir dire evidence and his trial evidence in her credibility analysis of the appellant.
[13] In her s. 276 ruling, the trial judge found that the appellant’s prior sexual relationship with the complainant and how it evolved had “significant probative value” which was “not substantially outweighed by the potential prejudice to [the complainant] or to the proper administration of justice if it is adduced in a general, non-intrusive manner.” As a result, the appellant’s counsel was permitted to ask the complainant about kissing on the first date in September and the evolution of their sexual relationship leading up to intercourse on a regular basis in December. The trial judge disallowed other avenues of inquiry that were proposed by the appellant including specific sexual acts, alleged sexual activity earlier that day, their sexual relationship after the incident when they renewed their relationship, and a pattern of previous consent in the past. The s. 276 ruling was not challenged on this appeal.
[14] In her trial reasons for decision, the trial judge identified the two issues in the case: did the Crown prove beyond a reasonable doubt that the complainant did not consent to sexual intercourse on January 1, 2017, and did the Crown prove beyond a reasonable doubt that the appellant knew that the complainant was not consenting? She also explained that to answer those questions, she was required to make credibility and reliability assessments of the appellant and of the complainant and to resolve certain factual discrepancies by applying the R. v. W.(D.), [1991] 1 S.C.R. 742, analytic framework as well as considering inconsistencies, corroboration, and the inherent plausibility or implausibility of the witnesses’ testimony.
[15] The trial judge first assessed the appellant’s credibility and reliability on the factual issues in dispute, most importantly, whether the complainant was asleep until the appellant penetrated her or whether she was awake and actively participated in the sexual activity until she said stop. The trial judge summarized why she rejected the appellant’s exculpatory evidence in the following paragraph:
Nonetheless, I have a number of concerns about the credibility and reliability of H.P.’s evidence. There are internal inconsistencies in his evidence and inconsistencies between his trial evidence and the evidence he gave on the s. 276 voir dire . For example, H.P. gave conflicting evidence about whether he knew how drunk [the complainant] was on New Year’s Eve and whether he knew she came back to the party from downtown because she was drunk. H.P. also gave conflicting evidence about the efforts he made to wake up [the complainant] when he finally joined her in the bedroom. I also found some of H.P.’s testimony about what happened that night inherently implausible. Most importantly perhaps, his description of how the sexual activity with [the complainant] unfolded is inconsistent with a recorded statement he made to [the complainant] on March 26, 2017 that J.H. recorded. Based on all the problems with H.P.’s evidence, I reject his testimony that [the complainant] was awake and actively participating in the sexual activity in question and I am not left with a reasonable doubt on that issue by his exculpatory evidence.
[16] She then conducted a detailed analysis of the appellant’s evidence compared with his voir dire testimony, noting discrepancies, and made findings regarding which version of events she accepted. The trial judge also based her findings on the inherent implausibility of some of his assertions. Finally, the trial judge found that the most significant problem with the appellant’s trial testimony was that it was inconsistent with the March recording of the complainant’s confrontation with him in the presence of their friend, J.H. There, she accused him of raping her while she was unconscious, and he responded that he didn’t know why he did it and that he didn’t know what came over him. She also said that an apology did not take away from the fact that he violated and raped her and he responded that she was right. He also said that on New Year’s Eve, he had come upstairs and got on top of her. He did not say she was awake or that he thought she was.
[17] At trial, the appellant explained that he said these things hoping that the complainant would then let the matter drop, and that he did not see any point in arguing with her. However, the trial judge rejected the explanation, and found it illogical that he would admit to raping her as a means to get her to drop the matter, especially in front of a witness. The trial judge concluded that the taped statement amounted to an admission that the complainant was asleep when he had intercourse with her, and that that admission was an important reason for rejecting his trial evidence.
[18] The trial judge next assessed the credibility and reliability of the complainant’s evidence, particularly because the evidence was clear that she had consumed a significant quantity of alcohol and was drunk. The trial judge summarized the reasons why she accepted the complainant’s evidence in the following paragraph:
I accept [the complainant’s] evidence of what happened that night. I recognize that [the complainant] consumed a significant amount of alcohol that evening which likely impacted her ability to recall all of the details of what happened. However, the details she does remember were corroborated by a number of sources. For example, [the complainant’s] memory of what happened while she was downtown was corroborated by [her friends]. Her memory of wrapping her shawl around her before passing out on the bottom of the steps was corroborated by H.P. Her memory of being carried into the apartment was also corroborated by H.P.
