Her Majesty the Queen v. M. C.

COURT FILE NO.: 98-19

DATE: 2021-04-01

ONTARIO

SUPERIOR COURT OF JUSTICE

(CENTRAL SOUTH REGION)

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

M. C. Appellant

COUNSEL:

Derek Zuraw, Counsel for the Respondent

Marcy Segal, Counsel for the Appellant

HEARD: August 24 and 26, 2020 October 15, 2020, January 4 and 18, 2021 and March 1, 2021

BEFORE: The Honourable Mr. Justice C. S. Glithero

JUDGMENT ON APPEAL

[1] M.C. appeals his summary convictions on December 18, 2018 for forcible confinement contrary to s.279(2) and sexual assault contrary to s.271. He further appeals the sentences imposed on August 17, 2019 of 18 months imprisonment on the charge of sexual assault, followed by 16 months probation, and ancillary orders, and six months concurrent for the charge of forcible confinement.

[2] In respect of the appeal from conviction, the amended notice of appeal lists seven grounds of appeal. The first ground alleges ineffective assistance of trial counsel and under that ground are listed 10 specific alleged shortcomings. The appellant and his trial counsel were both cross-examined on their affidavits of August 24 and 26, 2020. On a fresh evidence application, consented to by the Crown, the Sexual Assault Examination Kit (SAEK) was produced and a registered nurse and a CFS forensic biologist testified on January 4 and 18, 2021, respectively.

[3] In total then there are 16 alleged grounds. I believe they can be summarized and grouped as follows:

(a) Allegation that the trial Crown (not Mr.Zuraw) failed in its obligation to make proper disclosure of the Sexual Assault Examination Kit (SAEK).

(b) Allegations of ineffective assistance of trial counsel by proceeding to trial without obtaining the Sexual Assault Examination Kit (SAEK), by failing to cross-examine the complainant on a portion of her statement to the police, by failing to effectively oppose the Crown’s leading of prior bad character evidence, by failing to move for a mistrial when that application was abandoned after the evidence was heard, and by failing to prepare the appellant to give evidence.

(c) Allegations that the trial judge failed in her duty as gatekeeper to preclude the bad character evidence, in permitting such evidence from the complainant, in failing to declare a mistrial as a result of such evidence, in taking such evidence into account in assessing the credibility of the appellant, and erred in the quantum of sentence imposed.

Brief Summary of the Circumstances

[4] The appellant and the complainant were married on November 18, 2008 and lived together along with her three children from a previous relationship until separating in December 2016 or January 2017. They then still continued to live in the same home until February 2017 when the complainant moved out. The date on which the alleged offences took place was April 28, 2017, when the complainant attended at the appellant’s residence.

[5] It is also common to the evidence of both parties that some sexual activity took place between the two on the alleged date. While there are some discrepancies as to what exactly took place, the main difference between them is that the complainant alleges an expressed lack of consent, whereas the appellant claims consent by conduct or honest but mistaken belief in consent communicated by conduct.

[6] The complainant testified that she and the appellant had had amicable relations following their separation, which included the appellant babysitting the complainant’s cat, and to that end, arrangements were made whereby she would drop off cat food to the appellant on April 28, 2017. She did so and testified that the appellant “gave me a look where he would raise his eyebrows up and down and I always knew that was basically him asking to have sexual relations. So, I immediately looked at him and said, “no, that’s not happening”. The appellant then approached her, kissed her, and she kissed him back, but also pushed him away and said that it was not happening, that it was not a good idea as there were still feelings there, and that she reminded the appellant that when they had intimate relations a month previously she had put a stop to it. He kissed her again, she kissed him back and then pushed him away again saying it was not going to happen. She testified that she then went to leave the residence, but he leaned against the door to prevent her from doing so. He told her he knew she wanted to fuck him, and she said “no, I don’t”. Her evidence is that he then reached into her shirt, pulled out her breast, and sucked on her nipple. She pushed him away and told him to stop it and not to be so ridiculous. She tried to leave the residence again, but he got in front of her, zipped down her pants, got down on his knees and put his face in her vagina. She put both her hands on the top of his head and pushed him away, telling him to “knock it off, this isn’t happening”. She again tried to leave but he again leaned on the door to prevent her exit. He then spun her around, held her by the back of her neck, pushed her into a corner and entered her vaginally while her pants were down. She started to cry, and his actions stopped when a dog started barking outside. The appellant then grabbed her wrist and tried to pull her upstairs saying he wanted to finish. She yanked her arm away from his hand and left.

[7] In her evidence-in-chief the trial Crown said, “there’s a portion of the encounter, you told us, where [M.C.][^1] you said, put his hand down your pants.” She had not so testified at trial. She had so indicated in a videotaped police interview. Apparently, no transcript of that interview had been prepared so the normal and proper method of seeking to have the witness refresh her memory was not available, but the video was. Instead, it was improperly suggested to her that she had so testified earlier in the trial. The complainant then, in successive answers, testified that she didn’t remember him having put his hand down her pants, that she only recalled him unzipping her pants and pulling them down. And then in the next answer said, “I didn’t remember that until you just suggested it, that he did”. Her evidence then continued, having been so reminded, that the appellant did put his hand down her pants and that she pulled his hand out immediately and that his hand did not actually make contact with her body, but that she did recall him saying “you’re so wet”.

