



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(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    that could identify the victim or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 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
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(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)      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.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2017 ONCA 322

DATE: 20170421

DOCKET: C61370

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Martin

Appellant

Kristin Bailey, for the appellant

Kevin Rawluk, for the respondent

Heard: February 21, 2017

On appeal from the conviction entered on May 19, 2015 and
    the sentence imposed on June 24, 2015 by Justice Gisele Miller of the Superior
    Court of Justice.

Miller J.A.:

[1]

The appellant and the complainant had been long-standing friends. They had
    occasionally engaged in sexual activity, but had never understood themselves to
    be in a sexual relationship. On the evening of July 25, 2012, the complainant
    was out with friends to see a movie. She exchanged texts with the appellant,
    and arranged to meet up and go to his home. They ended up watching a video in
    the appellants basement. The complainant decided to sleep over on his couch,
    as she had done many times before. The trial judge found that the complainant fell
    asleep while watching the video, and awoke to find the appellant on top of her,
    engaged in intercourse. She told him to stop and tried to push him off, but he
    persisted until she threatened to scream.

[2]

The appellants account, which the trial judge rejected, was different. At
    times, on his account, he had pursued a romantic relationship with the
    complainant and at other times she had pursued one with him, but neither
    accepted the others suggestion. There was, he said, a pattern to their
    interactions, to which the night in question conformed: sometimes she would
    text him as a prelude to spending the night at his house, sometimes sleeping in
    his bed, sometimes sleeping on his couch, and sometimes engaging in sexual
    activity. On the night in question, he said, the two had engaged in consensual
    sexual activity short of intercourse, before the complainant suddenly froze and
    asked him to stop, which he immediately did. He attributed her change of heart
    to a moral crisis brought on by the realization that her actions were
    inconsistent with her desire to reconcile with a former boyfriend.

[3]

The appellant was convicted of sexual assault and sentenced to two years
    imprisonment. The appellant appeals his conviction and seeks leave to appeal
    sentence.

[4]

The trial judge identified three bases for the finding of guilt beyond a
    reasonable doubt. First, she was satisfied beyond a reasonable doubt that the
    testimony of the complainant was truthful and accurate. Second, she had doubts
    about the appellants credibility, arising from perceived infringements of the
    rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.). Third, she found
    multiple inconsistencies in the appellants evidence.

Conviction Appeal

[5]

With respect to the conviction appeal, the appellant advances three grounds
    of appeal. He argues that the trial judge erred: (i) in her assessment of evidence
    of prior sexual activity between the appellant and the complainant; (ii) in her
    application of the rule in
Browne v. Dunn
; and (iii) by reversing the
    burden of proof.

[6]

It is unnecessary for the disposition of this appeal to address all the
    grounds raised by the appellant. For reasons set out below, I agree that the
    trial judge erred in finding that the appellant breached the rule in
Browne
    v. Dunn
. Because the trial judge found the breaches to be relevant to her
    assessment of the appellants credibility, and as they formed an integral part
    of the basis for her rejection of the appellants testimony, I would allow the
    conviction appeal on this ground alone.

The rule in
Browne v. Dunn

[7]

The appellant argues that the trial judge erred in finding that in two instances
    the appellant infringed the rule in
Browne v. Dunn
. In the first
    instance, the trial judge faulted the appellant for not having cross-examined
    the complainant on whether she had, as the appellant testified in cross-examination,
    asked him in December 2011 whether he was interested in pursuing a relationship
    with her, and whether he had, as he claimed, declined because he was pursuing a
    relationship with someone else. Similarly, in the second instance, the trial
    judge faulted the appellant for not having cross-examined the complainant on
    the proposition that the sexual encounter that he alleged had occurred in June
    2012, and which the complainant had denied in cross-examination, had been initiated
    by a text from the complainant indicating that she wanted to have sex with him.

[8]

The trial judge correctly noted that the rule in
Browne v. Dunn
does not require every detail of anticipated conflicting evidence be put to a
    witness, but that where the conflicting evidence is material, failure to do so
    may have a negative impact on the accuseds credibility.  In her reasons, the
    trial judge twice stated that she used the
Browne v. Dunn
omissions to
    assess the weight of the appellants testimony.