H.P. testified that the host of the party was with him when they put [the complainant] in the bed. H.P. testified that he told [the complainant] where she was before leaving her in bed. [The complainant] recalls the host of the party telling her she was in his roommate’s bed. While H.P. does not corroborate [the complainant’s] memory of who was speaking, he does confirm that someone told [the complainant] where she was when she was carried into the apartment.
Most significantly, [the complainant’s] testimony about what she overheard when she woke up was corroborated by H.P. He testified that [the complainant] was in the bedroom upstairs when people at the party yelled “Happy New Year.” He also confirmed that he spoke to a woman at the party before going upstairs to see [the complainant]. They talked about becoming “friends” on social media. He also told her that he had broken up with his previous girlfriend.
Finally, [the complainant’s] memory of her reaction when she woke up and discovered H.P. having sex with her was corroborated by H.P. He agrees that she suddenly started screaming at him to get off of her and was extremely upset. This reaction, as confirmed by H.P. is entirely consistent with her testimony that she was unconscious and woke up to find H.P. having intercourse with her without her consent.
[19] Based on these findings regarding the evidence she accepted, the trial judge was satisfied beyond a reasonable doubt that the complainant was asleep and incapable of consenting to intercourse. She found that the defence of honest but mistaken belief in communicated consent did not arise because the appellant did not take reasonable steps, knowing the complainant was asleep because she was drunk, to confirm that any of her physical responses to him were made because she was awake and consenting. The trial judge concluded that the Crown had proved beyond a reasonable doubt that the appellant knew the complainant was not consenting and was therefore guilty of sexual assault.
Issues on the Appeal
[20] The appellant raises three issues on the appeal. Two relate to the appellant’s s. 276 voir dire evidence. The first issue is jurisprudential. The second and third issues involve alleged procedural errors:
The Supreme Court of Canada’s finding in Darrach that an accused’s testimony on a s. 276 voir dire is not compelled is no longer good law, following the Supreme Court’s decisions in Henry and Nedelcu, and therefore the trial judge erred in law by using the appellant’s compelled voir dire testimony against him, contrary to s. 13 of the Charter.
The trial judge erred in law by allowing the appellant to be cross-examined on the voir dire very broadly on his affidavits, contrary to the Supreme Court’s direction in Darrach.
The trial judge erred in law by finding that there was corroboration of the complainant’s evidence.
Analysis
Issue 1) Was the appellant’s s. 276 voir dire evidence compelled evidence that was used against him contrary to s. 13 of the Charter?
a. The decision in Darrach
[21] In Darrach, the accused, who was charged with sexual assault, wanted to introduce evidence of the complainant’s sexual history, and sought to challenge the constitutional validity of the provisions of the Criminal Code enacted following the Supreme Court of Canada’s decision in R. v Seaboyer, [1991] 2 S.C.R. 577, which limited the parameters of any such evidence and prescribed a procedure to determine whether any such evidence could be admitted. The accused challenged s. 276.1(2)(a), which requires an affidavit with detailed particulars of the proposed evidence; ss. 276(1) and 276(2)(c), regarding the admissibility of sexual conduct evidence generally; and s. 276.2(2), which provides that the complainant is not a compellable witness on the evidentiary voir dire hearing.
[22] The Supreme Court of Canada upheld the constitutional validity of all of the sections. In doing so, the court made a number of legal findings regarding the nature and conduct of the voir dire contemplated by the unsuccessfully challenged provisions. Two of the findings are critical to the first issue on this appeal.
[23] The first is in regard to whether the accused is a compelled witness on the voir dire. Section 11(c) of the Charter states the right of an accused not to be compelled to be a witness against themself. The procedure prescribed by s. 276 requires an accused to present an affidavit and establish on a voir dire the admissibility of the proposed evidence of other sexual conduct of the complainant in accordance with the criteria in the section. The complainant is not a compellable witness on the voir dire. The accused argued that the procedure violated his s. 7 and s. 11(c) Charter rights because its effect was to compel him to testify on the voir dire in order to have relevant evidence ruled admissible and therefore to make full answer and defence.
