WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication - sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION - In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE - (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-24-00000008-00AP
DATE: 2025-03-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King, Respondent
– and –
P.P., Appellant

Stephanie L. Venne, for the Respondent Crown
Michael W. Lacy and Bryan Badali, for the Appellant
HEARD: February 24, 2025

Summary Conviction Appeal

Reasons for Judgment

Bruce G. Thomas

Introduction

[1] After hearing argument, I advised the parties that I was allowing the conviction appeal with reasons to follow. These are those reasons.

[2] In his judgment provided orally on April 26, 2023, the Honourable Justice G. Donald of the Ontario Court of Justice found the appellant, P.P., guilty of sexual interference contrary to s. 151, and sexual assault contrary to s. 271. Both offences against S.D. occurred between October 1, 2015 and November 30, 2016.

[3] The appellant was sentenced on the s. 151 offence on January 18, 2024 to 200 days imprisonment followed by three months’ probation with corollary orders. Count 2, the sexual assault, was stayed. The appellant was released on bail pending his appeal on January 26, 2024.

[4] The appellant has appealed both conviction and sentence.

[5] With respect to the conviction, the appellant advances three grounds of appeal. First, the trial judge erred in admitting and relying upon a letter from the appellant to the complainant 5 to 6 years earlier. The appellant contends that the letters were irrelevant and, as used by the Crown, constituted discreditable conduct evidence that was presumptively inadmissible. There was no basis to admit the letters, and the trial judge erred in relying on the appellant’s evidence about these letters to undermine his credibility.

[6] Second, the trial judge erred by permitting the Crown to elicit presumptively privileged evidence about the appellant’s marital communications with his wife in the absence of a valid waiver, and in then accepting the Crown’s invitation to use their testimony as evidence of collusion.

[7] Finally, the trial judge erred by taking judicial notice of the likely effects of alcohol intoxication.

[8] During the course of the argument, appellant’s counsel abandoned the judicial notice argument related to alcohol intoxication.

[9] As to the sentence appeal, the appellant contends the trial judge ignored the principle of restraint and failed to consider the adequacy of a conditional sentence.

[10] For reasons set out below, I am allowing the appeal and sending the matter back to the Trial Court for a new trial. As a result, it was unnecessary to consider the sentence appeal.

The Trial Evidence

The Crown’s Case

[11] The Crown’s only witness was the complainant, S.D., who is the appellant’s sister-in-law. S.D. is 13 years younger than her sister, E.P., who is married to the appellant.

[12] It was S.D.’s evidence that from about age 8 to age 12, she exchanged letters with the appellant. While she wrote letters to other members of the family, the appellant was the only one who wrote back. The Crown provided a single letter to S.D. written to her by the appellant and she read it into the record. Although S.D. was unable to say when the letter was written, she suggested she was “a lot younger”. The content of the letter made little sense and amounted to comments and questions of S.D. that had no connection to the reality of an 8 or 9 year old recipient.

[13] In cross-examination, defence counsel (not counsel on the appeal) provided four letters from the appellant to S.D. which had also been part of the disclosure package.

[14] S.D. testified that the allegations before the Court took place around the age of 13. She went to the appellant’s home to assist her sister, E.P., who was expecting the birth of twins. S.D. believes she stayed three or four nights.

[15] On the second night, she testified that the appellant was drinking and gave her a beer, encouraging her to drink. E.P. was present at the time. S.D. said that the appellant kept bringing her more beer until she had consumed about seven beers. The appellant also urged her to chug a Smirnoff cooler and some wine. S.D. stated that after E.P. went to bed the appellant brought her a full bottle of wine to drink, but she refused, fearing it might be drugged. The appellant grabbed her arm in an attempt to have her take a drink but was unsuccessful. She then heard him pour it into the sink. At that point, she was left feeling uncomfortable and the appellant went to bed.

[16] On the third night after dinner the appellant was again drinking, and S.D. consumed one beer. All three of them spent some time in the living room, listened to music and played some cards. E.P. went to bed and S.D. changed before preparing to sleep on the couch.

[17] At that point, S.D. testified that the appellant moved close to her and put his hand on her thigh and then on her waist moving his hand upward. She said on both occasions she knocked his hand away. He then tried to reach under her shirt toward her breasts. She told him “don’t”. He then grabbed her face and turned it toward himself telling her to “look at me, can you see my eyes”.

[18] It was S.D.’s evidence that he covered her with a blanket and then felt her body over the blanket. The appellant then left, and the next morning went to work. S.D. said she never attended that residence again.

