



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. J.M., 2021 ONCA 150

DATE: 20210311

DOCKET: C65287

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

Mark Halfyard, for the appellant

Rebecca Schwartz, for the respondent

Heard: October 22, 2020 by video conference

On appeal from the conviction entered on
    January 12, 2018 by Justice David E. Harris of the Superior Court of Justice, with
    reasons reported at 2018 ONSC 344.

BROWN J.A.:


I.        OVERVIEW

[1]

The appellant, J.M, appeals his conviction on a
    single count of sexual assault, for which he received a custodial sentence of
    three and a half years.

[2]

The main issue on this appeal concerns the trial
    judges use of judicial notice, including his personal experience as counsel,
    as part of his credibility assessment of the complainant.

[3]

For the reasons set out below, I conclude that,
    in making findings that were central to his assessment of the credibility of
    the complainant, the trial judge erred by exceeding the bounds of judicial
    notice, including the proper limits of drawing on previous personal experience
    as counsel. As a consequence, his credibility findings were materially infected
    by those improper considerations. Given those errors on the key issue at the
    trial, I would allow the appeal, set aside the conviction, and direct a new
    trial.

II.       BACKGROUND

[4]

The single count against the appellant
    encompassed two separate incidents that took place in November and December
    2014.

[5]

The complainant and the appellant were second
    cousins. At the time of the incidents the complainant was 16 years old; the
    appellant was 20 years old.

[6]

The complainant alleged that in November 2014
    she went out with the appellant for bubble tea. He drove her to a parking lot
    next to a small building and asked her to get into the back seat. She did so,
    and he followed. According to the complainant, without warning and without
    saying anything, the appellant then raped her. The complainant testified that
    she resisted and screamed throughout.

[7]

The December 2014 incident took place at the
    complainants house. According to the complainant, the appellant came over to her
    house and watched TV for a while with the complainant, her father, and some of
    her siblings. The complainant and appellant left and went into another room,
    where the appellant groped her. They then went upstairs to her bedroom, where
    he assaulted her by trying to have sexual intercourse. He was unsuccessful. The
    complainant testified that she was passive during the assault and the appellant
    had put a blanket in her mouth to muffle any screams.

[8]

The appellant testified. He denied that either
    incident occurred. He acknowledged that he had been sexually intimate with the
    complainant on three occasions  two involving oral sex and one attempted
    intercourse  but on each occasion the sexual activity was consensual.

[9]

Entered into evidence was the thread of a
    Snapchat conversation between the appellant and complainant in April 2015,
    around the time that she disclosed the incidents. It was alleged that during
    the course of the exchange the appellant wrote: Did you get prego? The trial
    judge held that statement was made by the appellant and constituted an implicit
    admission of sexual intercourse with the complainant: at para. 102.

[10]

The trial judge rejected the appellants denial
    of the incidents, concluded that it did not raise a reasonable doubt, and
    accepted the complainants evidence as credible and confirmed by the Snapchat
    conversation: at paras. 114-116. The trial judge found the appellant guilty on
    the single count of sexual assault contrary to s. 271 of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

III.      TRIAL JUDGES REASONS

[11]

Later in these reasons I will review in detail
    the specific portions of the trial judges reasons that relate to the
    appellants grounds of appeal. For the present, an overview of the reasons will
    suffice.

[12]

At trial, the Crown called five witnesses: the
    complainant; a friend of the complainant and one of her teachers on the issue
    of the timing of the complainants disclosure of the incidents; the
    complainants father; and a police constable who testified about chat data
    extracted from the complainants cellphone. The appellant testified in his
    defence. No expert evidence was led by either party.

[13]

The trial judge started his reasons with some
    reflections on how to apply the principle in
R. v. W. (D.)
, [1991] 1
    S.C.R. 742. He then turned to the evidence, beginning his review and analysis
    with the complainants evidence. He regarded the trial as turning principally
    on credibility, not reliability: at para. 45.

[14]

In the course of dealing with defence arguments
    regarding the credibility of the complainants evidence about the December
    incident in her bedroom, the trial judge examined a key submission of the
    appellant. The defence argued that it was implausible the complainant would not
    distance herself from her abuser after the rape in the car. The defences argument
    was part of a broader submission encompassing both incidents of sexual assault.
    The defence contended that the complainant could have, but did not,
    disassociate herself from the appellant and this weighed against her credibility:
    at paras. 54-55.