[24] The court firmly rejected that argument. It held that the requirement to present an affidavit on the voir dire does not infringe s. 11(c) or s. 7 because the accused is not compelled to file the affidavit or to testify. The accused is not forced to testify, nor coerced by the state “in any way that engages Charter protection”: Darrach, at para. 49. As the court explained, at para. 49: “In applications under s. 276 , there is free and informed consent when the accused participates in order to exculpate himself. He knows that he is not required to do so.”
[25] The court acknowledged the tactical pressure on the accused to testify at the voir dire under s. 276, but again explained, at para. 51, that that tactical pressure does not constitute either a burden of proof or an evidentiary burden: “It derives from his desire to raise a reasonable doubt about the Crown’s case by adducing evidence of the complainant’s prior sexual activity.” Furthermore, the accused must submit to cross-examination on the affidavit, which the court held is not unfair, at para. 61:
[The accused] does not face a legal compulsion to testify for the reasons given above, and the tactical pressure he describes is not unfair. Having produced his affidavit, the basic rules of evidence require the accused to submit to cross-examination because the right to cross-examine is essential to give any weight to an affidavit.
[26] The court went on to direct that trial judges must confine the cross-examination “to what is necessary to determine … whether the proposed evidence is admissible”, pointing out that the voir dire is not to be a forum for unfair questioning of an accused, and that trial judges must control the hearing to meet the statutory goals, which in s. 276(3) include protecting the rights of the accused: Darrach, at para. 64.
[27] Having found that the accused’s evidence on the voir dire is not compelled but voluntary, the court went on to consider whether s. 13 of the Charter applies to the testimony the accused gives on the voir dire, and, in particular, whether the voir dire is an “other proceeding” within the meaning of s. 13. Section 13 states:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
[28] The court concluded that the privilege against self-incrimination in s. 13 applies, because a voir dire is an “other proceeding” under s. 13: Darrach, at para. 66. [2] As a result, the accused’s testimony on the voir dire could not be used as evidence of guilt at trial. However, following the court’s decision in R. v. Kuldip, [1990] 3 S.C.R. 618, if the accused testified at the trial, his evidence from the voir dire could be put to him to challenge his credibility.
[29] To summarize the relevant findings from Darrach: 1) an accused who files evidence on a s. 276 voir dire does so voluntarily and his evidence is not compelled; and 2) s. 13 of the Charter applies to a s. 276 voir dire. Applying Kuldip, the protection extends to evidence of guilt, but if the accused testifies at the trial, evidence from the voir dire can be put to him to challenge his credibility.
b. The subsequent developments in Henry and Nedelcu
[30] Five years later in Henry, the Supreme Court reviewed and revised the meaning of s. 13 of the Charter and its procedural application to compelled and non-compelled evidence. The court focused on how the s. 13 jurisprudence had evolved in five previous decisions: R. v. Dubois, [1985] 2 S.C.R. 350; R. v. Mannion, [1986] 2 S.C.R. 272; Kuldip; R. c. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; and R. v. Allen, 2003 SCC 18, [2003] 1 S.C.R. 223.
[31] In Henry, the two accused chose to testify at their original trial and again on the retrial, but gave different testimony the second time. The issue was whether they could be cross-examined at the second trial on the basis of their previous inconsistent evidence, and if so, for what purposes. The court held that they could be cross-examined on their previous evidence, because the evidence they gave at the first hearing was not compelled and they chose to testify at the second hearing.
[32] The court held that the purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate themselves. It ensures that the Crown cannot do indirectly what s. 11(c) precludes it from doing directly. The court explained that s. 13 represents a quid pro quo: when a witness is compelled to give evidence in a proceeding and in that way exposes themself to the risk of self-incrimination, the state provides protection by prohibiting the subsequent use of that evidence against them: Henry, at para. 22. The source of the quid pro quo is compulsion to testify.
