This week’s top three summaries: R v McFarlane, 2020 ONCA 548, R v Roth, 2020 BCCA 240, and R v McFarlane, 2020 ONSC 5194.
R v McFarlane, 2020 ONCA 548
[September 2, 2020] Vetrovec Instructions: Legal Advantage to Witness to Testify against Accused & Eye-witness Identification: Need for Bespoke Instructions Where Not Usual Eye-Witness Problem [Reasons by B.W. Miller J.A. with G.R. Strathy C.J.O. and Janet Simmons J.A. concurring]
AUTHOR’S NOTE: In another recent ONCA decision, the court reminds us that the issue of witness hope of advantage in providing testimony against an accused is dependent on their internal state of mind; the intention of the authorities and whether there is an actual "deal" are irrelevant to that consideration. Here, a Vetrovec caution missed the mark by focused on the police conduct and whether they offered the cooperating co-accused a "deal" rather than focusing on what would reasonably have been in her mind when she decided to cooperate prior to being sentenced.
The problem with the eye-witness evidence here was not the usual frailties of identification of strangers, but rather that the complainant could not be trusted to identify anyone. Given her argued motive to implicate the accused and her failure to identify them in past photo line-ups, the jury should have been invited to scrutinize whether the complainant gave any descriptors to the police before a photo line-up. The importance of such descriptors should have been highlighted as well as their generic nature not supporting and identification (despite the fact that there were no significant distinguishing features).
Overview
[1] On June 20, 2011, Ms. Tania Whilby landed at Toronto Pearson International Airport with 1.4 kilograms of cocaine hidden in her suitcase. A jury found Ms. Whilby guilty of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, on October 18, 2012. She was sentenced on January 21, 2013 to two years’ less a day imprisonment, to be served conditionally.
[2] Prosecuted separately, the three appellants were found guilty by a jury of importing cocaine and conspiracy to import cocaine into Canada. The Crown alleged that Mr. Robert Gardener coordinated Ms. Whilby’s travel to and from Jamaica, where she received the cocaine, and that Mr. Dwayne McFarlane and Ms. Priscilla Bekoe provided Ms. Whilby with her plane ticket and drove her to the airport in Toronto at the beginning of her trip.
[4] On appeal, the appellants each argue that their verdicts are unreasonable, and they challenge various aspects of the trial judge’s charge to the jury, including that he gave an insufficient caution with respect to the evidence of Ms. Whilby, pursuant to Vetrovec v. The Queen, [1982] 1 S.C.R. 811, and that his instructions with respect to Ms. Whilby’s eyewitness identifications failed to focus the jury’s attention on the frailties of that evidence.
The Alleged Importation Scheme
[6] At trial, the Crown’s theory was that Mr. Gardener assisted Ms. Whilby in obtaining plane tickets to and from Jamaica by referring her to an intermediary. That intermediary, who contacted Ms. Whilby through a BBM profile called “Diggzz T dot”, was alleged to be Mr. McFarlane. On the day of Ms. Whilby’s flight to Jamaica, a man and a woman, alleged to be Mr. McFarlane and Ms. Bekoe, drove her to the airport in a black Cadillac. Ms. Bekoe also allegedly called Ms. Whilby while she was in Jamaica and told her to bring back alcohol and various food items for her. On Ms. Whilby’s evidence, she was given a suitcase in Jamaica to carry these items. On her return to Canada, the suitcase was found to contain the cocaine.
[9] Sections of Ms. Whilby’s BBM conversations with Bliitsz were introduced at trial. There was no serious dispute that Mr. Gardener was Bliitsz. Starting on Thursday, May 26, 2011, Ms. Whilby and Bliitsz spoke daily to discuss the status of the plane ticket. They discussed whether her flight would go to Kingston or Montego Bay, and at no point did Ms. Whilby or Mr. Gardener refer to the cost of the plane ticket or who would pay for it.
[10] On Tuesday, May 31, 2011, Ms. Whilby again asked Bliitsz for the status of the ticket. He responded that the ticket would come over the course of the week. The week came and went. Their final communication was on Monday, June 6, 2011, when Ms. Whilby pointed out that the week had ended, and Bliitsz responded with an emoji. The record contains no further communications between Ms. Whilby and Bliitsz related to the plane ticket.
[11] One week later, on Monday, June 13, 2011, Ms. Whilby confirmed her travel details with a BBM contact named “Diggzz T dot”, as part of a conversation that was also introduced into evidence. Diggzz sent Ms. Whilby a picture of her travel itinerary, indicating roundtrip flights to Montego Bay. Her flight would depart the next day. He asked her if she had a criminal record, and when she said no, he responded, “K alright. Everything is good then, Ill text to later on tonight”. He told Ms. Whilby he would pick her up the next morning at 6:15 a.m. in a black Cadillac.
[12] The Crown alleged that Diggzz was Mr. McFarlane. Ms. Whilby testified that she came into contact with Diggzz through Mr. Gardener, but did not recall who initiated contact with whom on BBM. Ms. Whilby testified that Diggzz was Mr. McFarlane, but on cross-examination, she agreed that Diggzz could have been a woman.
Man and Woman Driver Whilby to the Airport
[14] Ms. Whilby testified that a man and a woman came to pick her up in a black Cadillac. She had never met the man who drove the car or the woman who was sitting in the passenger seat, and she did not recall hearing their names. Ms. Whilby testified that from her vantage point in the back seat, behind the passenger seat, she could only see the back and right side of the driver’s face. She testified that she never looked into his eyes, and he never exited the vehicle. The woman accompanied Ms. Whilby to check in at the airport while the man remained in the car.
[15] The Crown alleged that the driver was Mr. McFarlane and that the woman was Ms. Bekoe, based largely on eyewitness identification evidence from Ms. Whilby.
[16] Initially, Ms. Whilby testified that she did not recall having conversations with the people in the car. Moments later, she testified that the woman told her a man named Ed would pick her up in Jamaica. She also testified that the driver provided her with her ticket, but then said it was the woman, after reviewing her preliminary inquiry testimony.
In Jamaica
[18] Ms. Whilby testified that Ed, who drove her around Jamaica, gave her the suitcase that was eventually apprehended by customs officials in Toronto. Ms. Whilby packed the woman’s beverages and snacks into the suitcase.
[19] When Ms. Whilby returned to Toronto, Diggzz sent her a message to coordinate pick-up at the airport. Ms. Whilby was apprehended shortly after her landing, when police found the cocaine hidden in a false bottom of her suitcase. After Ms. Whilby’s arrest, the RCMP seized her phone and used it to communicate with Diggzz, while posing as Ms. Whilby. The police never found Diggzz.
Investigation Leading to the Appellants
[20] On April 11, 2012, the police obtained a production order in relation to the BBM profile associated with Diggzz. The records revealed that a credit card registered in Ms. Bekoe’s name was used for a purchase through the BlackBerry account on July 23, 2011, one month after Ms. Whilby’s trip to Jamaica.
