COURT FILE NO.: CR-18-899-00AP

DATE: 2019 02 13

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

CHRISTINA LYNCH, for the Respondent/Crown

Respondent

• and -

R.S.

SAM GOLDSTEIN, for the Respondent

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable J. Maresca,

dated October 31, 2016]

DURNO, J.

[1] The appellant was tried on two counts of sexual assault and two counts of sexual interference involving 2012 and 2016 allegations of sexual contact with his step-daughter. He was acquitted of the 2012 incident and found guilty in relation to the 2016 incident.

[2] The Crown alleged that in 2016 he went into his 15 year-old step-daughter’s bedroom around 1:30 a.m. after finding her awake and texting. Once in the room, he intentionally touched her bum and breast. The next day the young woman told the police that he intentionally touched her, returned to the police five days later and said it was a misunderstanding, he had accidentally touched her while trying to take her phone, and at trial testified that the first statement was true and the second a lie.

[3] The trial judge convicted the appellant of sexual assault, stayed the sexual interference count and imposed a 7 month jail sentence, 24 months probation and corollary orders. The offender has served the jail sentence.

[4] R.S. appeals the conviction submitting:

This case is about how the fairness of a trial can be thrown out of balance by a single error. By allowing Crown Counsel to cross-examine her own witness on why she had given two police statements, the trial judge took the wind out of the appellant’s cross-examination. The appellant was put in the position of disproving the complainant’s explanation for her two statements rather than raising a reasonable doubt about the allegation itself. The error had a domino effect leading to a series of evidentiary mistakes that effectively reversed the burden of proof.

[5] The appellant contends the trial judge erred:

i) in permitting Crown counsel to offend R. v. Pinkus (1999), 140 C.C.C. (3d) 308 (S.C.J.),

ii) in misapprehending the evidence,

iii) in applying uneven levels of scrutiny to the Crown and defence evidence, and

iv) in admitting too much other disreputable conduct evidence and in the use to which the admissible evidence was put.

[6] For the reasons that follow, the appeal is dismissed.

The Evidence

[7] The appellant’s step-daughter was 15 years old on February 11, 2016. His relationship with her mother started around the time of her birth in 2000. The appellant and her mother agreed to raise her as their own child although the young woman would spend every second weekend with her father.

[8] Pursuant to s. 715.1 of the Criminal Code, the young woman adopted her first police statement in which she said the appellant came into her room around 1:30 a.m. on February 11, 2016. She found that unusual. He asked her why her light was on which she found strange because he knew she always kept the light on. She told him she was afraid of the dark and always slept with the light on. When he turned the light off, she thought he had left but then felt him take her blanket off and touch her bum and breast. She told him to stop. He said it was okay and “It was fine. Do not worry.” She pushed him away, got up and left the room. He did not try to stop her.

[9] She went into her mother’s bedroom and told her what the appellant did. When her mother confronted the appellant, he said it was nothing and she should go back to sleep.

[10] The next day the young woman told her mother again. When she was being driven to school, she told her mother she no longer wanted to be in the house with the appellant. She also called her uncle, told him what had happened and at his request texted him an account of what occurred. At school she told a trusted teacher what happened, Children’s Aid became involved and she was taken to the police station where she provided a videotaped statement outlining what occurred.

[11] In examination-in-chief, the young woman was asked about the second statement given to police on February 16, 2016. After the appellant’s arrest her family spoke to her about her disclosure. Her aunt talked to her about whether she might have been mistaken about what happened, suggesting to her that perhaps the appellant touched her by mistake while trying to take her phone away from her. Her aunt and mother impressed on her how serious her allegations were and that she needed to be sure about what she told the police. The young woman felt very anxious about having told her mother.

[12] In cross-examination, the young woman admitted she was not doing well in school, often skipped classes, and that her texting was a significant problem for her mother and the appellant. She maintained that the first police statement was true and the second a lie.

[13] The appellant’s wife testified that the young woman came into her bedroom and told her the appellant “touched her” and “grabbed her.” The young woman’s mother went to look for the appellant and found him in their son’s room. She told him what her daughter told her. He said she should go back to sleep.

[14] The next morning when she was driving her daughter to school, the young woman said she was not coming home if the appellant was at the house, told her how the appellant grabbed her and said he had molested her. Her daughter said that after the appellant turned her light off, she thought he had left the room but he was on the bed touching her feet. When she jumped off the bed he chased her around the room.

[15] After the young woman’s mother dropped her at school, her daughter called saying the appellant texted her, saying he was not going to drive her anywhere or give her money and stuff anymore.

[16] The appellant’s wife spoke to him by phone and asked him what he did to her daughter. He said that she did not know “that little girl” and called her a whore. She did not know what her daughter talked about when she was on the phone with some guy at nighttime. He just went into the room to check her. The appellant told her he was high the night before, something that was abnormal for him.

[17] The young woman’s mother also testified about an incident when the appellant came to her house after being released on bail. During a conversation he gestured how he had put one hand on the young woman’s left breast. He said he had grabbed her shirt or something.

[18] The Crown also led evidence from the young woman’s mother that her daughter wanted to move out and live with her father because of the appellant’s abusiveness before February 11, 2016. He would drive her to her father’s home and park far away so that she would have to walk. He would make comments to her. She also wanted to move out because she had seen the appellant abuse her mother.

[19] The first defence witness was the basement tenant, R.K. who had grown up with the appellant. He confirmed, as did the appellant’s wife, that he was with the appellant installing a wall mount on the night of the incident, finishing around 12:30 a.m. In examination-in-chief, when asked for his reaction on learning the appellant was charged with sexual assault, he said he was shocked because that was not something the appellant would ever do, let alone think of doing. When trial counsel (not Mr. Goldstein) asked him if he had ever seen the appellant angry, he said that he had and found him “pretty scary” when he reacted by getting upset. R.K. was a grown man but the appellant scared him. Just looking at him instilled the fear of God in R.K.

[20] The appellant testified that he was very concerned about the young woman, feeling she was not doing well at school and did not take her schoolwork seriously. He was worried that she dressed inappropriately and spend all her time texting and emailing her friends well into the early morning hours.

[21] The appellant said that with his wife’s approval he was on the young woman’s Facebook page and saw sexually charged messages between the young woman and a boy. They caused him great concern. He asked her mother to talk to her but cautioned her not to look at the messages. .

[22] With regards to the alleged touching incident, the appellant testified that he had been in the basement with the tenant helping him install a television mount. He came upstairs at 1:30 a.m., saw the young woman’s light on and her door ajar. He could see she as on the phone, went into her room and asked her why she had the light on. She said she always had it on. He asked who she was texting and received no response. He became annoyed, walked to her bed and to get her attention, grabbed her shirt above her breasts. She looked scared so he told her not to worry. She tried to get around him to leave the room but he stood in front of her, blocking her way. She walked around him and went to her mother’s room.

The Reasons for Judgment

[23] Her Honour identified the central issue as credibility. She found a number of inconsistencies in the appellant’s evidence. There were also a number of disturbing text messages between him and the young woman’s mother “as well as some concerning actions on his part,” all of which impacted on his credibility. For example, in examination-in-chief, he said he had never been in trouble before. Being charged devastated him. Yet, later he said he had been charged with assault and threatening the young woman’s mother in 2004. While the charges were eventually dropped, he was prevented from living in the house for six months.

[24] In examination-in-chief, he said he asked the young woman why she had her light on and in cross-examination said he knew she always left the light on. He had discussed with her mother whether they should buy her a night light.

[25] The appellant said he was angry when he went into the young woman’s room and upset that she was texting. The only thing he said to her other than who was she texting was “Do not worry, it is okay” after he appeared to have scarred her. Her Honour found those words were inconsistent with wanting to confront the young woman about texting. He said that he was not physically abusive with the young woman’s mother, yet admitted that after being released on bail he went to the family home contrary to his bail conditions, got into an argument with the complainant’s mother and struck her, breaking her nose. He admitted further contacts with the young woman’s mother in breach of his bail order, and asking her to tell her daughter that he would never turn against her despite being subject to a non-communication order with the young woman.

[26] Her Honour found the text messages between the appellant the young woman’s mother on March 21 and 22, 2016 were very concerning. In the messages, he told her that the young woman had made sexual advances towards him since she was little, including grabbing and staring at his front. It was getting on his nerves. She had also shown him her breasts and opened her legs while sitting on stairs after a shower. After recounting other similar texts, Her Honour noted that the appellant testified they were not true. He made the allegations because he was “out of his mind” as a result of the allegations against him.