[8] The version of the events given by M.C. contained many similarities but important differences. He agreed that he gave her “the look” to which she replied, “No [M.], I know that look.” But he explained that in the past she had also said such things, but playfully, following which they then had consensual sex. He agreed that he then kissed her, and she kissed him back. He agreed that he removed her breast from under her bra and sucked on his wife's nipple to which she responded, “it's not fair, you know all my spots”. He testified that he then undid her pants and slid his hand down in between her legs and testified that she moaned in pleasure and helped him pull down her pants, as her pants were very tight. He then got down on his knees and pulled down her pants further and he started to perform oral sex on his wife and testified that she was moaning in pleasure while he did so. That lasted a minute or two. He stood up, guided her to turn around so she was facing away from him. His evidence is that she repositioned her hips so that he could enter her vagina. They had sex. He agreed they were interrupted by the sound of a dog barking. He started to go upstairs and asked her to come up with him, but she stayed downstairs and started pulling up her pants saying, “I can't do this”.

[9] He asked her again to go upstairs but she responded by saying “no I don't want to do this”. He told her he wanted her to go upstairs to show her something and said that because he wanted to continue to have sex with her. She walked halfway up the stairs, he hugged her, and she said “no [M.]”. She walked back down the stairs and told him she did not wish to continue because she had already been with someone else sexually earlier that day. He responded by saying that if he had known that none of this would have happened as it disgusted him. M C. denied having tried to pull his wife up the stairs and denied having leaned on the front door so as to prevent her from leaving. He testified that she never tried to push him away. The appellant testified that she never asked him to stop the sexual activity and that he believed she was consenting.

[10] When asked by his own trial counsel (not Ms. Segal), why his wife might have a reason to fabricate these allegations he testified that he thought his wife was upset because he was having a relationship with another woman.

[11] Significantly, commencing approximately 15 minutes after she left, a series of 45 texts and one phone call were exchanged between the two. It began with her texting him saying he was not to ever do anything like that again. He phoned her and said he was really sorry and that it was not meant to happen. A short while later she texted him saying that he had forced her to stay there by pinning her up against the wall and that he had just done whatever he wanted no matter how many times she said no, to which the appellant then responds “well, I’m sorry, I thought we were just being hot”. Amongst the ensuing flurry of texts between the two was one from the appellant pointing out that she kissed him back, so he really didn’t think it was like she was saying. She texted him back indicating that kissing was one thing, but touching her breast when she said no and going down her pants when she said no were totally different things and that she thought she was being forced to give in. After another flurry of texts that occurred that same evening is one from him to her indicating he was sorry he made her feel that way. Then, in further texts, he indicates that he is sorry, and that it was not his intention to make her feel that way by the kissing and repeats that he thought it was playful “no’s” as had occurred in the past and she replies that it was never playful and that no meant no and reminds him that she had pushed him away.

[12] In yet another text the same evening, he then asks her to agree or disagree with a number of suggestions, one of which was that she was a willing partner and was responsive during the intercourse, to which she replied that she denied assisting in the intercourse.

[13] In my opinion, a number of problems arise from the trial record which require examination and consideration individually and in combination.

The Crown failure to make proper disclosure

[14] This relates to the failure to disclose the Sexual Assault Examination Kit pertaining to the complainant.

(a) Relevant Principles

[15] In R. v. Pascal, 2020 ONCA 287, Watt, J.A., on behalf of the court, summarized the principles governing the proper approach when a new trial is sought on the basis of a failure to make proper disclosure. As indicated at para. 99, one must first consider the disclosure obligations of the Crown, then the evidentiary use of the previously undisclosed evidence, and then the appropriate remedy. There follows a number of instructive paragraphs:

101. First party disclosure under Stinchcombe imposes a duty on the Crown to disclose all relevant, non-privileged information in its possession or control, whether that information is inculpatory or exculpatory, unless discourse of that information is governed by some other regime. This duty is ongoing and corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: Gubbins, at paras. 18-19: Stinchcombe, at pp. 339; and R. v McQuaid, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para 22.

102. The purpose of disclosure is to protect the Charter right to make full answer and defence, and “that right will be impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, to advance a defence or to otherwise make a decision which could have affected the conduct of the defence:” Gubbins, at para. 18; McQuaid, at para. 22.

[16] At paras. 103 and 104, the court notes that the Crown’s disclosure duty is triggered by a defence request for disclosure and when the Crown becomes aware of potentially relevant material in the hands of the police, the Crown has an obligation to make reasonable inquiries and the police have a duty to disclose to the Crown all material amounting to “the fruits of the investigation”.

[17] Then commencing at para. 112, more instructions follow; the court held that:

112 An appellant who seeks a new trial based on a disclosure failure must first demonstrate a breach of the right to disclosure. This requires that the appellant demonstrate a reasonable possibility that the undisclosed information could have been used:

i. to meet the case for the Crown;

ii. to advance a defence; or

iii. to make a decision that could have affected the conduct of the defence.”

See Dixon, at paras 22-23.

113. Such appellant must establish, on a balance of probabilities, that his right to make full answer and defence was impaired by the Crown’s failure to disclose: Dixon, at paras. 31, 33. To discharge this burden, the appellant must demonstrate there is a reasonable possibility that the non-disclosure affected either the outcome at trial or the overall fairness of the trial process. This reasonable possibility must be based on reasonably possible uses of the undisclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the disclosure failure. Mere speculation does not satisfy this reasonably possible standard: Dixon, at para. 34. See also R. v. C.(M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, at pp. 776-77

114. A two-step analysis is necessary to determine whether the disclosure failure impaired the appellant’s right to make full answer and defence. The first step invites an assessment of the reliability of the verdict. The second step involves an assessment of the effect of the disclosure failure on the overall fairness of the trial process: Dixon, at para. 36; Taillefer, at paras. 80-81.