[33] Therefore, where a witness is compelled to testify in a proceeding, their incriminating testimony cannot be put to them in a subsequent proceeding. In addition, where a witness testifies voluntarily and gives incriminating evidence, while that evidence can be put to them if they testify at a subsequent proceeding, the Crown cannot submit that evidence at the subsequent proceeding if they do not testify, because that would amount to indirect compulsion and be contrary to the s. 13 protection: Dubois, at pp. 365-66; Henry, at paras. 39-40.
[34] A number of prior cases had addressed restrictions on cross-examination of an accused at a subsequent hearing based on statements made at a prior hearing where the accused had testified voluntarily. In Kuldip, the court held that to comply with s. 13, such an accused can be cross-examined on the prior inconsistent statements to impeach credibility but not to infer guilt: at p. 633. In Henry, the court revised that ruling and eliminated the distinction because of the difficulty for triers of fact to distinguish in many cases between a finding that the accused was not credible and an inference of guilt: at paras. 42-48.
[35] To make the analysis internally consistent as well as to accord with the quid pro quo basis for the s. 13 protection in respect of the use of compelled evidence, the court concluded, in summary, that an accused can be cross-examined on prior non-compelled evidence for both non-credibility and inference of guilt purposes: Henry, at para. 48. However, an accused cannot be cross-examined on prior compelled evidence for any purpose: Henry, at paras. 49-50. In so doing, the court upheld its decision in Dubois, revised the holding in Kuldip, and overruled Mannion.
[36] The issue of the extent of the protection from self-incrimination accorded by s. 13 was addressed again by the Supreme Court in 2012 in Nedelcu. The accused crashed his motorcycle causing serious injury to his passenger. He was sued in a civil suit and charged with driving offences. In the civil suit, he gave evidence on his examination for discovery, a procedure in which he was statutorily compelled to participate, where he stated he had no memory of the accident. However, at his criminal trial, he gave a detailed account of the accident. The issue for the court was whether he could be cross-examined by the Crown on his contradictory discovery evidence. Based on Henry, the respondent argued that if the discovery evidence was compelled, then it could not be used against the accused for any purpose at the criminal trial.
[37] The court held that the accused’s discovery evidence was statutorily compellable and therefore compelled for the purposes of the application of s. 13 of the Charter: Nedelcu, at para. 1. However, there was no prohibition on using his non-incriminating discovery evidence for impeachment purposes: Nedelcu, at para. 28. Section 13 only protects against the use of incriminating evidence, not non-incriminating evidence: Nedelcu, at para. 29.
[38] The result of the decisions in Henry and Nedelcu on the application of s. 13 of the Charter is that the accused’s non-compelled previous evidence can be used against him for any purpose, while his compelled previous evidence can also be used if it is not incriminating.
[39] The effect for the appellant’s case is that, because the appellant’s evidence on the voir dire was not compelled, pursuant to Darrach, the trial judge was entitled to make use of it in her analysis of his credibility and to draw an inference of guilt.
c. Subsequent developments have not overruled Darrach on the question of whether an accused’s voir dire testimony is compelled for the purpose of s. 13 of the Charter
[40] The appellant’s submission on the appeal [3] is that when the Supreme Court decided in Darrach that an accused’s s. 276 voir dire evidence is not compelled, its decision was premised on the fact that because of s. 13 of the Charter, that evidence could only be used against an accused in a subsequent proceeding for impeachment purposes and not to incriminate, pursuant to its previous decision in Kuldip. Because that use distinction was found to be no longer valid in Henry, the basis for the court’s finding in Darrach that the voir dire evidence is not compelled has been undermined and the decision need no longer be followed.
[41] He submits that when this court reconsiders the issue, there are significant reasons to view an accused’s testimony on a s. 276 voir dire as compelled, although counsel fairly acknowledged that the same or similar arguments were made to and rejected by the Supreme Court in Darrach.
[42] Procedurally, a lower court may reconsider a settled ruling of a higher court in two situations: 1) where a new legal issue is raised as a consequence of significant developments in the law, or 2) where there is a change in circumstances or evidence that “fundamentally shifts the parameters of the debate”: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 29; Carter v. Canada, 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44; Bedford v. Canada, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42, 44. While I am satisfied that the appellant has raised a new legal issue as a consequence of the significant developments in Henry and Nedelcu, I am not satisfied that these developments have the effect of undermining the settled ruling in Darrach.
