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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

DATE: 20230922 DOCKET: COA-22-CR-0047 Hourigan, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.H. Appellant

Counsel: Jeff Marshman and Kelly Ponte, for the appellant David Tice, for the respondent

Heard: September 7, 2023

On appeal from the convictions entered by Justice Graeme Mew on January 28, 2021, of the Superior Court of Justice with reasons at 2021 ONSC 501, and from the sentence imposed on November 30, 2021.

Paciocco J.A.:

OVERVIEW AND ISSUES

[1] C.H. appeals his convictions of mischief under $5000, uttering threats, common assault and sexual assault committed against his former fiancée. Those convictions arose from global counts that embraced several allegations. It is not necessary to set out the factual allegations before identifying the issues or commencing the analysis. The facts required to understand the reasoning can better be unfolded when analysing the grounds of appeal.

[2] C.H. raised several grounds of appeal:

A. The trial judge erred in his treatment of evidence about C.H.’s character, B. The trial judge erred in his application of the rule in R. v. W.(D.), [1991] 1 S.C.R. 742, C. The trial judge erred relating to the evidence of motive and delay in reporting, D. The trial judge erred in law in treating exculpatory evidence relating to the sexual assault allegation as unhelpful, and E. The trial judge misused a prior consistent statement relating to one of the sexual assault allegations.

[3] For the following reasons, I would dismiss C.H.’s appeal.

A. The Treatment of Evidence of C.H.’s character

[4] Evidence unfolding the narrative of events and describing the relationship reflected poorly on C.H.’s character. As the trial judge found, this evidence showed C.H.’s habitual abuse of alcohol, his practice of using profanity with the complainant, and his self-centered and controlling behaviour within their relationship. C.H. does not take issue with the admissibility of the evidence that led to these inferences. It was inevitable that this narrative evidence would be heard so that the allegations could be understood. Indeed, C.H. addressed his behaviour within the relationship when he testified and through the closing submission of his counsel. His appeal alleges that the trial judge misused this evidence by relying upon it to support C.H.’s convictions without a similar fact evidence application or ruling.

[5] Although I recognize it to be arguable that the evidence disclosing the unflattering picture of C.H.’s conduct in the relationship was discreditable conduct evidence that should not have been relied on without a successful Crown application pursuant to the similar fact evidence rule, in the circumstances of this case, the failure to conduct an admissibility voir dire and to make an admissibility ruling does not give rise to a reversible error.

[6] In R. v. Tsigirlash, 2019 ONCA 650, this court rejected a similar ground of appeal where the trial judge put clearly admissible similar fact evidence to an appropriate use despite failing to conduct a voir dire and to make an admissibility ruling that addressed the character evidence rules. Zarnett J.A. reasoned, at para. 27, that no prejudice was caused to Mr. Tsigirlash given that the proposed use of the evidence was clear, the defence had a meaningful opportunity to respond, and the trial judge was in a position to properly assess the use to which the evidence was to be put. The circumstances here are similar.

[7] First, the evidence in this case was clearly admissible and was put to an appropriate use. As indicated, it was inevitable that it was necessarily going to be heard when the narrative of the events and of the relationship were unfolded.

[8] Moreover, this evidence was used by the trial judge for a purpose that would clearly have been permitted had a similar fact evidence application been brought. Specifically, the trial judge relied upon this evidence for the relevant and probative purpose of assessing the plausibility of the competing accounts that the complainant and C.H. provided relating to two of the assault allegations the Crown relied upon in support of its global assault account. The trial judge found with respect to the “Woodpile incident” and the “Door incident” that the complainant’s accounts of their actions leading up to the assaults rang true given the nature of their relationship, but C.H.’s accounts did not. Simply put, her accounts of his behaviour prior to the alleged assaults were consistent with the dynamic of the relationship, but his accounts were not.