[21] On April 23, 2012, the police showed Ms. Whilby a photo line-up containing a picture of Mr. McFarlane. She did not identify him. On July 10, 2012, while Ms. Whilby was awaiting trial, the police showed Ms. Whilby three identical photographic line-ups containing a picture of Ms. Bekoe. Each time, Ms. Whilby failed to identify Ms. Bekoe.
[22] The circumstances of these line-ups are not clear on the evidence. Ms. Whilby testified that police officers showed her photos sequentially in the back of a police car in Montreal. Ms. Whilby could not remember when the line-ups happened or which police officers conducted them, and her evidence is unclear on how many line-ups occurred. The Crown adduced no additional evidence on these points.
[23] On January 16, 2013, days before Ms. Whilby was scheduled to be sentenced on January 21, 2013, the police conducted three more line-ups with Ms. Whilby in which she identified the three appellants. Ms. Whilby confirmed that on the back of Ms. Bekoe’s photo, she wrote, “Without the wig her face shape her eyes, her look I remember it”. On the back of Mr. McFarlane’s photo she wrote, “eyes – hair was little longer then – shape of face conplexion of skin Asian look”. Finally, on the back of Mr. Gardener’s photo, she wrote “Facial – hair – I reconazize him quick eyes –”.
[24] There is no police evidence in the record as to how the January 2013 lineup was conducted. What is known is that on January 20, 2013, the day before Ms. Whilby’s sentencing, the lead investigator interviewed Ms. Whilby. He told her that the Crown and the judge would know, during the sentencing proceedings, that she helped the police.
The Vetrovec Caution
[57] As already noted above, Ms. Whilby’s testimony suffered from numerous frailties. Apart from her conviction for personally importing cocaine into Canada, she was unable to identify the appellants from photo line-ups over the course of the police investigation until she positively identified all three appellants in the days preceding her sentencing hearing. This identification occurred roughly 19 months after Mr. McFarlane and Ms. Bekoe allegedly drove her to the airport, while the prior failed line-ups occurred within 13 months of the drive.
[59] The trial judge explained that Ms. Whilby’s evidence was subject to special scrutiny because she was convicted of bringing a suitcase containing cocaineinto Canada, but maintained her innocence during the appellants’ trial. He also provided the following instruction in relation to her cooperation with the authorities:
Between her conviction and her sentencing, including on the day before her sentencing, Ms. Whilby met with RCMP Constable Dionne. In cross-examination, Ms. Whilby denied the suggestion that she made a deal with the police or the Crown that might lighten her sentence in exchange for her cooperation here. She admitted that she was sentenced to two years, less a day, served by house arrest. There is no evidence brought in this court about Ms. Whilby’s sentence other than her evidence. When cross-examined on this issue, Ms. Whilby did not admit that she received a lighter sentence in exchange for her cooperation.
I will caution you now about hearsay briefly and return to it later. Ms. Whilby was cross-examined on a typewritten version of an audio or video recording, it is unclear which, of her conversation with RCMP Constable Dionne the day before her sentencing. The audio or visual recording was not played to you. The portions of that interview that were put to her read aloud are not evidence of the truth of their contents. It was not put into evidence, and Officer Dionne did not testify as to the conversations that were put to Ms. Whilby in cross-examination. Remember, that evidence is that which comes from the witnesses, the exhibits, or admissions. The transcript of the conversation that was put to Ms. Whilby in cross-examination was put there for the purposes of testing her credibility. Ms. Whilby, in the witness box, did not agree with the statements or adopt them as correct. The only purpose to which you can put the cross-examinations is assessing Ms. Whilby’s credibility. In other words, use it to determine the extent to which you believe or rely on or accept her evidence. You may not accept what was reportedly said in that interview as being true.
[60] The appellants argue that the trial judge’s instruction on hearsay was misplaced, as it distracted the jury from the fact that Ms. Whilby cooperated with the police and was led to believe that doing so would result in a lesser sentence. Instead, the instruction improperly discussed hearsay, focusing the jury’s attention on whether Ms. Whilby in fact received a lesser sentence, which, the appellants submit, was irrelevant to her state of mind when she identified the appellants and the reliability of those identifications.
[61] I accept this submission.
[62] As the Supreme Court explained in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, a proper Vetrovec caution will generally explain to the jury why the evidence at issue is subject to special scrutiny: at para. 37; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14; R. v. Maestrello, 2019 ONCA 952, 383 C.C.C. (3d) 236, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 34. In addition to her conviction for the underlying importing offence, Ms. Whilby testified about her cooperation with the authorities on the eve of her sentencing. She denied that she did so to receive any benefit. However, in cross-examination, defence counsel put transcripts from Ms. Whilby’s police interview to her. She agreed that the lead investigator described the effect of her cooperation with the authorities in the following terms:
CONSTABLE DIONNE: We, um, we, we had, we were able to add that. Um, but I mean, like tomorrow, tomorrow is a big day for you and hopefully what we did today is going to help you. Like I said, I cannot promise, but for sure the Crown and the judge does. They’re going to be aware that you helped us. Okay? [Emphasis added.]
[63] She conceded in cross-examination that the allusion to her “big day” referred to her impending sentencing hearing.
[64] The trial judge fell into legal error in characterizing the excerpt above as hearsay. The excerpt was not proffered for the truth of its contents. It was immaterial whether the trial judge and trial Crown actually learned of Ms. Whilby’s cooperation with the authorities, or whether her cooperation actually resulted in a lesser sentence. The purpose of this section of Ms. Whilby’s cross-examination was to demonstrate that on the eve of her sentencing, Ms. Whilby had every reason to believe that she would benefit from cooperating with the authorities – even if doing so meant lying or identifying innocent suspects.
[65] Although it was open to the trial judge to instruct the jury that Constable Dionne’s statement could not be used for the truth of its content, the hearsay instruction effectively mischaracterized the evidence by not recognizing that Ms. Whilby accepted that Constable Dionne had told her that the Crown and the Court would be aware that Ms. Whilby had helped the prosecution, and that this would hopefully help her in her sentencing. The hearsay aspect of the statement was irrelevant to the necessary Vetrovec caution, and the focus on hearsay, and the related failure to explain the significance of the statement being made detracted considerably from the trial judge’s obligation to explain to the jury which circumstances brought Ms. Whilby’s credibility into serious question. The instruction could only have generated confusion about whether Ms. Whilby’s motive to cooperate with the authorities was or was not a factor in weighing her credibility. The trial judge’s instruction distracted the jury from considering one of the main reasons why Ms. Whilby’s evidence was subject to special scrutiny.
[66] In this respect, the trial judge fell into legal error. Because of the centrality of Ms. Whilby’s evidence to the Crown’s case against all three appellants, this error in the Vetrovec caution necessitates that the convictions of all three appellants be quashed, and new trials ordered on all counts....The
The Eye-Witness Evidence
[76] The crux of the Crown’s case against Ms. Bekoe and Mr. McFarlane was Ms. Whilby’s eyewitness identification of these two appellants from her drive to the airport.
