Court File and Parties

COURT FILE NO.: CR22-000057-00AP

DATE: 2024/01/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Tyler Hebblethwaite

BEFORE: Justice I.F. Leach

COUNSEL: Deanna Bronowicki for the Crown (Respondent)

Lance Beechener, for Tyler Hebblethwaite (Appellant)

HEARD: July 26, 2023

ENDORSEMENT

[1] Pursuant to s.812(1)(a) and s.813(a) of the Criminal Code, (“the Code”), the appellant Tyler Hebblethwaite appeals from his two summary convictions for assault, contrary to section 266 of the Code, imposed on March 10, 2022, by MacDonald J. in the Ontario Court of Justice.

[2] The two grounds of appeal identified in the appellant’s Notice of Appeal, dated August 11, 2022, are that the trial judge erred:

a. by misapprehending the evidence; and

b. by improperly finding that the credibility of the complainant, Alexandra Fraser, was “reinforced” by her failure to embellish and/or fabricate testimony at trial.

[3] For the reasons outlined below, in my view the first ground of appeal can and should be easily dismissed, but the concerns raised by the second ground of appeal are sufficiently problematic to require that the appellant’s two assault convictions be overturned and a new trial ordered in relation to those two counts of the underlying Information.

Further background

[4] I have reviewed and considered the material provided in relation to this appeal in its entirety, and will comment further on particular underlying aspects of the matter during the course of my analysis below.

[5] However, by way of initial background and context, I note that events and developments leading to this appeal include the following:

a. The appellant Mr Hebblethwaite and the complainant Ms Fraser were in an intimate relationship that endured for approximately five years before it came to an end in or around August of 2020. The parties, (each of whom had a child from a previous relationship), also cohabited for various periods of time before breaking up.

b. On November 3, 2020, the complainant telephoned the police to indicate her belief that, after leaving work and picking her young daughter up from daycare for their drive home, she and her daughter were being followed by another vehicle. In particular, according to testimony provided at trial by the complainant Ms Fraser, whose evidence in that regard was supplemented by a transcript of the relevant “9-1-1 call” made by the complainant that day, which was filed as an exhibit at trial:

i. On the day in question, the complainant was driving the same vehicle she had while cohabiting with the appellant.

ii. After the complainant had picked her child up from daycare, she was driving along a rural road in Huron County, (a road located in the same area as the residence she previously occupied with the appellant in the town of Thedford, where the appellant was still residing), when her attention was first drawn to an orange SUV as it passed at an excessive rate of speed along a gravel section of the roadway.

iii. When the complainant then stopped in the town of Grand Bend to purchase food on the way home, she noticed the same orange SUV strangely pull to a stop approximately two or three parking spots behind her. At the time, she was able to discern that the vehicle’s driver was wearing a t-shirt and a baseball cap, with the driver’s head tilted forward, but she admittedly could not clearly make out the face of the vehicle’s driver. She also admittedly was unable to make out the orange SUV’s licence plate information, (in part because she could see that it had a “smoked out licence plate cover”), although she could tell that it was not a typical seven-character licence plate but a personalized licence plate of some kind.

iv. As the complainant then drove north out of Grand Bend after making her food purchase, she noticed that the orange SUV was following her vehicle once again, and that it continued to do so after she turned east of Highway 21 onto the road leading towards the small community of Dashwood. In particular, although the complainant observed the orange SUV initially drive past the turn off she had taken to the east, she then saw it make a U-turn on Highway 21 and drive back to the relevant turn off, where it too then turned east to once again follow the complainant and her daughter in their vehicle.

v. While travelling on that rural road heading east towards Dashwood, the complainant slowed her vehicle to 60-70kph, (i.e., substantially below the posted speed limit of 80-90kph), in an effort to have the following orange SUV overtake and pass her. However, the orange SUV slowed its speed in a similar unusual manner, such that it was able to continue travelling behind the complainant’s vehicle.

vi. When the complainant then decided to pull her vehicle to a complete stop at the side of the road, the orange SUV drove past, at which time the complainant once again was able to confirm the colour and type of the vehicle and that it had a personalized licence plate of some kind. However, the orange SUV admittedly went by too quickly for the complainant to discern the precise details of its licence plate.

vii. After the complainant pulled back onto the roadway, and continued travelling east along the same roadway, the orange SUV nevertheless appeared behind her again; i.e., pulling out to follow the complainant’s vehicle after she drove past a small residential community to the side of the road, where the orange SUV apparently had been waiting.

viii. When the complainant then pulled over to stop again in a well-lit area in or around the community of Dashwood, she observed the orange SUV turn into a street behind her before it then turned around and pulled to at stop at the end of that street; i.e., with only its front protruding, so as to maintain a direct sightline between that vehicle and the complainant’s vehicle. At that point, the complainant, who had been on her mobile phone with her friend Vanessa Skipper to describe what was happening, was urged by Ms Skipper to telephone the police instead and the complainant did so. During that ensuing call to the police, the complainant indicated her belief that she was being followed by the appellant; a belief based on the appellant allegedly having followed her in his vehicle on previous occasions, and the complainant’s daughter having indicated to the complainant that she recently had seen the appellant drive past her daycare in an orange SUV, rather than the grey Hyundai vehicle he had driven during the parties’ relationship.