[9] I do not accept C.H.’s submission that the trial judge used his comments about C.H.’s unflattering conduct within the relationship for the broader prohibited purpose of inferring that C.H. was likely guilty of offences charged because he is the kind of person who would commit them. There is no indication in the trial judge’s incident-by-incident analysis that he did so, and the fact that he had a reasonable doubt about some of the allegations against C.H. suggests that he did not base convictions on general character reasoning. So, too, does the fact that the trial judge addressed the relationship evidence only when explaining his reasoning on two of the assault allegations.

[10] I reject C.H.’s submission that we should infer that the trial judge featured general character reasoning in his analysis because he commented at some length on the poor character arising from C.H.’s general conduct within the relationship early in his analysis. I am not persuaded that the presence or placement of these comments reflect on the importance the trial judge attached to C.H.’s general character. In these early passages in his analysis the trial judge was responding directly, as a “general point”, to C.H.’s counsel’s acknowledgement in his closing submissions that C.H. does not claim to be the “perfect man,” by exposing that this acknowledgment “understates [C.H.’s] approach to things.” I am not persuaded that the trial judge used the evidence for impermissible bad character purposes.

[11] My conclusion that this evidence would have been found to be admissible had an application been made and a voir dire been conducted is based not just on the probative and appropriate purpose for which this evidence was used. It is also premised on my conclusion that the prejudicial effect of this evidence is modest. C.H.’s behaviour within the relationship, which the evidence shows, is not flattering but it is not criminal. Neither is it so inflammatory that it would be likely to promote inappropriate reasoning or distract the trial judge.

[12] Therefore, I am persuaded that the evidence was clearly admissible and that the purpose for which it was used was appropriate.

[13] Second, the same considerations that drove Tsigirlash apply here. The proposed use of the evidence was or should have been known to C.H., it being obvious that the plausibility of claims about behaviour within a relationship can be informed by the nature of the relationship. C.H. did not object to the evidence and not only had an opportunity to respond to it but did so by addressing his own behaviour within the relationship during his testimony and commenting on his character in his closing submissions. The trial judge also had an ample basis for drawing the conclusions he did and drew reasonable inferences from them.

[14] Hence, no reversible error occurred through the trial judge’s failure to conduct an admissibility voir dire or to rule directly on the permissible uses that could be made of this evidence.

[15] I would add that the trial judge referred to this evidence in adjudicating only two of the assault allegations captured by the global assault count, and not in determining the other two assault allegations he accepted relating to the “Door Handle incident” and the “Dresser incident”. He did not consider it in assessing the sexual assault allegations, either. Even if the trial judge had erred in his reasoning on the two assault allegations, there is no basis for concluding that those errors would have tainted his other findings of assaultive behaviour that support that assault conviction, or the sexual assault conviction. Even if the error was made out, it would not be a basis for setting aside his convictions.

[16] I would therefore reject this ground of appeal.

B. The Treatment of R. v . W.(D.)

[17] The trial judge correctly instructed himself on the rule in W.(D.). C.H. argues that he nonetheless misapplied the rule by imposing the burden of proof on C.H. on the “motive” issue; when evaluating the corroborative effect of damage to a door; by engaging in “either/or” reasoning in assessing the competing accounts of the complainant and C.H.; and by not “critically” analysing the complainant’s evidence. I would dismiss this ground of appeal.

[18] First, I do not find that the trial judge reversed the burden on the motive issue by stating that he was “not persuaded” by the motive theory that C.H. argued at trial. I agree with the premise of C.H.’s argument that evidence of a motive by a complainant to lie can contribute to a reasonable doubt about the guilt of the accused where it could be tainting their evidence, even in the absence of affirmative proof that it is tainting their evidence. However, I am not satisfied that the trial judge thought otherwise, despite his articulation of the conclusion he reached. As indicated, the trial judge correctly stated the principles in W.(D.) demonstrating his appreciation that even if he is not entirely persuaded by exculpatory evidence, it may still leave him in a reasonable doubt. The trial judge also said of the motive theory, “I do not accept that argument”, which can be interpreted as a finding that he rejected, or affirmatively disbelieved the motive theory, leaving no role for it to play in his reasoning: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at paras. 29, 59. C.H. has not demonstrated an error in this analysis.