[15]

The trial judge considered the defences
    submission but rejected it. His explanation for doing so contained several
    parts.

[16]

First, he considered the judgment of the Court
    of Appeal of Alberta in
R. v. A.R.D.
2017 ABCA 237, 55 Alta. L.R. (6th)
    213 (
A.R.J.D. (AB)
), which was subsequently affirmed on appeal to
    the Supreme Court of Canada:
R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1
    S.C.R. 218 (
A.R.J.D. (SCC)
). The majority of the Court of Appeal of
    Alberta held that evidence of a lack of avoidant behaviour by a complainant can
    tell a trier of fact nothing about a sexual assault allegation:
A.R.J.D.
    (AB),
at para. 39.

[17]

The trial judge wrote that he would fine tune
    the comments of the Court of Appeal of Alberta in two respects. First, drawing
    on his experience as counsel on cases before this court, he stated that
    instances in which a complainant fails to distance her or himself from the
    abuser are not unusual: at para. 59.

[18]

Second, the trial judge disagreed with one
    aspect of
A.R.J.D. (AB)
. To the extent that the majority of the Court
    of Appeal of Alberta was proposing a rigid rule of irrelevancy for evidence
    of after-the-event association of the complainant with the accused, he did not
    think such a proposition was correct: There can be no blanket rule: each case
    must be looked at on its own footing: at para. 66. He went on to state, at
    para. 68:

The important point is that the question about
    association has to be asked; the judge must be alive and open to the psychology,
    but there is no prescribed answer. A very careful examination of the evidence
    is required.

[19]

On appeal, the Crown describes the trial judges
    reasoning on this point as sound. Although open to a different
    interpretation, the trial judges position appears to be consistent with the
    subsequent, very brief endorsement by the Supreme Court in
A.R.J.D. (SCC)
,
    in which it stated, at para. 2:

We would dismiss, substantially for the
    reasons of the majority of the Court of Appeal. In considering the lack of
    evidence of the complainants avoidance of the appellant, the trial judge
    committed the very error he had earlier in his reasons instructed himself
    against: he judged the complainants credibility
based
    solely on
the correspondence between her behaviour and the expected
    behaviour of the stereotypical victim of sexual assault. This constituted an
    error of law.
[1]
[Emphasis added.]

[20]

The trial judge next reviewed the complainants
    evidence about her association with the appellant. He prefaced his review with
    his conclusion that he did not believe her continued association with the
    appellant indicated that the assaults did not happen nor did it detract from
    her credibility: at para. 69. He charged himself that he had to look carefully
    at her psychology and the situation she found herself in: at para. 70. While
    much of the complainants behaviour may have been irrational, on a full
    understanding, it makes perfect sense psychologically and emotionally: at
    para. 73.

[21]

As part of his consideration of the
    complainants testimony regarding her helplessness and paralysis during the
    December bedroom incident, the trial judge drew an analogy with the psychology
    of battered woman syndrome described by the Supreme Court decision in
R. v.
    Lavallee
, [1990] 1 S.C.R. 852. The trial judge found that the
    complainants emotional state displayed more than a few parallels with the
    psychology of battered wife syndrome: at para. 80.

[22]

After commenting on the
Lavallee
decision, the trial judge stated that the complainants passivity at the time
    of the attempted rape in her bedroom was also explained by social science
    research described in a recent article published in the Scientific American
    magazine. The parties had not placed this article before the court.

[23]

At para. 84, the trial judge expressed the
    following conclusion about the evidence of the complainants continued
    association with the appellant:

In conclusion, the evidence of after-the-fact
    association with the accused does not detract from the complainants
    credibility. It is true that it does not enhance her credibility either. The
    evidence is neutral towards proof of guilt. However, as Crown counsel pointed
    out, the complainants credibility was at least to some extent reinforced by
    her candor recounting her passivity during the second incident. On its face,
    this passivity might appear to undercut her credibility. Giving this evidence
    is some credit to the complainants truthfulness.