ix. Initially, the “9-1-1” operator encouraged the complainant to stay where she was until mobile police officers could locate her. When the complainant was then instructed to drive a short distance towards more recognizable nearby buildings, (e.g., a funeral home and a community living centre), and did so, the orange SUV continued to follow her vehicle and stop as the complainant’s vehicle stopped; e.g., exiting the side street where it originally had waited with its front protruding, before driving behind the complainant’s vehicle towards the same community living centre, and coming to a stop again as the complainant’s vehicle did so.

x. After waiting in that location for a few more minutes, the “9-1-1” operator instructed the complainant to drive on into the Town of Exeter, where mobile police officers would meet her at a former detachment office of the Ontario Provincial Police, (the “OPP”), located on the town’s main street. The complainant accordingly then drove on into Exeter, with the orange SUV following behind her the entire way and turning right behind her onto the town’s main street. The complainant lost sight of the orange SUV shortly before arriving at the former OPP detachment, where she was met by a number of police officers.

xi. Despite there being little traffic on the relevant roads that late afternoon and early evening, (a condition to which the complainant Ms Fraser attributed her ability to notice and track the movements of the orange SUV in question), Ms Fraser acknowledged that the orange SUV never drew closer than three car lengths away, (apart from when it passed her at high speed), such that she never was able to clearly make out the face of its driver or its precise licence plate.

c. In the course of providing a formal statement to one of the attending police officers, the complainant Ms Fraser was asked follow-up questions about her relationship with the appellant Mr Hebblethwaite, which in turn led to her describing two earlier incidents which were said to have occurred while the parties had been residing together in the village of Thedford. In that regard:

i. According to Ms Fraser, the first incident occurred while the parties were at home together in their Thedford residence, near the beginning of the Covid pandemic “lockdown”, and engaged in a friendly form of play wrestling which she said occurred quite often during their relationship, on an “absolutely” routine basis. In particular, she said that she and Mr Hebblethwaite had a “very playful relationship”, during which they would both “wrestle quite often, being silly and playing around”, with established and understood “rules” whereby she could bring such sessions to an end by “tapping out”, (e.g., by tapping Mr Hebblethwaite on the arm, grabbing his hand, and/or telling him to stop), if she felt she had had enough or otherwise wanted the wrestling to stop. Such “rules” were said to be important to her, as she suffers from blood clots in her lungs, such that she struggles with her breathing, with a resulting “phobia” about being unable to breathe that would sometimes make her panic in that regard. She informed the police that, on the occasion in question, she and Mr Hebblethwaite had been “horsing around” in their bedroom, “just being goofy” and play wrestling like they “normally would”, when she felt the wrestling was going too far. She says she was “tapping out”, saying words such as “stop” and “that’s enough”, and otherwise trying to “just get away” from Mr Hebblethwaite, but that he initially declined to stop. She admittedly was unsure what eventually caused him to stop and let her go, but believed it probably was related to her starting to “gag”. She then went to the washroom to throw up.

ii. According to Ms Fraser, the second incident also occurred during the Covid pandemic lockdown, while the parties were hosting a small outdoor gathering in the yard of their home in Thedford. In particular, Ms Fraser said that, when the incident occurred, she and Mr Hebblethwaite, along with her friend Vanessa Skipper and a male friend of Ms Skipper named Brian, had been gathered together around a campfire in that yard. In that regard, Ms Fraser said “the mood started off playful”, with all of them laughing, and that she initially was “just sitting” on Mr Hebblethwaite’s lap, “just goofing around, laughing and having fun”. However, she said the mood then “just changed”, with Mr Hebblethwaite starting to “pick on” her, (e.g., calling her names and making her the brunt of his jokes), before he then began “dragging” her around the yard by the collar or hood of her sweater, and/or by her hair, such that he pants were falling down. Mr Hebblethwaite was also said to have “slapped [her] across the face a few times” during the course of the incident. Ms Fraser said the incident ended with her getting up, and trying to end the resulting awkwardness and uncomfortable atmosphere by starting to play again with the couple’s dog and just “move on”.

d. In the result, Mr Hebblethwaite was charged with three offences, in respect of which the Crown elected to proceed in a summary fashion, with:

i. Count 1 of the underlying Information charging Mr Hebblethwaite with criminal harassment, contrary to subsection 264(2)(a) of the Code, in relation to the alleged “following” incident on November 3, 2020;

ii. Count 2 of the underlying Information charging Mr Hebblethwaite with assault, contrary to section 266 of the Code, in relation to the alleged incident of play wrestling in the parties’ bedroom which Mr Hebblethwaite allegedly continued despite Ms Fraser’s indications and/or requests asking him to stop; and

iii. Count 3 of the underlying Information charging Mr Hebblethwaite with a second assault, contrary to section 266 of the Code, in relation to the alleged “campfire” incident.