[19] Similarly, I am not persuaded that the trial judge reversed the onus by commenting that previously unobserved door damage consistent with the complainant’s description of events which occurred around the time of the assault was “otherwise unexplained”. The trial judge was simply articulating his acceptance of the common-sense inference that otherwise unexplained damage occurring around the time of the assault, that by its nature could well have been caused by the assault, adds support to the assault allegation.

[20] I do not accept C.H.’s contention that the trial judge engaged in inappropriate “either/or” reasoning, contrary to the bar on treating fact finding as a “contest of credibility”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 at para. 23. It is not an error for a trial judge to contrast competing versions of events when evaluating opposing testimony, so long as they do not accept the inculpatory version because they prefer it to the exculpatory version. Although the trial judge did, at times, compare competing evidence, there is no basis for concluding that he accepted the complainant’s evidence simply because he preferred it to C.H.’s evidence.

[21] The submissions C.H. made in oral argument in support of his claim that the trial judge erred in applying W.(D.) by not engaging in a rigorous analysis of the complainant’s evidence constitute attempts to reargue the merits of the case. Those arguments do not demonstrate a W.(D.) error, nor does an examination of the decision disclose one.

[22] I would reject this ground of appeal.

C. The Treatment of Motive and Delay

[23] C.H. argued that the trial judge erred in evaluating the evidence of motive to lie about the sexual assaults. At trial, C.H. argued that the complainant fabricated the sexual assault to prevent C.H. from having access to their daughter. In support of this submission, C.H pointed out that in her first police statement, the complainant said nothing about being sexually assaulted and checked “no” to the sexual assault question in an intake sheet that she had been asked to complete. She did not make the sexual assault allegations until after C.H.’s family lawyer had sought child access for him. Before us, C.H. argued that the trial judge misapplied the rule in W.(D.) in evaluating this motive; failed to engage the evidence in rejecting the motive; erred by failing to address the related issue of delay in reporting the sexual assault allegations; and erred by failing to consider a different potential motive that arises from the evidence, namely, that C.H. fabricated the sexual assault allegations to placate her mother who had admonished her for becoming pregnant, after finding out that the complainant was getting an abortion.

[24] I have already addressed and rejected the alleged W.(D.) error. I would also reject the suggestion that the trial judge did not engage the evidence supporting the motive. The complainant explained why she delayed reporting the sexual assault. Although she provided several explanations, they were not inconsistent, and the trial judge was entitled to accept them. He was not obliged to address in his reasons all of the evidence or arguments put before him.

[25] The trial judge’s rejection of this motive theory also put an end to C.H.’s argument on appeal that the trial judge erred by dismissing the significance of the delay in reporting the sexual assault allegations based solely on the general principle that courts should not assume that a delayed disclosure is unreliable, without undertaking a closer examination of the reasons for the delay. I agree with the Crown that the motive theory and delay arguments were linked. What gave the delay potential currency in evaluating the complainant’s evidence was that the disclosure of the sexual assault allegations did not occur until after the access issue between C.H. and the complainant had matured. Put otherwise, when the motive theory was alive, C.H. was not relying on delay alone, but on the timing of the late disclosure coincident with the access litigation arising. Once the trial judge rejected the motive theory, C.H. was left to rely on delay alone, which, as the trial judge explained, should not be assumed to render the complaint unreliable. This is particularly so, where, as here, the complainant has explained the delay.

[26] Finally, the trial judge cannot be faulted for not addressing the alternative motive theory presented on appeal - that the complainant lied to placate her mother. This motive was not suggested by trial counsel nor was it put to the complainant. The judge was not required to consider a motive theory that was not put before him, and which the complainant was not confronted with.

[27] I would reject this ground of appeal.