[77] Ms. Bekoe and Mr. McFarlane argue that the trial judge’s caution on Ms. Whilby’s eyewitness identification evidence was deficient in that it relied on boilerplate from specimen jury instructions, raising a number of irrelevant factors and failing to give due prominence to others that directly affected the reliability of Ms. Whilby’s evidence. In particular, Ms. Bekoe and Mr. McFarlane argue that the trial judge should have drawn the jury’s attention to the fact that Ms. Whilby failed to identify Ms. Bekoe and Mr. McFarlane from a line-up three times in one day 13 months after the drive to the airport, to the lack of evidence on whether Ms. Whilby had provided any descriptions of the appellants to the police before her ultimate identification days before her sentencing, and to the generality of her explanations for having identified the appellants.
[78] I agree. Much like the trial judge’s Vetrovec caution, his discussion of eyewitness identification effectively deprived the jury of a proper understanding of the dangers of Ms. Whilby’s evidence.
[79] The jurisprudence has long recognized the potential risks of eyewitness identification evidence, requiring special scrutiny from triers of fact: R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 19; R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 29. In most cases, the danger is an honest but inaccurate identification by a credible and confident witness: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 14; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 52. Trial judges enjoy significant discretion in crafting an appropriate caution, but where the evidence contains significant frailties, the trial judge must identify these specific frailties rather than rely upon boilerplate instructions: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 78.
[80] This was not the typical eyewitness identification case. The danger was not only – or not primarily – that Ms. Whilby would honestly identify the wrong suspects, but that Ms. Whilby could not be trusted to identify anybody. This was very much a case that required a bespoke instruction on the specific frailties of Ms. Whilby’s eyewitness evidence. Instead, the jury received a lengthy caution that largely recited specimen jury instructions which raised factors that had no basis in the evidence, such as whether Ms. Whilby had compromised vision, or whether anything impaired her ability to observe the appellants, or whether she had seen other photos of the appellants in other contexts.
[81] The jurisprudence cautions trial judges to remain alive to badges of unreliability in a witness’s identification of an accused: Jack, at para. 29. In this case, one important badge was the lack of any evidence concerning Ms. Whilby’s prior descriptions of the appellants, followed by her subsequent generic explanations for why she chose their photos from the line-ups. The trial judge failed to draw sufficient attention to these frailties in the evidence.
[82] On the subject of the lack of a prior description, the trial judge told the jury the following: “In this case, it is unclear whether Ms. Whilby gave a description to the police of the three accused. You may consider whether she must have given descriptions in order that the RCMP could assemble the photo arrays.”
[83] I agree that this framing of the issue was improper. It tipped the scales in favour of the reliability of Ms. Whilby’s ultimate identification, as it permitted the jury to infer an indicator of reliability from an absence of any evidence. Further, as this instruction was given immediately after standard instructions concerning the evaluation of the impact of a prior description, it effectively undervalued the important role a prior description plays in permitting a trier of fact to assess the reliability of a subsequent identification through comparison of the original description to the person identified.
[84] The impact of this error was heightened with respect to Ms. Bekoe, as the RCMP may well have identified Ms. Bekoe as a suspect on the basis of the credit card associated with the Diggzz BlackBerry, not from any identification by Ms. Whilby. Indeed, the first photo line-up featuring a photo of Ms. Bekoe took place roughly two months after the BlackBerry production order yielded the credit card evidence.
[85] The trial judge’s treatment of the lack of any prior description of Ms. Bekoe and Mr. McFarlane as a non-issue persisted when the jury asked a question about how the police got Mr. McFarlane’s name and picture. The trial judge told the jury that “[t]here is no evidence before you as to how the police got any of the accused’s names and pictures” and he reminded the jury that the record in any criminal prosecution rarely answers every question one might have about the facts. With respect, this instruction was also deficient, as it seemed to validate what was in reality a troubling aspect of the circumstances surrounding Ms. Whilby’s identification of the appellants.
[87] The trial judge instructed the jury to consider the traits Ms. Whilby wrote on the back of the photo of the appellants. A proper instruction would have pointed out that the descriptions were generic: Jack, at para. 16. Although the appellants have not alleged that Ms. Whilby failed to mention some distinctive characteristics of their appearances, as was the case in R. v. Yigzaw, 2013 ONCA 547, 301 C.C.C. (3d) 266, at para. 63, I am satisfied that the trial judge erred in failing to acknowledge that Ms. Whilby’s descriptions of the appellants gave little reason to believe her identifications were reliable.
[88] Finally, given the frailties in Ms. Whilby’s evidence, the trial judge ought to have cautioned the jury that the repeated in-court identifications of the appellants by Ms. Whilby, which the Crown elicited, were entitled to little weight: Yigzaw, at para. 71; Hibbert, at para. 50; R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 93.
Conclusion
[91] It is immaterial that defence counsel failed to object to the aspects of the jury charge that are at issue in this appeal. I am satisfied that these errors left the jury “inadequately equipped to properly evaluate important evidence”: R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 56. Irrespective of any oversight by their lawyers, the appellants were entitled to a fair trial, and there was no tactical advantage to be gained from the failure to object: Phillips, at para. 31.
[93] I would allow the appeals. I would set aside the convictions of the appellants and order new trials on all counts.
R v Roth, 2020 BCCA 240
[August 27, 2020] Complainant Credibility - The Significance of Unresolved Inconsistencies on Matters Outside the Alleged Criminal Act - Reliance on Improper Cross-Examination for Credibility - Speculation on the Basis of Stereotypical Assumptions [Reasons by Madam Justice DeWitt-Van Oosten, with Mr. Justice Harris, Madam Justice Fenlon Concurring]
AUTHOR’S NOTE: Often judges in domestic assault or sexual assault matters, when faced with inconsistencies on issues not directly about the act of assault simply ignore different versions on the basis that the issues are peripheral or unimportant to the determination of whether the crime happened. Here, the BCCA indicates that these sorts of inconsistencies are important to the determination of credibility. Ultimately, significant inconsistencies in parts of the account that are not the actual assault itself have to be resolved by the trial judge. Failure to do so can result the matter being overturned for uneven scrutiny of the evidence. Here, the Court of Appeal called these "external inconsistencies" with the evidence of other witnesses. While there was some connection to the acts temporally, as in most sexual assault cases, none of them involved the sexual acts in question.
Reliance on improper cross-examination to make credibility findings can be a source of legal error as well. Here, one of the issues was the interruption of a witness's examination by the questioner; a single interrupted question can become important especially when the answer is relied on by the trial judge. Another was asking the Appellant to explain other people's evidence.
Finally, use of stereotypical assumptions to make negative credibility findings is wrong in law. Here, the trial judge used the fact that the appellant was a fit man to find an inconsistency between kissing in the cab ride and falling asleep at the end of it. The suggestion being that a fit man would not fall asleep after engaging in the kissing.