[9]

With respect to evidence of the December 2011 conversation, the trial
    judge erred in finding a breach of the rule. The appellant testified at trial. The
    Crown cross-examined him, in part, to confirm an implicit premise: that the
    appellant had long pursued a sexual relationship with the complainant, and that
    she had not reciprocated. It was at this juncture in the cross-examination,
    when the appellant was pressed to give an example of an occasion when the
    complainant suggested they pursue a sexual relationship, that the appellant answered
    that the complainant had expressly done so in December 2011, and that he had declined.

[10]

At this point, the complainant had already testified in-chief that there
    had been discussions between the two in June 2012 and earlier, about taking the
    relationship to the next level. The complainant testified that the appellant
    had always been the one to raise the issue, and that her response was always
    the same: that she wished to remain friends.

[11]

In these circumstances, there was no unfairness in not cross-examining
    the complainant on the alleged December 2011 conversation. Her evidence was
    clear: there had been multiple proposals to pursue a relationship, they had always
    been initiated by the appellant, and she had invariably told him that she
    wished to remain friends. Furthermore, the alleged December 2011 conversation
    was elicited by the Crown in cross-examination. This was not a case of the
    appellant unfairly choosing to lead evidence without having first put it to the
    complainant in cross-examination.

[12]

With respect to the second breach found by the trial judge, the question
    of whether the complainant had sent the appellant a text in June 2012 to invite
    him to have sex with her was an immaterial detail in the context of the
    complainants evidence. She had been cross-examined in great detail on the
    circumstances of a sexual encounter that the appellant claimed took place in
    June 2012. She not only denied having sex with the appellant in June 2012, she
    denied having seen him that month at all. In these circumstances, the fact that
    defence counsel did not put to the complainant that a text message preceded an encounter
    that she flatly denied had occurred is immaterial.

[13]

It is significant that neither of these suggested infringements of the
    rule in
Browne v. Dunn
were raised by the trial Crown. The trial judge
    only raised the matter of the December 2011 evidence obliquely, in an exchange
    with the trial Crown, and without inviting submissions on the issue from
    defence counsel.

[14]

I conclude, with respect, that the trial judge erred in finding
    violations of the rule in
Browne v. Dunn
, and in drawing a negative
    inference about the appellants credibility as a result of those violations.

The impact of the
Browne v.
    Dunn
error

[15]

The Crown argues that if the trial judge erred in finding infringements
    of the rule in
Browne v. Dunn
, these errors are harmless as the trial
    judge had already rejected the appellants evidence and found it did not raise
    a reasonable doubt. Before conducting the
Browne v. Dunn
analysis, the
    trial judge noted that a trier of fact may reject the testimony of an accused
    if satisfied beyond a reasonable doubt of the credibility of evidence that
    conflicts with that of the accused:
R. v. J.J.R.D.
(2006), 215 C.C.C.
    (3d) 252 (Ont. C.A.).

[16]

The difficulty with this submission is that although the trial judge
    referred to
J.J.R.D.
and found the complainants evidence truthful
    beyond a reasonable doubt, she did not clearly apply
J.J.R.D.
The
    trial judge states:

[63] A trier of fact nonetheless must be satisfied on the
    totality of the evidence that there is no reasonable doubt as to the guilt of
    the accused.
(W.(D.)
, at paragraphs 26-28.)

[64] In this case I am satisfied beyond a reasonable doubt that
    the testimony of L.C. with respect to the events of July 25, 2012 is truthful
    and accurate. I do not reject Andrew Martins testimony in respect of those
    events solely on that basis, as there are material internal and external
    inconsistencies in Andrew Martins testimony that cause me to have significant
    concerns about its veracity.

[17]

The issue, therefore, is whether the trial judge relied exclusively on
    the credibility of the complainants evidence to reject the appellants
    evidence and find that it did not raise a reasonable doubt. I cannot conclude,
    from these paragraphs, that she did so.

[18]

As this court held in
J.J.R.D.
, at para. 53: (a)n outright
    rejection of an accuseds evidence based on a considered and reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting credible
    evidence is as much an explanation for the rejection of an accuseds evidence
    as is a rejection based on a problem identified with the way the accused
    testified or the substance of the accuseds evidence. The ultimate question is
    not, on this analysis, whether the complainants evidence is accepted as
    credible, but whether the allegations are proved beyond a reasonable doubt.