115. At the first step, to assess the reliability of the result at trial in light of the disclosure default, we are to examine the undisclosed information to determine the impact it might have had on the decision to convict as expressed in the reasons for judgment. If, on its face, the undisclosed information affects the reliability of the conviction, we should order a new trial. The application of this test requires that we determine whether there was a reasonable possibility that the trier of fact, with the benefit of all the relevant evidence, might have had a reasonable doubt about the appellant’s guilt. This determination is made on the basis of the evidence in its entirety”: Dixon, at para. 36; Taillefer, at paras. 81-82

116. If the undisclosed evidence does not itself affect the reliability of the verdict, the second step requires us to consider the effect of the non-disclosure on the overall fairness of the trial process. To do this, we must assess, on the basis of reasonable possibility, the lines of inquiry with witnesses or the opportunities to obtain additional evidence that could have been available to the defence had timely disclosure been made. This step has to do not only with the content of the undisclosed information, but also with “the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence”: Dixon, at para. 36 (emphasis in original).

117. This step involves weighing and balancing. Important factors are the materiality of the undisclosed information and the diligence of counsel in its pursuit: Dixon, at paras. 38-39. If defence counsel knew – or should have known based on other Crown disclosure – that the Crown had failed to disclose information, yet remained passive as a result of a tactical decision or lack of due diligence, it would be difficult to establish that trial fairness was affected”: Dixon, at paras. 37-38.

(b) The Application of Those Principles

[18] The evidence indicates that a judicial pretrial was held on November 16, 2017 and was attended by the appellant’s first counsel. On that form, it is noted that there were no disclosure issues “other than sexual assault kit”.

[19] The appellant brought a s. 276 application returnable at the outset of trial. The appellant sought permission to elicit from the complainant evidence that she had told the appellant that she had been with another person sexually earlier that day, and also evidence as to the prior history between the complainant and the appellant wherein he would flip his eyebrows up and down which they both took as a signal that he wanted sex, and that it would be met with “no” but then there would follow kissing and sex. As to the first branch, then Crown counsel conceded it was relevant and explained “there is evidence that the Crown does not have yet, but will be shared with my friend in the form of a sexual assault kit that was conducted in this particular matter which sheds light on that issue.”

[20] There is no evidence in the record as to whether that last comment indicated some knowledge of what was in the SAEK even though the Crown didn’t yet possess it, or whether it was a comment based on knowledge of the questions that are put to a complainant as part of such an examination.

[21] As to the second branch of the request, in determining the first stage, the trial judge ruled that the application materials “describes a pattern of behaviour starting with a look, progressing to hugging and kissing that eventually led to full intercourse” and ruled the appellant successful on the first stage and entitled to a hearing on the second stage.

[22] That second stage took place the next day. The appellant testified first and explained that he was about 20 years old when he met the complainant who was then about 30. They married shortly after. He testified in-chief as to how sexual relations would often start with giving her “the look” to which she would say no, and it would progress to consensual kissing and then through to intercourse. The “no” was said in a playful tone, and that is the way we’ve always done it, and then it progressed through kissing to hugging to sex. The s. 276 application was eventually abandoned during argument as the Crown conceded that the kissing both after “the look” and after the initial “no”, or “we shouldn’t be doing this”, was consensual and not relied upon as part of the sexual assault. It appears from the submissions that trial counsel was of the view that the honest, but mistaken belief defence, was relevant to their initial contact that day, but that the defence of consent applied to the sexual acts that day.

[23] On September 5, 2018, the day before the trial proper commenced, trial counsel (not Ms. Segal) emailed the trial Crown asking to chat about a possible disclosure issue. Crown counsel responded promptly saying he was still in court and asked, “What’s up”. Trial counsel responded that her client had reminded her that the Crown on the s. 276 hearing had indicated that the sexual assault kit sheds light on the issue and will be provided to the defence. Later that day the Crown responded “I haven’t heard anything about any further disclosure or about the results of an SAEK. The only notes in the file relating to the SAEK indicate that Abby (a different Crown) requested an analysis of it on March 7, but on March 13, CFS advised they wouldn’t accept it (“given the accused claims it was consensual”) and that Abby told you that on the same day”.

[24] The SAEK was never disclosed to the defence until a fresh evidence application was brought by appellant counsel and was consented to by Mr. Zuraw. The questionnaire which forms part of the SAEK was conducted by a registered nurse, who was part of the sexual assault team for the Brantford General Hospital, and is noted to have been commenced on April 29, 2017 at 00:10 hours and is filled in to show the name of the attending officer, the name of the complainant and her age to be 43, and to show that the alleged assault occurred on April 28, 2017 at 19:00 hours at the assailant’s home.

[25] With the SAEK, as disclosed on appeal, there is consent to the release of the kit to the police, which is signed by the complainant and dated May 10, 2017.

[26] The SAEK follows a printed form which asks a number of questions and the answers are recorded by the nurse, mostly by check marks on either a yes or a no answer. During this interview, the complainant is recorded on page 1 of 3 as having said that cunnilingus was performed on her, since her last shower or bath, and that she had performed fellatio without a condom. On that same page she reported that her underwear was worn before and immediately after the assault, but not during it, and was worn to the hospital, and that it hadn’t been washed. When asked whether the assailant had potentially transferred bodily fluid to her clothing, she indicated no.

[27] The form on page 2 of 5 further records that in terms of oral samples that she indicated “no” to the question “Was there penetration or attempted penetration of the patient’s mouth by the assailant’s penis (fellatio)?”, and indicates that condemn was not used, and to the question “Was an object used?” she answered “yes’ and specifies that a tongue was used.

[28] Under step 7 on page 3 of 5 she was asked “Did the assailant attempt or perform cunnilingus or vaginal/rectal penetration of the patient” and answered “yes”. Her answers further indicated that there was penetration of her vagina, by the assailant’s penis, that the assailant did not ejaculate, that a condom was not used, that there was penetration or attempted penetration of the patient’s vagina by the assailant’s mouth/tongue and by the assailant’s fingers.