[27] The following texts were more concerning: “Whatever you think I did to that little mental case, is nine months in prison justified?” The next day he texted asking to be enlightened, saying he did not rape or grope the young woman but “might have grabbed her inappropriate but that should not result in all of this.” Later that same day, he texted, “Is grabbing [the young woman] reasonable grounds to throw away our young family?”

[28] Her Honour found the appellant was not credible, he was untruthful to the young woman’s mother when it suited his purposes, was prepared to violate court orders when it suited his purposes and was untruthful in his testimony when it suited his purposes. She rejected his evidence and found it did not raise a reasonable doubt.

[29] Her Honour found the young woman’s mother exhibited some animus towards the appellant. However, she gave her evidence in a calm and measured way and was not challenged in a significant way in cross-examination. The trial judge found her to be credible, giving her evidence great weight.

[30] The trial judge found the young woman’s aunt urged her to go back to the police and say that she lied in her first disclosure and that the appellant was just trying to get her phone away from her. She agreed to do so, knowing it was not the truth. Her aunt drove her to the police station. The young woman hoped that if she went in and said she lied that she would be able to live with her father and her younger brothers could live with the appellant.

[31] The trial judge found no material inconsistencies in the young woman’s evidence. She was very forthright and essentially unshaken in cross-examination. Her Honour found her to be a very credible witness and accepted her evidence. The evidence did not support that she had a motive to lie. She believed that when she turned 16 she could choose to live with her father so did not have to lie about the appellant to live with her dad.

The Grounds of Appeal

Did the trial judge err in permitting the Crown to offend Pinkus?

The Positions of Counsel

[32] The appellant referred to this ground of appeal as the trial judge erring in permitting the Crown to offend “the Rule in Pinkus.” The “rule” had two branches: the Crown should not be allowed to engage in oath-helping by bolstering the credibility of its own witness. Further, the Crown should not be allowed to “take the sting out of cross-examination by eliciting explanations for each inconsistent statement made by a witness.”

[33] While agreeing that the Crown could lead evidence of the fact the witness had given of a previous inconsistent statement, the appellant submits that the trial judge erred in permitting the Crown to cross-examine the young woman and ask about the following in examination-in-chief:

A) the circumstances under which she went back to the police station,

B) whether she believed what she told the police in her second statement,

C) if someone else told her to tell the officer that the appellant was just trying to get her phone from her,

D) what she thought would happen when she said in the second statement that the appellant was just trying to get her cellphone,

E) whether she knew if there was a reasons the appellant could not be with her mother, sister or brother,

F) if she went to live with her father, for how long and where else she had lived, and

G) who knew that the appellant had previously hit her.

[34] In oral submissions, Mr. Goldstein acknowledged that B) above - asking whether she believed what she was saying when giving the second statement was his strongest argument and that reasonable people could differ on the other areas.

[35] The Crown submits the trial Crown did not engage in oath-helping or improperly lead the witness. Nor did the trial judge improperly use the young woman’s answers in these areas. The appellant’s trial counsel’s cross-examination of the young woman shows the questioning was not impeded in any way by the examination-in-chief. Finally, relying on R. v. Durant, 2012 ONSC 6792, Ms. Lynch submits Pinkus was wrongly decided.

The Law

[36] There are two elements to this ground of appeal: oath-helping and leading questions.

Oath-Helping

[37] In R. v. B.(F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, at para. 70, the Supreme Court of Canada held at para. 70:

… The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. It includes psychiatric evidence that the witness is likely to tell the truth in court (see, e.g., R. v. Kyselka (1962), 1962 596 (ON CA), 133 C.C.C. 103 (Ont. C.A.)), evidence of good character called solely to illustrate that a witness is likely telling the truth (see, e.g., R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224 (Alta. C.A.)) and polygraph evidence (see, e.g., R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398). [emphasis added]

[38] In R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at para. 28, the Court held:

The rule against oath-helping holds that evidence adduced solely for the purpose of proving that a witness is truthful is inadmissible: R. v. Marquard, supra. The rule finds its origins in the medieval practice of oath-helping; the accused in a criminal case or the defendant in a civil case could prove his innocence by providing a certain number of compurgators to swear to the truth of his oath: see R. v. Béland, supra, per Wilson J. at pp. 419-20. In modern times, it is defended on the ground that determinations of credibility are for the trier of fact, and that the judge or jurors are in as good a position to determine credibility as another witness.

[39] In R. v. Speid, (1985), 1985 3480 (ON CA), 20 C.C.C. (3d) 534 (Ont. C.A.) at p. 547, when examining an ‘other disreputable conduct’ ground of appeal, Martin J.A. held:

It is not, in my view, open to doubt that a witness who is impeached in cross-examination by a prior inconsistent statement is entitled to explain the inconsistency by relating whatever circumstances would excuse or extenuate the inconsistency. See Wigmore on Evidence (Chadbourne Revision) vol.111A (1970) at 1062-64.

In the present state of the record Crown counsel could not on redirect examination have examined Nugent as to the reason she made the prior inconsistent statements because she had not admitted making them and, at that stage of the proceedings, there was no evidence that she had, in fact, made them. It may be that the fairest way to have proceeded would have been, upon defence counsel assuring the Court that he proposed to cross-examine Nugent on her prior statements, for the Crown to prove the statements before Nugent gave her evidence. She could then have been cross-examined on the statements and Crown counsel could then in redirect examination have examined her as to her reason for making the statements. … [emphasis added]

[40] In R. v. Llorenz, (2000), 2000 5745 (ON CA), 145 C.C.C. (3d) 535, at para. 28 and 31-2, the Court of Appeal held:

… the line to be drawn when evidence is considered to be oath-helping is not always clear. There is a distinction to be made between (1) evidence about credibility (i.e. in my opinion the witness is truthful), which is inadmissible and (2) evidence about a feature of the witness's behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact's ultimate determination of the question of credibility: R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), per Charron J., at 678. [emphasis added]

I do not take Burns to hold that oath-helping evidence should necessarily be admitted simply because it is led for another proper purpose. When considering the admissibility of such evidence, a court must still weigh its probative value in relation to its legitimate purpose, against its prejudicial effect. In this analysis, the court should be cautious about the potential for distorting the fact finding process, particularly where the oath-helping evidence is that of an expert. Issues of credibility are for the trier of fact to decide, not experts.

Thus, if evidence with an oath-helping component is admitted for another purpose, there should be a genuine effort to limit the oath-helping aspects of the evidence as much as possible in order to minimize the potential for misuse of the evidence.

[41] In R. v. Tash, 2013 ONCA 380, 2013 O.J. No. 2642, Watt J. A. wrote:

36 Credibility rules are of three types.

37 The first type concerns attempts by the witness' proponent to bolster the witness' credibility even before it has been impeached. As a general rule, we do not permit the witness' proponent to elicit bolstering evidence in direct examination. The rule against "oath-helping" excludes it.

[42] In R. v. Reid (2003), 2003 14779 (ON CA), 65 O.R. (3d) 723 (C.A.), the Court of Appeal reviewed a murder trial where a key witness had given prior inconsistent statements that included “other disreputable conduct” evidence. The Court upheld the trial judge’s ruling that the Crown was entitled to ask the witness in examination-in-chief about the prior statements and her reasons for giving them - her fear of the accused, her mistrust of the system and her feelings of shock and trauma caused by the event. The evidence was disclosed and the defence advised of her reasons. The Crown offered not to lead the evidence if the defence would agree not to raise the prior inconsistent statements.

[43] In upholding the admission of the other disreputable conduct evidence in the examination-in-chief, the Court of Appeal held at para. 37:

The defence refused the Crown's offer and chose to expose the inconsistencies. Accordingly, Crown counsel brought a pre-trial motion in which he sought permission to bring out, as part of his case in-chief, the inconsistencies arising from Ms. Glover's incremental disclosure and the evidence he planned to lead to explain them. That, of course, was the proper procedure to follow. The proposed explanatory evidence involved evidence of the appellant's bad character and as such, it would normally not be admissible.