The Defence Case

[19] Both the appellant and E.P. testified. Both defence witnesses said this was only a one night stay by S.D. and suggested it was likely September 2016.

[20] E.P. said she asked if S.D. could stay over one night with their kids so that she and the appellant could go out for dinner. S.D. was delivered to their home by her mother and the couple went out returning at approximately 9:00 p.m.

[21] Upon their return, both said S.D. was acting strangely. The appellant recalled her swaying, slurring words and attempting unsuccessfully to do gymnastic flips. E.P. testified that S.D. was acting weird, flirty and “dancing weird”. She could smell alcohol and S.D. said she had spilled beer on her shirt.

[22] The appellant first went and checked the refrigerator and found that perhaps seven beers were missing. He saw empty beer bottles on the kitchen table. E.P. was upset with S.D.’s drinking. She told her to stop and that she would not babysit for them again.

[23] All three then played cards and listened to music. The appellant gave S.D. his phone to text some of her friends. Upon going to bed, both the appellant and E.P. hugged S.D. and S.D. slept on the couch. The appellant denied any inappropriate touching.

[24] The appellant testified that he first heard of these allegations in 2017.

[25] As to the letters, the appellant and E.P. testified they wrote them together and were not attempting to be flirty, but just hoping to make S.D. laugh. In part, the Crown cross-examination suggested that these were inappropriate comments to make to a young girl. Comments like “do you drink a lot of beer” and “I bet you look really good”. The appellant suggested that he sent the letters to S.D. in the hope that she would stop writing to him. This evidence was contrary to the content of the letters which suggested that he missed her correspondence.

[26] The appellant in cross-examination reluctantly agreed that he had spoken to his wife, E.P., in detail and on numerous occasions about what transpired that night and S.D.’s accusations. In cross-examination, E.P. disagreed that they had those detailed conversations and testified that she refrained from speaking to her husband about the charges consistent with the direction she was given by defence counsel.

The Parties’ Trial Positions

Defence

[27] Defence counsel submitted that his client was a “weak but necessary” witness but that his wife, E.P., was a strong witness whose evidence should raise a reasonable doubt. Defence counsel conceded that S.D. was a strong witness for the prosecution but suggested several areas where her evidence did not make sense.

[28] He also argued that the letters entered by both Crown and defence were of no assistance in proving the intent of the accused related to the offences being tried. He submitted the four letters to establish “continuity”. They might be “weird” in content but of no use otherwise.

Crown

[29] The Crown characterized S.D.’s evidence as detailed, compelling and uncontradicted. The Crown stridently suggested that the appellant and his wife colluded. He submitted to the trial judge that her answers to the questions he put in cross-examination made no sense and were in part contrary to her husband’s evidence and, as a result, she could not be believed.

[30] I have below set out a portion of the Crown’s submissions on this point:

But, then we have this other version of events. And I’ll say straightaway, in my submission, and I’m convinced that these two colluded.

E.P., in my submission, is a witness that you cannot believe at all. She has no credibility, in my submission. What she said about having never discussed this event with her husband, in my submission, it defies belief, particularly when her husband, Mr. P., gave a pretty clear answer about how he often talked to his wife about it. That’s what he said. I put these things to him. He said they sat down, they talked about the details. I mean, he was very clear. This was something that came up a lot and he was – he was clear that, you know, at one time they discussed ‘what time did…’ – you know – ‘…did I arrive?’ And there were differences between nine-fifteen, versus nine o’clock. On her account, none of that ever happened, which makes no sense because, when you get a – when your husband gets a call from the OPP, saying that, you know, ‘six years ago you sexually assaulted a young girl’, questions are asked. And for her to suggest that they didn’t talk about it any further, particularly when we have her husband saying they did, in my view she’s lying and – and she shouldn’t be believed. And – and if they discussed the event, so be it. They’re allowed to talk about things. You know, it’s not my position that they weren’t allowed to sit down and talk about this. But, it’s that she refuses to acknowledge to the Court that they talked about it, how can – how can she be believed?

[31] As to the letters entered as exhibits, the Crown acknowledged the following in his submissions, that they were “to some extent the letters might’ve been a red herring”. “They’re peripheral.” There was the following exchange between the Court and counsel:

THE COURT: Without – do you say – if I get there, do you say that the letter that is Exhibit Number 1 helps me, or is dangerous to make use of in terms of intent?

MR. PAUL: I WOULD ASK Your Honour not to rely on that letter for that purpose. I – I don’t - that letter was written – we don’t know when it was written.