[29] The SAEK further indicates that there were no bruises or other marks on the complainant’s body.

[30] A DNA reference sample was collected from the complainant.

[31] There were no injuries noted to the complainant’s vaginal or anal areas.

[32] The SAEK form indicates that a yellow copy is intended for the police and on the last page of the questionnaire portion of the form under the box entitled “Police officer receiving SAEK” there is the name of the officer and his signature.

[33] The registered nurse who conducted the questionnaire testified on January 4, 2021 and testified that the questions were put to the complainant in the exact words set forth on the form and that if the complainant gave any answer that the nurse did not understand, the nurse would seek clarification.

[34] Mr. Zuraw concedes in his factum that the SAEK was relevant and should have been disclosed, and further concedes that trial counsel for the appellant acted with due diligence in fulfilling her duty to request disclosure of those records.

[35] As a result of the SAEK, Ms. Segal then sought to have some of the samples collected from the complainant submitted to the Centre of Forensic Sciences for testing. Mr. Zuraw consented and the two counsel collaborated on an agreed statement of facts to be submitted to the Centre. The specific requests were that the Centre ascertain whether there was any DNA, and if possible and more particularly, any saliva on the complainant’s underwear. The Centre was also requested to advise that if there was any DNA attributable to the appellant, whether it could be derived as having come from saliva.

[36] On January 18, 2021, a forensic biologist from the CFS testified to having performed the requested examination and testing. The results found there to be the presence of saliva suggested in the crotch panel of the complainant’s underpants and that sample, when tested for DNA, was found to contain DNA from the complainant plus two males. Another sample from the crotch panel near the left leg hole again was found to have the presence of saliva indicating the presence of DNA from the complainant and two males. The Centre had been provided with a sample from the appellant for purposes of DNA analysis. The report of the forensic biologist was that it was 16 times more likely in the case of the first sample, and 18 times more likely in respect of the other one, that the mixture originated from the complainant, the appellant and some unknown individual, than if the sample originated from the complainant and two unknown people.

[37] After considering the applicable principles as set forth in Pascal, I conclude that the appellant’s right to make full answer and defence was impaired as a result of this failure to disclose the SAEK. There is more than a reasonable possibility that that non-disclosure affected either the outcome of the trial or its overall fairness. In part, the reasonably possible use of that undisclosed SAEK was developed during the appeal and produced results from the CFS, which in my opinion go beyond mere speculation. The answers given and the test results would have led to more questions which in turn may well have resulted in information helpful to the defence. In my opinion that non-disclosure affected the reliability of the conviction and a new trial should be ordered.

[38] In the reasons for judgment at page 16, the trial judge concluded that “Due to [M.C.]’s body position and [the complainant][^2]’s evidence that she quickly pushed his head away, I do not believe that [M.C.] was able to successfully perform oral sex on his wife.”

[39] At pages 39 and 40, the trial judge properly noted that the third step in W.D. required that she carefully scrutinize the evidence of the complainant before any conviction can be registered, and then noted that there were two ways in which the complainant’s evidence changed between her evidence in-chief and in cross-examination. She notes that the complainant gave inconsistent evidence on whether oral sex had occurred. At page 43, the trial judge attributes that inconsistency to the fact that she answered yes to a poorly framed question from the Crown in-chief. That question is quoted by the trial judge as “You said that he dropped to his knees at that point and begins performing oral sex on you” and then analyzes the affirmative answer from the complainant as agreeing that the appellant had dropped to his knees, as opposed to affirming that the accused had performed oral sex on her. The trial judge then follows that analysis with the statement “As [the complainant] testified in cross-examination that [M.C.] did not perform oral sex on her because she pushed his face away as soon as he made contact with her vagina.”

[40] In my opinion, if the trial judge had the evidence of the SAEK and the results of the CFS analysis, the result may well have been different on that point, and that possibility is far beyond pure speculation.

[41] Additionally, at page 41, the trial judge finds that the complainant gave inconsistent testimony as to whether the appellant had stuck his hand down her pants after sucking on her nipple. The trial judge notes that the complainant initially forgot about that detail but then testified to having remembered it as a result of the suggestion of the Crown, but then also notes that the complainant testified that she remembered him doing so but that she immediately pulled his hand out of her pants and testified that the appellant did not make contact with any part of her body while his hand was down her pants, and then the trial judge indicates that in cross-examination the complainant denied that the appellant had put his hand down her pants. The trial judge then points to the fact that in text number 36, she mentions his hand going down her pants.

[42] The trial judge finds this to be a major inconsistency which impacts on her reliability as a witness, but nevertheless concludes that she is a credible and reliable witness.

[43] In respect of that portion of the evidence, I point to the fact that during answers to the questions in the SAEK, the complainant answered that there was penetration or attempted penetration of her vagina by the assailant’s finger(s).

[44] It seems to me that that answer is much more supportive of the appellant’s position that he fingered her for a minute or two causing her to moan in pleasure, than it is with the complainant’s testimony that although he put his hand down her pants, she immediately pulled it out and that he made no contact with any part of her body.

[45] In the argument of the appeal, the suggestion arises that some of these answers given by the complainant may be answers given relating to her sexual activity with the other male she had been with in a hotel room earlier that day.

[46] That may or may not be true, but the non-disclosure precluded the appellant from questioning the complainant on that subject of whether her answers on this SAEK related to the alleged attack by the appellant, or was a mixture of what she says happened to her in total that day.