[44] Finally, in R. v. Pollack (2004), 2004 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont.C.A.), at para. 136, again in the context of examining an ‘other disreputable conduct’ ground of appeal, Rosenberg J.A. held:

The Crown's strongest argument on this aspect of the case relates to the evidence of Teresa Jones. It was clear that counsel for Pollock would attack Jones's credibility, in part, on the basis that she had told the police over several years that Pollock had nothing to do with the killing. It was also part of the defence theory that she only came forward when she was seeking parole. Accordingly, it was open to Crown counsel to anticipate that line of attack by adducing evidence from Jones that she made the prior inconsistent statements out of fear of Pollock. See R. v. Speid (1985), 1985 3480 (ON CA), 20 C.C.C. (3d) 534 (Ont. C.A.) at 546-54. It was also open to Crown counsel to lead evidence as to the basis for this fear. Thus, some of the evidence that Crown counsel and counsel for Morrison led from Jones of Pollock's violent disposition was properly admissible.

[45] Pollack and Morrison were jointly charged with first degree murder. They advanced ‘cut-throat’ defences. Morrison’s appeal was dismissed and Pollack’s allowed because both the Crown and Morrison had led considerable evidence of Pollack’s disposition for violence that rendered his trial unfair.

[46] There are conflicting judgments in the Superior Court on whether the Crown in examination-in-chief can ask a Crown witness about previous inconsistent statements and the witness’ explanation for giving those statements.

[47] In Pinkus, decided before the release of Reid and Pollack, the accused was charged with murder. His girlfriend testified that he told her he was involved in the murder. She had previously given a series of statements over two years in which she said the accused told her he was not involved in the murder. The Crown sought to question her about the earlier versions including why she provided a different version to police.

[48] The accused objected, arguing that the questions were oath-helping, seeking to introduce self-serving evidence in areas that were properly dealt with in cross-examination. The Crown argued there was no authority that supported the accused, submitting he was entitled to lead the evidence as part of the narrative and to present the witness “warts and all.”

[49] McKinnon J. held,

17 In my opinion, the rule against oath-helping is a sound one and worthy of application in the present case. To permit Mr. Berzins to lead the witness through an explanation as to why she made previous inconsistent statements would inevitably take some of the sting out of the cross-examination.

18 My reason for saying this is rooted in a belief in the wisdom of the adversary system. It is through the tool of cross-examination that the credibility of a witness is best tested. Cross-examination is a tried and true method of ascertaining the truth. It has no substitute. If the presumption of innocence is the "golden thread" which weaves the fabric of the criminal law, then it may be said that cross-examination is the needle without which the thread would be of little use. The procedure sought to be adopted by Crown counsel would weaken the effect of the cross-examination and potentially be of diminished value to the trier of fact.

19 In my opinion, the overriding purpose and intent of the procedure sought to be adopted is to bolster the credibility of the witness. The fact of the previous inconsistent statement does not constitute essential narrative in this case. While Crown counsel is permitted to present witnesses in the best light, and while some latitude is often permitted, it remains a question of where the line is to be drawn on a case-by-case basis. I find the proposed line of questioning to be akin to that which was held to be objectionable in Clarke (supra), a decision specifically approved by the Supreme Court of Canada in Beland (supra).

[50] His Honour continued, referring to the Supreme Court of Canada judgment in R. v. Beland and Phillips (1987), 1987 27 (SCC), 36 C.C.C. (3d) 481,

6 Justice McIntyre also referred to the case R. v. Clarke (1981) 1981 ABCA 222, 63 C.C.C. (2d) 224 where a Crown witness, who was a fellow prison inmate of the accused, was permitted to testify under the anonymous name "John Doe", was at the time of trial attending bible classes, was in regular attendance at Alcoholics Anonymous classes, had made restitution for certain offences in respect of which he had not actually been prosecuted, had changed his attitude to the police and society generally, had come to realize that his social problems were of his own making, and now despised and rejected violence. In that case, McClung J.A., speaking for the Alberta Court of Appeal held that the examination exceeded the permitted limit "because its overriding and dominant objective was the bolstering of the witness's character and, therefore, his credibility".

7 McClung J.A. supported his view by quoting Wigmore on Evidence (Chadbourn rev. 1972), vol. 4, pp. 233-234 where it is stated:

1104(A) Proving good character in support; in general, inadmissible until impeached. Good character for veracity is as relevant to indicate the probability of truth-telling as bad character for veracity is to indicate the probability of the contrary. But there is no reason why time should be spent in proving that which may be assumed to exist. Every witness may be assumed to be a normal moral character for veracity, just as he is assumed to be of normal sanity. Good character, therefore, in his support is excluded until his character is brought in question and it thus becomes worthwhile to deny that his character is bad.[^1]

[51] His Honour prevented the Crown from asking anything about the previous statements, including the witness’ explanation for giving them.

[52] In R. v. Abeyewardene, [2008] O.J. No. 5753 (S.C.J.), the trial judge permitted Crown counsel to lead the Crown witness’ criminal record in examination-in-chief. This is a common occurrence when the defence leads evidence of an accused’s criminal record in examination-in-chief. However, the trial judge did not permit the Crown to introduce in examination-in-chief that the Crown witness had been charged as an accessory-after-the-fact.

[53] Reliance on Pinkus was specifically rejected in Durant, where Ramsay J. admitted similar evidence in examination-in-chief in the following circumstances. The Crown wanted to ask the witness whether she had previously given inconsistent statements and why she changed her account. She was expected to say that she had done so because she feared the accused. His Honour held at paras. 8 and 9:

… Asking a witness about recanting a previous inconsistent statement (or, for that matter, the fact of being charged as an accomplice) does not prove the truthfulness of the witness. The question is not asked for that purpose. It detracts from the truthfulness of the witness. Bringing it out in chief is simply designed to dispel any impression that the Crown was hoping that the jury would not find out. It is perfectly legitimate advocacy. It has nothing to do with the rule against oath-helping. Neither does s.12 of the Canada Evidence Act. As for the explanation, some of it is tied up with the evidence of the witness's relationship with the accused and will inevitably come out in chief. At certain relevant times the witness was married to the accused. It is also conceded that certain letters sent by the accused to the witness are admissible. Beyond that, the explanation for the previous statements should wait for cross-examination and re-examination, in the usual course. [emphasis added]

The Crown is entitled to elicit from the witness in chief the fact of the previous inconsistent statements in a general way and the timing of her change of heart.

[54] Ramsay J. followed the judgment of A. Campbell J. in R. v. Lawrence permitting the Crown to lead evidence of the inconsistent statements but not the explanations. There is no reported judgment of the Lawrence ruling.

[55] In Pinkus, McKinnon J. distinguished Lawrence on its facts relying on the Court of Appeal judgment found at (1989), 52 C.C.C. (3d) 453 (C.A.) However, Justice Ramsay correctly noted that the Court of Appeal did not rule on the propriety of the Crown dealing with the inconsistent statement in examination-in-chief or the explanation why the statement was given.

[56] The British Columbia Court of Appeal recently addressed the conflicting Superior Court decisions in R. v. Gillespie, 2019 BCCA 8. Gillespie appealed his conviction for sexual assault. The complainant initially told the police Gillespie had a knife in his hand during the assault. A few days later, she provided a second statement in which she said a knife had not been used in the assault. The Crown led evidence of the prior inconsistent statement in examination-in-chief. The appellant contended it was a “strategic effort to rehabilitate its own witness by bringing the statement and subsequent retraction out in chief rather than leaving it for the defence to introduce in cross-examination. It was the Crown’s tactical decision to “steal the wind from the sails” of the cross-examination.

[57] The inconsistency was raised in examination-in-chief as well as the explanation:

Q: All right. And you corrected it because you knew there’d be some trouble for you if you didn’t?[^2]

A: I corrected it because I knew it was wrong that -- that I had said that.

[58] Gillespie appealed on several grounds including that leading evidence of the inconsistent statement in examination-in-chief was oath-helping – “trying to establish that the witness was a truthful person, evidence from the value laden description of the complainant “correcting” her evidence rather than “changing it.” In addition, the Crown was not entitled to lead evidence of the changed accounts in examination-in-chief. The effect was to introduce the first statement – a prior consistent statement which is not permitted.

[59] Fenlon J.A., writing for the Court, found there was nothing improper in the Crown anticipating the cross-examination and raising the prior inconsistent statement as part of its case. It was permissible for the Crown and defence to take the wind out of the other side’s sails: at para. 35.

[60] The Court examined Pinkus and Durant, finding Pinkus was “contrary to the weight of authority.” After referencing Pollack, Fenlon J.A. held it was “arguably to the advantage of the accused to raise the prior statement in examination-in-chief” than the Crown raising it for the first time in re-examination. It is apparent that the reference to first raising the issue in re-examination refers to the explanation for the inconsistent statement because Fenlon J.A. continued that raising “the reason for the change of heart” in re-examination could be seen as taking the sting out of a cross-examination that emphasized the inconsistent statement. Defence counsel’s cross-examination resulted in the evidence he sought – the complainant lied to the police initially and had been sober enough to recall what she initially told the police. There was no prejudice to the appellant. The absence of prejudice was born out by the failure of defence counsel to object to the evidence.[^3]

[61] Here, the appellant does not dispute that the fact there was an inconsistent statement was admissible in examination-in-chief.

