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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221028 Docket: C68626

Lauwers, Roberts and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

B.T.D. Appellant

Counsel: Adam Weisberg and Maya Sengupta-Murray, for the appellant Elena Middelkamp, for the respondent

Heard: May 12, 2022

On appeal from the conviction entered by Justice Kelly P. Byrne of the Superior Court of Justice, dated November 28, 2019.

L.B. Roberts J.A.:

Overview

[1] The appellant was convicted of sexually assaulting the complainant. After meeting on “Tinder”, a dating app, the appellant and the complainant saw each other for approximately two months before their relationship ended in April 2017. On October 28, 2017, the complainant went to the police and accused the appellant of sexually assaulting her on one occasion in mid-March 2017 while they were dating. The appellant denied the charge and maintained that their sexual relations were consensual.

[2] This appeal turns on the trial judge’s treatment of the evidence given by the complainant and the appellant and her assessment of their respective credibility and reliability as witnesses. The complainant and the appellant were the only witnesses at trial and to the events giving rise to the charge.

[3] The appellant argues that the trial judge’s approach was materially flawed because of her misapprehension and uneven scrutiny of the evidence, which led to an unfair trial. He also submits that the trial judge erred in treating the complainant’s apparent lack of animus toward the appellant as bolstering her credibility. As a result, her assessment of the evidence, findings and verdict were fatally tainted, and the conviction represents a miscarriage of justice. The appellant asks for a new trial.

[4] The appellant’s arguments must be scrutinized rigorously because of the high level of appellate deference owed to the trial judge’s assessment of the evidence and her factual findings. In my view, the appellant has met this high threshold. The trial judge’s treatment of the evidence and her conclusions were the product of reversible error and resulted in an unfair trial.

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

Factual Background

[6] In February 2017, the appellant and complainant met on Tinder. They met in person and had their first date on February 26, 2017. The sexual encounter of March 14, 2017 that forms the basis for the charge took place the morning after their second date.

[7] On March 13, 2017, the appellant invited the complainant to his apartment for dinner. They ate dinner, watched a movie, and the complainant stayed overnight.

[8] The sexual relations in issue occurred when the appellant and complainant awoke on March 14, 2017. According to the appellant, they were entirely consensual. At trial, the complainant agreed that they initially engaged in mutual kissing and touching, in which she voluntarily participated and to which she did not object. She said the situation changed when the appellant digitally penetrated her vagina, although she did not voice an objection at this stage, and then held her down by her wrists and moved on top of her. She testified she then directed him to stop by telling him she did not feel like having sex. She said she tried to squirm away from him, but that he forced her to have sexual intercourse without her consent. She said she remained in bed while the appellant got up to use the washroom. The appellant then called an Uber ride for her. The Uber receipt shows that she left the appellant’s apartment at around 1:05 p.m.

[9] Later that day, starting at around 1:31 p.m., the appellant and the complainant exchanged text messages that both agreed referenced the activities that took place on March 13 and 14, 2017. From about 1:31 to about 4:28 p.m., the appellant and complainant exchanged the following text messages:

The appellant: I’m sorry I didn’t make you breakfast. The appellant: I wanted to take care of your beautiful appetite before you started your day The appellant: But you felt so nice The appellant: Sometimes I get into a state The appellant: And I’m sorry I made you late :( The complainant: Yeah, maybe next time when I say stop you could actually stop The appellant: Are you mad at me The complainant: I’m not mad, I just said it a few times and you weren’t really listening to me The complainant: We probably could have eaten breakfast together if you had stopped The appellant: I’m sorry The complainant: Thank you for making me dinner and cocktails. I had a really great time The appellant: :) The appellant: I didn’t want you to leave The appellant: I wasn’t that impressed with vertigo [1] The appellant: I mean it was great but his obsession was really starting to get on my nerves The complainant: I didn’t really want to leave

[10] Between 4:28 and 5:04 p.m., the appellant and the complainant continued to discuss the movie that they had watched the night before. Between 5:04 and 5:25 p.m., they exchanged the following texts:

The appellant: I love it when you’re screaming so loud as your orgasm The appellant: You* The complainant: Yeah, I’m kind of loud, I’m sorry The appellant: It turns me on The appellant: It makes me want to fuck you as hard as I can The complainant: In the past people have told me I’m too loud The appellant: They’re dumb The appellant: I hate them

[11] The appellant testified that he was referencing the sexual activity of the morning of March 14, 2017. The complainant testified that she understood the appellant was referencing the sexual activity that occurred during the evening of March 13, 2017.

[12] Between 5:25 and 8:21 p.m., with occasional breaks, the appellant and the complainant continued to text about movies and the snacks they had during the evening of March 13, 2017.

[13] The appellant and the complainant continued to text and exchange photos after March 14, 2017. Some of those text exchanges were sexual in nature. For example, on March 20, 2017, the following text exchange took place:

The appellant: When you were going down on me, I kept saying I'm gonna cum and I thought you would pull away but you just kept going until you let me cum in your mouth The appellant: And you swallowed it all The appellant: Fuck The complainant: Yeah? What else would I do?