e. The matter proceeded to trial in the Ontario Court of Justice, before Justice MacDonald, on February 23, 2022. In that regard:

i. The Crown led testimony from the complainant Ms Fraser, whose evidence generally took the form of that outlined above. Ms Fraser was cross-examined at length by counsel for Mr Hebblethwaite, with that cross-examination challenging Ms Fraser’s credibility and reliability, including suggestions, denied by Ms Fraser:

1. that she had advanced her criminal complaints after significant delay, engaging the criminal law process in relation to incidents that actually had been benign and forgotten simply to further her collateral civil law goal of forcing Mr Hebblethwaite to leave the home the parties had shared in Thedford; and

2. that the two incidents of alleged assault actually had been instances of consensual play fighting throughout, and regarded as such at the time by Ms Fraser, consistent with similar activity in which Ms Fraser and Mr Hebblethwaite routinely had engaged throughout their relationship.

ii. On consent, the Crown also filed a document from the Ministry of Transportation for Ontario as an exhibit, indicating that on October 29, 2020, (i.e., approximately five days prior to the alleged “following” incident giving rise to the Count 1 charge of criminal harassment), a permit for an orange Hyundai SUV, with the personalized licence plate “MSCHFMKR”, was issued to Mr Hebblethwaite.

iii. The Crown also led testimony from Ms Fraser’s friend Ms Skipper. Apart from providing a brief confirmation that she had been called by Ms Fraser at the time of the alleged “following” incident, (underlying the charge of criminal harassment set forth in Count 1 of the Information), and that she had advised Ms Fraser to contact the police in that regard, Ms Skipper’s testimony generally addressed the alleged “campfire” incident underlying Count 3 of the information. In that regard, Ms Skipper testified that the campfire gathering had started as a “nice night” of “casual hanging out” and “normal conversations” when it “just kind of took a turn” that “got out of the norm”; i.e., with Ms Fraser getting up, Mr Hebblethwaite forcefully grabbing Ms Fraser, (including grabbing her face to “make a fish face”), and Mr Hebblethwaite calling Ms Fraser names “out of nowhere”, (such as “whore” and “bitch”), followed by Mr Hebblethwaite engaging in slapping of Ms Fraser that was “playful” at first and “not as intentional” but which “started getting harder” and ended with a “last hit” across Ms Fraser’s face that was “like a soap opera”. After that, Ms Skipper said, Ms Fraser got up and “removed herself” from Mr Hebblethwaite, but he was “chasing” her in a manner that “wasn’t anything aggressive at first”, but progressed to Mr Hebblethwaite then grabbing and hanging on to Ms Fraser, and pinning her to the ground, before then grabbing her by her hood and hair in a chocking manner while “dragging her a few feet” such that her pants were pulled down to expose a tattoo on her hip. Ms Skipper also was cross-examined at length by counsel for Mr Hebblethwaite, with that cross-examination challenging Ms Skipper’s credibility and reliability, including suggestions, denied by Ms Skipper:

1. that her recollections of the evening in question were impaired by her use of drugs at the time; and

2. that the interactions between Mr Hebblethwaite and Ms Fraser on the evening in question consisted of mutual “jostling” and play fighting between them, similar to that which Ms Skipper had observed in the past.

iv. The defence elected not to call any evidence.

v. At the close of the evidentiary portion of the trial, and prior to counsel making closing submissions, counsel for Mr Hebblethwaite made a successful application to have the Count 1 charge of criminal harassment dismissed by way of a “directed verdict”, on the basis that there was insufficient evidence of identity, (i.e., insufficient evidence that Mr Hebblethwaite had driven the orange SUV which had followed Ms Fraser’s vehicle), upon which a properly instructed jury could make a finding of guilt in relation to that charge.

vi. Following delivery of closing submissions, the matter initially was adjourned to the following Monday to set a date for delivery of the court’s judgment in relation to the remaining Count 2 and Count 3 charges alleging assault. That date in turn was set for March 10, 2022.

f. On March 10, 2022, Justice MacDonald delivered his reasons for judgment, finding Mr Hebblethwaite guilty of the assaults alleged in Count 2 and Count 3 of the Information. I have reviewed and considered those reasons in detail and in their entirety, and my comments herein summarizing or highlighting portions of those reasons should not suggest otherwise. For the purposes of this initial background overview, however, I note that the reasons for judgment included comments regarding the following:

i. that suggestions of Ms Fraser fabricating her allegations of criminal conduct by Mr Hebblethwaite to secure his removal from their former residence, contrary to her denials in that regard, were based on nothing more than speculation that did not undermine her credibility;

ii. that Ms Fraser and Ms Skipper were both viewed as having testified in a clear and straightforward manner;

iii. that Ms Fraser and Ms Skipper were subjected to vigorous and thorough cross-examination, during which neither was perceived to be “shaken” as to their factual accounts;

iv. that the credibility of Ms Fraser was “reinforced” by the judge’s view that she made “no attempt to embellish or lie”, with the judge noting and emphasizing, in particular, that Ms Fraser easily could have said, (during her extended account of the “following” incident outlined above), that she had seen the appellant’s face – i.e., when asked about her ability to identify the driver of the orange SUV that was said to have followed her in relation to the dismissed Count 1 charge of criminal harassment -- but did not do so; and

v. that the testimony of Ms Fraser and the testimony of Ms Skipper was mutually supportive, insofar as the testimony of each was perceived as very credible and consistent with that of the other.