[47] That, in my estimation, raises the possibility of even greater concern about her credibility. If she had been questioned at trial about her answers on the SAEK and testified that they were answers given in relation to her activities with the appellant only, then in my opinion they tend to favour his position. If her evidence is that some of the answers she gave were truthful because they did relate to sexual activity she had had that day, albeit with another man, then it is extremely problematic. This woman was taken to the hospital by the police, because of her allegations about this man on that date. There is no evidence that the police were advised she had been with some other man earlier. There is no suggestion in the form that the registered nurse had been made aware of any other previous sexual activity on her part earlier that day. If this complainant knowingly answered the questions on the SAEK intending some of the answers to have been reflective of her activity with the other man earlier in the day, she then knowingly ran the risk of the appellant being convicted by her answers, which knowingly were only partially accurate in terms of her dealings with him. In effect, she intentionally misled by this omission.

[48] The issue of whether or not the appellant performed oral sex on her as he claims, to her enjoyment, or whether she immediately pushed him away before he could do so was a major issue in this trial and very important to credibility. Similarly, the issue of whether he stuck his hand down her pants and fondled her, to her enjoyment, as expressed by her audible responses as he says, as opposed to her account that she did remember his hand going down but that she immediately pulled it out and that he made no contact with her body, was another major discrepancy in the trial evidence, as recognized by the trial judge, and resolved in the complainant’s favour. That is another area in which, in my opinion, the answers in the SAEK tended to favour the appellant.

[49] In my estimation, if the trial judge had the evidence of the SAEK and the CFS findings, there is good reason to doubt that her findings of credibility would have been the same and that there may well have been a reasonable doubt as to the appellant’s guilt.

[50] The contents of the SAEK, had it been disclosed, would raise a number of other questions. It appears that the police had it. Why was it apparently not provided to the Crown? Was it not disclosed because it reported that she performed fellatio, yet that was not a part of her description of the assault, and hence was a material inconsistency? Why was that entry not the subject of questioning of the complainant when she gave her videotaped statement on June 4, 2017?

[51] In my opinion there is at least a reasonable possibility that the undisclosed evidence could have been usefully employed to undermine the case for the Crown and to support the appellant. In accordance with paragraph 115 of Pascal, the undisclosed evidence affects the reliability of the convictions, and renders the trial unfair, and a new trial must be ordered.

[52] These same findings are impacted by another issue relating to part of a videotaped statement given to the complainant some weeks later, which were not put to the complainant at trial. I will deal with this separately, although it relates to the “hand down the pants” issue.

The Claim of Ineffective Assistance of Counsel

[53] The principles applicable to allegations of ineffective assistance of counsel were recently summarized in R. v. Medford, 2021 ONCA 27, a unanimous decision written by Fairburn, A.C.J.O., joined by Watt and Thorburn JJ.A. as follows:

[63] The burden falls to the appellant to establish the facts underpinning the claim of ineffectiveness. Those facts must address both the performance and the prejudice components of the test. The performance component involves establishing how counsel’s representation was inadequate. The prejudice component involves establishing how those inadequacies resulted in a miscarriage of justice: R. v. Cherrington, 2018 ONCA 653, at paras 25-27; R. v. B. G.D., 2000 SCC 22, [2000] 1 S.C.R. 521 at para 26; R. v. Joanisse, (1995) 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), pp 59-62, leave to appeal refused, [1996] S.C.C.A. NO. 347.

[64] The performance component requires the court to consider counsel’s conduct of the defence against a standard of reasonableness, one that includes a presumption that counsel's conduct falls within a wide degree of reasonable professional assistance. Strategic tactical decisions should be viewed through a lens of deference, rather than hindsight.

[65] The prejudice component is fulfilled where there is a miscarriage of justice arising from either some form of procedural unfairness or an unreliable result or both: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 177, leave to appeal refused, [2017] S.C.C.A. No.17.

[54] In Medford the court considered the alleged failures of counsel and concluded that in hindsight some things could have been done better but that perfection is not the standard. The court found that the shortcomings in that case were in respect of minor matters which did not impact the reliability of the verdict.

[55] The failure to disclose the SAEK is a failure of the Crown. While I have concluded that is enough to warrant a new trial, it seems to me that trial counsel was remiss in proceeding with the trial in the absence of disclosure of that evidence. Trial counsel was defending a man who repeatedly insisted that he had digitally stimulated this woman to the point of her moaning with pleasure, and that he had performed oral sex on her with the same result. While the CFS had initially refused to process samples on the basis that their findings would not be relevant to the issue of consent, in my opinion trial counsel who undertakes the defence of a man charged with sexual assault, and knowing that the complainant had completed a SAEK, ought to have realized the importance of that evidence and refused to proceed without it. Trial counsel knew that the appellant reported that the complainant advised him that she had been with another man earlier that same day. If there was nothing in there helpful to the appellant, there was no harm done. Nothing was said about this failure to disclose to the trial judge. It should have been by way of a motion before the trial judge to compel production of the report, or by way of a motion for an adjournment so that the report could be obtained.

[56] There is another alleged shortcoming in trial counsel’s performance. The complainant gave a videotaped statement to the police on June 4, 2017. An electronic copy of that videotape was disclosed to defence counsel, but no transcript was prepared. The evidence is that the trial counsel prepared her own summary of that interview.

[57] A transcript of that interview was prepared after trial and was filed on this appeal.

[58] At page 18 the complainant indicates that after the accused had put his mouth on one of her breasts, she told him to stop and he said he knew that she wanted to fuck him to which she replied that she did not and to stop and she continues “and he’s like, I know you’re turned on. And I’m like, no, I’m not. So then he put his hand down my pants. And he started saying, oh my God, you’re so wet, you’re so wet. Like I was turned on.” The interviewing officer then interjects “Mm-hmm”. The complainant then continues “and I said, no, I’m not. And I grabbed his hand and I pulled it out tried to push him away. And he just kept … and during this time, he had kissed me quite a few times. I did kiss him back, I did, uhm, but I was like still pushing him away and saying, we’re not doing that, like you need to stop.”