[43] I would reject the appellant’s submission that Darrach has effectively been overruled on the compulsion point for four substantive reasons.
[44] The first reason why I would reject the submission that the compelled testimony finding in Darrach has been effectively overruled by Henry is that the court in Darrach performed a stand-alone analysis of the question of whether the procedure in the s. 276 voir dire amounted to compelled testimony contrary to s. 11(c) of the Charter, and concluded for the reasons described above that it did not. The analysis and reasoning were not linked to what use could be made of the accused’s voir dire evidence in a subsequent proceeding under s. 13. Section 13 was discussed separately in a later part of the judgment.
[45] Second, the court’s analysis was properly based on considering the difference between tactical compulsion and the legal compulsion referred to in s. 11(c) of the Charter, and on applying the definition of a compellable witness as “one who may be forced by means of a subpoena to give evidence in court under the threat of contempt proceedings”: John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada , 2nd ed. (Toronto: Butterworths, 1999), at para. 13.46, quoted with approval in Darrach, at para. 48. [4] That approach was squarely affirmed in Nedelcu. There would be no basis for a court to decide whether testimony is compelled by looking first at the consequences of the conclusion. As stated above, the court in Darrach did not approach the issue in that way.
[46] The third reason is that following Henry, in Nedelcu, the Supreme Court reintroduced the distinction between evidence that incriminates the accused and speaks to guilt and evidence that does not incriminate but consists of inconsistencies that can be used to attack an accused’s credibility. The court effectively modified the absolute rule it had articulated in Henry that compelled testimony could not be used against an accused at a subsequent proceeding for any purpose, to a rule that only incriminating testimony that was compelled cannot be used in a subsequent proceeding. Non-incriminating testimony can be used. Yet the court was unanimous in reaffirming that the correct approach to assessing whether the previous statement was compelled and therefore engaged s. 13 was whether it had been made in a context where the witness was legally compellable: Nedelcu, at para. 1; see also paras. 106-109, per Lebel J. (dissenting, but not on this point).
[47] Consequently, the court’s approach in Nedelcu is inconsistent with the appellant’s argument that the subsequent use distinction was or would be critical to the question of whether any particular testimony was compelled, let alone determinative.
[48] The fourth reason for rejecting the appellant’s argument that Darrach was overruled by Henry is that in Henry, the court did specifically overrule a number of cases, including Mannion, and Kuldip in part. Darrach was not one of them.
[49] Having said that, the portion of Darrach that was clearly and directly overruled by the decision in Henry, although without any specific reference to Darrach, was that s. 13 applies to the non-compelled s. 276 voir dire evidence. Once that evidence was found to be non-compelled, Henry provides that s. 13 has no application. But nothing in Henry explicitly or implicitly overruled the Supreme Court’s approach to the question of whether previous testimony was compelled.
[50] As there is no basis for this court to find that subsequent developments in the law have overruled or undermined the Supreme Court’s determination in Darrach that the s. 276 voir dire evidence by an accused is not compelled for the purposes of s. 13, the trial judge made no error in considering discrepancies in the appellant’s evidence between the voir dire and the trial as part of her reasons rejecting the appellant’s evidence and finding guilt had been proven beyond a reasonable doubt. [5]
Issue 2) Did the Crown’s cross-examination of the appellant on the voir dire go beyond the issue of the admission of evidence of prior sexual conduct of the complainant, contrary to Darrach?
[51] In Darrach, the court recognized that although an accused is not legally compelled to testify on the s. 276 voir dire, there can be significant tactical pressure on an accused to do so, when they believe that evidence of the complainant’s prior sexual history is relevant and necessary in order to make full answer and defence.
[52] In that context, the court set narrow parameters for the cross-examination of the accused on their s. 276 voir dire affidavit, in order to protect their rights and ensure trial fairness. As set out above, the court instructed trial judges to limit the Crown’s cross-examination to what is necessary to determine the evidentiary issue on the voir dire. The court emphasized at para. 65 that the purpose of the voir dire is not defence disclosure to the Crown, quoting Lamer C.J. in R. v. Underwood, [1998] 1 S.C.R. 77, at para. 10, which dealt with the voir dire procedure on a Corbett application:
[T]he purpose of this voir dire is not “defense disclosure”. It creates no independent rights in the Crown, and, therefore should not be treated as an excuse for the Crown to deeply probe the case for the defence … The point is to provide the trial judge with the information he or she needs to make an informed decision, but the Crown has no right to require more than that. [Emphasis in original.]