[24]

The trial judge proceeded to consider and reject
    the appellants evidence that he had consensual sexual contact with the
    complainant on three occasions: at paras. 86-91. He then reviewed the Snapchat
    conversation between the complainant and the appellant in April 2015,
    concluding that part of the exchange constituted an implicit admission by the
    appellant of sexual intercourse with the complainant with penetration and
    ejaculation: at paras. 102 and 106. In his view, that confirmation by implicit
    admission was powerful support for the complainants version of events: at
    para. 109. The words of the appellant, which amounted to an admission, were of
    significant weight: at para. 115.

[25]

The trial judge rejected the appellants
    evidence on several points, including his denial of the complainants two
    accusations. He concluded that the complainants evidence was credible,
    confirmed, and she was telling the truth with respect to the allegations: at
    paras. 115-116. He was convinced of the appellants guilt beyond a reasonable
    doubt.

IV.     ISSUES ON APPEAL

[26]

The appellant submits that the appeal puts in
    issue how far a trial judge can go in drawing on judicial notice, including his
    prior experience as counsel in assessing issues in dispute. The appellant
    raises three grounds of appeal:

(i)

The trial judge misapplied the decision in
A.R.J.D.
    (AB)
in finding that the complainants post-offence association with the appellant
    did not impact her credibility by relying on his own anecdotal experience as
    defence counsel;

(ii)

The trial judge erred in drawing parallels
    between the complainants emotional state and the psychology of battered woman syndrome
    in rejecting the defence submission that she willingly engaged in one of the
    sexual acts; and,

(iii)

In respect of the question posed by the
    appellant during the Snapchat conversation, Did you get prego?, the trial
    judge improperly took judicial notice that a pregnancy scare could only arise
    if the appellant had sex with the complainant and ejaculated.

[27]

In my view, the appeal can be disposed of by
    considering only the first two grounds of appeal. My analysis will proceed in
    the following manner. First, I will consider the general principles regarding
    the use of judicial notice to prove facts, including a judge drawing on his
    personal experience as counsel. Next, I will apply those principles to the use
    the trial judge made of judicial notice. I conclude that the trial judge erred
    in his use of judicial notice. Finally, I will consider whether that error had
    any material impact on his findings regarding the complainants credibility.

V.      GENERAL PRINCIPLES REGARDING JUDICIAL
    NOTICE

[28]

Canadian law has adopted several rules
    concerning the admissibility of evidence and the use of proven facts when
    assessing the credibility of a complainant in a sexual assault prosecution. For
    example: rules relating to evidence of recent complaint have been abrogated (
Criminal
    Code
, s. 275); a complainants delay in disclosure, standing alone, can
    never give rise to an adverse inference against his or her credibility as there
    is no inviolable rule on how those who are the victims of trauma like a sexual
    assault will behave (
R. v. D. (D)
, 2000 SCC 43, [2000] 2 S.C.R. 275,
    at para. 65); evidence of sexual reputation is not admissible for the purpose
    of challenging or supporting the credibility of a complainant (
Criminal
    Code
, s. 277); and evidence that a complainant has engaged in sexual
    activity is not admissible to support an inference that, by reason of the
    sexual nature of that activity, the complainant is more likely to have
    consented to the sexual activity that forms the subject-matter of the charge or
    is less worthy of belief (
Criminal Code
, s. 276(1)).

[29]

However, the use of judicial notice to dispense
    with the proof of facts in a sexual assault prosecution is not subject to any
    distinctive rules. The general principles regarding judicial notice apply.

[30]

Those principles are well settled, although
    their application can prove challenging on occasion as the limits of judicial
    notice are inexact: S. Casey Hill, David M. Tanovich & Louis P. Strezos,
McWilliams
    Canadian Criminal Evidence,
5th ed. (Toronto: Thomson Reuters, 2019) (McWilliams),
    at §26.10. The principles have both substantive and procedural dimensions.

The substantive dimension

[31]

The basic principles regarding the substantive
    dimension of judicial notice can be summarized as follows:

(i)

Judicial notice is the only exception to the
    general rule that cases must be decided on the evidence presented by the
    parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser,
The
    Law of Evidence,
8th ed. (Toronto: Irwin Law, 2020) (Paciocco), at p. 573;

(ii)

Judicial notice involves the acceptance of a
    fact or state of affairs without proof:
R. v. Williams
, [1998] 1 S.C.R.
    1128, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst,
Sopinka, Lederman & Bryant
:
The Law of Evidence in Canada,
5th
    ed. (Toronto: LexisNexis Canada, 2018) (Sopinka) at §19.16;