Overview
[2] The fact of sexual activity was not in dispute. The issue at trial was whether the activity was consensual. The trial judge’s credibility findings were critical to that analysis.
Trial Evidence
[7] The appellant and complainant ran into each other at a nightclub in downtown Prince George. They knew one another, as the appellant was a high school friend of the complainant’s brother. Both had been drinking. By the time they met up, the complainant had consumed about six rum and cokes. The appellant had consumed six beers. The complainant had two or three more drinks at the nightclub; the appellant testified that he had four more drinks.
[8] They chatted and danced together. The complainant said that while dancing, the appellant tried to kiss her. She turned her head away and told him not to. The appellant said the kissing was mutual. A witness at the club testified that he saw the appellant try to kiss the complainant several times and that she was “constantly putting her head down”. However, towards the end of the evening, it appeared to the witness that she kissed him back.
[9] The nightclub shut down at around 3:00 a.m. The complainant and appellant agreed to share a cab. The appellant said there was mutual kissing while waiting for the cab. The complainant said there was a kiss, but it was one-sided and initiated by the appellant.
[10] The complainant provided the cab driver with directions to her residence. She testified that while in the cab, the appellant initiated sexual contact, trying to kiss her and putting his hand inside her pants. She resisted, pushing his hand away. The appellant said there was mutual touching throughout the cab ride, which included the complainant touching his penis.
[11] When the cab arrived at the complainant’s residence, both parties exited. The driver described the complainant as drunk, “but not that drunk”, about a “six out of ten”. The appellant was also “drunk”. The cab driver put him at “eight out of ten”. The complainant described the appellant as “definitely more intoxicated” than she was. When the cab pulled into the driveway, the driver noted that the appellant was a “little bit sleepy”. The complainant had to wake him up so that he could pay the fare.
[12] The complainant and appellant provided starkly different versions about what happened next.
[13] The complainant said she thought the appellant would carry on to his residence. She went into her house. A couple of minutes later, she looked out her living-room window and saw that the appellant was standing in the driveway. Because she was concerned he was intoxicated and would “freeze” out there, she invited him into her house and showed him a spare bedroom in which he could spend the night. She then went to her bedroom, which was downstairs.
[14] She said that while she was undressing, the appellant came into her room, pushed her onto the bed and sexually assaulted her. This included ripping off her underwear and holding her hands above her head while removing his pants and getting on top of her. She repeatedly told him “no” and to stop. The appellant did not respond. She tried to free her hands and wriggle out of his grip, but he was strong.
[15] The sexual assault included vaginal intercourse, forced fellatio, and an attempt at anal intercourse. The complainant testified that she did not want to have sex, that she was tense and not lubricated. The vaginal and anal penetration were painful. It felt like her vagina was “getting ripped”. The complainant stopped resisting because she felt “paralyzed” and thought that if she let the appellant do what he wanted, the assault would stop. Eventually it did stop, without the appellant reaching orgasm. He rolled over and appeared to pass out or fall asleep.
[16] The complainant said that after she got home, she realized she had left her phone in the cab. She testified that during the sexual assault, she asked the appellant if she could use his phone to call the cab. He agreed but told her not to call anyone else. She called her phone. The cab driver answered and said he would bring the phone back to the residence. The driver testified that when he arrived, he waited for five minutes, but no one came to the door. He left. The complainant said she did not get to the door in time because the appellant prevented her from doing so.
[17] She said she then convinced the appellant to let her call again. She told the appellant “basically anything that [she] thought that he wanted to hear” to get use of his phone, including that she would not tell the driver about what was happening and that she would come straight back downstairs. The driver agreed to return to the residence a second time. When the complainant went to the front door to retrieve the phone, the appellant was watching her from the door to the downstairs bedroom and had told her that she had to come back downstairs. She complied because she was afraid of what might happen if she did not do what he asked. She did not say anything to the cab driver about what was going on. When she got back downstairs, the sexual assault continued.
[19] He testified that after exiting the cab, he went into the residence with the complainant. She realized she had left her phone in the cab and she used his phone to arrange for the driver to bring it back. They sat on the couch, kissing and touching each other. The complainant stood up, grabbed his hand, and led the appellant downstairs to her bedroom.
[20] The appellant said that once they were in the bedroom, they had consensual vaginal intercourse. There was no resistance from the complainant. To the contrary, she was “jumping up and down” while on top of him and “moaning”. He said there was no difficulty with the vaginal intercourse. He acknowledged spitting on his hands several times to lubricate his penis, but said this is his “general practice”. He said the complainant did not indicate that she was in pain during the vaginal intercourse.
[22] The appellant said once the complainant returned with the phone, they continued to have vaginal sex. At some point, his penis came out of the complainant’s vagina “by mistake”. She reached around and grabbed it, guiding it to her anus. They made an attempt at anal sex, but she told him that it hurt. He stopped having intercourse, without ejaculating, lay down beside the complainant and fell asleep.
[23] The complainant testified that once the appellant was asleep, she ran out of the bedroom with her phone, grabbed her two dogs and locked herself in the bathroom. She said she was crying hysterically and having a hard time breathing. She called various friends or acquaintances for help.
[24] Some of these people attended the residence. One of them said that when she answered the complainant’s phone call, the complainant was “sobbing” and the witness “could barely understand her”. When that witness arrived at the residence, the complainant met her at the front door. They went upstairs and the witness stayed with the complainant in the bathroom. The complainant was crying and shaking, and appeared scared.
[25] Other of the people who arrived at the residence went down to the complainant’s bedroom. They found the appellant on the bed. He was naked and lying on his stomach. There was an extreme odour of alcohol on his breath, “[l]ike a brewery”. With some difficulty, they woke the appellant. A physical altercation ensued, with some of these individuals throwing punches at the appellant. They removed him from the house, wearing only his pants and without shoes. At some point, he came to a door at the back of the house and asked for his shoes and shirt. Once provided, the appellant left.
[26] The appellant testified that after falling asleep on the complainant’s bed, he next remembered being in a lot of pain, with his arm twisted behind his back. He was “given a beating”. He then recalled being in the backyard, lying in the snow and wearing only his pants. He walked up to a door of the residence, begged for his shoes and shirt, and walked to a friend’s house. His friend helped him clean up and called the appellant’s father. This same friend also reached out to the complainant, asking what happened. She denied having seen the appellant after the nightclub. When informed he had been beaten, the complainant told the witness she was unaware of that fact.
[27] The appellant’s father testified that when he retrieved the appellant, the latter was bleeding from his head. He was shaking and “shivering uncontrollably”. It was approximately 7:30 a.m. The appellant seemed “very wide awake” and was not intoxicated. Later that morning, the appellant’s father went to the complainant’s residence, asking about what happened to his son and for the return of the appellant’s wallet and phone. Initially, the complainant said she had not seen the appellant. The appellant’s father threatened to call the police. The complainant subsequently acknowledged that the appellant had been at her house and said “he was rough with [her]”. She testified she told the appellant’s father that the appellant had been “extremely forceful with [her] when [she] didn’t want it”.