[59] The summary prepared by trial counsel shows she understood that the complainant admitted to having kissed the appellant back as he kissed her while putting his hand down her pants. Trial counsel explains this decision by indicating that because the admitted kissing was accompanied by a pushing away of the appellant, she felt introducing the evidence, containing as it did, another description of pushing away, was unhelpful and accordingly the kissing would not be indicative of any measure of consent.

[60] On page 30 of the reasons for judgment the trial judge finds that there was nothing ambiguous about the complainant’s physical actions towards her husband on that date and that she was pushing him away. And at page 32 she finds that the complainant “gave clear and consistent evidence that she was resisting [M.C.]’s sexual advances, both verbally and physically after the consensual kissing occurred.”

[61] On pages 40 and 41 of the reasons for judgment, the trial judge finds that the complainant gave inconsistent testimony as to whether or not the appellant had stuck his hand down her pants, and details that initially the complainant forgot about that detail until it was suggested to her by the Crown, and that then her testimony in-chief was that she did recall him sticking his hand down her pants and pulling it out immediately and that it did not make contact with any part of her body. The trial judge then refers to the evidence in cross-examination where the complainant denied that M.C. had put his hand down her pants. The trial judge then refers to text number 36 in which it is said his hand goes down her pants and that she was telling him to stop, and the trial judge finds this to be a major inconsistency in her evidence.

[62] If the portion of her videotaped June 4th statement to the police in which she described that she was returning the kisses of the appellant during this portion of the events, it might reasonably have impacted on the findings of credibility as to the complainant. It is true that when reminded of this incident she then described a “chicken peck” on her part. In my opinion, that is quite different than “I did kiss him back” as she described in her statement. Kissing him back while he is kissing her after the intimacy of his hand down the front of her pants is, in my estimation, at best, an ambiguous resistance on her part.

[63] Another ground of appeal alleging ineffectiveness relates to the response by trial counsel to the improper leading of evidence of prior discreditable conduct on the part of the appellant during the evidence in-chief of the complainant at trial. It begins with questions suggesting there was a deterioration in the marriage. Prior to any details emerging, trial counsel quite properly objects on the basis that they may be getting into matters that are not necessarily relevant.

[64] In response to the objection, Crown counsel at trial suggests that evidence that the appellant had been engaged in an extramarital affair would be relevant to an explanation of the deterioration of the relationship and further that he expects there will be evidence of things said by the appellant which would go to his credibility.

[65] The trial judge indicates that she is finding it very difficult to respond to the objection or to understand the Crown’s position, in a vacuum, so she indicates she is going to allow the Crown to ask those questions, but this will be done in the form of a voir dire and that a ruling will come later.

[66] Then, on the voir dire, the Crown elicits from the complainant four occasions where she believes the appellant had been unfaithful, and involving four separate women, and elicits from the complainant that the appellant had denied two of the alleged encounters but admitted two others. It was then elicited that initially there was a denial but finally an admission.

[67] The first incident resulted from a friend of the complainant leaving a message on her answering machine alleging that the appellant had been unfaithful and she alleges that she confronted him, that he denied it, but then admitted it the next day.

[68] The second incident indicates that she found out about his unfaithfulness somehow while she was at work and confronted him and he admitted it.

[69] The next alleged act of unfaithfulness resulted from her finding an address and phone number in the car, as a result of which she went to the address, saw no one, went home, found him in bed, confronted him with the note she had found in the car and she alleges the appellant admitted that he had spent a night with a co-worker sometime before then, and he maintained that he had not been unfaithful with this worker.

[70] Despite that answer from the complainant, she was then asked by the Crown “Was there ever an admission in relation to that?” and the answer was “Not by him.”, suggesting I infer that some other unknown person purportedly confirmed it.

[71] The fourth incident alleged arises from the complainant being told by her daughter that the daughter had been told by a friend that the appellant was seeing someone else. He denied it but then sometime later admitted it to her.

[72] The complainant also testified that she checked his email and found revealing pictures of one of her best friends.

[73] At the end of the evidence of the complainant in-chief on that voir dire the trial judge then asked trial counsel whether she wished to cross-examine then or wait until later and trial counsel chose the latter.

[74] Thereafter, the complainant was examined in-chief as to the assault allegation. Trial counsel for the appellant barely began her cross-examination before the day ended and the matter was adjourned to October 25, 2018.

[75] On that date the trial Crown then referred to the evidence given on the voir dire and said “I’ve come to my senses on that and I realized that I was mistaken with respect to the law in respect of that issue and I do not intend to pursue that, the admissibility of that evidence at this time.” In response, the trial judge clarifies that those questions were pertaining to other relationships with other women and to the lies by the appellant to his spouse, the complainant. The trial judge then concludes the matter by saying “I have made a note that the Crown is abandoning the voir dire and I am also going to note, just for purposes of the record, that any evidence that was heard by this court on the voir dire, will not form part of the evidence at [M.C.]’s trial.”

[76] On any plain reading, that was evidence of bad character and presumptively inadmissible. Rule 2 of the Criminal Rules of the Ontario Court of Justice requires that applications be commenced by serving and filing an application on Form 1 that must contain, separate to the application, the grounds to be argued and the factual basis for the application, and the rule further requires responding materials from the other side. Rule 2.5 indicates that trial applications include those involving complex evidentiary applications and includes as examples three items that involve presumptively inadmissible evidence. In my estimation there can be no argument that prior discreditable conduct evidence against an accused would fall into that category.