[62] The second branch of this ground of appeal is that the Crown improperly asked leading questions when examining the young woman with regards to her inconsistent statement.

[63] The Court of Appeal addressed leading questions as follows in R. v. Rose (2001), 2001 24079 (ON CA), 53 O.R. (3d) 417 (C.A.) at para. 9:

A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin, 1956 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1 at pp. 211-12 S.C.R., p. 22 C.C.C.

[64] In Watt’s Manual of Criminal Evidence, 2018, the author notes two common forms of leading questions: a question that suggests the answer and one that assumes a fact or state of facts that are in controversy: at 19.02.

Analysis

[65] Before examining the seven disputed areas of evidence, a determination of whether there was any objectionable leading questions and assessing the conflicting decisions in this area will place the analysis in context.

[66] First, I am not persuaded there was impermissible leading. While there are questions that include the witness’ previous answers, that is not leading. They repeat the answer previously given but do not suggest an answer to a new question nor state a fact or state of facts as factual when they in controversy. There are also questions that direct the witness to another area but they do so without suggesting the answers.

[67] With regards to the oath-helping issue, there are two forms of oat- helping. The first and most objectionable is evidence from the witness or others why the witness should be believed. That evidence is not generally admissible without a ruling from the trial judge that it was would be admissible in examination-in-chief. Clearly, none of the challenged evidence is in the first category of oath-helping. There was no expert evidence and the Crown did not lead evidence from the witness about why she should now be believed despite lying to the police.

[68] The second type of oath-helping identified by Laskin J.A. in Llorenz, was evidence about a feature of the witness’s behavior or testimony, which may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility.” In K.(A.), the case referenced for this branch in Llorenz, the Crown had called a social worker with regards to symptoms of sexual abuse victims. The Court of Appeal ordered a new trial, finding the errors in relation to how the expert evidence was addressed.

[69] The case law is clear that it is a matter within the trial judge’s discretion and that the line over which the evidence becomes oath-helping is not always clear.

[70] I agree with Ramsay J. that leading the fact of a previous inconsistent statement in itself is not oath-helping, it is oath hindering. Here, contrary to Pinkus, neither defence counsel nor Mr. Goldstein submit the fact there was a prior inconsistent statement was inadmissible in examination-in-chief. The issue is the explanations for giving the second statement. In Durant, the case relied upon by the Crown, Ramsay J. did not permit the explanation to be given in examination-in-chief.

[71] Having reviewed the Court of Appeal judgments as well as Gillespie, it is readily apparent that the fact of a prior inconsistent statement and the explanation for those statements can be admissible in examination-in-chief. The explanations were admitted in examination-in-chief in Reid, Pollack and Gillespie. Had the evidence been inadmissible oath-helping, it a reasonable inference it would have been readily apparent to the Court of Appeal in Spied and Pollack.

[72] What is also clear is that where the explanation includes ‘other disreputable conduct’ evidence, a pre-trial application is required and a ruling obtained before that evidence is admissible. Where no ‘other disreputable conduct’ is included in the explanation, while not mandatory, it would be prudent for the Crown to alert defence counsel and the court that they intend to introduce the evidence of a prior inconsistent statement and the explanation why it was given to canvas their views.

[73] In those cases, the explanation included admissible ‘other disreputable conduct’ evidence that reflected poorly on the accused. Here, the explanations had nothing to do with bad character. There was no suggestion the young woman changed her evidence because she feared the appellant or because he threatened her. While there may have been some minimal element of oath-helping when the witness admitted lying, her first admission of lying came in a non-responsive answer.

[74] Finally, I find the British Columbia Court of Appeal’s reasoning persuasive with regards to the explanation being raised for the first time in re-examination. I reach that conclusion considering how the evidence of fear of the accused and/or their disposition for violence would have impacted in Reid and Pollack had it been introduced for the first time in re-examination. If the explanations in this case could only have been admitted in re-examination, had the defence not cross-examined to lead the explanations, the defence would have had no opportunity to cross-examine on the explanations. In this case, the appellant had the opportunity to cross-examine the young woman on all of her explanations.

[75] I turn next to the seven areas where the appellant alleged the trial judge erred in permitting the Crown to offend Pinkus. The objectionable questions and answers are as follows:

A) the evidence in relation to the circumstances under which the young woman returned to the police station was as follows:

Q: Now, I understand that you went back to the police station and spoke to Officer Boyer again … on February 16, 2016?

A: Yeah.

Q: And that was a videotaped interview which has been transcribed. Can I just ask you about the circumstances of how it is that you went back into the police station to speak with him?

A: Do you want me to say what I said or the reasons why I went back?

Q: Well, we’re going to do both. So, let’s start with the reasons why you went back?

A: Okay, so, I will be honest. I did lie in the video

Q: Okay. Which one?

A: The second one … The reason why I went back is because I was nervous and I don’t like conflict and I don’t like tension. So, I did go back and I did say that instead of him grabbing my boob, I did say that I thought he was trying to take my phone away from me. Because normally, he wouldn’t try to do something like that with me. Like touching me-wise unless, as I said in the first video, that he was either drinking or smoking.[^4]

Q: And how did you get there?

A: My aunt …, my mom’s sister brought me there.

Q: Okay. And had you had any conversation with your aunt or your mom or anybody before you went back to the station the second time:

A: Yes, I did.

Q: And who did you speak to?

A: I spoke to both of them the night before coming back on February 16th. My aunt – I honestly can’t really remember what we were talking about. But in a way, she kind of convinced me to go back because she – they were both – well, mainly, my aunt, she was like, “I don’t believe that he would do something like that to you.”

[76] Defence counsel said he could not hear the witness. She was asked to repeat the answer:

A: My aunt said she would not believe that he would do something like that to me because of how many times we’ve been home alone. Like together when my mom was at work.

[77] First, there was no objectionable leading. Second, by leading the explanation the appellant’s trial counsel could cross-examine on the reason provided. There was a slight oath-helping component in that the witness admitted lying.

B) the evidence whether the young woman believed what she was telling the police officer in the second statement is as follows:

Q: Okay. Okay. So, you had a conversation with your mom and your aunt. And then, you went in on February 16th, 2016 and you told Officer Boyd that you thought he was maybe just trying to take your phone away?

A: Yes

Q: When you were saying it, did you believe it?

A: No

[78] These are the questions and answers the appellant submits are the clearest and most serious breaches of Pinkus. First, the questions were not leading. The first question repeats evidence already given. The second does not suggest the answer.

[79] Second, the witness had already testified that she lied in the second statement in the non-responsive answer noted above. In that context, it is a question and answer that added nothing to the record. Again, there is the above noted slight oath-helping element.

C) the evidence if someone else told her to tell the officer that the appellant was just trying to take her phone, is as follows:

Q: The part about getting this – telling Officer Boyer that he – maybe he was trying to take your phone? Do you remember – where that came from? Is that something you made up yourself? Or did anyone else give you some information?

A: My aunt.

Q: And what did your aunt say, if you remember?

A: I think she was telling me – she’s like, “Oh, do you think that he was trying to grab your phone or something else? And I’m like, “Honestly, I don’t know.”

[80] First, the questions were not leading. The first includes several options but does not suggest the answer, nor does it assume a fact or state of facts in controversy. The second is not leading.

[81] Second, the question introduced an explanation for the second statement in examination-in-chief and had some oath-helping potential.

D) the evidence what she thought would happen when she said in the second statement that the appellant was just trying to get her cellphone was the following:

Q: What were you hoping would happen, if anything, when you went and told Officer Boyer that you thought he was just trying to get your cellphone?

A: Honestly, I was hoping that – in the end of it, because I was so scared to go back home, that they would at least allow me to go and be with my dad or my grandparents. And like my, mom, my brother, my sister, and my step-dad, they could be all together.

[82] First, the question was not leading. Second, the above noted oath-helping component was present although the answer makes little sense. It is not readily apparent how telling the police there was no offence would result in the young woman getting to live with her father.

E) the evidence whether she knew if there was a reason the appellant could not be with her mother, sister and brother, is the following:

Q: Yeah. As of February 16, 2016 when you spoke to Officer Boyer the second time and told him the lie, to your knowledge was there anything preventing your stepdad from being together with your mom and your brother and sister?