[19]

In
J.J.R.D.
, although the trial judge found the complainant to
    be credible, the analysis had to go further. It was only after considering all
    the evidence that the trial judge accepted, including the complainants
    evidence and the credibility enhancing effect of the complainants diary, that
    the trial judge was satisfied of the accuseds guilt beyond a reasonable doubt,
    despite the accuseds denials. It was sufficient, in that case, for the trial
    judge to set out that the basis of his rejection of the accuseds evidence was
    his reasoned acceptance beyond a reasonable doubt of the truth of the
    complainants evidence. This reasoned acceptance of the complainants evidence was
    not merely a matter of finding the complainant to be credible. Despite finding
    the complainant to be credible, the trial judge was only able to conclude that
    the accused was guilty beyond a reasonable doubt for some of the offences for
    which he was tried and not others.

[20]

As in
J.J.R.D.
, the question before the trial judge in this
    case was not simply whether the complainant was credible, but whether the trial
    judge was left with a reasonable doubt of the guilt of the accused. It was open
    to her, as it was to the trial judge in
J.J.R.D.
, to explain her
    rejection of the appellants evidence in terms of her reasoned acceptance of
    the evidence to the contrary.

[21]

Here, the trial judge stated that she accepted beyond a reasonable doubt
    the veracity of the complainants evidence (particularly, that she was asleep
    at the time the appellant commenced intercourse with her and was therefore not
    consenting). She did not, however, end there, and in the paragraph following
    the reference to
J.J.R.D.
, instructed herself on the need to consider
    whether on the totality of the evidence a reasonable doubt was raised, before
    stating that she did not reject the appellants testimony solely on the basis
    of the complainants evidence.

[22]

It was at this point that the trial judge canvassed the
Browne v.
    Dunn
issue in 10 paragraphs, twice stating she was using the appellants
    breach of the rule to assess the weight of the appellants testimony. There can
    be no doubt that this error adversely impacted the appellants credibility as a
    witness. Thereafter, the trial judge catalogued, in a further 10 paragraphs, inconsistencies
    and other statements of the appellant that she found troubling or implausible.
    She then addressed inconsistencies in the complainants testimony identified by
    counsel for the appellant, and found these to be peripheral and insignificant.

[23]

Read in the context of her reasons as a whole, I cannot conclude that the
    trial judge rejected the appellants testimony solely on the basis of the
    complainants testimony. The reasons are ambiguous and indicate either: (1) the
    testimony of the complainant was sufficient in itself for rejecting the
    evidence of the appellant, but there were additional grounds for rejecting the
    appellants contrary testimony, or (2) the testimony of the complainant was
not
sufficient reason to find that the appellants testimony did not raise a
    reasonable doubt, and that the finding of guilt was therefore dependent on the
    evidence as a whole, including her assessment of the appellants evidence.

[24]

If the complainants testimony was not taken to be sufficient in itself,
    there is a real risk that the erroneous finding on the
Browne v. Dunn
issue, and the adverse credibility finding that flowed from it, influenced the
    trial judges assessment of the appellants evidence and tipped the scale in
    favour of a finding of guilt beyond a reasonable doubt.

[25]

The concern that the adverse credibility finding flowing from the
Browne
    v. Dunn
error may have influenced the ultimate finding of guilt is further
    compounded by the trial judge faulting the appellant for not providing specific
    corroborative evidence that she thought ought to have been available to
    substantiate his claim that he spent time with the complainant in June 2012:
    records from his workplace and receipts from an Esso station where he claimed
    to have refueled and from a Tim Hortons restaurant where he claimed the complainant
    made a purchase for him. The appellant was under no obligation to provide this
    evidence.

[26]

In light of these considerations, the conviction cannot stand and the
    conviction appeal must be allowed.

Sentence appeal

[27]

Given the disposition of the conviction appeal, I do not reach the
    appellants proposed sentence appeal.

Disposition

[28]

I would allow the appeal from conviction, quash the conviction and order
    a new trial.

Released: EAC APR 21 2017

B.W. Miller J.A.

I agree. E.A. Cronk
    J.A.

I agree. Paul Rouleau
    J.A.