[14] The appellant testified that he was again referencing the sexual activity that occurred on March 14, 2017. The complainant testified that she thought there may be texts missing and that she was not referring to what occurred on March 14, 2017.

[15] The appellant and the complainant saw each other again for a third time toward the end of March 2017 and had sandwiches. At trial, there was some debate as to the date of this third date. The complainant testified that she believed she stayed overnight at the appellant’s place on March 28, 2017 and that they had sandwiches the next day. Her belief was based on a picture of the leftovers the appellant sent her on March 29, 2017, accompanied by a text that read “I still can’t believe you ate a whole one of these”. There was no text from March 29, 2017 or the previous day that made any mention of the complainant being at the appellant’s apartment on March 28, 2017 or of staying overnight. The appellant testified that their third date occurred on March 24, 2017 and that they had the sandwiches as a late lunch that day. He testified that they did not see each other again after the complainant left his apartment in the early hours of March 25, 2017. During her cross-examination at trial, the complainant was shown the text exchange starting at 2:16 p.m. on March 24, 2017 and ending on March 25, 2017 at 1:21 a.m.:

[2:16 p.m.] The appellant: I just got out of my interview [2:16 p.m.] The appellant: And I’m starving [2:16 p.m.] The appellant: Do you want to have dunch [sic] [2:22 p.m.] The complainant: Okay, that sounds good [2.22 p.m.] The appellant: Meet at my place? [2:23 p.m.] The complainant: Okay [3:17 p.m.] The complainant: So I just finished getting ready, should I just head over whenever? [3:18 p.m.] The complainant: Sorry I had to take a shower [3:18 p.m.] The appellant: Yah [3:18 p.m.] The appellant: I’m so hungry [3:18 p.m.] The complainant: Are you? [3:18 p.m.] The appellant: Yeah, I am [3:52 p.m.] The complainant: Hey, I’m outside [1:21 a.m.] The complainant: Hey, I just got home. Thank you so much again, for everything. I had a really great night

[16] The complainant did not have any independent recollection of meeting up with the appellant on March 24 and 25, 2017. She did not concede that she had seen the appellant and had sandwiches with him on March 24 rather than on March 28 and 29, 2017, as she maintained.

[17] Later, in April 2017, the appellant and the complainant discussed the idea of taking a trip together to the east coast of Canada. On April 4, 2017, they exchanged the following texts:

The appellant: I’m going to go to Costa Rica in may The appellant: Either that or drive up to newfoundland The complainant: I would love to go to Newfoundland The appellant: We would be gone for week The appellant: S The appellant: Weeks The appellant: I want to photograph the whole east coast The complainant: I would love that The appellant: Okay, get ready then The appellant: We leave mid may The complainant: Okay, I will

[18] Although indicating in her April 4, 2017 text that she “would love” a trip to the east coast with him, the next day the complainant told the appellant that she didn’t “have any money”; a few days later she said that she “would like to come” but didn’t know if she could. Ultimately, the appellant went on his own. Both testified that the relationship “fad[ed] out” after that.

[19] In the fall of 2017, the appellant and the complainant saw each other’s profile on Tinder. The appellant “super-liked” the complainant. She agreed during her cross-examination that she “liked” the appellant back, which, in Tinder parlance, indicated a willingness to be matched with him. No contact was made between them. The complainant testified that she had “liked” the appellant because she was under the impression that you had to “match” with someone on Tinder to report their sexual misconduct through the platform. The complainant did not end up reporting the appellant to Tinder, which she testified was because she “chickened out”.

[20] On October 28, 2017, the complainant attended a police station and made a formal charge that the appellant had sexually assaulted her in March 2017.

[21] On November 2, 2017, the appellant was arrested for sexual assault. The police did not initially tell the appellant who his accuser was and the appellant had no idea who could have accused him.

Issues

[22] This appeal raises three issues:

a. Did the trial judge misapprehend the evidence, specifically with respect to the appellant’s memory of the complainant at the time of his arrest and the text messages from March 14, 2017?

b. Did the trial judge apply uneven scrutiny to Crown and defence evidence?

c. Did the trial judge err in treating the complainant’s apparent lack of animus toward the accused as a compelling reason to accept her evidence?

Analysis

(1) Misapprehension of the evidence

[23] A misapprehension of evidence occurs when a trier of fact fails to consider evidence relevant to an issue, makes a mistake about the substance of an item or items of evidence, or fails to give proper effect to evidence: R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 50.

[24] In this case, the appellant argues that the trial judge misapprehended the evidence in two material ways: (1) she mistakenly found that the appellant had difficulty recalling the complainant at the time of his arrest, and (2) she omitted exculpatory text messages from March 14, 2017 in determining the meaning of the appellant and the complainant’s text exchange following the alleged sexual assault.