A: On that day?

Q: Yes

A: I – I don’t remember if he was at his parents’ house or where he was.

[83] First, the questions were not leading. Second, it was not answered in examination-in-chief. It could not be oath-helping. It did not seek an explanation for the second statement. Even if the witness said that the appellant was prohibited from going to the house, it is difficult to see how that would enhance her statement-specific or general reputation for credibility.

F) if she went with her father, for how long and where else she had lived are as follows:

Q: Okay. Now, did you, in fact, go to live with your dad after you told your mom and the police what happened?

A: Yes, I did.

Q: And how long did you live with him for?

A: I believe it was a month, probably two weeks.

Q: Okay. And you say that now you’re living with your mom and your brother and sister. Did you go anywhere else in between your dad and your mom?

A: When everything happened that weekend, I was by my grandparents. And then after, I returned back home. And then, went to go live with my dad and came back home.

Q: Okay. And when you were home – so, you said you went first to your grandparents, then back home with your mother and then to your dad’s. So, the portion of time where you were home after your grandparents’, was your stepfather living there then?

A: No.

[84] First, the questions were not leading. Second, I am not persuaded the questions elicited any oath-helping evidence. There is no link to the young woman’s credibility, evidence specific or general. Trial counsel cross-examined her on how long she stayed with her father and why she left.

G) The evidence in relation to who knew that the appellant struck her before she was 12 years old is as follows:

Q: Okay. Now you talked in your video, the first video that we watched, about some other issues that were happening at home. And I don’t want to get into those. But you said that sometimes your stepdad would hit you when you were younger than twelve?

A: Yes

Q: And you said that the first time that this happened was after your brother was born.

A: Yes.

Q: To your knowledge, did your aunt know that at the time?

A: Nobody in the family knew except my mom and him.

Q: Only your mom?

A: Yes

[85] First, the questions were not leading with the exception of the first that directed the witness to a new area as permitted per Rose, an area already in evidence from the s. 715.1 statement. Second, neither were they oath-helping. Subject to the ‘other disreputable conduct’ component of that exchange which I will address in the last ground of appeal, the questions and answers do not offend any rule of which I am aware.

[86] I am not persuaded the questions involved impermissible oath-helping. If I am wrong in that conclusion, I would not give effect to this ground of appeal for the following reasons.

[87] First, I am not persuaded the questions resulted in the trial’s focus going from whether the Crown had established beyond a reasonable doubt the appellant deliberately grabbed his step-daughter’s buttocks and breast to whether or not her second statement was true. This trial was conducted employing s. 715.1 so that the young woman’s first police statement was largely her examination-in-chief. The Crown introduced evidence of her second statement and her explanations for giving it. She was cross-examined on the previous inconsistent statement. Unless the second statement was rejected, it would have left the trial judge with at least a reasonable doubt in relation to the deliberate touching.

[88] Her Honour proceeded on the basis that the Crown had to prove each element of an offence beyond a reasonable doubt. Speaking practically, she identified the trial issue as whether the first or second statement was true but correctly proceeded on the basis that the question was whether the Crown had established beyond a reasonable doubt the offence was committed.

[89] Second, with the exception of striking the young woman when she was under 12, the issue is not if the evidence was admissible. It is when it was admissible - in examination-in-chief, cross-examination or re-examination? The appellant does not submit that any of the evidence was inadmissible after the young woman’s credibility was challenged in cross-examination. All of the evidence was going to be heard by the trial judge with the one exception.

[90] Third, if there was oath-helping beyond what I found earlier, it was not oath-helping in regards to general credibility as occurred in Clarke where in examination-in-chief the Crown lead evidence to the effect “believe me now because I am a changed person and a law abiding citizen,” Beland where the accused sought to introduce the results of polygraph examinations they took in support of their credibility at their trial or Burns and Llorenz where the disputed evidence was from an expert.

[91] Fourth, while not in itself determinative, experienced defence counsel did not object to the questions. It was the Crown’s leading that raised his concerns.

[92] The young woman’s examination-in-chief covered less than 15 pages of transcript. Trial counsel (not Mr. Goldstein) objected twice during the questioning. First, when the s. 715.1 application arose, the Crown said she intended to play the video and have the young woman adopt it as her evidence. Defence counsel was asked if any difficulty was anticipated with that and said, “Well, sometimes, Your Honour, what’s anticipated doesn’t always happen. So, we’ll see.” The Crown questioned the young woman for about two and one half pages about her family and said that she was going to play the video. Defence counsel unsuccessfully objected to the procedure saying the proper procedure was to examine the witness and if required, if there was a problem, then the video should be shown. He had never seen it where the tape was automatically run before viva voce evidence. His objection was overruled.

[93] The only other objection was upheld, the question was not answered, the Crown re-phrased the question and the examination-in-chief proceeded.

[94] I appreciate that trial judge’s have a gatekeeper function when faced with inadmissible evidence or improper questions, whether or not there are objections. However, the failure to object remains a consideration. Trial counsel correctly objected to the Crown leading. He did not object to the introduction of the fact there was a prior inconsistent statement or the explanations for that statement in examination-in-chief.

[95] As Watt J.A. held in R. v. Burton, 2018 ONCA 790 at 148:

The impact of trial counsel's failure to object to a procedure followed, to evidence admitted or excluded, or to an instruction given or omitted at trial is a variable, not a constant. Said otherwise, there is no fixed relationship between a failure to object and the sustainability of a verdict on appeal. Sometimes failure to object is telling. Other times, of lesser or no importance.

[96] Further, trial counsel did not object to the introduction of the text messages or any of the other disreputable conduct evidence other than the broken nose incident. In comments that apply to this and other grounds of appeal in this case, the Court of Appeal addressed admissibility issues raised for the first time on appeal as follows in R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545, at paras. 12-13:

An appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice.

It would be wrong for this court to undertake the analysis required to decide whether the evidence was admissible based on a record in which none of the relevant considerations were explored because the defence chose not to litigate the admissibility of the evidence at trial. Absent any suggestion of ineffective representation at trial, or some other adequate explanation for the absence of any objection to admissibility at trial, I would not give effect to an argument that comes down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful.

In so holding, I do not suggest that the failure to object at trial is fatal to any challenge to the admissibility of evidence at trial. Our law does not require timely objection as a condition precedent to appellate complaint. I do hold, however, that an appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice.

[97] That very experienced defence counsel did not object is some indication how that counsel viewed the examination-in-chief. He did object to the Crown leading but not to the witness explaining how she came to give the second statement. As with other grounds of appeal, while not raising issues regarding trial counsel’s representation, the appellant seeks to litigate the admissibility of evidence that was never contested at trial. It is but one of many factors to be considered and is not in itself determinative.

[98] In R. v. Shafi, 106 ONCA 812, at paras. 169-9, the Court of Appeal addressed the raising of new issues on appeal as follows:

168 In our criminal justice system, the trial furnishes the parties with the opportunity to present their respective cases to adduce evidence supportive and to challenge the evidence adduced by the party opposite. It is there that an accused's guilt or innocence will be determined on the basis of all the available evidence that our adjectival law of rules and procedure allows entry. On the other hand, the appeal provides the parties with the occasion to challenge the correctness of what happened, or did not happen at the trial.

169 Appellate courts sit in review of decisions made in trial courts. Inherent in the appellate function is a requirement that issues be raised and determined at trial before they will be considered on appeal. This makes sense. It enables the parties to put their best foot forward at trial to create the necessary record for a just determination of the issue. And it furnishes the record essential to permit meaningful appellate review of the decision made at trial. Generally, an issue not raised at trial cannot be advanced on appeal: R. v. Reid, 2016 ONCA 524, at paras. 37-44; R. v. R. (R.) (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.), at pp. 198-199. When the exceptional discretion to do so is exercised, the test is a stringent one: R. v. Guindon, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-22.

[99] Notwithstanding Shafi, I have exercised the discretion and considered the ground of appeal.

[100] Fifth, Pinkus does not purport to, nor does it create a rule. The rule, one of long-standing and based upon binding authority, is against oath-helping Pinkus is an example of the application of that rule. Three portions of the judgment support this view:

17 … the rule against oath-helping is a sound one and worthy of application in the present case. To permit Mr. Berzins to lead the witness through an explanation as to why she made previous inconsistent statements would inevitably take some of the sting out of the cross-examination.