THE COURT: Years before.

MR. PAUL: It was – it was sometime before – the only purpose for which I would advance that letter at this point – at this point, would be the credibility of these – of the two defence witnesses. Those are my submissions, Your Honour.

[32] The Crown made it clear that while the letters should be ignored by the Court on the essential elements of the offences alleged, nonetheless they were significant to a negative assessment of the accused’s credibility. Specifically, when the appellant suggested he hoped S.D. would stop writing to him while his letters said things like “I miss reading letters from you” and “I really miss how you always wrote letters to me. You should write me something back”, how could he be believed?

The Reasons of the Trial Judge

[33] The trial judge found S.D. to be a “strong witness”, “unimpeached in cross-examination”, clear and careful and “most impressive”.

[34] The trial judge found the appellant to be “a most unimpressive witness” and “a witness wholly unworthy of belief”. The trial judge went on to provide examples of why he rejected the appellant’s evidence, which included why the appellant found it necessary to go to the refrigerator to count the beers S.D. had consumed when he agreed the kitchen table contained numerous empty bottles. The trial judge also pointed out that if a 13 year old S.D. had consumed seven to eight beers, a vodka cooler and some wine, it seemed unfathomable she would be doing gymnastic flips, playing cards, texting and then, as described by E.P., vomiting during the night.

[35] Of significant importance are the trial judge’s reasons that collide with the grounds of appeal. As to the production of the letters, the trial judge made it clear that the content of the letters were “immaterial”, but went on to detail how the cross-examination of the appellant on the letters diminished his credibility. The trial judge summarized the impact of the appellant’s evidence regarding the letters this way:

P.P.’s intransigence on the subject of his willingness to participate, even encourage the letter exchange, in the face of his own plain words otherwise, is indicative of a witness seeking to advance their own narrative and prepared to sacrifice the truth as part of the exercise.

[36] Remembering that defence counsel put forward E.P. as the linchpin to reasonable doubt it is important to assess what the effect the conversations between the appellant and E.P. had on the Court’s assessment of her credibility.

[37] The trial judge described it this way:

Another aspect of where E.P.’s evidence strained the limits of credulity surrounded her level of concern, in this case her lack thereof, after learning that the police were conducting an investigation concerning her husband. E.P. testified that on learning that the police were investigating she effectively demurred entirely and was completely uninquisitive about the matter. Specifically, E.P., whose husband was charged with sexually assaulting her sister, could not remember if she had heard the details of the allegations about this. The import of her evidence was that E.P. had not made anything other than the most perfunctory inquiry of her husband about what the accusation was that led him to be charged with offences alleging that he had committed acts of sexual violence against her younger sister. On its face such a reaction is difficult to believe but it becomes impossible to believe given her husband’s evidence on this point that I have accepted. He testified that they compared notes often about that evening, going so far as comparing the times from their return home from the restaurant and of course they would have needed to make an effort to recall their version of events, this would have been a life changing allegation, on their version fabricated on whole cloth by E.P.’s younger sister.

The inconsistencies, internally and externally, that exist within E.P.’s evidence, when juxtaposed with the other issues that I have identified, make it such that I do not believe her testimony.

Analysis

[38] I accept the appellant’s argument that the letters entered at trial by Crown and defence were inadmissible. Authored perhaps five years before the charged events, the first letter entered by the Crown was to, as suggested in argument before me, make the appellant look “creepy”. They were foolish and illogical and inadmissible for several reasons.

[39] Firstly, they were not “relevant to a live, material issue in the case” (R. v. Calnen, 2019 SCC 6, paras. 107-108). They were probative of nothing. As pointed out by appellant’s counsel, evidence is relevant where it has “some tendency as a matter of logic and human experience to make the preposition for which it is advanced more likely than that preposition would be in the absence of that evidence” (R. v. White, 2011 SCC 13, para. 36). While the letter introduced by the Crown was silly and odd, it did nothing to make the alleged alcohol-driven actions of the appellant, years later, more likely.

[40] The Crown offered no reasoning for the introduction of the letter at trial and on appeal the Crown suggests it was illuminating in providing context, narrative and insight into the family dynamics.

[41] Secondly, it seems clear that the trial Crown initially saw this letter as discreditable conduct evidence. Suggesting that years before authoring such a letter was “weird” and the language inappropriate. Discreditable conduct evidence being defined as evidence “evidence … which in the opinion of the court, would be viewed with disapproval by a reasonable person” (R. v. J.W., 2022 ONCA 306, para. 15).