[53] In this case, the appellant filed two detailed affidavits on the voir dire. One described his prior sexual relationship with the complainant, including the timing and nature of their sexual encounters. The other described the events of the evening when the alleged sexual assault occurred including details of the entire interaction between the two. The Crown cross-examined the appellant at length on the details set out in the affidavits. The appellant points to the fact that the cross-examination focused on the incident itself, the appellant’s knowledge of how drunk the complainant was, her reason for returning to the party, and the appellant’s version of the event.
[54] The appellant submits that the cross-examination was not conducted within the bounds set by the Supreme Court in Darrach and amounted to a means to obtain defence disclosure. The appellant’s voir dire testimony was then relied on by the trial judge in her reasons for rejecting the appellant’s evidence and finding him guilty beyond a reasonable doubt. This, the appellant submits, led to trial unfairness.
[55] I would not give effect to this submission in this case.
[56] I agree that there is the potential for unfairness if the s. 276 voir dire process were to be abused by Crown counsel. The voir dire forms a stand-alone proceeding where the trial judge requires a sufficient evidentiary basis to determine whether to admit certain otherwise prohibited evidence regarding the complainant’s sexual history. In conducting and deciding the outcome of the voir dire, the trial judge must balance three mandates: “to protect the integrity of the trial by excluding evidence that is misleading, to protect the rights of the accused as well as to encourage reporting of sexual offences by protecting the security and privacy of complainants”: Darrach, at para. 19. The evidence adduced by the accused, including the cross-examination on the affidavit(s), will normally be the critical component of the trial judge’s determination of whether to admit the proposed evidence.
[57] In addition, following that process, no matter the outcome, the accused’s evidence from the voir dire can be used in the trial proper by the Crown, if the accused testifies, for the purposes of either impeachment or incrimination. Therefore, while a probing cross-examination may be necessary for the purpose of the voir dire, the fact that it becomes available for use against the accused in the trial proper highlights the potential for perceived unfairness.
[58] However, in this case, I am satisfied that there was no unfairness.
[59] First, defence counsel at trial did not object, except at one point when he suggested that eventually the Crown might come to a point where the cross-examination would be on collateral issues. Although not determinative, the lack of objection is a significant consideration in assessing whether the cross-examination was directed at the relevant question, namely the admissibility of the proposed evidence.
[60] Second, the trial judge was alive to her responsibility to control the extent of the cross-examination to ensure that its purpose was for the evidentiary determination on the voir dire and to maintain trial fairness. For example, she stopped the cross-examination at one point to reassert that it must stay on the relevant issues and not cross over into trial issues.
[61] Third, the affidavits filed by the appellant disclosed the defence position and provided a detailed account of his version of the event. Crown counsel was entitled to cross-examine to test the accuracy and reliability of that account, to the extent that it was adduced in order to justify the proposed admission of evidence of previous occasions when the appellant alleged the complainant indicated consent, based on reactions to the same advances he made on the night of the alleged assault. The Crown’s cross-examination in this case was directed at whether the proposed evidence could properly support the purposes for that evidence identified by defence counsel in the notice of application and supporting materials – particularly the question of whether there was an air of reality to the defence of honest but mistaken belief in communicated consent.
[62] Ultimately, the trial judge found, based on the voir dire evidence, that even if the defence of honest but mistaken belief in communicated consent was available in this case, their past consensual sexual history was not relevant to whether the appellant took reasonable steps on this occasion, in the circumstances known to him at the time, to ascertain whether the complainant was consenting. There was nothing sufficiently idiosyncratic about how she had consented in the past, and as a result, relying on any previous consent risked engaging the twin myths. [6]
[63] Finally, while the trial judge did find contradictions between the appellant’s testimony on the voir dire and at trial on details of the event, which undermined his credibility, the most important factor for the trial judge was what she found to be the appellant’s admission when the complainant and their friend J.H. confronted him in March.