[25] For the following reasons, I agree that the trial judge misapprehended the evidence with respect to the appellant’s memory and the text messages from March 14, 2017.

(a) Standard of review

[26] As this court has repeatedly stated, the ground of misapprehension of evidence invokes a stringent standard. Where, as here, it is argued that the trial judge’s misapprehension of evidence caused a miscarriage of justice, the reviewing court must examine the nature and extent of the misapprehension and its significance to the verdict rendered at trial. Specifically, the reviewing court must determine whether the mistake relates to a material part of the evidence and whether the error plays an essential part in the reasoning process leading up to the conviction. If that is the case, the conviction is not grounded exclusively on the evidence and constitutes a miscarriage of justice, warranting a new trial. See: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; Stennett, at para. 52; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. If not, the court must then consider whether the misapprehension rests on an error of law and whether the Crown can show that a substantial wrong or miscarriage of justice did not occur: Morrissey, at p. 531; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 150, leave to appeal refused, [2021] S.C.C.A. No. 362.

(b) Review of the trial judge’s reasons

[27] In my view, the trial judge’s misapprehension of the evidence went to the substance rather than to the detail of her reasons and was material rather than peripheral to her conclusions. Her misapprehension was not simply part of the narrative of her judgment but detrimentally affected the reasoning process that unfairly resulted in the appellant’s conviction.

(i) The appellant’s memory

[28] The appellant submits that the trial judge’s assessment of his evidence was flawed from the start because of her misapprehension of his evidence, which tainted the rest of her analysis and led her to reject his evidence. He highlights the following passage at paragraph 19 from the trial judge’s reasons where she criticizes the appellant’s evidence concerning the sexual activity in issue because of its detailed nature:

Rarely, if ever, have I heard such a detailed accounting of sexual activity. The level of detail provided by [the appellant] was curious juxtaposed to his evidence that his relationship with [the complainant] was nothing more than a casual, short fling. [The appellant] testified that he had relationships before and after [the complainant]. He said he had difficulty even recalling her at the time of his arrest some seven months later. Under those circumstances, I would expect some difficulty remembering specifics. Surprisingly, [the appellant] had no such difficulty.

[29] There are several difficulties evidenced by this paragraph.

[30] In the first sentence of this paragraph, the trial judge appears to apply a generalized standard as to how much detail witnesses should or should not express. This is not the correct approach. The assessment of any witness’s evidence requires a contextual approach based on all of the evidence at trial. Speculation about the level of detail a witness should provide is particularly dangerous when applied to accused persons because it risks shifting the burden of proof from the Crown to the defence and ignores the principles from R. v. W. (D.), [1991] 1 S.C.R. 742.

[31] Moreover, in R. v. A.K., 2020 ONCA 435, this court warned against drawing a negative credibility inference from an accused’s level of testimonial detail in the absence of independent, contradictory evidence. In this case, none of the detail the appellant provided about the sexual activity in issue was contradicted by independent, contradictory evidence. Only the complainant’s own equally detailed recollection of the events challenged some of the details provided by the appellant. There was also no evidence to suggest any of the detail that the appellant provided about what the trial judge characterized as “the more minor aspects of his time with [the complainant]”, such as walking or playing with his dog and not leaving the complainant alone in his apartment, was inaccurate. As in A.K., the trial judge “simply assumed because the description was detailed, it was fabricated by the appellant in an effort to buttress his credibility”: at para. 26.

[32] The trial judge’s erroneous analytical approach was compounded by her misapprehension of key evidence. She found it surprising that the appellant could recollect what she considered to be a suspect level of detail given her characterization of his evidence that “his relationship with [the complainant] was nothing more than a “casual, short fling” and his difficulty “even recalling her” at the time of his arrest. In the circumstances, she would have expected “some difficulty remembering specifics.”

[33] The trial judge’s analysis reflects material misapprehension of critical evidence given by the appellant. The appellant never testified that he could not recall who the complainant was at the time of his arrest. The police did not initially tell the appellant who his accuser was. The appellant testified that he could not think of who would accuse him of sexual assault in the timeframe the police provided him upon arrest. When he was later told who the complainant was at the police station, he remembered her but could not understand why she would accuse him of sexual assault. There was no basis for the trial judge’s conclusion that he did not know who the complainant was at the time of his arrest.

[34] Further, the trial judge’s comment about the “curious” level of detail provided by the appellant in light of the short and casual nature of his relationship with the complainant is based on assumptions about how people should behave and think. Just because their relationship was short and casual did not mean that the appellant could not remember any details about the time spent with the complainant. The trial judge’s assumptions were not supported by the evidence. The appellant testified that he sometimes thought about his sexual relations with the complainant in the months leading up to his arrest. Nor were the trial judge’s assumptions grounded in the complainant’s own detailed evidence about the sexual activity giving rise to the charge. The trial judge’s analysis therefore ran afoul of this court’s caution against speculative reasoning in R. v. MacIsaac, 2015 ONCA 587, 337 O.A.C. 190, at para. 46, citing Morrissey, at pp. 530-31:

It was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence. But it was an error of law to draw inferences that did not flow logically and reasonably from established facts, because doing so draws the trial judge into the impermissible realms of conjecture and speculation. [Emphasis added.]