[6] With that general context in mind, I turn next to the grounds of appeal raised on behalf of Mr Hebblethwaite.

Misapprehension of evidence

[7] As noted above, the first ground of appeal identified in the Notice of Appeal filed on behalf of Mr Hebblethwaite focused on a suggested misapprehension of evidence by the trial judge.

[8] In particular, as clarified in the written and oral submissions of appellate counsel for Mr Hebblethwaite, it was suggested that the trial judge had erred by noting and relying upon Ms Skipper’s indication, during the course of her testimony regarding the alleged “campfire incident”, that Mr Hebblethwaite’s alleged dragging of Ms Fraser along the ground had resulted in Ms Fraser’s pants being pulled down to the point of exposing a tattoo on Ms Fraser’s hip. In the course of his reasons for judgment, the trial judge mentioned that particular aspect of Ms Skipper’s testimony as an example of something buttressing his view that Ms Skipper was a “very observant witness” with an “eye for detail”; i.e., as a factor militating in favour of regarding Ms Skipper as a credible and reliable witness whose testimony should be accepted.

[9] In the submission of appellate counsel for Mr Hebblethwaite, the trial judge erred in doing so, as “there was no independent evidence of the existence of the tattoo”; e.g., insofar as Ms Fraser had not mentioned it during the course of her testimony. In such circumstances, it was argued that, without such evidence from Ms Fraser, Ms Skipper’s reference to the tattoo was simply an uncorroborated detail gratuitously offered by Ms Skipper that was incapable of enhancing her testimony, particularly in relation to a suggested significant consistency between the testimony of Ms Fraser and Ms Skipper insofar as each of them indicated at trial that Mr Hebblethwaite had pulled or dragged Ms Fraser along the ground to the point of her pants being pulled down by that activity.

[10] Insofar as a “misapprehension of evidence” may constitute a ground of appeal:

a. Such a “misapprehension of evidence” occurs when a trier of fact fails to consider evidence relevant to an issue, makes a mistake about the substance of an item or items of evidence, or fails to give proper effect to evidence.[^1]

b. As our Court of Appeal and the Supreme Court of Canada repeatedly have emphasized, a high level of appellate deference is owed to a trial judge’s assessment of the evidence and to his or her factual findings, and reliance on suggested “misapprehension of evidence” as a ground of appeal invokes a correspondingly stringent standard. In particular, where it is argued that such a misapprehension resulted in a miscarriage of justice, a reviewing court must examine the nature and extent of the suggested misapprehension and its significance to the verdict rendered at trial, and determine whether the suggested mistake related to a material part of the evidence and played an essential part in the reasoning process leading to a conviction, in which case the conviction would not be grounded exclusively on the evidence, thereby constituting a miscarriage of justice warranting a new trial.[^2]

[11] In my view, the appellant has not met that high standard for appellate intervention in relation to the first ground of appeal suggesting a “misapprehension of evidence” by the trial judge in this case. Without limiting the generality of the foregoing:

a. I am not persuaded that the relevant portion of the reasons for judgment relied upon by the appellant in that regard discloses any “misapprehension of evidence” in the sense required to provide a basis for this suggested ground of appeal. In particular:

i. There was no suggestion, and could be no suggestion, that the trial judge failed to consider the evidence supplied by Ms Fraser and Ms Skipper relating to Mr Hebblethwaite dragging Ms Fraser along the ground, during the alleged “campfire” incident, to an extent that Ms Fraser’s pants had been pulled down by that described activity. The trial judge expressly makes reference to the testimony of both witnesses in that regard.

ii. Nor, in my view, is there any basis for any suggestion that the trial judge made a mistake about the substance of the testimony of either witness in that regard. To the contrary, a comparison of the transcribed evidence of each witness in that regard with the corresponding remarks of the trial judge confirms that the relevant testimony in that regard was accurately recalled and described by the trial judge.

iii. At best, the appellate accordingly was confined to an implicit if not explicit suggestion that the trial judge had failed to give proper effect to the evidence in question; i.e., by relying on Ms Skipper’s inclusion of an additional detail in that regard, (her noticing that Ms Fraser’s pants had been pulled down sufficiently by the alleged dragging to expose a tattoo on Ms Fraser’s hip), as a basis for viewing Ms Skipper as an observant and therefore reliable witness. I reject the suggestion, for reasons that include the following:

1. As a general principle of evidence, corroboration of a particular detail remembered by a particular testifying witness is not required before the testimony in that regard may be relevant, admissible and capable of being relied upon by the trier of fact. As indicated in our routine instructions to juries, a trier of fact assessing evidence is entitled to decide how much or how little to believe and rely upon the testimony of any witness, is entitled to believe some, none or all of such testimony, and is entitled to rely upon the testimony of a single witness in that regard whether or not other witnesses have provided similar or different testimony in that regard; i.e., regardless of the extent to which such testimony may or may not have been the subject of corroboration.[^3]

2. Without limiting the generality of the foregoing, in my view evidence corroborating the existence of Ms Fraser’s hip tattoo was not required to make Ms Skipper’s noted observation in that regard relevant and admissible in the circumstances. In particular, it was not the existence of the tattoo that had primary relevance in relation to this area of evidence provided at trial, but Ms Fraser’s assertion that the described dragging of Ms Fraser by Mr Hebblethwaite was sufficient to pull down Ms Fraser’s pants to the point where her bare hip -- including a tattoo observed by Ms Skipper in that area of Ms Fraser’s anatomy -- was exposed to view.