[28] ... The doctor did not see any abnormalities inside the vagina. He acknowledged that the vaginal abrasion could be caused by “vigorous intercourse” or “rough sex”. The anus is more susceptible to injury and an abrasion can result from something put in the anus only once. The doctor testified that both of the abrasions would hurt and opined it is unlikely that a person who sustained those forms of injury would continue to have intercourse because it would be very painful. This would probably be the case even if the person was intoxicated.
Judge's Error in the Credibility Assessment
[46] The judge correctly instructed herself on the W.(D.) framework. The appellant does not suggest that she misunderstood the governing principles. Instead, he takes issue with her application of those principles. The appellant contends that the credibility findings underlying the W.(D.) determination were unfairly skewed in favour of the Crown.
[47] It is an error of law for a trial judge to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown....
[48] The standard of review for this error is correctness: Mehari at para. 30; Willis at para. 11.
[49] This is a notoriously difficult ground of appeal to make out: Mehari at para. 31; R. v. Radcliffe, 2017 ONCA 176 at paras. 23–26, leave to appeal to SCC ref’d, 37671 (7 December 2017). A trial judge has a unique advantage in hearing and seeing witnesses as they testify: E.H. at para. 44. Because of that fact, as well as other considerations, appeal courts afford substantial deference to a trial judge’s assessment of credibility, interfering with their credibility findings only in the face of overriding and palpable error: R. v. Wright, 2019 BCCA 327 at paras. 23–24; R. v. Vuradin, 2013 SCC 38 at para. 11.
[52] as stated in Gravesande, an appellant must:
19 … identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge's credibility assessments: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362 (Ont. C.A.), at para. 98.[Emphasis added.]
[54] More specifically, I find that the credibility assessment as between the appellant and the complainant was rendered uneven by three errors in principle:
a) the trial judge adversely assessed the appellant’s evidence using speculative reasoning;
b) her credibility assessment relied upon the fruits of improper cross-examination; and,
c) the judge failed to appreciate significant inconsistencies and contradictions involving the complainant’s evidence and to resolve them before accepting the complainant’s evidence as proving non-consent.
Use of Speculative Reasoning
[56] One of the reasons provided for rejecting the appellant’s testimony was the judge’s conclusion that the evidence of the appellant falling asleep in the cab (observed by the driver), was inconsistent with his description of “kissing and mutual sexual touching” for the duration of the ride (RFJ at para. 41). The judge found it “makes no sense” that the appellant would fall asleep given the ongoing sexual activity described by him, his testimony that he was not drunk and, in particular, his evidence that “he was a fit and healthy young man who regularly worked out and trained as a power lifter …” (at para. 42).
[58] As the cross-examination unfolded, the Crown made use of the appellant’s training as a powerlifter to challenge various aspects of his testimony.
[64] The appellant is correct that as a matter of legal principle, it is wrong for a judge to make a negative credibility finding based on a “stereotypical assumption or generalization” that is lacking in an evidentiary foundation: R. v. Kodwat, 2017 YKCA 11 at para. 41; R. v. Thompson, 2019 BCCA 1 at paras. 52–69; R. v. Quartey, 2018 ABCA 12 at paras. 2, 21, aff’d 2018 SCC 59.
[65] Moreover, although judges are entitled to rely on their human experience in assessing the plausibility of a witness’s testimony, they must avoid speculative reasoning that invokes “common sense” assumptions not grounded in the evidence: R. v. Cepic, 2019 ONCA 541 at paras. 19 –27; R. v. Perkins,2007 ONCA 585 at paras. 30–42.
[66] I do not agree with the appellant that in assessing his credibility, the judge relied on “stereotypes of male behaviour”. In my view, that submission overreaches. However, the reasons for conviction do reveal a speculative assumption about this appellant’s ability to sustain prolonged physical effort based on his training as a powerlifter. Moreover, that assumption played an integral role in disbelieving the appellant’s narrative about sexual interaction during the cab ride.
[68] The judge found the appellant’s assertion of active mutual touching throughout the cab ride logically irreconcilable with falling asleep at the end of it. That inconsistency weighed against the appellant in the credibility assessment. It is clear from the judge’s reasons that the fact the appellant was someone who regularly worked out and trained as a powerlifter played a material role in the determination. Implicit in the judge’s analysis is the assumption that because of the appellant’s level of fitness as a powerlifter, he would not have fallen asleep had there been the type and duration of sexual interaction that he described in his evidence.
[69] Respectfully, I fail to understand this reasoning.
[70] There was no evidence that people training as powerlifters, including the appellant, are somehow less susceptible to the effects of fatigue resulting from a long day, physical activity and the consumption of alcohol, or that active sexual touching and brief sleep at the end of a cab ride cannot logically co-exist....
[73] In assessing the credibility of testimony, a trial judge is entitled to draw inferences that “flow logically and reasonably from established facts”: R. v. MacIsaac, 2015 ONCA 587 at para. 46. When inferences reflect conjecture and speculation, based on stereotypical reasoning, a generalization about a particular role or type of individual, unfounded assumptions or otherwise, it amounts to legal error: MacIsaac at para. 46, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.) at 530–531; R. v. Pilkington, 2019 BCCA 374 at paras. 20–21. In my view, that is what occurred here and it tainted the judge’s credibility assessment.
Relying on Improper Cross-Examination
[75] The judge also found that the appellant’s evidence was “contrived and self-serving” (RFJ at para. 48). As support for that conclusion, she pointed to the fact that the appellant “admitted that he had described vaginal intercourse with [the complainant] as vigorous because Dr. Byrne had used that term to describe the mechanism of injury to her vagina” (at para. 48).
[77] The judge found that in describing the sexual interaction as “vigorous”, the appellant deliberately chose a word that aligned with the doctor’s evidence, presumably to maximize the benefit of the expert’s acknowledgment that “rough” (but consensual) sex could cause the type of injuries sustained by the complainant. Indeed, the doctor’s evidence on this point was highlighted by the defence in closing submissions:
… the doctor said that vigorous sex can -- can cause the lesions that he ultimately found. In other words, the doctor’s saying the two lesions he did discover are as consistent with vigorous sex as they are with an alleged sexual assault, although he normally only sees people who come to him who are complaining of sexual assault.
[84] However, I agree with the appellant that the manner in which the subject of intoxication was explored in the appellant’s cross-examination was problematic because it was bound up with demands made of him that he explain the evidence provided by others, or that he comment on the veracity of their testimony. Examples include the following:
Q: These guys who testified at this trial about you being intoxicated, smelling like a brewery, the cab driver, [the complainant] -- all these people who testified that you were drunk -- they’re all -- they got it wrong?