[35] The trial judge’s errors are not trivial. They drove and coloured her analysis. Her reasons demonstrate that her suspicion of the appellant’s ability to recall detail about the sexual activity in issue, the key evidence in the case, as well as “even the more minor aspects of his time with [the complainant]”, was one of the fundamental bases for her rejection of the appellant’s “version of events” and why she was “not left in a reasonable doubt by it.”

(ii) Text messages of March 14, 2017

[36] The appellant highlights the trial judge’s treatment of the appellant and the complainant’s text message exchange of March 14, 2017 as particularly problematic. Specifically, the appellant submits that the trial judge misapprehended the evidence of the text messages in two important ways: (1) she erred in finding that “it is complete and there is nothing missing from it” when she failed to include and address the complete text exchange, including exculpatory texts; and (2) she erred in excusing the complainant’s selective and piecemeal production of the text messages by blaming the police and the Crown.

[37] The trial judge reviewed the partial text messages that she referenced in her reasons for the narrow purpose of determining whether they constituted an admission by the appellant to the complainant’s accusations. The trial judge said: “The real issue is what were the parties talking about? What was it that [the complainant] told [the appellant] to stop doing? What was [the appellant] apologizing for? When [the appellant] said he was in a “state” what did that mean?”

[38] The trial judge rejected the appellant’s explanation for his text messages that he was being “lazy” and “a bit of a baby” that morning because he was dragging the morning out wanting to stay in bed to cuddle and massage the complainant and offered to make breakfast. The trial judge found that, if true, this was “[h]ardly a situation that calls for a scolding and an apology.” She concluded that “[the appellant’s] explanation makes absolutely no sense to me”. She did not accept that he was in a “state of laziness” or “that the exchange had nothing to do with sex.” Rather, the trial judge accepted the complainant’s evidence that by her texts, she was referencing the vaginal intercourse and “that is what [the appellant] was apologizing for.”

[39] The trial judge’s assessment of the text message evidence reveals material error.

[40] As I earlier indicated, according to the texts produced at trial, the appellant and the complainant exchanged numerous texts throughout the course of March 14, 2017, starting at 1:31 p.m. and continuing to about 8:21 p.m. Although the trial judge stated that she had reproduced the complete exchange between the appellant and the complainant, this was not the case. The trial judge reproduced only the texts between 1:31 p.m. and 3:21 p.m., as follows:

The appellant: I’m sorry I didn’t make you breakfast. The appellant: I wanted to take care of your beautiful appetite before you started your day The appellant: But you felt so nice The appellant: Sometimes I get into a state The appellant: And I’m sorry I made you late :( The complainant: Yeah, maybe next time when I say stop you could actually stop The appellant: Are you mad at me The complainant: I’m not mad, I just said it a few times and you weren’t really listening to me The complainant: We probably could have eaten breakfast together if you had stopped The appellant: I’m sorry

[41] She partially referenced, without reproducing, the complainant’s thank you for dinner and cocktails text sent at 4:14 p.m. but did not include or reference the text the complainant sent at 4:28 p.m., in which the complainant stated: “I didn’t really want to leave”.

[42] It is clear that the missing texts that the trial judge did not include add an exculpatory aspect to the narrative that the trial judge should have addressed, in particular the following, starting at 4:14 p.m.:

The complainant: Thank you for making me dinner and cocktails. I had a really great time The appellant: :) The appellant: I didn’t want you to leave The appellant: I wasn’t that impressed with vertigo The appellant: I mean it was great but his obsession was really starting to get on my nerves The complainant: I didn’t really want to leave

[43] Nor did the trial judge reference in any way the text exchange from 4:28 to 8:21 p.m. to which I earlier referred. Importantly, no where in her reasons does the trial judge analyze the potentially exculpatory text exchange between 5:04 and 5:25 p.m. that the appellant testified referenced the sexual activity on the morning of March 14, 2017. She does not appear to have turned her mind to whether that text exchange left her with a reasonable doubt.

[44] These missing texts were very important to the text message narrative and in understanding the appellant and the complainant’s relations. They represented the appellant and the complainant’s last exchange on March 14, 2017 about the events that took place that morning. On their face, they belied the complainant’s later allegations of sexual assault. The trial judge’s truncation of the text messages resulted in a serious distortion of the evidence that she should have considered in its entirety.

[45] To be clear, it was not imperative for the trial judge to accept the appellant’s evidence or reject the complainant’s evidence based on the missing texts. The problem is that these texts were clearly important and the trial judge had to deal with them one way or the other. I am not persuaded by the Crown’s submission that the trial judge had a clear understanding of the text messages as a whole. As she did not reference these texts in any way in her reasons, it is not clear whether she considered them. Certainly, without referring to them, the trial judge’s statement that the referenced texts in her reasons represented all the texts was in error. If she considered but rejected their significance, given their potential importance to her assessment of the appellant and the complainant’s evidence and to her application of the W.(D.) principles, she was obliged to indicate why. She erred by failing to do so.