(iii)

Facts judicially noticed are not proved by evidence
    under oath; nor are they tested by cross-examination:
R. v. Find
, 2001
    SCC 32, [2001] 1 S.C.R. 863, at para. 48;

(iv)

Since judicial notice dispenses with the need
    for proof of facts, the threshold for judicial notice is strict:
Find
,
    at para. 48; and

(v)

Judicial notice applies to two kinds of facts: (a)
    those that are so notorious or accepted, either generally or within a
    particular community, as not to be the subject of dispute among reasonable
    persons (
R. v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71;
Reference
    Re Alberta Statutes,
[1938] S.C.R. 100, at p. 128; Sopinka, at §19.18);
    and (b) those that are capable of immediate and accurate demonstration by
    resorting to readily accessible sources of indisputable accuracy (
Quebec (Attorney
    General) v. A.
, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 238; Sopinka, at
    §19.16). The sources may include both large bodies of scientific literature and
    jurisprudence:
R. v. Paszczenko
, 2010 ONCA 615, 103 O.R. (3d) 424, at
    paras. 65-66.

[32]

However, as the editors of McWilliams helpfully
    point out, at §26.10, the jurisprudence discloses that the issue is somewhat more
    nuanced as the expression judicial notice captures several different forms of
    judicial notice:

(i)

Tacit or informal judicial notice, which
    involves the trier of fact drawing on common experience, common sense or common
    knowledge to interpret and understand the formal evidence presented at trial;
[2]

(ii)

Express judicial notice, which concerns the
    notice of specific facts of the notorious and indisputable variety; and

(iii)

Contextual judicial notice that strives, at a
    generalized level, to provide context, background or a frame of reference to
    assist the trier of a fact in making case-specific findings of fact: See, for
    example,
Quebec (Attorney General)
, at para. 239;
R. v. Le
,
    2019 SCC 34, 375 C.C.C. (3d) 431, at paras. 83-88. To this category of social
    framework facts others would add legislative facts, which do not so much
    involve taking notice of specific facts but concern the consideration of policy
    factors or facts relevant to judicial reasoning when the judge embarks upon the
    path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may
    be the breadth of proper judicial notice in this category, a court must refrain
    from taking judicial notice of social phenomena unless they are not the subject
    of reasonable dispute for the particular purpose for which they are to be used:
Quebec (Attorney General)
, at para. 239.

[33]

The current paradigm that judges must use to
    determine whether they may take judicial notice locates facts along a spectrum
    that runs from those that are central to or dispositive of an issue, at one
    end, to those that merely paint the background to a specific issue:
Le
,
    at para. 85. The closer the facts lie to the dispositive end of the spectrum,
    the more pressing it is to meet the two criteria of notoriety or immediate
    demonstrability:
Le
, at para. 85;
R. v. Spence
, 2005 SCC 71,
    [2005] 3 S.C.R. 458, at para. 60; Paciocco, at p. 577.
[3]

[34]

The first category of judicial notice cases 
    those in which judges employ tacit judicial knowledge  contains an internal
    tension. Canadian law recognizes that judges will have been shaped by, and have
    gained insight from, their different experiences and cannot be expected to
    divorce themselves from these experiences on the occasion of their appointment
    to the bench:
R. v. S. (R.D.)
, [1997] 3 S.C.R. 484, at para. 38.
    Judges who decide factual matters necessarily are conversant with a library of
    facts or information acquired through experience, education, reading, etc.: McWilliams,
    at §26:20.10. However, this fund of general knowledge is different from
    reliance on personal knowledge in a particular case:

Sopinka, at §19.47;
    McWilliams, at §26:20.10.  While it may prove difficult in some cases to know where
    to draw the dividing line, the general view is that unless the criteria of
    notoriety or immediate demonstrability are present, a judge cannot take judicial
    notice of a fact within his or her personal knowledge, even if it has been
    proved before the judge in a previous case:

Sopinka, at §19.46.

[35]

Finally, matters of which judicial notice may be
    taken and those that require expert evidence are not compatible. Matters that
    are the proper subject of expert evidence are, by definition, neither notorious
    nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco,
    at p. 579.

The procedural dimension

[36]

The issue of judicial notice most often arises
    when a party requests the trier of fact to take judicial notice of a fact.
    Other parties then may support or oppose the request. The adversarial process
    ensures a transparent consideration of the request.