…
Q: Why would the cab driver say you were an eight out of ten drunk?
…
Q: How do you explain the evidence of these guys down in the house, about the smell on your breath, about your behaviour? How do you explain that? Do you dispute their evidence on that point?
…
Q: And I’m talking about the totality of the evidence; right? We have [J.C.], who you would agree, based on his evidence, clearly has a lot of experience with intoxicated people; right?
A: He does, yes.
Q: Yeah. He said you were drunk?
A: He also said that I did not act like a drunk person.
Q: Right. He said you acted like a high, drunk person?
A: That’s what he said, yes.
Q: Yeah. How do you account -- like, do you dispute their evidence, that you appeared like you were intoxicated when you woke up?
[Emphasis added.]
[85] Appellate courts have long considered this type of questioning to be improper. For one, questions that ask an accused person to explain or account for the evidence of other witnesses tend to “shift the burden of proof from the Crown to the accused”: R. v. Ellard, 2003 BCCA 68, at paras. 21–22; R. v. Belcourt, 2019 2019 BCCA 435 at para. 69; R. v. M.F.T., 2012 BCCA 428 at para. 41. In so doing, they carry a substantial risk of unfairly prejudicing the trial process.
[90] That brings me to the use of the word “vigorous”.
[92] As stated, in finding that the appellant was not a credible witness, the judge took into account the fact that he “admitted that he had described vaginal intercourse with [the complainant] as vigorous because Dr. Byrne had used that term to describe the mechanism of injury to her vagina” (RFJ at para. 48, emphasis added).
[93] I agree with the appellant that the judge went too far with this finding. I say that for two reasons: (1) although the appellant acknowledged using the word “vigorous” because the doctor did, he did not say it was because of (or intended to align with) the doctor’s testimony about the mechanism of injury; and (2) the appellant’s answer in cross-examination was interrupted by Crown counsel and therefore incomplete. As such, it is not at all clear what the appellant intended by the use of the word “vigorous”, vis-à-vis the doctor. He was about to provide an explanation, but that did not occur.
[96] However, there are cases in which a single interrupted answer may carry significance, even when considered in the context of the entirety of the record, because of the role the answer plays in the judge’s analysis. R. v. Luk, 2016 BCCA 403 exemplifies this point. There, the prosecutor’s interruption of the only defence witness during cross‑examination, which prevented the witness “from clarifying a point central to the entire case” (at para. 37), was found to warrant a new trial. Moreover, the absence of an objection by defence counsel did not prevent that outcome. Credibility was a significant issue in Lukand the witness’s testimony was rejected because of an inconsistency he was not given an opportunity to explain (at para. 39). Consequently, the Court found a “real appearance” of trial unfairness (at para. 41).
[97] This case is not on all fours with Luk. There are factual distinctions, and the answer at issue here was not the “lynchpin of [the judge’s] rejection” of the appellant’s evidence (at para. 38). However, I find the principles discussed in Luk instructive.
[98] Here, the appellant was interrupted while responding to a question that was intended to challenge the veracity of his assertion that he had consensual, albeit vigorous, intercourse with the complainant. Consent was the main issue at trial. The Crown’s question implied that in using the word “vigorous”, the appellant had intentionally engaged in testimonial artificiality. The answer to the question was incomplete. An adverse inference was then drawn from the incomplete answer, consistent with the Crown’s theory about the appellant’s use of the word, and it is clear from the reasons for conviction that the adverse inference played a not-insignificant role in the judge’s finding of “contrived and self‑serving” testimony (RFJ at para. 48). I agree with the appellant that in these circumstances, reliance on the interrupted answer tainted the judge’s credibility assessment.
Inconsistencies in the Complainant's Evidence
[99] In a prosecution for sexual assault, whether the Crown has proved the absence of consent is determined subjectively, “by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 26. If the trial judge believes the complainant’s statement that she did not subjectively consent to the sexual contact, the Crown will have met its burden on this element of the offence (at para. 29).
[100] Whether a judge accepts an assertion of non‑consent is “a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct” (Ewanchuk at para. 30). As such, in defending a charge of sexual assault, it “is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place” (at para. 29). In deciding that claim, the trial judge will consider “whether the totality of the complainant’s conduct is consistent with her claim of non‑consent” (at para. 30).
[105] However, on the record in this case, the appellant has persuaded me that the reasons for conviction, read as a whole, reflect a failure to appreciate and resolve a number of inconsistencies and contradictions involving the complainant’s evidence that carried significance to the overall credibility assessment.
[108] However, when assessing the complainant’s credibility, the judge focused predominantly on internal inconsistencies (by which I mean, inconsistencies within the complainant’s testimony, or between her testimony and statements made before trial).
[109] Defence counsel cross‑examined the complainant on various pre‑trial statements (RFJ at paras. 51–54). The judge found that the complainant’s testimony on those points:
[55] … was not material or inconsistent with the more significant parts of her evidence. After listening to her evidence and observing her demeanour when she was asked about these prior statements, it appeared to [the judge] that [the complainant] was genuinely attempting to tell the truth. She was not defensive or evasive when inconsistencies were pointed out and she seemed to be trying to search her memory. She admitted that she was a little drunk on the night of the incident and she readily admitted that she had been “beating herself up” because she was having difficulty recalling the precise sequence of events. She also readily admitted, on several occasions during cross-examination, that she could not remember certain details.…
[57] The inconsistencies in [the complainant’s] evidence pointed out by defence counsel on cross‑examination were generally minor and easily explained by the ordinary frailties of memory and the circumstances of the described incident. In my view, those inconsistencies do not compromise [the complainant’s] credibility with respect to the core allegation.[Emphasis added.]
[110] There is no indication in the credibility analysis that the judge substantively considered any external inconsistencies—contradictions between the complainant’s evidence and the testimony of other witnesses—other than to recognize, generally, that the evidence of the appellant and the complainant was “diametrically opposed on the issue of consent” (RFJ at para. 34).
[111] The judge found the complainant’s testimony to be consistent with the cab driver’s description of the appellant’s level of intoxication, the doctor’s evidence about the vaginal and anal lesions, and the observations made of the complainant’s emotional state by witnesses who attended her residence after the fact. However, as explained in R. v. S.(D.D.), 2006 NSCA 34, the judge was obliged to look:
51 … at all of the evidence not simply to see if there was other evidence which supported and enhanced that of the complainant, but also to determine if there were evidence that contradicted or tended to contradict that of the complainant; and more importantly, whether that evidence, or lack thereof, created a reasonable doubt.
Cited with approval in Willis at para. 44; emphasis added.
[113] First, the complainant’s description of events in the cab ride and the observations of the cab driver were prima facie inconsistent. 2 In direct examination, the complainant testified that after she and the appellant got in the cab, they did not talk a “whole lot” or do anything else. Then, at one point during the drive, the appellant tried to touch the complainant on her legs. He also tried to put his hands down her pants (twice). She said she pushed his hand away and told him not to do that. The appellant also tried to kiss her. She pulled away before his lips made contact with her. In cross-examination, she acknowledged, based on her testimony at the preliminary inquiry, that she voluntarily “hugged” the appellant in the cab. However, she said that happened only once.