D. Misunderstanding the Exculpatory Effect of the Evidence On sexual Assault Charges

[28] C.H. testified that he believed that all of his sexual interactions with the complainant were consensual. He testified variously how the complainant made “no complaints”, was “fine with it” and “just went along with it”, although he did not testify as to why he believed that the complainant had communicated her consent. After citing relevant legal principles and statutory provisions confirming that consent is not obtained by a failure to resist or protest, and that a belief in consent must be based on communicated consent, the trial judge commented:

Against this backdrop of the applicable provisions and legal principles, [C.H.]’s generalised statement that he believed all sex with [the complainant] was consensual, without more, could not form the basis for an acquittal on the sexual assault charge even if I completely believed him.

[29] I agree with C.H. that, in the circumstances of this case, this observation by the trial judge is incorrect. The trial judge found, based on the complainant’s own evidence, that all three of the sexual events that grounded the sexual assault conviction - the “Hunt Camp incident”, the “Necktie incident”, and the “Mother’s Day Weekend incident” - began consensually. Her admitted participation at the commencement of the sexual conduct would inevitably have communicated her consent. Given this, absent any indication from the complainant that she had changed her mind on these occasions, it would be reasonable for C.H. to believe that her communicated consent was continuing without the need to take any further steps to confirm communicated consent. In these circumstances, if the trial judge accepted C.H.’s claim that he believed that the sex was consensual relating to these events, even without taking further steps and even if relying on the absence of post-consent complaints or other signs of rejection, C.H. would have a defence because he would have lacked the mens rea required to be convicted of sexual assault.

[30] In spite of this error, I would not set aside C.H.’s sexual assault conviction. When the trial judge made this legally erroneous comment, he was addressing the hypothetical question of what would happen if he believed C.H.’s evidence. This hypothetical event never came to pass because it is plain when the decision is read as a whole that the trial judge affirmatively rejected C.H.’s testimony that the complainant made “no complaints”, was “fine with it” and “just went along with it”. Instead, the trial judge found affirmatively that on each occasion the complainant told C.H. to stop. On the facts that the trial judge found, his erroneous “even if” legal proposition made no contribution to the sexual assault conviction.

[31] I have considered and rejected C.H.’s related submission that there is an associated W.(D.) error because in his reasons the trial judge addressed only what would have happened if he believed C.H.’s testimony about the complainant’s consent but did not address what would happen if he did not affirmatively believe this evidence but could not reject it in its entirety. This submission is unpersuasive because the trial judge’s affirmative finding that the complainant told C.H. to stop represents a complete rejection of C.H.’s account, leaving no room for reasonable doubt. Moreover, as I have noted, the trial judge conveyed his understanding of the rule in W.(D.) earlier in his decision. There is no basis for inferring that in accepting the complainant’s evidence beyond a reasonable doubt the trial judge failed to consider whether C.H.’s account left him with a reasonable doubt.

[32] I would reject this ground of appeal.

E. The prior consistent statement

[33] The trial judge concluded that a prior consistent statement by the complainant “provides further support” for the “Woodpile incident” assault, one of the events grounding the assault conviction. This was not a permissible use of the prior consistent statement. A prior consistent statement made by a witness cannot be relied upon as corroborating the witness’s account, or on the basis that repetition adds credibility: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 35. None of the exceptions to the presumptive inadmissibility of prior consistent evidence explain the trial judge’s conclusion, nor are any permissible lines of reasoning apparent. However, I agree with the Crown that this error does not disrupt the global assault conviction, as that conviction is not premised solely on this finding of assault. This error is also unrelated to the global sexual assault conviction. In these circumstances, this error does not support a ground of appeal.

[34] We have not been asked to adjust C.H.’s sentence because the finding in favour of the “Woodpile incident” assault was made in error, leaving fewer assault events supporting the global assault conviction. In any event, I concluded that this change in the foundation for the conviction would not have altered the sentence C.H. received. I would therefore leave the sentence undisturbed, despite this error.

CONCLUSION

[35] I would dismiss C.H.’s appeal.

Released: September 22, 2023 “C.W.H.” “David M. Paciocco J.A.” “I agree. C. W. Hourigan J.A.” “I agree. I.V.B. Nordheimer J.A.”