[37]

More problematic are the occasions on which
    judges take judicial notice without the benefit of submissions from the
    parties. Such conduct by a judge lacks transparency, thereby risking the
    perception of the fairness of the hearing. It also risks crossing the boundary
    separating the notorious and readily demonstrable from the disputed and controversial,
    again risking the perception of procedural fairness. As put by the authors of
    Sopinka: Judges should not conduct their own research and come to the
    conclusion that facts are notorious, for, there is no opportunity for the
    parties to respond: at §19.61.

[38]

Where a judge, on his or her own initiative, wishes
    to take judicial notice of a fact or state of affairs that bears on a key issue
    in a proceeding, the adversarial process requires that the court ensure that
    the parties are given an opportunity to deal with the new information by making
    further submissions, oral or written, and allowing, if requested, fresh
    material in response: Paciocco, at p. 582.

VI.     FIRST GROUND OF APPEAL: THE TRIAL JUDGES USE
    OF HIS PERSONAL EXPERIENCE AS COUNSEL

The issue stated

[39]

Crown counsels closing submissions spanned two
    days. At the end of the first day, Crown counsel argued that the defence
    submission that the complainants continued association with the appellant
    after the first alleged assault weighed against her credibility was a very
    standard rape myth. At that point, Crown counsel handed up the decision in
A.R.J.D.
    (AB)
and took the trial judge through several passages.

[40]

The trial judge read the decision overnight. On
    resuming the following day, he stated that the decision was a fascinating
    case and questioned Crown counsel about it:

COURT: And I just want to throw something out
    there for counsel, just out of the sense of procedural fairness. And there may
    be not much you can say about it, but Ill just throw it out there. And there
    may be not much you can say about it, but Ill just throw it out there.
In another life, I was a criminal lawyer and
    argued law of sexual assault cases in the Court of Appeal. And in many of those
    cases, they were interfamilial sort of situations, like this one is, in a way.
    Maybe not as strongly as some, but it was not unusual that there would be a
    feature like the one in this case, the non-avoidance
, I think, is what the Court of Appeal in Alberta called it, but
    theres different ways to term it. And it was all quite counterintuitive, I felt,
    that the alleged victim was seemingly attracted to the accused as opposed to
    repelled by the accused. And that was a difficult thing for the jury to get
    their head around and for me to get my head around as counsel.
Nonetheless, it was a common feature, not in
    all of them, but in many of them. For example, in the
M.T
. case
, which
    is in your 276 case book.

MS. HACKETT: Yes.

THE COURT:
I looked at
    the factum for that one
, and that was a situation where the complainant actually
    asked to go over to her uncles place, her uncle being the appellant, on a
    regular basis where she was abused.

MS. HACKETT: Yes.

THE COURT: So, she asked to go over there.
W.D.
itself, as well
,
    page 400 of the CCC version of the judgment, Justice Cory at letter F, or its Justice
    Sopinka in dissent actually. He goes through the evidence. Justice Cory
    doesnt. And, again, the complainant after being abused went back to the
    accuseds house after it was in the car that she was allegedly abused, and then
    she went back to his house because she left her purse behind on two occasions.
So, those are just two examples, but many more examples from
    the jurisprudence. So, the question is for you, can I rely on my experience in,
    as a lawyer in this field and, or is it impermissible to do that
?



So, sort of a long-winded question, but, as I
    said, more throwing it out there for any submissions on it. Can I rely on my
    experience? And were talking about, I think, were not talking about
    bolstering the complainants credibility.
Were just
    talking about understanding what might be argued and has been argued here to be
    something against her credibility, that hits against her credibility. So, its
    neutralizing that, as opposed to enhancing her credibility.
So, thats
    sort of whats on my mind here a little bit. Im not sure theres much you can
    really say about it, but I have to look if I can rely on my experience in these
    sorts of situations from when I was a lawyer. [Emphasis added.]

[41]

The trial judge had acted as counsel for the
    appellants in both
W.(D.)
and
M.T
, 2012 ONCA 511, 289 C.C.C.
    (3d) 115
.