[114] The cab driver testified that he heard “kissing sounds” coming from the back of the cab and that his seat was “scratching”. He believed the scratching was because of knees or shoes against the back of his seat. He testified that the kissing sounds lasted for “[m]ost part of the trip …”. He missed the turn to the complainant’s street “because they were kissing or something that time …”. At no point did he hear anyone say “stop” or words to that effect. The cab was a “small car” and if someone in the back seat had been saying those sorts of things, he would have heard it “[f]or sure”.
[115] A second external inconsistency emerges from the complainant’s testimony about what happened when the cab arrived at her residence. The cab driver testified that the appellant and complainant did not exit the cab until after the appellant paid the fare using a credit card. When they arrived at the residence, the complainant was pushing the appellant, telling him to wake up and pay for the ride. Once the fare was paid, the two of them got out of the cab and the driver left.
[121] There was also a significant internal inconsistency involving the complainant’s evidence that finds no mention in the judge’s reasons on credibility, relating directly to the manner in which the appellant was said to have forced the sexual activity in the bedroom.
[123] At the hospital, the complainant described the sexual interaction to the examining doctor. She said the appellant held her down by putting his hand over her throat and holding down her hands. Contrary to her testimony, she told the doctor that her hands were held “down by her side”. Defence counsel asked the complainant about that description in cross-examination. She said it was a “mistake” and the result of being tired.
[124] As noted, the judge acknowledged that the complainant’s evidence “was not without its problems”; however, she characterized those problems as “generally minor” and found that they related only to “peripheral” matters (RFJ at paras. 51, 52, 57). In my view, the external and internal inconsistencies highlighted in these reasons were not minor. Nor were they restricted to peripheral matters. In collectively casting the frailties with the complainant’s evidence as she did, I can only conclude that the trial judge failed to appreciate the nature and extent of some of those inconsistencies, and their materiality.
[125] The problematic parts of the complainant’s evidence, highlighted here, did not involve her testimony on the primary fact in dispute, namely, her assertion that she did not subjectively consent to the sexual activity at the time it occurred. However, the inconsistencies were nonetheless material to assessing the complainant’s overall credibility and the reliability of her testimony, including, indirectly, her testimony on the issue of consent. The inconsistencies were tethered to evidence relevant to the extent and mutuality of sexual interaction during the cab ride, the dynamics surrounding the appellant’s entry into the complainant’s home, the degree of control the appellant exerted over the complainant during the sexual interaction and while in her home, and the complainant’s fear. If the judge found that the complainant lacked sincerity or honesty on the latter aspects of her evidence, although certainly not determinative, those findings could assist in evaluating and weighing the evidence specific to the principal issue at trial, namely, consent. For a helpful discussion on the meaning of materiality, see David M. Paciocco, “‘Truth and Proof’: The Basics of the Law of Evidence in a ‘Guilt-Based’ System” (2001), 6 Can. Crim. L. Rev. 71 at 86.
[126] Evidence contradicting the complainant’s description of one-sided sexual touching in the cab, and the absence of kissing, could affect the credibility of her testimony that throughout her interaction with the appellant in the cab, the appellant was the one who initiated the sexual contact; the contact was unwanted; and the complainant physically and verbally resisted.
[127] Evidence inconsistent with the complainant’s testimony that she exited the cab, said goodbye and then entered her residence alone, seeing the appellant only once she looked out her front window, could affect the credibility of her description of the nature of the dynamics between the complainant and the appellant upon arrival at her home. The complainant testified that she expected the appellant to carry on to his own residence. Evidence that she waited in or outside of the cab while the appellant paid the fare, and that they then entered the house together, is arguably also consistent with a different expectation and intention.
[128] Contradictions between the testimony of the cab driver and the complainant surrounding the return of her phone also carried significance to assessing the complainant’s credibility. This portion of the evidence included the fact that the complainant did not say anything to the cab driver about what was occurring in the residence.
[131] On this point, I agree with the comments of professor Lisa Dufraimont in “Myth, Inference and Evidence in Sexual Assault Trials”, (2019) 44 Queen’s L.J. 316 at 353:
Criminal courts … carry the heavy responsibility of ensuring that every accused person has a fair trial. Subject to the rules of evidence and the prohibition of particular inferences, this requires that the defence generally be permitted to bring forward all evidence that is logically relevant to the material issues. Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible. Indeed, sweeping prohibitions that would rule out any consideration of particular forms of evidence are avoided as inconsistent with the accused’s right to make full answer and defence and with our overall approach to finding facts. Outside the prohibited lines of reasoning identified as myths, relevance remains an elastic concept that leaves a wide scope for reasoning from logic and human experience.
[Emphasis added; internal references omitted.]
[136] Objectively assessing a complainant’s conduct in the context of the particular facts of a case, for a demonstrably proper and articulable purpose, does not constitute error. This is so even where that conduct may involve the complainant’s reaction to an alleged sexual assault: R. v. Durocher, 2019 SKCA 97at paras. 106–112.
[137] In this case, contradictions in the evidence surrounding the return of the complainant’s phone could affect the credibility of her assertion that although she adverted to asking the driver to call police, she could not (and did not) do so because she was afraid that the appellant would get angry and react negatively towards her. The effect of her testimony was that, while at the door, the complainant was under the appellant’s continued control, he was monitoring her from the bottom of the stairs, and it was not until the appellant eventually fell asleep that there was opportunity for her to safely extricate herself and reach out for assistance. On the driver’s evidence, the complainant was beyond the appellant’s reach when speaking with him outside of the home; she had broken free of his ability to monitor her interaction with the driver; she had someone immediately available to her and away from the appellant for the purpose of assistance; and, objectively, she had an opportunity to extricate herself.
[138] In this context, if the cab driver’s evidence was accepted, then the failure to say anything to him about the appellant’s conduct carried relevance in assessing the complainant’s credibility and the reliability of her narrative. Not because one would expect a complainant to reach out whenever sexual activity is non‑consensual. That would constitute impermissible reasoning. Rather, the relevance of the complainant’s behaviour to the credibility assessment lies in the juxtaposition between the driver’s evidence of her as being out of the home and therefore beyond the appellant’s reach, and the complainant’s description of continued control by the appellant that effectively rendered her unable to seek assistance, even though she turned her mind to doing so.
[140] On balance, the absence of a demonstrated appreciation for, and grappling with, the inconsistencies and contradictions noted here supports the appellant’s submission that in making her credibility findings, the judge applied a more rigorous scrutiny to the defence evidence than to that tendered by the Crown.