[77] There is no evidence before me of any such application being commenced before it was verbally addressed at the outset of the complainant’s evidence at trial. Contrast this with the required application record on the appellant’s s. 276 application which was before the court and followed the rules. This procedure in my estimation was most unfair to this appellant. Not only were highly discreditable allegations of marital infidelity placed before the court, but in addition was testimony of untruthfulness on his part. In short, that he was a cheat and a liar. The way this was handled did not even afford the appellant the opportunity to deny the allegations as the Crown withdrew the application before the appellant gave evidence.

[78] This bad character evidence was elicited by the trial Crown at the outset of the complainant’s evidence-in-chief. It must have been evidence the trial Crown knew of before commencing, as is evident from his response, that it would go to the credibility of the appellant. That response came out before any of the particulars had been given. This evidence must have become known to the trial Crown before trial. Then he either did not disclose it to the trial defence counsel, or he did, and she didn’t insist that it be properly vetted by way of a proper s. 276 application.

[79] It seems obvious to me that every person charged has the right to make full answer and defence, and as part of that right, to know the case he has to meet. Here there was no warning, even though the clear rules of the court required that such warning be given in the form of a detailed application so that an accused responding to the application would have notice of it and an opportunity to prepare. Even more importantly, it seems to me that one of the purposes of requiring an application is to put a trial judge in a position to be able to assess at an early stage the thrust of such an application and to refuse to let it proceed if it would lead to the introduction of inadmissible evidence, which clearly the trial Crown conceded it did. Moreover, the evidence itself was based largely on hearsay, or hearsay upon hearsay.

[80] I accept that the trial judge quite properly indicated that such evidence would not form part of the trial and I say without reservation that I am confident the trial judge did her level best to exclude these allegations from her mind. She shouldn’t have been put in this position, nor should the appellant. It is submitted on behalf of the appellant that trial counsel did not render effective assistance as a result of her failure to apply for a mistrial. The comments of the trial Crown on the record indicate that the appellant’s trial counsel was advised of the Crown’s ultimate decision a couple of days before October 25th, so it did not come as a complete surprise, and there was time to reflect on the appropriate course of action.

[81] Trial counsel explains in her affidavit and on her cross-examination that she had prior dealings with the trial judge in this case and was confident the trial judge could disabuse her mind of the discreditable conduct evidence. That’s a judgment call. I don’t think it to be my position to say that that call was clearly wrong. In my assessment it was not a decision which would contravene the standard of reasonableness as outlined in Medford at para. 64 as set out previously.

[82] In retrospect, trial counsel was outmaneuvered. She ought to have insisted before the trial judge that a proper application record be produced by the Crown before proceeding. In that way she would have been aware of the allegations, able to consult with their client about them, and able to research the law applicable to the issue. That approach, it seems likely, would have awakened the Crown to the inappropriateness of the application and the problem could have been avoided. If that didn't work, trial counsel would have been better equipped to alert the trial judge early on to the inadmissibility of such allegations before the evidence had actually been heard.

[83] But I do say it was a contributing factor to what I think to have been an unfair trial. The unfairness created by such evidence is precisely why the law has made it presumptively inadmissible.

[84] I decline to rule on the other allegations concerning ineffective assistance of counsel as at one point that ground was abandoned. When it was renewed, on consent, it was with respect to the SAEK and a portion of the complainant's statement to the police. The other complaints were not argued.

The Reasons for Judgment

[85] The decision in this case turned on findings of credibility. The trial judge chose to assess the credibility of the appellant first.

[86] She accepts some of his evidence, but rejects other portions as was her prerogative. She rejects his evidence that he was successful in performing oral sex on his wife, and rather refers to it as an attempt to do so. The appellant was adamant throughout that he did perform oral sex on her, for a minute or two minutes, and that she was moaning in pleasure which was important factually to his defence. On my reading of the reasons, it was really the interpretation of the messages by the trial judge, and her assessment of his credibility during cross examination, that led the trial judge to reject his evidence on the important issues. She was entitled to do so as there was evidence to substantiate her findings.

[87] The trial judge quite properly noted that her rejection of the evidence of the appellant did not end the matter, and that she was required by the 3rd principle in W.D. to determine weather she accepted the evidence of the complainant as constituting proof beyond a reasonable doubt of the appellant’s guilt.

[88] It is important to remember that there were three events described by both the appellant and the complainant that were crucial in this case. The first in terms of time, after the consensual kissing, related to his removal of her breast from her clothing and kissing it. His evidence is that her reaction was to say that it wasn't fair because he knew all her hot spots. In-chief, the complainant testified that she told him to stop but in cross-examination agreed she had mentioned that he knew all her hot spots.

[89] The second event involved the applicant putting his hand down the front of the complainant’s pants. The appellant testified that she moaned with pleasure as he did so. Her evidence is that she pulled his hand out right away and it never even touched her body, or at least that was her final position.

[90] The third area related to the oral sex. The appellant’s evidence was that he performed oral sex on her for a minute or two and she was moaning with pleasure. The complainant's evidence was that she immediately put both hands on the top of his head and pushed him away and he did not get to perform oral sex on her.

[91] I think it important to examine the reasons given for accepting the evidence of the complainant on these crucial issues. The trial judge begins her assessment of the evidence of the complainant at page 31 of the reasons and immediately indicates that she finds the complainant to be a credible witness. She acknowledges that the complainant had difficulties remembering the chronology of the events and some of the words that were spoken but finds that is not surprising given “the traumatic and shocking nature of the assault to [the complainant]”. The trial judge finds that many of the details of the complainant’s account were confirmed in her text messages to the accused, a finding the trial judge was entitled to make as it was her task to interpret those messages.