[42]

Crown counsel advised the trial judge that she
    had not done any research on the question he was posing:

[B]ut my initial response is just on a more
    broad and perhaps logical one, is that every person whos a judge brings with
    them their lifetime of experiences, and I think thats accepted. And I
    wouldnt, unless theres a case that says otherwise, I wouldnt see why your
    past life experience as a lawyer would generally be taken out or separated from
    that.

[43]

During the balance of the trial, the trial judge
    did not ask defence counsel for submissions on whether he could draw on his
    experience as counsel in sexual assault cases.


[44]

As noted earlier, in his reasons the trial judge
    wrote that he would fine tune comments made by the majority in
A.R.J.D.
    (AB)
in two respects. The first he explained at para. 59:

I would go one step further than the judgment
    with respect to the association evidence.
In many years of
    appearing before the Ontario Court of Appeal as counsel for accused convicted
    of interfamilial sexual crimes, I can say that instances in which a complainant
    fails to distance her or himself from the abuser are not unusual. In fact, as a
    study of the evidence in appellate cases would I am sure bear out, such cases
    are commonplace
.
I
    am confident that trial and appellate judges, and counsel who deal with these
    cases, would agree. Despite such strong after-the-fact evidence of association,
    juries have been known to convict in these circumstances. [Emphasis added.]

[45]

The trial judge believed that he could place
    some reliance on his prior empirical experience because [i]t is the same as a
    judge relying on their judicial experience: at para. 61.
[4]


[46]

On appeal, the appellant submits that by drawing
    on his personal experience as counsel, the trial judge used the wrong starting
    point for his analysis of the complainants credibility. His experience as
    counsel led him to express the view that cases in which a complainant fails to
    distance her or himself from the abuser are commonplace. That view moved the
    needle of the burden of proof against the appellant. Using a methodology that
    draws on personal pre-judicial experience to examine the evidence was dangerous
    when dealing with a key issue in dispute between the parties  the credibility
    of the complainant  because it circumvented the safeguards built into the
    proper application of the principle of judicial notice, namely notoriety or
    immediate demonstrability.

[47]

In response, the Crown submits that the trial
    judge referenced his prior experience as counsel merely to demonstrate the
    fallacy of the myths and stereotypes upon which defence counsel relied, namely
    that the complainants continued association with the appellant after the
    assaults was inconsistent with her allegations of assault. The trial judges
    conclusion that instances in which a complainant fails to distance her or himself
    from the abuser are commonplace was not an adjudicative fact reflecting the
    trial judges personal views, but a recognition of the general social context
    in which sexual assault law operates. In any event, there was no prejudice to
    the appellant because elsewhere in his reasons the trial judge rejected a
    rigid rule of irrelevancy, explaining that after the fact association with
    the accused can, in some instances, weigh against the complainants credibility:
    at para. 66.

Analysis

[48]

No judge comes to the bench a
tabula rasa
.
    We all bring varied experiences that, one hopes, assist us in fairly
    adjudicating the variety of legal disputes presented by the parties who appear
    before us. Invariably we examine, in some fashion, the legal disputes before us
    through the lens of that prior general experience.

[49]

But here the appellant does not complain about
    the trial judge using his general prior experience. The appellant complains
    that the trial judge impermissibly drew upon his personal experience as counsel
    in specific types of cases to assist him in deciding a key issue in the present
    case: the credibility of the complainant.

[50]

When a judge intends to draw upon specific
    experiences in his or her pre-judicial experience to determine a contested
    issue in a case, procedural fairness demands both judicial restraint and
    judicial transparency.

[51]

The adversarial system imposes a necessary
    restraint on that which a trial judge can take into account when deciding
    contested issues, including the credibility of a party. The only facts a trier
    of fact may consider in making his or her decision in a case is the evidence
    adduced in the courtroom. Facts that satisfy the criteria for judicial notice
    are the only exception to that rule: Paciocco, at p.

573;
Justice David Watt,
Watts Manual
    of Criminal Evidence 2020
(Toronto: Thomson Reuters, 2020) at
    §14.01.
As this court cautioned in
R. v. Potts
(1982),
    36 O.R. (2d) 195 (C.A.), at p. 204, leave to appeal refused, [1982] S.C.C.A.
    No. 301, a trial court is not justified in acting on its own personal knowledge
    of or familiarity with a particular matter, alone and without more. Accordingly,
    unless the criteria of notoriety or immediate demonstrability are present, a
    judge cannot judicially notice a fact within his or her personal knowledge: Sopinka,
    at §19.46.