[46] Further, the trial judge’s observations that the appellant’s alleged laziness would hardly have merited a scolding and made no sense arose from assumptions of how people behave, rather than on a fair assessment of all the evidence on the record before her.

[47] I now turn to the issue of the trial judge’s treatment of the complainant’s piecemeal production of all the text messages.

[48] The trial judge set out the sequence of the complainant’s production of the text messages in para. 51 of her reasons, as follows:

On June 11, 2018, [the complainant] had a trial preparation meeting with Crown counsel and referenced some text messages. As a result, Detective Cote was contacted and on June 18, 2018, [the complainant] provided the text messages contained in Exhibit 4 to him. Detective Cote asked [the complainant] if that completed the message exchange, which prompted [the complainant] to send Detective Cote the text messages contained in Exhibit 5. During the course of the trial, [the complainant] expressed her concern that the text exchange that was being put to her was not complete and then provided her phone to counsel to retrieve all of her text messages. The text messages contained in Exhibit 6 are the screenshots taken from [the complainant’s] phone during the course of the trial.

[49] The trial judge rejected the position asserted by defence counsel at trial that the complainant “was holding out by not providing all the text messages up front.” The trial judge exonerated the complainant, finding that “[t]he retrieval of the text messages was the responsibility of the police or possibly the Crown but certainly not [the complainant].” She added that it was not for the complainant “to decide what was relevant or helpful for the purposes of a criminal trial.”

[50] Respectfully, the trial judge conflated the Crown’s Stinchcombe production obligations with the complainant’s obligation to co-operate with the police and the Crown. At no time did Crown counsel suggest that the Crown or the police bore the responsibility for the complainant’s piecemeal production. This is not a case of the police and the Crown failing to ask for production of the text messages or leaving it to the complainant to determine their relevance. Rather, notwithstanding repeated requests, in particular, Detective Cote’s query as to whether the second set of text messages completed the text exchange, the complainant failed to produce all of the text messages, specifically the ones that did not serve her narrative. She only acknowledged their significance once she was confronted with them on cross-examination. This evidence contradicts the trial judge’s conclusion that the complainant was “at all times responsive and co-operative.”

[51] The trial judge’s errors are material. Her interpretation and treatment of the text messages played a principal role in her assessment of the appellant and the complainant’s credibility and reliability as witnesses and her conviction of the appellant. In particular, as earlier indicated, she relied on the appellant’s apology in the text messages as an apology for the sexual assault of the complainant. As a result, her errors likely affected the outcome of the trial.

(2) Uneven scrutiny of the evidence

[52] The appellant submits that the trial judge erred in subjecting the defence evidence to more rigorous scrutiny than Crown evidence.

[53] In my view, the appellant has succeeded in demonstrating that the trial judge showed a tolerant and relaxed degree of scrutiny of the complainant’s evidence, as compared to the harsh lens that she trained on the appellant’s evidence. This rendered the trial unfair.

(a) Standard of review

[54] Uneven scrutiny as a ground of appeal is “notoriously difficult to prove”, as the Supreme Court recently observed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. [2]

[55] To make out this ground of appeal, an appellant must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons, to displace the deference due to a trial judge’s credibility assessments: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19. Uneven scrutiny may be another way of expressing that the trial judge erred in principle in some manner in making an assessment of credibility: R. v. Greif, 2021 BCCA 187, 406 C.C.C. (3d) 39, at para. 82, leave to appeal refused, [2021] S.C.C.A. No. 182.

[56] Even if the evidence was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence, the appellant has not received a fair trial, and thus has been the victim of a miscarriage of justice: Gravesande, at para. 43.

(b) Review of the trial judge’s reasons

[57] In my view, the appellant has demonstrated that the trial judge applied a much harsher lens to his evidence than to the complainant’s. The following examples suffice to make this point, some of which I have already discussed under the misapprehension of evidence ground.

(i) Level of testimonial detail

[58] As earlier indicated, the trial judge found the appellant’s account of the sexual activity suspect because of its detail and applied speculative assumptions about how witnesses should give their evidence. She had no such difficulty with the complainant’s equally detailed account of the sexual activity.

[59] According to the trial judge, the appellant “provided an extremely precise and detailed account of the sexual activity that took place on the morning of March 14, 2017.” In particular, he “explicitly described how he touched [the complainant], the parts of his body that he used, the direction that she was facing, what he was saying to her and her responses to him.” He described that he asked the complainant if “she wanted him inside her” and she said yes and wanted him to use a condom, which he used. He described how sexual intercourse took place and that the complainant performed fellatio on him. As earlier noted, the trial judge rejected the appellant’s account, commenting that “[r]arely, if ever, [had she] heard such a detailed accounting of sexual activity.”