[142] Failing to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence can be indicative of uneven scrutiny: Mehari at para. 34; Willis at para. 44. In my view, that is what happened here. There were significant inconsistencies and contradictions involving the complainant’s evidence that the trial judge did not appear to consider, or, if she did consider them, there is no indication that she resolved them in a substantively meaningful way. Once combined with the speculative reasoning in assessing the appellant’s credibility, and the judge’s unfortunate reliance on improper cross‑examination, the overall effect is sufficient to displace the high deference afforded to credibility findings.
[145] There, it was noted that where a defence primarily rests on the overall lack of credibility and reliability of a complainant’s testimony (which was clearly the case here), it is “incumbent” upon the trial judge to explain—even in succinct terms—how she resolved significant difficulties with the evidence (Dinardoat para. 29). An accused person is “entitled to know why the trial judge is left with no reasonable doubt”: R. v. H.(D.), 2016 ONCA 569 at para. 35. Whether a judge has fulfilled that obligation will necessarily involve a case-by-case determination, with reference to the record as a whole. In this case, I am satisfied the absence of an indication that the judge recognized and grappled with significant inconsistencies involving the complainant’s evidence supports the appellant’s claim of uneven scrutiny.
[148] This appeal is not about whether the trial judge should have rejected the appellant’s evidence or should have found that it did not raise a reasonable doubt. It is not about whether the judge rightly accepted the complainant’s version of events, including her assertion that she subjectively did not consent to the sexual activity. Instead, the only question decided here, is whether the judge took a balanced approach to the process by which she arrived at her credibility findings.
Conclusion
[151] For the reasons provided, I would allow the appeal under s. 686(1)(a)(ii) of the Code based on an error of law, set aside the conviction for sexual assault, and order a new trial.
[152] Appropriately, given the nature of the errors advanced in this appeal, the Crown did not invoke the curative proviso under s. 686(1)(b)(iii).
R v McFarlane, 2020 ONSC 5194
[August 31, 2020] – Definition of Record under s.278.1 = Records obtained other than Through Disclosure or Mills Application [Stribopoulos J.]
AUTHOR’S NOTE: The Ghomeshi amendments to the criminal code continue to be ironed out in the lower courts. Here the Crown took the position that the Defence could not use a letter written by the complainant which had been provided in disclosure to the Defence. The Court disagreed. Justice Stribopoulos outlined that a record for the purposes of s.278.92 applications is only something that the accused has come into possession or control over through some means OTHER than receipt though Crown disclosure or a successful Mills application.
Overview
[1] Mr. McFarlane is charged with sexual interference, making sexually explicit material available to a child, and luring a child.
[2] The charges stem from allegations that Mr. McFarlane, who, at the time, was thecomplainant's gymnastics coach, touched her inappropriately. And that he also sent a photograph of his genitals to the complainant through social media.
[3] In advance of trial, defence counsel, Ms. Kerr, brought an application for direction from the court concerning whether various materials qualify as a "record" under s. 278.1 of the Criminal Code. The answer will determine whether the substantive and procedural requirements set out in s. 278.92 to s. 278.94 of the Criminal Code govern the admissibility of these materials at trial.
The Letter at Issue
[6] The complainant wrote the letter, which she addressed to a friend. In it, the complainant expresses her feelings about the accused. The complainant never sent the letter. Instead, she discarded it in the trash inside her home. The complainant's mother retrieved the letter from the trash bin and provided it to the police. The police shared the letter with the Crown. Ultimately, the Crown provided a copy of the letter to defence counsel as part of disclosure.
The Legislative Scheme
[8] Following the preliminary inquiry, on December 13, 2018, Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29 ("Bill C-51") came into effect. It amended the definition of "record" found in s. 278.1 of the Criminal Code. That section now reads:
For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[10] Subsection 278.92(2) sets out the substantive preconditions for the admissibility of records concerning the complainant. The requirements vary depending on whether a record also contains information that would engage s. 276 (evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge). If it does, then admissibility requires meeting the conditions in s. 276(2): Criminal Code, s. 278.92(2)(a). And, in all other cases, a determination that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: Criminal Code, s. 278.92(2)(b). Subsection 278.92(3) then enumerates factors the court must consider when weighing probative value and prejudice under s. 278.92(2).
Legal Interpretation
[18] Under the modern approach to statutory interpretation, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see Re Rizzo & Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at pp. 40-41; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
[19] Accordingly, it would be an error to read s. 278.1 in isolation. Its proper interpretation requires reading it in context. Importantly, it defines "record" "[f]or the purposes of sections 278.2 to 278.92". These sections involve two very different situations that both serve to implicate the dignity, privacy, and security interests of complainants.
[22] Although s. 278.1, read alone, could be understood as reaching the letter at issue on this application, read in the context of the two types of applications to which the definition applies, it does not. I have come to that conclusion for two principal reasons.
[23] First, there is the plain meaning of the text found in s. 278.92(1). It provides that "no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence …" (emphasis added). Parliament could have chosen to express the prohibition in broader language. For example, by providing, "no record relating to the complainant shall be admitted in evidence." Instead, Parliament chose to restrict the admissibility of records to those in the accused's possession or control. If the accused obtains a document as part of Stinchcombe disclosure or because of a successful Mills application, it makes little grammatical sense to describe such a record as being "in the possession or control of the accused."
[24] Second, there is the importance of maintaining coherence between the two types of applications to which the definition of "record" in s. 278.1 applies. Recall that s. 278.2(3) imposes a positive duty on the Crown to keep a "record" relating to a complainant or witness confidential, and only disclose the record's existence to the defence. Consequently, such records should ordinarily not form a part of Crown disclosure under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Instead, the Crown fulfills its disclosure duty concerning such records by disclosing their existence to the accused. After that, production depends on the accused bringing a successful Mills application.
[26] It would make little sense if, once produced after a successful Mills application, the admissibility of such records would then also need to be filtered through the analogous substantive and procedural protections found in s. 278.92 through s. 279.94. The result would be a duplicative analysis and procedure that would achieve little to no appreciable benefit for the complainant. At the same time, it would occasion unnecessary expense and inconvenience for everyone involved and needlessly hamper the efficiency of the criminal justice system. It is difficult to believe that Parliament would have intended such consequences.
[27] Only one interpretation flows from the plain language found in both s. 278.1 and s. 278.92(1), read together, while also maintaining coherence between the regimes governing production and admissibility applications. Section 278.92 only applies to a "record" relating to a complainant that an accused has come to possess or control through some means other than by receiving a copy as part of Crown disclosure or through a successful Mills application.That interpretation is most harmonious with the scheme of these provisions, their object, and Parliament's intention.
Conclusion
[28] With the interpretation settled, I now turn to consider the letter at issue on this application. The Crown provided the letter to the accused as part of disclosure. As a result, it does not qualify as a "record" in the accused's possession or control. Therefore, the letter's admissibility does not depend on s. 278.92(1) of the Criminal Code. Instead, its admissibility at trial turns only on an application of the common law rules of evidence.