[52]

During the course of his exchange with Crown
    counsel about the decision in
A.R.J.D. (AB)
, the trial judge mentioned
    two cases in which he had been counsel that involved complainants who continued
    to associate with the accused following assaults. If the trial judge had left
    the matter there, the appellant would have no cause to complain. The transcript
    of the hearing reveals that both authorities had been filed by counsel during
    the trial and were available for counsel to make submissions on the point. Even
    in cases where trial judges refer counsel to jurisprudence not placed before
    them, the age of smartphones and free case searches on CanLII provide counsel
    with the tools to respond quickly to such judicial reflections or musings. And
    counsel can always ask for a break if they require more time to respond.

[53]

But the trial judges reasons disclose that he
    went much further than reflecting on two reported cases in which he had acted
    as counsel. By the time of his reasons, the trial judge had drawn on his
    personal experience as counsel to conclude that in cases of interfamilial
    sexual crimes, instances in which a complainant fails to distance her or
    himself from the abuser are not unusual but commonplace, a conclusion
    approximating a form of generalization.

[54]

I am persuaded by the appellants submission
    that for the trial judge to accept, without a proper evidentiary foundation and
    in reliance on his personal experience, that the complainants conduct in
    continuing to associate with the appellant reflected commonplace conduct by
    complainants in sexual assault cases amounted to sidestepping the test for
    judicial notice. Whether a witness is credible is a question of fact:
A.R.J.D.
    (AB)
, at para. 28;
R. v. R.G.B.
,
    2012 MBCA 5, 100 W.C.B. (2d) 630, at para. 59.
The trial
    judges conclusion was based on his personal experience rather than an
    assessment of either criterion for taking judicial notice of facts: notoriety
    or immediate demonstrability.

[55]

As well, the process that led him to that
    conclusion lacked transparency. Apart from his mention of two reported cases
    that had been filed with the court, the trial judge did not disclose to the
    parties what other personal experience he was drawing upon to make the
    generalization that he did. The parties were left in the dark about the content
    and scope of the trial judges personal experience that formed the basis for an
    element of his assessment of the complainants credibility, and they had no
    opportunity to respond to the information that drove the judges decision on
    this point.

[56]

Moreover, although during the final submissions the
    trial judge asked Crown counsel for her position on whether it was permissible
    for him to rely on his experience as counsel, he did not solicit the views of
    defence counsel. Fairness required that he should have. Although the Crown
    submits that the trial judges initial question to Crown counsel during her
    closing submissions also amounted to an invitation to defence counsel to make
    submissions, optimally the trial judge should have specifically invited submissions
    from defence counsel. The trial judge had the opportunity to remedy that
    oversight. About a month after closing submissions, counsel re-attended before
    the trial judge to hear his judgment. Instead, the trial judge requested
    further submissions on an issue relating to the Snapchat evidence. That would
    have been an ideal opportunity for the trial judge to ask defence counsel for
    her position on the permissibility of drawing on his experience as counsel.

[57]

Accordingly, I conclude that, in the
    circumstances of this case, the trial judge erred in drawing on his personal
    experience as counsel to conclude that in cases of interfamilial sexual crimes
    instances in which a complainant fails to distance her or himself from the abuser
    are not unusual but commonplace. He overstepped the proper boundaries of
    taking judicial notice  even tacit judicial notice  of a fact that informed
    his assessment of the credibility of the complainant.

[58]

I will assess the impact of that error after considering
    the appellants second ground of appeal.

VII.    SECOND GROUND OF APPEAL: THE TRIAL JUDGES ASSESSMENT
    OF THE COMPLAINANTS PASSIVITY

The issue stated

[59]

During his examination of the complainants
    evidence about her continued association with the appellant after the first
    assault, the trial judge remarked on comments made by the police officer who
    conducted the
Criminal Code
s. 715.1 interview of the complainant. The
    trial judge observed that the officer made it plain that he did not believe
    her because of her admitted acquiescence and lack of resistance in the second
    incident of sexual assault: at para. 79 The trial judge was highly critical of
    the officers interview of the complainant.