[60] In contrast, the trial judge accepted the complainant’s evidence by noting, without any surprise or other criticism, that the complainant “provided the following detailed account of what happened on the morning of March 14, 2017” (emphasis added). The trial judge summarized the complainant’s account of the sexual activity, which was as equally detailed as the appellant’s version of events: she testified that she was “laying on her side and facing a window when the sexual activity started” and provided a minute description of the sequence of the initial, mutual kissing and touching, along with each part of the body involved. The complainant recounted each movement and word that took place between the complainant and the appellant, including the step-by-step description of sexual intercourse and the position of their respective bodies, arms and legs. Far from criticizing the detail provided by the complainant, the trial judge found that she “remained considerate and thoughtful” and “careful with her evidence, but not in a contrived way.”

[61] The difficulty here is not that the trial judge rejected the appellant’s account of the sexual activity and accepted the complainant’s version. The error is the clear uneven scrutiny: the trial judge criticized the appellant’s evidence as contrived because of its detail but accepted the exact same level of detail in the complainant’s version as a mark of credibility and reliability, without explaining why she drew this distinction based on the same factor.

(ii) Uneven characterization of the evidence

[62] The trial judge assessed the appellant’s evidence through an unforgiving lens. Her assessment was consistently punctuated by her surprise or incredulity at anything the appellant said, which she consistently dismissed as “nonsensical” or making “absolutely no sense”, when neither her reasons nor the record supported those categorical criticisms. Moreover, she relied on minor matters to reject the appellant’s credibility and reliability, concluding that “[b]eing committed to unreasonable positions on peripheral events was a consistent theme in [the appellant’s] evidence that, in [her] view, impinged on his credibility and reliability” and that as she listened to his evidence, “once he was committed to a particular narrative he was prepared to stick to it no matter how nonsensical his responses became.” Respectfully, the record does not support those conclusions.

[63] The trial judge started with three minor examples that were entirely irrelevant to the charge. First, the appellant testified that he never went on a walk with his dog and the complainant although he did testify that he walked the dog with her to wait for her Uber pickup. Second, he never showed her the dog’s tricks. Third, he never left the complainant alone in his apartment, not even to take the dog out.

[64] It is difficult to understand the trial judge’s criticisms about the appellant’s answers. While she was entitled to prefer the complainant’s evidence that she was left alone once in the apartment and he showed her the dog’s tricks, the appellant’s evidence was not, on its face, nonsensical. Indeed, in light of the appellant’s characterization of the complainant’s and his relationship as a “casual, short fling”, which the trial judge appeared to accept, his evidence that he did not leave the complainant alone in his apartment was understandable but, in any event, certainly not nonsensical.

[65] The trial judge also seized on the appellant’s evidence about the proposed trip out east. She ignored the text messages the complainant sent the appellant on April 4, 2017 and April 12, 2017 indicating that she would “love to go to Newfoundland”, and that she would “really like to go” on the trip but did not know if she could; instead, the trial judge accepted the complainant’s contradictory evidence that she had no intention of going on a trip with the appellant, and stated she “was not sure what to make of [the appellant’s] evidence.” She found it “curious” that the appellant felt a real sense of frustration and disappointment that the complainant did not give him a definitive answer because there was nothing in their communications “that would warrant the type of frustrated response that [the appellant] testified about.” As a result, she found this to be “yet another internal inconsistency in [the appellant’s] evidence albeit collateral to the facts in issue.”

[66] There was nothing internally inconsistent in the appellant’s testimony on this point. The complainant indicated in her April 4, 2017 text that she would love to go on the trip but then did not give a definitive answer. That the appellant may have found that frustrating was not inherently contradictory but a possible, logical reaction. The trial judge’s description of her reaction to the appellant’s evidence about the east coast trip is typical of her general approach to the appellant’s evidence, namely, that she professed to be consistently surprised by and unable to understand it, notwithstanding that the appellant’s evidence was neither surprising nor incomprehensible. While she was entitled to accept or reject the appellant’s evidence, she mischaracterized his emotional response as an inconsistency that does not exist on the evidence.

[67] The only explanation for the trial judge’s conclusions is that she did not view the appellant’s evidence with fairness. Rather, her approach constantly required the appellant to explain himself. This reversed the burden that lay squarely with the Crown.

[68] Moreover, the trial judge’s assessment of the appellant’s evidence contains assumptions about how the appellant should have behaved, including how often he should have walked his dog, and how he should have given his evidence. As already discussed, it is an error for a trial judge to make a negative credibility finding based on stereotypical assumptions or generalizations that are not supported by the evidence: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 64; MacIsaac, at para. 46; Morrissey, at pp. 530-31.

[69] In stark contrast to her treatment of the appellant’s evidence, the trial judge tolerated and failed to analyze serious discrepancies in the complainant’s evidence. I refer to the following salient examples.