[92] At page 39 the trial judge finds that there should be some weight given to the defence submission that the complainant was “an unreliable historian concerning the details of the sexual assault and or the conversations that were occurring in and around the time of the sexual assault”. She then finds the complainant’s memory to have been clearly impacted by the passage of time and the significant nature of the trauma she endured.

[93] At pages 39-40 the judge notes “There are 2 ways in which [the complainant]’s evidence changed as between her examination in-chief and cross examination. First, she gave inconsistent evidence at times, and second, she added details to her testimony during cross examination that she forgot to testify to in-chief and cross examination.”

[94] At page 41 of the reasons the trial judge finds that the complainant gave inconsistent testimony as to whether the appellant stuck his hand down her pants, detailing that initially the complainant forgot about that detail when describing the assault, but later remembered it as a result of the Crown question, and then goes on to reiterate that the complainant testified that she pulled his hand out of her pants immediately, that his hand did not make contact with any part of her body, but that afterwards he had made a comment about her vagina being wet. The judge then refers to the fact that in one of the text messages the complainant mentions his hand going down her pants. The trial judge finds that although this is “a major inconsistency which impacts on her reliability as a witness, I nonetheless found her to be a credible and reliable witness. Given that [the complainant] was the recipient of an unexpected and forced sexual attack that unfolded in a very rapid manner, it is hardly surprising that she cannot give a blow by blow account of every single detail of that attack, which eventually culminated in a rape”.

[95] At page 44 of the reasons the trial judge notes that there was another area where the complainant's testimony changed, in that she initially described how she pushed him away as M.C. was sucking on her nipple, whereas in cross-examination she admits she said “it’s not fair you know all my spots”. At page 45 the judge excuses this inconsistency by finding that she wouldn’t expect anyone to remember dialogue “that was occurring while someone was trying to fend off a rape.”

[96] The reasons raise a concern in my mind because they involve circular reasoning in respect of some troublesome parts of the reasons for conviction. As indicated above, the judge almost immediately finds the complainant to be a credible witness, but then acknowledges that she had difficulty remembering the chronology of events or the words spoken, but excuses that on the basis of the traumatic and shocking nature of the assault. She agrees there should be some weight given to the defence contention that the complainant is an unreliable historian about the events or conversations during the assault, but again excuses this by trauma the complainant endured. The trial judge identifies the complainant’s changing evidence regarding the incident regarding the appellant’s hand down her pants as “a major inconsistency which impacts on her credibility as a witness”, but then excuses it on the basis that she was the recipient of a forced sexual attack so it was not surprising she can’t remember. The trial judge identifies the change of testimony surrounding the complainant’s evidence as to what she said during the nipple sucking but excuses it on the basis that someone who is being raped can’t be expected to remember what she said.

[97] I understand that trial judges often and rightfully discount the importance of inconsistencies on insignificant details because of the upset or trauma experienced by a victim. The judge here did so in respect of insignificant items such as the order in which the complainant lived at various addresses, or imprecision as to how long particular activities lasted. But, in this case, inconsistencies and memory lapses as to significant portions of the complaint are excused by reason of trauma which in turn only flows from an assumption that the assault happened.

[98] Concerns as to the reliability of the verdict arise from the apparent reasoning employed in respect of every shortcoming in the evidence of the complainant, both on a general level, and particularly with respect to items specifically identified by the judge as troublesome. Every such concern is explained away as being the result of the traumatic effect that the sexual assault had on the complainant. But if there was no sexual assault there would be no trauma. The verdict that the assault occurred rests on acceptance of the evidence of a witness, which raises identified concerns, which are then swept aside based on the trauma which would flow if the assault took place. The weaknesses in the evidence crucial to a conviction are excused for reasons which only arise if you assume the account given by the witness is true. I reiterate, this concern only arises because of the concerns on important issues as identified by the judge. The concern does not arise in respect of unimportant details.

Result

[99] I find that the failure to disclose the SAEK to the defence rendered the convictions unreliable and the trial unfair. In my opinion the answers to the questionnaire portion of that kit provides evidence which undermines the credibility findings at trial. In my opinion the forensic testing done by the CFS produced results which also undermine the findings at trial with respect to essential issues. I find as well that the improper introduction of the prior discreditable conduct evidence rendered the trial unfair.

[100] While the failure to disclose the SAEK and the discreditable conduct errors were those of the Crown, in my opinion, the appellant was not effectively assisted in properly addressing those faults.

[101] In my opinion the portion of the videotape statement of the complainant in which she admits to kissing the appellant back, as described earlier, ought to have been put to the complainant as a matter important to her credibility, and is something that together with the matters described in the preceding paragraph might well have produced a different result.

[102] With respect, I also have concerns with a circularity of reasoning which was central to the findings of credibility.

[103] For all these reasons, in my opinion, the trial was not fair and there is good reason to doubt the reliability of the verdicts.

[104] With respect to the sentence appeal, I decline to rule on it as I am ordering a new trial, and because the sentence appeal was not addressed by counsel during argument.

[105] For these reasons, the appeal is allowed, the convictions are set aside, and I order that a new trial take place on both counts. As required by s.822 (2) that trial will be held before a different judge.

Dated at Kitchener this 1st day of April 2021.

C. Stephen Glithero J.

[^1]: Note: Where the name of the appellant appears in a quotation from a transcript or Reasons for Judgment, I have substituted the appellant’s initials in square brackets. [^2]: Note: Where the name of the complainant was used in a quotation from a transcript or the Reasons for Judgment I have replaced it with [the complainant].