19 In my opinion, the overriding purpose and intent of the procedure sought to be adopted is to bolster the credibility of the witness. The fact of the previous inconsistent statement does not constitute essential narrative in this case. While Crown counsel is permitted to present witnesses in the best light, and while some latitude is often permitted, it remains a question of where the line is to be drawn on a case-by-case basis. I find the proposed line of questioning to be akin to that which was held to be objectionable in Clarke (supra), a decision specifically approved by the Supreme Court of Canada in Beland (supra). [emphasis added]

20 While the Crown believes that the witness is now telling the truth, it is for the trier of fact to determine whether that is in fact the case. The trier of fact in this case would not be assisted were the explanation for the change of heart presented in advance of cross-examination. While Mr. Berzins argues that once explained, the witness can then be cross-examined without restriction, in my view the trier of fact is assisted to a greater degree when the initial questions are asked by the cross-examiner rather than the examiner, particularly in a case such as this where the witness is testifying as to the ultimate issue in the trial, namely an admission of guilt by the accused to a charge of murder.

[101] Sixth, not every improper question or series of questions results in reversible error. This was a non-jury trial and I am unable to see any prejudice to the appellant as a result of some very limited oath-helping. Nor can it be concluded that the trial judge would have been assisted to a greater degree had the explanations been given in cross-examination or re-examination. All of the cases relied upon by the appellant were jury trials. Very different considerations can apply with regards to errors in a jury and non-jury trial: R. v. Dixon, 2018 ONCA 949, para. 25.

[102] Seventh, I cannot see how the questions interfered in any way with the 76 page cross-examination - a cross-examination Her Honour appropriately characterized as “rigorous.” Over 16 pages of the cross-examination, defence counsel went through the second statement in detail eliciting which parts were true and which were false. The “sting” and “wind” remained in the cross-examination. Nor am I able to see how the questions and answers in this context were otherwise prejudicial to the appellant.

[103] Finally, the Court of Appeal has held that it is not always easy to determine where to draw the line with regards to oath-helping. When determining admissibility, Laskin J.A. cautioned that it remains important to weigh the prejudicial effect against the prejudicial effect of the evidence: Llorenz. As Pinkus held, the determination must be made on a case-by-case basis where the oath-helping line is drawn.

[104] In all the circumstances, including the appellant’s admission that the Crown could lead the fact of a prior inconsistent statement in the examination-in-chief, I am not persuaded the trial judge erred in failing to intervene and limit the examination-in-chief. As the Court of Appeal has held, the determination involves where the prejudicial effect of the evidence outweighed its probative value. I am not persuaded it did. The few minimally oath-helping questions had no impact on this trial.

[105] While the appellant combined the next two grounds of appeal, I will deal with them separately under misapprehension of evidence and uneven scrutiny.

Did the trial judge misapprehend the young woman’s evidence regarding her aunt pressuring her to recant her first statement to police?

The Positions of Counsel

[106] The appellant submits the trial judge misapprehended the young woman’s evidence that her aunt “pressured” or “urged” her to change her story.

[107] The Crown submits the trial judge got it right. There was evidence the young woman’s aunt suggested the “grabbing the phone” explanation and “sort of convinced” her to go back and change her account. That evidence provided an adequate evidentiary basis for the trial judge’s findings.

The Evidence

[108] The evidentiary basis for this ground is outlined above and need not be repeated. In summary, the young woman testified her aunt “… in a way, convinced [her]” to go back to the police. In cross-examination, she said that her aunt “sort of convinced” her to go back and say that he tried grabbing the phone from her. She provided other explanations for going back including that she was just scared, her anxiety, she was nervous, not wanting to go to court and that somehow going back was going to result in her living with her father or grandparents and not the appellant.

The Reasons

[109] The trial judge found:

[the young woman], then, gave viva voce evidence about a second statement she gave to police on February the 16th. [She] testified that after [the appellant] was arrested, her family spoke to her about her disclosure. Her aunt, [S.], in particular, who was visiting from Trinidad, talked to her about whether she might have been mistaken about what happened. Her aunt suggested to her that perhaps [the appellant] touched her by mistake, trying to take her phone away from her. Both her aunt and her mother impressed upon her how serious her allegations were and that she needed to be sure about what she said. [The young woman] was clear in her evidence that she felt very anxious about having made disclosure to her mother. Not because it was not true. Rather, she felt badly about her young siblings not having contact with their father. Her aunt urged her to go back to the police and say that she lied about her initial disclosure and that her stepfather was just trying to take her phone away. She agreed to do that even though she knew it was not the truth and her aunt drove her to the police station. She testified that she hoped that if she went to the police, said that she lied, everything would go away and she would be able to live with her father and her sister and brother would be able to live with their father. [emphasis added]

[110] Her Honour noted that in cross-examination,

She reiterated that it was her aunt, [S.], who gave her the idea that perhaps [the appellant] touched her accidentally while trying to take away the phone. She knew, however, that what she told Officer Boyer on February 16th was a lie.

[111] Her aunt had kind of convinced her to “say that.”

The Law

[112] The test for examining allegations of misapprehension of evidence is found in R. v. Morrissey, (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 as follows:

[83] … A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. …

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

Analysis

[113] I am not persuaded the trial judge misapprehended the young woman’s evidence. She testified that her aunt “sort of convinced her,” “in a way convinced” her,” to go back to the police and had driven her to the station. Her aunt and her mother had impressed upon her how serious her allegations were. Her aunt suggested the “grabbing the phone” explanation. On that evidentiary record, it was open to Her Honour to find her aunt had “urged” her to return to the station. It has to be kept in mind that this was on oral judgment delivered after a short recess on the same day as the closing submissions.

Did the trial judge error in applying uneven scrutiny when assessing the complainant’s and the appellant’s evidence?

The Positions of Counsel

[114] The appellant submits the trial judge applied a different level of scrutiny to the appellant’s evidence when compared to the more forgiving assessment of the young woman’s testimony. The trial judge did not treat the appellant’s forthright admission about his false text messages appropriately. Instead, Her Honour questioned why his mental distress over the allegations compelled him to claim that his step-daughter had made sexual advances towards him.

[115] The Crown contends Her Honour conducted a holistic approach to the evidence and found the appellant’s credibility wanting. The reasons why the appellant’s evidence did not leave her with a reasonable doubt were well articulated and properly based upon the trial record.

The Law

[116] The Court of Appeal addressed this ground of appeal in R. v. Radcliffe, 2017 ONCA 176, as follows:

23 … this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

24 Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

25 Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

26 Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

Analysis

[117] I am not persuaded the trial judge erred. That Her Honour was not favourably impressed by the appellant’s admission that he was lying when he talked of his step-daughter sexually harassing him, was Her Honour’s call. Subject to the next ground of appeal, the thorough reasons provided a sound basis upon which to base the credibility findings Her Honour made. I am not permitted to retry the case on appeal. Even if it could be said that another judge might have reached a different conclusion that does not amount to reversible error: R. v. Abbasi, 2016 ONCA 219, at para. 11. In addition, the trial judge acquitted the appellant of the 2012 allegations.

Did the trial judge err in admitting too much other disreputable conduct evidence whose prejudicial effect outweighed its probative value?

Further, did the trial judge err in the use to which she put the other disreputable conduct evidence?

[118] The Crown introduced a significant amount of bad character evidence regarding the appellant without seeking a ruling on the admissibility of this evidence. For example, the s. 715.1 statement included that the appellant was about to sexually assault the young woman in the past but her mother had come into the room and that he would strike the young woman before she turned 12 years of age. The Crown also lead evidence that he had engaged in domestic violence against the young woman’s mother before he was charged, swore at the young woman and made her walk part way to her father’s home for access visits, had repeatedly violated his bail order, and had struck his wife and broke her nose after being charged. It was only the last item to which specific objection was taken by defence counsel.

[119] In the text messages the Crown introduced without objection from defence counsel, there was evidence the appellant asked his wife if he should lie on a job application and told her the young woman had stared at his front, exposed her breasts and genital areas to him and that other members of her family had made sexual advances towards him. When the appellant testified he admitted that the allegations against the young woman were fabricated.

[120] On at least two occasions, the Crown prefaced introducing these areas with comments to the effect that she did not want to get into the area or into too much detail. Only if defence counsel raised an issue, did the Crown address the purpose for which the evidence was being admitted, why the evidence had to be introduced at all and generally to what uses the evidence could not be put.