3. In any event, witnesses testifying at trial regularly provide evidence with varying degrees of attention to detail and, as also indicated in our routine instructions to juries, triers of fact are entitled to include the apparent ability of a witness to make complete observations about an event in their assessment of witness testimony, (i.e., as a matter relevant to witness reliability), and their corresponding determinations as to how much or how little of the testimony of a witness should be believed and accepted.[^4]

4. In this particular case, Ms Skipper’s reference to seeing a tattoo on Ms Fraser’s hip, after its exposure to view by Ms Fraser’s pants being pulled down by Mr Hebblethwaite’s alleged dragging of Ms Fraser along the ground, also was not the only example cited and relied upon by the trial judge as a basis for regarding Ms Skipper as an observant witness with an “eye for detail”. The trial judge also noted that Ms Skipper, when shown a photograph at trial, quickly identified details “which could be easily missed”.[^5]

5. In short, my review of the underlying transcript and relevant portion of the reasons for judgment delivered by the trial judge suggests no any failure by the trial judge to give proper effect to the evidence in question, but a trier of fact properly engaged in assessment of the reliability of a witness having regard to a completely permissible and appropriate consideration. The resulting determination made by the trial judge in that regard is entitled to deference on appellate review, and I see no basis for questioning or interfering with that determination or assessment on appeal.

b. As the appellant has failed to establish the existence of any “misapprehension of evidence” in the sense required, it follows that there was nothing in that regard capable of resulting in any corresponding miscarriage of justice. In my view, it nevertheless seems unreasonable to suggest that any such “misapprehension of evidence” in that regard related to a material part of the evidence and/or played an essential part in the reasoning process leading to the appellant’s conviction in relation to Count 3 of the underlying Information. Without limiting the generality of the foregoing, as noted above, it was but one example cited by the trial judge of Ms Skipper’s noted ability to make detailed observations; an ability actually noted and conceded by defence counsel at trial, during the course of his cross-examination of Ms Skipper.

[12] I accordingly turn to consideration of the second ground of appeal identified in the Notice of Appeal.

Finding that credibility was “reinforced” by a failure to embellish or fabricate

[13] As noted above, the appellant’s second identified ground of appeal focused on the trial judge’s express finding that the credibility of the complainant was “reinforced” by what the trial judge viewed as a failure on her part to embellish or fabricate testimony at trial.

[14] In that regard, the appellant relied in particular on the following remarks made by the trial judge during the course of his reasons for judgment, when addressing Ms Fraser’s credibility:

In my view, her credibility is reinforced by her testimony in dismissed count number one [alleging criminal harassment committed by the complainant and her daughter being followed by someone driving an orange SUV]. In evidence, she stated she could not identify the driver. She talked about seeing a baseball cap, but could not make out the face at all. There was no attempt to embellish or lie. How easy it would have been for her to say she saw his face, [bearing in mind that a]t one point she said the car was parked two spaces behind her, and other times it was parked under a light on a street.

[15] In citing and relying upon Ms Fraser’s perceived failure to “embellish or lie” as a consideration expressly found to “reinforce” her credibility, the trial judge appeared to accept a submission by Crown counsel at trial in that regard, inviting him to do so. In particular, I note that the closing submissions of Crown counsel at trial included the following remarks addressing the testimony of Ms Fraser:

I ask Your Honour to consider just a couple of things when you’re considering her evidence. Although Your Honour has ruled with respect to count number one, I would ask you to recall her evidence on count number one. She was very straightforward. She was very clear. She did not exaggerate. She did not exaggerate and say to Your Honour, “I know it was him, I know it was Tyler”. She was honest, she was forthright, she told the truth. She talked about what had occurred. She didn’t, in any way, in my submission, gloss it over with prejudicial comments. She simply told what she saw. She was very fair about what she could or couldn’t see. She was very fair about the fact that she could not identify him.

[16] The problem with that closing submission, suggesting that a complainant’s credibility and/or reliability are somehow bolstered or reinforced by a perceived failure to embellish or fabricate, and more importantly for present purposes, the problem with the corresponding finding of the trial judge in that regard, is that both involve fallacious reasoning; reasoning which constitutes a valid ground of appeal when it forms part of the reasoning leading to a finding of guilt.