[42] While the Crown ultimately suggested the letter was “a red herring” and the trial judge viewed the content as immaterial, the Crown was able to make good use of the letters in attacking the appellant’s credibility, specifically on the reason why the appellant wrote to S.D. While not initially offering the letter for that purpose, functionally the Crown fell into a fruitful area of cross-examination.

[43] However, the success of the Crown in the cross-examination on this evidence does not assist. The letters were inadmissible. The fact that the defence trial counsel did not object and in fact offered further letters to provide “continuity” does not assist. As the ultimate gatekeeper, the trial judge needed to press counsel on the foundation for the relevancy (R. v. Z.W.C., 2021 ONCA 116, paras. 121-123).

[44] The use of the inadmissible evidence was clearly important to the trial judge in assessing the credibility of the appellant. As he described it, the appellant’s evidence on the letters was “indicative of a witness seeking to advance their own narrative and prepared to sacrifice the truth as part of the exercise”.

[45] The second ground of appeal encompasses spousal privilege. The privilege is present in s. 4(3) of the Canada Evidence Act which says:

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

[46] Spousal privilege was considered by Murray J. in R. v. G.V.E., 2014 ONSC 7270 (G.V.E.).

[47] G.V.E. was a case not unlike the matter which confronted the trial judge here. G.V.E. was also a summary conviction appeal. The accused in that case was convicted of sexual interference related to his niece who was seven and, at the time, sleeping in his home. The accused’s spouse gave evidence and was cross-examined by the Crown on what the accused told her regarding the allegations. No one raised the issue of the privileged communications. Murray J. ruled the evidence presumptively inadmissible and sent the matter back for a new trial. He said the following at paras. 28 and 29 of G.V.E.:

[28] Spousal privilege, which is recognized in s. 4(3) of the Canada Evidence Act, R.S., c.E-10, has been described as a common law or class privilege embedded in the common law and one for which there is a prima facie presumption of inadmissibility. See: R. v. McClure, 2001 SCC 14, paras. 27-28. In R. v. C. (D.R.), 2007 SCC 28, para. 41, Justice Charron explained at paragraph 41 of that decision that: “the privilege is testimonial in nature, giving a right to withhold evidence that the communications themselves are not privileged. The privilege belongs to the spouse receiving a communication and can be waived by him or her.” Justice Charron, relying on R. v. Hawkins, [1996] 3 SCR 1043 and R. v. Salituro, [1991] 3 SCR 654, explained (at para. 42) the policy reasons which underpin the rule. Firstly, it promotes conjugal confidences and protects marital harmony and secondly that it prevents “the indignity of conscripting an accused's spouse to participate in the accused's prosecution”.

[29] As has been noted, the privilege recognized by s. 4(3) of the Canada Evidence Act, is a privilege which is testimonial in nature and gives a right to withhold evidence. The communications themselves are not privileged. The privilege is personal to the recipient spouse and one which can be waived. This simply means that the spouse can elect to disclose such communications if he or she wishes.

[48] The privilege may be waived by the testifying recipient spouse, but the waiver must be informed and obviously the witness must be initially informed of the existence of the privilege (R. v. Couture, 2007 SCC 28, para. 41).

[49] As the passages above demonstrate the trial judge critically assessed the conversation E.P. admitted to having with her spouse as well as the conversations that she denied took place. This was in the face of the Crown’s forceful submission that the two colluded.

[50] There is no doubt from the trial judge’s reasons that this significantly played into his rejection of E.P.’s evidence. E.P. being a witness the defence put forward as their best chance to raise a reasonable doubt.

[51] In fairness to the trial judge, neither of the appeal issues were brought to his attention much less argued. That, however, does not affect the ultimate admissibility of the evidence.

Conclusion

[52] The admission of the letters and the cross-examination on privileged communications amount to errors in law by the trial judge. Consistent with s. 686(1)(a)(ii), I am allowing the appeal. The judgment must be set aside.

[53] I have considered the curative proviso in s. 686(b)(iii). The curative proviso does not assist the Crown here. This is a case which must be determined on an assessment of credibility. Here, the cumulative effect of the errors weighed heavily into the trial judge’s rejection of the defence evidence. This is not a case where the evidence was so overwhelming that I can conclude there was no substantive wrong (R. v. Khan, 2001 SCC 86).

[54] As a result, the findings of guilt and conviction are set aside, and a new trial is ordered. Counsel for the appellant has agreed to accept service on a summons requiring P.P. to appear before the Trial Court on a date specified.

Justice Bruce G. Thomas
Released: March 4, 2025.