The Positions of Counsel

[121] The appellant submits the trial judge erred in admitting too much bad character evidence, albeit appropriately conceding most of the text messages were admissible. Further, he contends evidence that was admitted for a limited purpose, for narrative and/or to permit Her Honour to understand the family dynamics, was misused for reasons the Crown disavowed when addressing the court mid-trial but espoused in her closing submissions when she argued they were relevant to the appellant’s credibility.

[122] With regards to Her Honour finding the appellant’s “actions” were relevant to his credibility, the appellant submits the ‘actions’ must mean the trial judge improperly relied upon the appellant’s post-offence assault of his wife in assessing his credibility.

[123] Further, the evidence that the appellant had assaulted his wife after he was arrested had nothing to do with the charges being tried. The Crown’s witness introduced this evidence and then the Crown compounded the problem by asking her if the appellant had been abusive to her before he was charged.

[124] The appellant relies upon the judgment of Boswell J. in R. v. Perdie, [2009] O.J. No. 2720 (S.C.J.) that the first step in assessing other disreputable conduct evidence is to identify the live trial issues to which it relates with clarity. Only then was it necessary to ensure the evidence was directed at something other than mere propensity of the accused to commit crimes. Here, Her Honour found the appellant not credible on the basis of his evidence, disturbing text messages between him and his wife as well as “some concerning actions on his part.”

[125] The Crown submits there was no objection to the text messages, only the outstanding assault charge. Further, the text messages were admissible as “admissions to a third party” as was [his wife’s] testimony that the appellant demonstrated how he grabbed his 15 year old step-daughter’s left breast. The Crown also submits that it was acknowledged that the appellant’s wife’s text messages were only admissible for narrative and to give context to the appellant’s admissions. No improper use was made of the text messages.

[126] The Crown also argued that while Her Honour’s reference to ‘actions’ in noting “as well as some concerning actions on his part, all of which impact on his credibility,” was a poor choice of words, no improper use was made of his actions. The trial judge was alert to the uses and potential misuses of the evidence and that the reasons reflect no improper use.

[127] When preparing the reasons, I required further input from counsel on what could have been encompassed within the appellant’s “concerning actions” that contributed to the rejection of his evidence. Counsel were asked for input on whether disbelieving the appellant on the basis of his actions was itself reversible error and if not, to what actions could Her Honour have been referring. As Her Honour said it was in considering his evidence and disturbing texts and “some concerning actions,” the actions relied upon could not be his evidence, the texts, nor could it be just the broken nose since Her Honour referenced actions.

[128] Counsel re-attended on December 20, 2018 and provided further submission. Ms. Lynch argued that in some circumstances, rejecting evidence based upon an accused’s actions would be reversible error, but not here because of the numerous reasons Her Honour gave for rejecting the appellant’s evidence. She contended that the “some concerning actions” could have been that he said in examination-in-chief that he was devastated when charged as he had never been in trouble. Yet, in cross-examination he admitted that he had been charged with assault in 2004 and although the charge was ultimately withdrawn, he was kept out of the matrimonial home for six months, or that he said in examination-in-chief that when he went into the young woman’s bedroom he asked why she had the light on yet later admitted he knew she always slept with the light on, or that the appellant testified that he felt it important to confront the young woman about her texting the boy yet made no mention of that when he spoke to his wife shortly thereafter. Further, he said that he was not physically abusive to his wife or the young woman but admitted breaking his wife’s nose after being charged. While the trial judge relied upon his breaching his bail conditions in rejecting his evidence, Ms. Lynch said she was not submitting the appellant repeatedly breaching his bail terms qualified as “some other actions” that could be considered by the trial judge in assessing the appellant’s credibility.

[129] Finally, Ms. Lynch argued that the text messages were an admission when the appellant admitted he touched the young woman inappropriately.

[130] Ms. Goldstein submitted that the questions posed raised the issue of inadequate reasons in that Her Honour did not specify the other actions upon which she was relying. He maintained that it could not be determined what actions were relied upon so that it could not be said that Her Honour limited her assessment to admissible evidence despite the trial judge’s mid-trial assurances.

The Evidence and Judgment

[131] The evidence regarding the appellant assaulting his wife developed as follows: Crown counsel asked the young woman’s mother how things were going for their two children after the appellant was arrested and not allowed back in the house. Her non-responsive answer was:

A: … it wasn’t the best because [the appellant] and I got in a fight and he had busted my nose.

Q; Okay. So, this is during the period of time while [the young woman’s] at her father’s?

A: Yes

Q: Okay. And so, I don’t want to get too much into … this that …. I understand he’s on charge for that as well?

A: Yeah

Q: Okay. So, he got arrested for this and he wasn’t allowed back at the house. But he did come back to the house … and then, ultimately got charged in relation to something to – on you? Right?

[132] At that point defence counsel objected noting that he did not know how much was going to turn on it but the Crown was leading on issues that were totally irrelevant to the issue Her Honour would have to decide and were prejudicial.

[133] Crown counsel said she was “trying to be concise and move through what is sort of a murky area.” The text messages the Crown was going to introduce “sort of” referenced the other issues. It was clear from the texts that it was “all bound up.” To some extent it came out and it would have to come out a little bit. Crown counsel noted that it was a judge alone trial and “you’re not going to do anything improper with the fact that there are outstanding charges that have nothing to do with this.” The contact piece was important. It was impossible for the witness to tell the story without some of it coming out just in terms of narrative.

[134] Trial counsel said that the Crown was going to lead evidence of the text messages and that was fine but some of the material that came out was not terribly favourable to the appellant. It was not fair and was really bad character evidence.

[135] Her Honour said:

I was going to make a comment about that. Certainly, the issue of bad character is inappropriate and it is not something that I will take into account in that sense. However, there has been a central – I think one of the central issues that has been raised so far in this trial is was this child lying the first time, was she lying the second time when she gave her stories? And clearly, what is happening in terms of the family dynamics has an impact on that. And therefore, I think this evidence is extremely relevant to my ability to assess that in some way. Because that is what I have to do. So, while I agree with you one hundred percent that character evidence is completely irrelevant and inadmissible with respect to your client, what is happening in this family and the dynamics therein is very relevant.

[136] Defence counsel said he agreed.

[137] Her Honour said that she would permit the line of questioning and as both counsel recognized, she knew what evidence she could rely upon and what evidence she could not rely upon. She could disabuse her mind of evidence that was inapplicable. To that extent, Her Honour noted that she had heard evidence that was admissible for a limited purpose and not for all purposes.

[138] In closing submissions, Crown Counsel argued:

Similarly, he would not admit the obvious in terms of those texts. Again, for credibility. Not that he is the type of person more likely to commit the offence. That he was asking [her] advice about lying to a potential employer in his texts. What is the relevance of that? Well, the relevance is credibility.

[139] In concluding the appellant was not credible Her Honour found:

There were a number of inconsistencies in Mr. [S’s] evidence, both internally and when compared with the evidence of other witnesses. There were also a number … of disturbing text messages between [the appellant] and [his wife] as well as some concerning actions on his part, all of which impact on his credibility. [emphasis added]

[140] Her Honour then provided six examples of those areas before turning to the text messages. Three were inconsistencies within his evidence. One was an area of his evidence that was inconsistent with the intentions he stated in his examination-in-chief. Two areas were in regards to breaches of his bail terms.

Analysis

[141] First, I agree that Perdie accurately states the law from appellate courts in regards to other disreputable conduct. It does so in the context of a pre-trial motion where counsel provide reasons for their positions and the trial judge gives his or her basis for admitting or excluding the evidence.

[142] Second, with regards to the text messages, trial counsel specifically said that they were admissible. Most were, because they related to the offence and the young woman. Mr. Goldstein appropriately did not argue otherwise. As the trial judge found, some were disturbing including his admittedly false accusations against the young woman, made in the context of commenting about the charges.

[143] Third, with regards to further other presumptively inadmissible evidence that was introduced including the assault on his wife, his prior domestic abuse of the young woman’s mother, his prior verbal and physical abuse of the young woman, and breaching his bail terms, the evidence was clearly disreputable conduct evidence and inadmissible without a ruling. It is most difficult to see how the post-offence incident when the appellant broke his wife’s nose had any relevance. The young woman was out of the house. It could have no possible bearing on the making of the second statement to police.

[144] Fourth, some of the ‘other disreputable conduct’ evidence was in the s. 715.1 statement. When that statement was introduced neither counsel nor Her Honour commented on any limitations on admissibility. Section 715.1 permits the introduction of the witness’ “description of the acts complained of.” It does not purport to admit other incidents, including other disreputable conduct evidence. Here, the section permitted the Crown to introduce evidence of the two incidents upon which the charges were based, nothing more: R. v. T.(J.A.) (2012), 2012 ONCA 177, 288 C.C.C. (3d) 1 (Ont.C.A.), at paras. 147 and 159.