[17] Without limiting the generality of the foregoing, numerous decisions by our Court of Appeal have emphasized the following general principles:

a. There is nothing wrong with a trial judge simply noting the absence of things that might have diminished the credibility of a witness had such things been present; e.g., the absence of any material inconsistencies in the testimony of a witness, or the absence of any effort on the part of a witness to embellish his or her evidence. Such comments offer explanations for why a witness has not been found to be incredible. Simply recording that the testimony of a witness did not suffer from a problem of exaggeration or embellishment that otherwise would have diminished its weight accordingly does not constitute an error of law.[^6]

b. However, it is an error of law to treat the perceived absence of embellishment by a witness as a factor that enhances, bolsters or adds to the credibility of that witness, as doing so involves fallacious reasoning. In particular, it is wrong to reason that, because the allegations made by a witness could have been worse, the allegations the witness has made are more likely to be true. Moreover, while identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility, as both truthful and dishonest accounts can appear to be without exaggeration or embellishment. Perceived failure of a witness to embellish his or her testimony accordingly must not be used as a makeweight in favour of finding that the witness is credible.[^7]

[18] In the course of her written and oral submissions, Crown counsel on the appeal conceded, and I independently find and agree, that the trial judge in this particular case unfortunately erred in law insofar as he did not cite a perceived failure of the complainant to embellish or fabricate as a reason for finding that she was not incredible, but specifically engaged in the fallacious and prohibited reasoning emphasized by our Court of Appeal. In particular, the trial judge:

a. expressly found that the credibility of the complainant Ms Fraser was “reinforced” by what the trial judge regarded as an absence of any attempt on Ms Fraser’s part “to embellish or lie” while testifying, when she might easily have done so; and

b. expressly cited that perceived “reinforced” credibility of the complainant as one of his identified reasons for accepting her testimony.

[19] In the circumstances, Crown counsel on the appeal did not dispute that the trial judge in this case erred in law.

[20] Nor was it disputed by Crown counsel on the appeal that credibility of the complainant was a significant issue in relation to the assaults charged in Count 2 and Count 3 of the underlying Information, (e.g., insofar as a finding of guilt in relation to each charge necessarily was dependent on the complainant’s assertion that the appellant’s relevant application of force on each occasion had not been a form of consensual play fighting, similar to that in which the complainant and appellant admittedly had engaged on a routine basis during the course of their relationship), or that the trial judge had expressly found the credibility of Ms Skipper to be enhanced by its consistency with the testimony of Ms Fraser, (which the trial judge had found to be credible for reasons including the improper reasoning identified above), which in turn was identified by the trial judge as one of the reasons for accepting Ms Skipper’s testimony as well.

[21] Crown counsel on the appeal nevertheless suggested that the appellant’s two assault convictions nevertheless should be upheld through application of the “curative proviso” set forth in s.686(1)(b)(iii) of the Code, which reads as follows:

686. (1) On the hearing of an appeal against a conviction … the court of appeal …

(b) may dismiss the appeal where …

(iii) notwithstanding that the court is of the opinion that … the appeal might be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[22] Having considered the matter at length, however, I find myself unable to hold that opinion.

[23] In arriving at that conclusion, I have borne in mind numerous general principles governing application of the curative proviso in contexts such as this one, where a case turned on findings of credibility and reliability. Those principles include the following:

a. Use of the curative proviso under s.686(1)(b) of the Code is reserved for “rare and exceptional” cases, and is only appropriate where:

i. the error was harmless or trivial and could not possibly have affected the verdict; or

ii. the evidence is so overwhelming that, notwithstanding that the error was not minor, the trier of fact inevitably would have convicted the accused.[^8]

b. Under the first category of cases in which the curative proviso may be applied:

i. determination of whether an error or its effect is minor requires the court to consider whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial that the verdict would have been the same, absent the error;[^9]

ii. errors may be characterized as having a minor effect if they relate to an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence – such as imposing a more onerous burden on the Crown;[^10]

iii. any doubt as to the impact of the error must be resolved against the Crown, as tracing the effect of the error is necessarily a somewhat speculative exercise;[^11] and

iv. the question of whether an error or its effect was minor should be answered without reference to the strength of the other evidence presented at trial.[^12]

c. Under the second category of cases in which the curative proviso may be applied, (i.e., where it is not established that the error in question was minor and non-prejudicial, such that it is regarded as having been serious and prejudicial), an appellate court can uphold a conviction only where the high standard of an “invariable” or “inevitable” conviction is met.[^13] In that regard, unlike the approach taken in determining whether the error was minor or trivial, where no weighing of the evidence is permitted, in considering whether the Crown’s case was so overwhelming that a conviction was inevitable, an appellate court may examine and weigh the evidence to a limited extent. Having said that, as the appellate court faces the difficult task of evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the testimony and experiencing the trial as it unfolded, it is necessary to afford any possible measure of doubt concerning the strength of the Crown’s case to the benefit of the accused person.[^14]

d. Under both categories of cases in which the curative proviso may be applied, the Crown bears the heavy burden of demonstrating that either the error was minor and could not possibly have affected the verdict, or that a more serious error was committed in the face of an overwhelming case against the appellant where the conviction was inevitable. In both instances, the underlying question is the same: whether the verdict would have been the same if the error had not been committed.[^15]

e. While there is no rule excluding application of the proviso in cases turning upon credibility, the hurdle is a difficult one and caution should be exercised prior to its application in such cases. Indeed, where credibility is a central issue at trial, it has been said that the curative proviso should be applied in circumstances where the Crown’s case is otherwise “staggering”.[^16]