[70] The trial judge’s unexplained selective excerpting of the March 14, 2017 text exchange between the appellant and the complainant is an important example of the trial judge’s uneven scrutiny of the evidence. The excerpt favoured the complainant’s version of events to the detriment of the appellant. The trial judge’s failure to analyze the potentially exculpatory passages that she omitted from her consideration resulted in an entirely one-sided perspective that contravened her obligation to look at the evidence in its entirety through the lens of the W. (D.) principles.

[71] While a trial judge is not obliged to give all the reasons that led her to the conclusion that an accused is guilty, it is well established, as the Supreme Court instructed in Ungaro v. The King, [1950] S.C.R. 430, at p. 432, that “[i]t is imperative, however, that [the trial judge] should give a decision upon all the points raised by the defence which might be of a nature to bring about the acquittal of the accused.”

[72] This court relied on this passage in R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.) to allow a sexual assault conviction appeal because of the trial judge’s failure to address the evidence of five witnesses that corroborated the accused’s version of events. Carthy J.A. provided the following reasons for ordering a new trial that are apposite here, at p. 201:

In this case, we are faced only with the question whether this evidence might have contributed to raising a reasonable doubt. In my view, this was evidence going to the question whether the appellant's explanation might reasonably be true. Thus, this evidence "might be of a nature to bring about the acquittal of the accused", and it was incumbent upon the trial judge to at least deal with it.

[73] The trial judge’s analysis of another short text exchange that took place between the appellant and the complainant on March 20, 2017 also reveals reversible error.

[74] The March 20, 2017 text exchange was a crucial piece of potentially corroborative, contemporaneous written evidence of what happened on March 14, 2017. As earlier noted, in that exchange, the appellant referenced the complainant performing fellatio and him ejaculating in her mouth. The appellant testified that the exchange referred to sexual activity in which they had engaged the morning of March 14, 2017. The complainant testified that the exchange was about a different time. She said that the exchange was not complete but did not produce additional text messages.

[75] The trial judge rejected the appellant’s evidence that the March 20, 2017 text exchange referenced part of the sexual activity that took place the morning of March 14, 2017 and accepted the complainant’s testimony that it was about a different time. She concluded “for reasons that follow , that if [the complainant] had performed fellatio on [the appellant] that morning, she would have admitted it” and that she was “not prepared to rely upon [the appellant’s] memory of events” (emphasis added). But the reasons did not follow. Instead, the trial judge went on to assess unrelated portions of the complainant’s evidence without ever explaining her conclusion that the complainant would have admitted to performing fellatio on the appellant on March 14, 2017 if she had.

[76] This was an error. While it was open to the trial judge to accept the complainant’s evidence and reject the appellant’s “memory of events”, the trial judge was required to explain her reasons for doing so with respect to a critical piece of evidence, especially as she indicated that she would do so. Absent her reasons, her conclusory statement that the complainant would have admitted to performing fellatio is inadequate and evidences a tendency to accept the complainant’s evidence at face value without meaningful scrutiny.

[77] I turn next to the trial judge’s uneven assessment of the appellant’s and complainant’s credibility and reliability in relation to collateral matters. In contrast to the trial judge’s rejection of the appellant’s evidence because of trivial inconsistencies that she found arose from minor events, the trial judge ignored inconsistencies in the complainant’s evidence, including between her trial testimony and admitted text message exchanges with the appellant. A significant example concerns text messages from March 24 and 25, 2017, which appear to contradict the complainant’s evidence that she stayed overnight with the appellant on March 28, 2017, having sandwiches the next day, and which support the appellant’s evidence that they had sandwiches together on March 24 and not March 29, 2017, and that the appellant did not stay overnight on March 28, 2017. The trial judge did not address the March 24 and 25, 2017 text messages. Rather than grappling with the apparent inconsistency between the contemporaneous record provided by these text messages and the complainant’s account at trial, the trial judge wrote that she “[didn’t] know if [the complainant] stayed over at [the appellant’s] place on March 28, 2017 or another night after the incident of March 14, 2017”, and that she “accept[ed] that she believes she did” and that “[t]he fact that there is no confirmation in the form of a text message is of no moment.”

[78] The trial judge’s forgiving approach here contrasts sharply with her criticism of the appellant that his “[b]eing committed to unreasonable positions on peripheral events was a consistent theme in [the appellant's] evidence that, in my view, impinged on his credibility and reliability”. Whereas she focussed on what she characterized as inconsistencies in the appellant’s evidence on collateral issues, she readily dismissed any attack on the complainant’s credibility or reliability without providing reasons or engaging with independent evidence that appeared to contradict the complainant and support the appellant’s version of events.

[79] The trial judge never critically addressed the considerable weaknesses in the complainant’s evidence, nor did she meaningfully consider evidence that corroborated the appellant’s account of relevant events. Had the trial judge applied as exacting a standard of scrutiny to the complainant’s testimony as she imposed on the appellant, she might well have been left with a reasonable doubt: R. v. Kiss, 2018 ONCA 184, at para. 86. Failing to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence can be indicative of uneven scrutiny: Roth, at para. 142. In my view, that is what occurred here.