[145] Neither, the young woman’s comments about the appellant striking her before she was 12 years old nor her allegations about sexual contact almost occurring on other occasions were admissible through the first video-taped statement without an ‘other disreputable conduct” application by the Crown. There was no application to do so, yet the Crown compounded the problem saying she did not want to get into those areas and immediately asking the young woman about being struck before she was 12 years old and who knew of it.

[146] However, that inadmissible evidence was introduced at trial does not result in an automatic quashing of the conviction and ordering a new trial. As noted by the Supreme Court of Canada, that some of the evidence was presumptively inadmissible does not result in an unfair trial or a successful appeal. In R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393, at para. 38, the Court held:

Judges often hear evidence which turns out to be inadmissible, for example on voir dires. So long as the judge does not consider such evidence in arriving at his or her independent conclusion, no unfairness can be said to arise, nor has there been a miscarriage of justice. [emphasis added]

[147] Accordingly, in determining this issue, it is important to consider all the circumstances with particular emphasis on whether the trial judge improperly relied upon the inadmissible evidence. The prohibited use of bad character evidence is the trier of fact using the evidence to convict because the accused has a propensity to commit the offence or to conclude the accused is a bad person and convict: Watt’s Manual of Criminal Evidence, 2018, at 32.01.

[148] When a trial judge states that she or he will not rely on certain evidence, they are entitled to be taken at their word: R. v. O’Brien, 2011 SCC 29, 2011 2 S.C.R. 485, at para. 18. Further, judges are presumed to know the law with which they work on a daily basis: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 664. However, that statement is not without qualifications as Binnie J. wrote in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 51, number 10:

While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

[149] I do not agree with the Crown that Her Honour perhaps made a poor choice of words in referring to the appellant’s actions as impacting on his credibility. The trial judge said ‘actions’ and it would be wrong to tell an appellant that despite what a trial judge said that they must have meant something else. That is what Her Honour said - actions. The actions could have been the assault on his wife, his conduct towards the young woman before she was 12 years old, or his prior abuse of his wife. Had that occurred, subject to the proviso, the trial judge would have committed reversible error. But can it be said that she did?

[150] Where a trial judge’s reasons are open to two interpretations, the one that is consistent with the judge knowing the law must be presumed: R. v. Morrissey, (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.). In Morrissey, Doherty J.A. wrote:

27 Even if the passage set out above was ambiguous and could bear either the interpretation I place on it or the interpretation advanced on behalf of the appellant, I would adopt my interpretation. Trial judges are presumed to know the law: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at pp. 664-65, 89 C.C.C. (3d) 193 at pp. 199-200. That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge's reasons is open to two interpretations, the one which is consistent with the trial judge's presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith (D.A.) (1989), 1989 ABCA 187, 95 A.R. 304 (C.A.) at pp. 312-13, affirmed 1990 99 (SCC), [1990] 1 S.C.R. 991.

28 In any event, it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: R. v. C.(R.) (1993), 1993 142 (SCC), 81 C.C.C. (3d) 417 at p. 418 (Que. C.A.), per Rothman J.A. in dissent at p. 419; dissenting reasons adopted by the Supreme Court of Canada [1993] 2 S.C.R. 226, 81 C.C.C. (3d) 417; R. v. Telmosse (1945), 1944 401 (SCC), 83 C.C.C. 133 at p. 138, [1945] 1 D.L.R. 779 (S.C.C.). Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

[151] While the use of “some concerning actions” appeared problematic, from re-reading the Reasons as a whole I am not persuaded that Her Honour misused the evidence. While it is possible, I cannot say it occurred. Contrary to the Crown’s submission, the trial judge could have relied upon the appellant’s repeatedly flaunting of court orders violating the terms of his recognizance. His concerning actions could have been his post-offence conduct related to the offence.

[152] I reach that conclusion for the following reasons. First, Her Honour noted the inconsistencies within the appellant’s evidence itself, that his evidence was inconsistent with that of others and text messages and then noted “some concerning actions.” All impacted his credibility. The assessment was not limited to the other actions.

[153] Immediately thereafter Her Honour provided eight examples in all the areas she identified. Several had nothing to do with the text messages. None, directly mentioned the problematic other disreputable conduct evidence except the post-offence failing to comply with bail terms. Those reasons need not be repeated as they are summarized at para. 128.

[154] Her Honour went on to examine the text messages before concluding the appellant was not a credible witness. Her Honour provided over four pages of reasons explaining why she reached that conclusion. She did not mention the problematic other disreputable conduct evidence directly nor can it be inferred that it was improperly relied upon.

[155] Further, trial counsel did not object to the introduction of the text messages or any of the other disreputable conduct evidence other than the broken nose incident. In comments that apply to this and other grounds of appeal in this case, the Court of Appeal addressed admissibility issues raised for the first time on appeal as follows in R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545, at paras. 12-13:

An appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice.

It would be wrong for this court to undertake the analysis required to decide whether the evidence was admissible based on a record in which none of the relevant considerations were explored because the defence chose not to litigate the admissibility of the evidence at trial. Absent any suggestion of ineffective representation at trial, or some other adequate explanation for the absence of any objection to admissibility at trial, I would not give effect to an argument that comes down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful.

In so holding, I do not suggest that the failure to object at trial is fatal to any challenge to the admissibility of evidence at trial. Our law does not require timely objection as a condition precedent to appellate complaint. I do hold, however, that an appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice.

[156] That the Crown invited the judge to use propensity evidence in rejecting evidence because he sought his wife’s input on whether he should lie on a job application, is troubling given the Crown’s mid-trial statements regarding its admissibility being for narrative or to give context to the young woman giving her second statement. Again, the question is whether it can be said that the trial judge improperly used the evidence to convict. I am not persuaded Her Honour did.

[157] I would not give effect to this ground of appeal.

[158] Finally, given these findings, I am not persuaded the Reasons are inadequate to permit appellate review.

[159] Before concluding, the manner in which this case proceeded merits further comment. Because of the manner in which the Crown introduced evidence, as far as counsel were concerned, the rules of evidence took a very distant back seat during this trial. While I appreciate it was a judge alone trial and Her Honour’s comments that she could disabuse her mind of inapplicable evidence, trying to determine whether that occurred or not was challenging. The Crown basically dumped a mass of evidence on the trial record, some admissible and some not, some admissible for one purpose but not for others. While doing so, the Crown made generic comments assuring that it had to come out and/or that the Crown did not want to get into it. Yet did. Or did not want to get into it “too much.” The most charitable view is that the evidence was indiscriminately introduced without the discipline that trial judges and appellant courts are entitled to expect of counsel.

[160] Indeed, neither counsel gave Her Honour the assistance to which she was entitled. As Watt J.A. held in R. v. Baldree, 2012 ONCA 138, at para. 93 albeit in dissent but not on this issue:

I do not contest the obligation of a trial judge in a criminal case to ensure that only relevant, material and admissible evidence makes its way into the trial. Nor do I dispute the self-evident proposition that a trial judge is not entitled to ground his or her findings of fact, including a determination of the ultimate issue of guilt or innocence, on evidence that is irrelevant, immaterial or inadmissible. That said, trial judges are entitled to expect that counsel appearing at trial will object to the admissibility of evidence that falls foul of an exclusionary rule.

[161] Further, while perhaps not mandatory, it would have been of assistance had the trial judge included a specific caution regarding the permitted and prohibited uses of the evidence: R. v. Dixon, 2018 ONCA 949, at para. 26.

Conclusion

[162] The appeal is dismissed.

DURNO, J.

Released: February 13, 2019

COURT FILE NO.: CR-18-899-00AP

DATE: 2019 02 13

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

R.S.

Appellant

REASONS FOR JUDGMENT

DURNO J.

Released: February 13, 2019

[^1]: In R. v. Semple, 2015 ONCA 562, at para. 3, the Court of Appeal held: The trial judge wrongly told the jury that "there is a presumption in law that a witness comes to court to tell his or her honest recollections". There is no such presumption. Indeed, as the trial judge told the jury the assessment of the witnesses' credibility and reliability can only be made after a consideration of a variety of factors. The trial judge identified those factors at some length.

[^2]: The leading question was not a ground of appeal

[^3]: Not only did defence counsel not object, he said he had “no difficulty” with the evidence.

[^4]: In cross-examination, the young woman said that this statement was true.