[24] In my view, consideration of the relevant error made by the trial judge, without reference to the strength of the other evidence presented at trial, prevents any conclusion that the error was “minor”, “harmless” or “trivial”, and could not possibly have affected the verdicts reached by the trial judge in relation to Count 2 and Count 3 of the underlying Information. Without limiting the generality of the foregoing:

a. As noted above, the error related to the trial judge’s assessment of the complainant’s credibility; an issue that was central to the trial judge’s overall determination of guilt or innocence in relation to each of the two assault charges levelled against the appellant. In particular, as also noted above, conviction of the accused in relation to either charge necessarily required the trial judge to be satisfied beyond a reasonable doubt that the relevant applications of force underlying the two assault charges were non-consensual. That in turn inherently required acceptance of the complainant’s testimony of her subjective state of mind in that regard, including her denial that those applications of force were not instances of the routine “play fighting” that admittedly occurred throughout the parties’ relationship. Not surprisingly, such matters accordingly were also a central focus of defence counsel’s cross-examination and submissions at trial.

b. On their face, the reasons of the trial judge make it clear that he regarded perceived reinforcement of the complainant’s credibility through her perceived failure to engage in embellishment or fabrication as one of the important factors underlying his acceptance of her testimony. In particular, as emphasized by counsel for the appellant, that not only was one of the express reasons cited by the trial judge for his finding that the complainant was a credible witness, and his acceptance of her testimony that followed almost immediately thereafter, but was the only cited reason in that regard that was given a more expansive explanation by the trial judge; i.e., by the trial judge taking the time to revisit the complainant’s particular testimony in respect of which there was no perceived embellishment, and emphasize how and why such embellishment easily could have been achieved. In contrast, the other reasons cited by the trial judge in that regard, (i.e., that the complainant’s testimony was “clear”, “straightforward”, “consistent” and “not shaken in cross-examination”), were listed in a conclusory manner.

c. As emphasized by the Court of Appeal in R. v. Alisaleh, supra, at paragraph 19, tracing the effect of a reasoning error in the nature of that made by the trial judge in this case, (i.e., the trial judge considering lack of embellishment as a positive factor going to the credibility of the complainant), is necessarily a somewhat speculative exercise, such that any doubt as to the impact of such an error must be resolved against the Crown. In this case, I find it impossible to determine, with certainty, the extent to which the fallacious reasoning relied upon by the trial judge affected his overall assessment of the complainant’s credibility, and therefore whether he would have arrived at the same conclusions regarding her credibility, acceptance of her evidence, and guilt of the appellant in relation to Count 2 and Count 3 of the indictment, had reliance on such fallacious reasoning not formed part of his analysis.

[25] In my view, it similarly is not possible to determine, with reasonable certainty, that the Crown has met the required high standard of demonstrating that the convictions made in relation to Count 2 and/or Count 3 were invariable or inevitable in the circumstances, having regard to all of the evidence and arguments presented at trial, and examining or weighing that evidence to the limited extent contemplated by the authorities in this area. Without limiting the generality of the foregoing:

a. The evidence relied upon by Crown counsel at trial in relation to the assault charge addressed by Count 2 of the underlying Information necessarily was limited to the testimony of the complainant; i.e., as the allegation focused on an incident that was said to have taken place when the complainant and the appellant were alone in their bedroom of their Thedford residence, and the accused did not testify. Credibility of the complainant accordingly was central to the Crown’s case in that regard, (for the reasons outlined earlier), and the assessment and determination made by the trial judge in that regard were tainted by the serious and prejudicial reasoning error identified above. In the circumstances, I find it impossible to say for certain that a conviction in relation to Count 2 invariably or inevitably would have been made despite the reasoning error made by the trial judge; e.g., when the impact on his credibility assessment in relation to the complainant cannot be traced or isolated for the reasons outlined above, and there was no evidence offered at trial, independent of that of the complainant, otherwise capable of elevating the Crown’s case in relation to Count 2 of the underlying Information to a level where it could be considered “overwhelming” or “staggering” in the sense required.

b. While the evidence relied upon by Crown counsel at trial in relation to the assault charge addressed by Count 3 of the indictment was not limited to the testimony of the complainant, insofar as it was buttressed by the testimony of the complainant’s friend Ms Skipper, in my view the circumstances similarly prevent a conclusion that a conviction invariably or inevitably would have been made in relation to that Count 3 charge, regardless of the identified reasoning error made by the trial judge. In that regard:

i. It needs to be remembered that a conviction in relation to that assault charge required the trial judge not only to be satisfied beyond a reasonable doubt that the alleged actus reus of the alleged assault took place, but that the relevant application of force was non-consensual.

ii. In my view, the testimony of Ms Skipper was directed primarily to the former issue rather than the latter, and her testimony inherently had much more limited value when it came to the trial judge’s determination of whether the relevant application of force by the appellant to the complainant was consensual or not; i.e., as to whether or not it actually was another instance of the routine “play fighting” that admittedly occurred between the complainant and the appellant on a routine basis during the course of their relationship, as confirmed by the complainant and Ms Skipper. In particular, the trial judge’s necessary determination as to whether the Crown had proven beyond a reasonable doubt that the complainant did not consent to the appellant’s relevant application or applications of force at the time of the “campfire” incident inherently remained focused primarily on assessment of the complainant’s subjective testimony regarding her state of mind in that regard, and whether that testimony should be believed and accepted. In my view, necessary uncertainty as to the extent to which the identified reasoning error made by the trial judge impacted that central and important assessment remains largely unaffected by the additional evidence of the incident offered by Ms Skipper at trial.