(3) Apparent lack of animus

[80] The appellant contends that the trial judge erroneously relied on the complainant’s apparent lack of animus as a compelling reason for accepting the complainant’s testimony. I agree that the trial judge’s reasons on this issue reveal error.

[81] In support of her acceptance of the complainant’s evidence “in its entirety”, the trial judge found that “[o]ne of the compelling aspects of [the complainant’s] evidence was the lack of animus directed towards [the appellant] during her testimony. There was not even a hint of vengeance towards [the appellant] in her evidence.”

[82] As this court recently instructed in R. v. G.B., 2021 ONCA 675, at para. 18, “trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant.” This caution arises out of the well-established distinction between an absence of evidence of a motive to fabricate on the one hand, and, on the other hand, a proven absence of a motive to fabricate. While the proven absence of motive might give affirmative weight to a witness’s testimony in a trial judge’s credibility assessment, the absence of any evidence of a motive to fabricate is a neutral factor and cannot be used to enhance a witness’s credibility. This is because the fact that a complainant has no apparent motive to fabricate does not mean that a complainant has no motive to fabricate. Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden. See: R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5, R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23; R. v. S.H., 2020 ONCA 34, at para. 11; R. v. A.S., 2020 ONCA 229, at para. 59.

[83] In the present case, it was not argued nor did the trial judge find that there was a proven absence of a motive to fabricate on the part of the complainant. Rather, the trial judge appears to reference the lack of evidence of any apparent motive based on her observation that the complainant did not demonstrate “a hint of vengeance” toward the appellant in her testimony.

[84] By this, the trial judge fell into the reasoning error that the absence of any appearance of animus or motive equated to the absence of motive. She erred by using the absence of any evidence of motive as a makeweight in her assessment of the complainant’s credibility.

[85] This was not a trivial error. I do not accept the Crown’s argument that in instructing herself “not to place much emphasis” on the complainant’s demeanour, the trial judge properly restricted the weight she afforded to the complainant’s apparent lack of animus.

[86] First, although the trial judge instructed herself that demeanour should not be confused with reliability and is of limited value, such that she should not place much emphasis on it, she did not instruct herself that demeanour cannot be a makeweight for the complainant’s credibility. She relied on the complainant being “honest and forthright”, that she “did not exaggerate or elaborate her evidence despite there being many opportunities to do so”, that she “did her best to recall the incident without undue displays of emotion”, as reasons for accepting the complainant’s evidence in its entirety.

[87] While the trial judge’s observations might stand as valid reasons not to discredit the complainant’s credibility, they could not enhance it. As this court instructed in Kiss, at para. 53: “It is an error for a trial judge to use lack of exaggeration or embellishment as a makeweight in favour of credibility. No material inconsistencies in a witness’ evidence or evidence stood up to cross-examination are not factors that show credibility; they are explanation for why a witness has not been found to be incredible.”

[88] Second, even if the trial judge had properly instructed herself on demeanour evidence, her reasons reveal that she in fact placed significant weight on the complainant’s apparent lack of animus. This observation was the culmination of her analysis of the complainant’s evidence and immediately preceded her conclusion that for this and the other reasons she gave, the trial judge accepted the complainant’s evidence in its entirety. The trial judge clearly used this factor to enhance the complainant’s credibility and it was one of the key building blocks in her acceptance of the complainant’s evidence.

Disposition

[89] While credibility and reliability findings are the province of the trial judge and attract a very high degree of deference on appellate review, this does not mean that an appellate court can abdicate its responsibility for reviewing the record to see if a trial judge’s assessment of the evidence is materially flawed and resulted in an unfair trial. The question is whether the trial judge took a balanced approach to the process by which she arrived at her credibility findings, not whether she rightly accepted the complainant’s version of events.

[90] I am mindful that appellate courts should not finely parse the trial judge’s reasons in a line-by-line search for errors but must read them as a whole, in the context of the evidence, the issues and the arguments at trial: G.F., at para. 69; R. v. Chung, 2020 SCC 8, 443 D.L.R. (4th) 393, at para. 13. In this case, when read as a whole, the trial judge’s reasons reveal that her assessment of the evidence was not balanced and her analytical errors, in their cumulative effect, detrimentally impacted her reasoning process throughout and her decision, rendering the conviction unsafe. Appellate intervention is therefore required.

[91] For these reasons, I would set aside the conviction and order a new trial. “PDL”

“L.B. Roberts J.A.”

“I agree. P. Lauwers J.A.”

“I agree. Gary Trotter J.A.”

Footnotes

[1] “Vertigo” was the movie the appellant and the complainant were watching on March 13, 2017.

[2] The Supreme Court in G.F. questioned but did not decide whether uneven scrutiny should be an independent ground of appeal, noting that “[i]n appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments”: at para. 100. As the appellant points to specific analytical errors in the trial judge’s credibility assessment, including the use of speculative reasoning, it is not necessary for us to determine the issue.