[64] In my view, there was no unfairness to the process in the voir dire cross-examination or in its use by the trial judge.
Issue 3) Did the trial judge err in law in finding that there was corroboration of the complainant’s evidence?
[65] The trial judge found the following details of the complainant’s testimony were corroborated by other evidence:
- the trip downtown to go to the club was corroborated by the complainant’s friends, K.S. and J.H.;
- that the complainant wrapped her shawl around herself when she lay on the stairs was corroborated by the appellant;
- that the appellant carried the complainant up the stairs was corroborated by the appellant;
- the complainant’s memory of being told where she was when she was put in the bed was corroborated by the appellant (though the speaker is different in each party’s account);
- the complainant’s memory of hearing partygoers yell “Happy New Year” while she was in bed was corroborated by the appellant’s testimony that she was in bed at midnight;
- the complainant’s memory of the appellant speaking to a woman about connecting on social media was corroborated by the appellant; and,
- the complainant’s memory of yelling at the appellant during the sexual activity was corroborated by the appellant.
[66] The appellant submits that except for the fact that the complainant yelled at the appellant during the sexual encounter, the corroborated details were peripheral and did not go to the issue of consent or make it more likely that the complainant was telling the truth about the key issue: whether she was awake and consented to intercourse.
[67] I would not give effect to this submission.
[68] As the appellant acknowledged, the trial judge was not obliged to find corroboration in order to accept the evidence of the complainant. However, she looked for confirmatory evidence particularly to provide assurance of the reliability of the complainant’s account, given the evidence of her intoxication that evening and night. The details listed provided the trial judge with that assurance.
[69] The case law from the Supreme Court of Canada and this court, dealing with corroboration in the context of a Vetrovec instruction, where the jury is instructed to look for corroboration, explains that “confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account”: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16; R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at paras. 176-80. Similarly, in the non- Vetrovec context, evidence can be given confirmatory weight “even if it does not directly ‘confirm the key allegations of sexual assault’ or ‘directly implicate the accused’”, where it is capable of confirming or supporting certain aspects of a witness’s credibility or reliability, in the context of the specific challenges made by defence counsel: R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused, [2021] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568.
[70] In this case, the fact that both parties agree that the complainant yelled at the appellant to stop the intercourse is corroborative of her belief that she was sexually assaulted.
[71] With respect to the remainder of the list, in my view, the trial judge reasonably found that these items of confirmatory evidence gave her confidence that the complainant was credible and reliable. They demonstrated that the complainant had an accurate recollection of portions of the night very close to and during the alleged sexual assault, and that she had honestly described them to the court. The trial judge was entitled to conclude that they gave her added confidence in the complainant’s evidence. That credibility finding is free of error and entitled to deference on appeal.
Result
[72] I would dismiss the appeal.
Released: May 27, 2022 “K.F” “K. Feldman J.A.” “I agree. K. van Rensburg J.A.” “I agree. S. Coroza J.A.”
Notes
[1] Some of the material in this decision is covered by a publication ban pursuant to s. 278.95 of the Criminal Code. We have received submissions from the parties and we consider it appropriate, in this case, to exercise our discretion to publish our reasons: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.
[2] Typically, the trial will in fact be the “other proceeding” at which the Crown will seek to use any voir dire testimony.
[3] Although this argument was not made before the trial judge and does expand the scope of the litigation, this court is prepared to consider it given that it is in the interests of justice to resolve this legal question, it has been fully litigated by the parties without objection, and there is a sufficient factual and evidentiary record to determine the issue: R. v. Charity, 2022 ONCA 226, at para. 28; Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 42 O.R. (3d) 229 (C.A.), at p. 233.
[4] The same definition appears in the most recent edition of the text: John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada , 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at para. 13.46.
[5] The appellant initially raised as a ground of appeal the use that the trial judge could make of non-compelled prior testimony but agreed in oral argument that if the court rejected the submission that Darrach was no longer good law, then the trial judge was entitled to use the appellant’s non-compelled voir dire testimony for any purpose.
[6] That it made it more likely that she consented or that she was less worthy of belief: Seaboyer, at p. 604.