iii. Moreover, in my view it needs to be remembered and borne in mind that the trial judge’s assessment of Ms Skipper as a credible witness, whose testimony should be accepted, was not made in splendid isolation from his assessment of the complainant’s credibility. To the contrary, the trial judge expressly noted consistency between the testimony of both witnesses as another reason for accepting the evidence of both. In other words, the trial judge effectively found that one reason for accepting the testimony of Ms Skipper was his view that Ms Skipper’s testimony was supported by the testimony of the complainant, whom the trial judge had found to be a credible witness -- in part because she was perceived to have refrained from embellishing her testimony. In the result, the same reasoning error that affected the trial judge’s assessment of the complainant’s testimony, (to an unknown and inherently unknowable degree), effectively was carried over, (to a similarly unknown and inherently unknowable degree), to the trial judge’s assessment of Ms Skipper’s testimony.

iv. In such circumstances, I find it impossible to say for certain that a conviction in relation to Count 3 invariably or inevitably would have been made despite the identified reasoning error made by the trial judge. In particular, I think it would be unreasonable to characterize the Crown’s case in relation to Count 3 of the underlying Information to be “overwhelming” or “staggering” in the sense required, when it is impossible to determine beyond any measure of doubt the extent to which the testimony of Ms Fraser and/or Ms Skipper would have been believed and accepted by the trial judge in the absence of that reasoning error.

[26] For the above reasons, I do not view this matter as one of those “rare and exceptional” cases in which the curative proviso should be applied.

Conclusion

[27] For the reasons outlined above, Mr Hebblethwaite’s appeal is allowed, his two summary convictions for assault contrary to section 266 of the Code are set aside, and a new trial is ordered in relation to Count 2 and Count 3 of the underlying Information.

Justice I.F. Leach

Date: January 2, 2024

[^1]: See R. v. Stennett, 2021 ONCA 258, at paragraph 51; and R. v. B.T.D., 2022 ONCA 732, at paragraph 23.

[^2]: See R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p.541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paragraphs 1-2; R. v. Stennett, supra, at paragraph 52; and R. v. B.T.D., supra, at paragraphs 4 and 26.

[^3]: See David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pages 267 and 270.

[^4]: Ibid., at page 267.

[^5]: Indeed, a review of the relevant portion of the transcript confirms that such details initially had been missed by defence counsel cross-examining Ms Skipper, who independently conceded that he had not seen another individual depicted in the relevant photograph who nevertheless was visible in the photo through campfire flames, (as Ms Skipper pointed out during her testimony), and who was moved to tell Ms Skipper that she had “good observational powers”.

[^6]: See, for example: R. v. Kiss, 2018 ONCA 184, at paragraphs 53 and 54; R. v. Alisaleh, 2020 ONCA 587, at paragraph 16; and R. v. J.B., 2022 ONCA 214, at paragraphs 15 and 17.

[^7]: See, for example: R. v. G.(G.) (1997), 115 C.C.C. (3d) 1 (Ont.C.A.), at p.10; R. v. R.A.G., 2008 ONCA 829, at paragraph 20; R. v. L.L., 2014 ONCA 892, at paragraph 2; R. v. Kiss, supra, at paragraph 52; R. v. Alisaleh, supra, at paragraphs 7, 13 and 16.; and R. v. J.B., supra, at paragraph 16.

[^8]: See R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 (Ont.C.A.), at paragraphs 94-95; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paragraph 53; and R. v. Perkins, 2016 ONCA 588, at paragraph 23.

[^9]: See R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paragraph 35; and R. v. Perkins, supra, at paragraph 24.

[^10]: See R. v. Van, supra, at paragraph 35; and R. v. Perkins, supra, at paragraph 25.

[^11]: See R. v. Sarrazin, 2010 ONCA 577, at paragraph 71; and R. v. Perkins, supra, at paragraph 26.

[^12]: See R. v. Van, supra, at paragraph 35; and R. v. Perkins, supra, at paragraph 27.

[^13]: See R. v. Van, supra, at paragraph 36; and R. v. Perkins, supra, at paragraph 28.

[^14]: See R. v. W.(L.K.), supra, at paragraph 102; R. v. Van, supra, at paragraph 36; R. v. Perkins, supra, at paragraphs 28-29.

[^15]: See R. v. Bevan, [1993] 2 S.C.R. 599, at pages 616-617; R. v. Van, supra, at paragraphs 34 and 36; and R. v. Perkins, supra, at paragraph 30.

[^16]: See R. v. W.(L.K.), supra, at paragraphs 97 and 101; R. v. Raghunauth (2005), 203 O.A.C. 54 (Ont.C.A.), at paragraph 9; and R. v. Perkins, supra, at paragraph 32.