[60]

The trial judge then continued, at paras. 80-82:

Examining the
    complainants emotional state, there are more than a few parallels with the
    psychology of battered wife syndrome
explained
    by Justice Bertha Wilson in
R. v. Lavallee
, [1990] 1 S.C.R. 852. There
    was reference there to the administration of a shock which leads to a
    motivational state of learned helplessness.
In the
    interfamilial context, a phenomenon may occur known as traumatic bonding
    between a dominant person and a subjugated individual such as a child. In
Lavallee
, the process
    of traumatic bonding as explained by expert evidence, was adopted by the
    court at para. 60
:

The less powerful person in the
    relationship  whether battered woman, hostage, abused child, cult follower, or
    prisoner  becomes extremely dependent upon, and may even come to identify
    with, the more powerful person. In many cases, the result of such dependency
    and identification is that the less powerful, subjugated persons become more
    negative in their self-appraisal, more incapable of fending for themselves, and
    thus more in need of the high power person. As this cycle of dependency and
    lowered self-esteem is repeated over time, the less powerful person develops a
    strong affective bond [traumatic bonding] to the more powerful person in the
    abusive relationship.

It is this psychology
    which helps to explain the complainants quite extraordinary evidence with
    respect to her helplessness and paralysis during the second sexual assault
. Her testimony that she just wanted to give the accused what he
    wanted and the admission of kissing him back once, together with a several
    month delay in disclosing the assault, is suggestive of a process similar to
    that in
Lavallee
referred to as traumatic bonding.

The complainants
    passivity at the time of the attempted rape is also explained by more recent
    social science research in the area: see Francine Russo, Sexual Assault May
    Trigger Involuntary Paralysis
(August 4 2017), online:
    Scientific American,
    <www.scientificamerican.com/article/sexual-assault-may-trigger-involuntary-paralysis>.
    [Emphasis added]

[61]

The appellant submits that the trial judge erred
    in drawing parallels between the complainants emotional state and the
    psychology of battered wife syndrome in rejecting the defence submission that
    she willingly engaged in one of the sexual acts. The appellant argues that: at
    trial no party raised the applicability of the concepts of learned
    helplessness and traumatic bonding discussed in
Lavallee
; the
    complainant was not a battered spouse; and no expert evidence was adduced at
    trial on how the concepts would apply to the circumstances of the complainant.
    The trial judge compounded those errors by relying on the Scientific American
    article that neither party had put before him. According to the appellant, the
    trial judges extrapolation from
Lavallee
and use of the Scientific
    American article violated the narrow confines of judicial notice. The trial
    judge improperly used those sources to assist him in making findings of fact
    regarding the complainants credibility, a dispute specific to the criminal
    proceeding.

[62]

The Crown responds that the trial judges
    comments about battered woman syndrome were directly responsive to defence
    counsels myth-based submission that the complainants passivity during the
    second sexual assault raised a reasonable doubt about lack of consent. While it
    might have been preferable for the trial judge to canvass the battered woman
    syndrome analogy with counsel, in the circumstances of this case, his failure
    to do so did not prejudice the appellant in any way. The conclusions the trial
    judge ultimately drew were legally correct: a victims passive response to a
    sexual assault is not inconsistent with lack of consent; and the assumption
    that active resistance is the normal or typical reaction is a sexual
    stereotype that has no place in our criminal justice system.

Analysis

[63]

The trial judges use in his reasons of the
Lavallee
decision and the Scientific American article was marked by several errors.

(a)

The use of the
Lavallee
decision

[64]

First, no party submitted that as part of his
    credibility assessment of the complainant the trial judge should draw a
    parallel between the complainants conduct and the battered woman syndrome
    which had been the subject of expert psychiatric evidence in
Lavallee
.
    It was an error for the trial judge to raise that issue without affording the
    parties an opportunity to address and respond to it during the trial. The
    comments made by this court in
R. v. Hamilton
(2004), 72 O.R. (3d) 1
    (C.A.), at para. 69, in the context of a sentencing hearing apply with equal
    force to the liability stage of a criminal trial:

Judges must be very careful before introducing
    issues into the sentencing proceeding. Where an issue may or may not be germane
    to the determination of the appropriate sentence, the trial judge should not
    inject that issue into the proceedings without first determining from counsel
    their positions as to the relevance of that issue. If counsel takes the
    position that the issue is relevant, then it should be left to counsel to
    produce whatever evidence or material he or she deems appropriate, although the
    trial judge may certainly make counsel aware of materials known to the trial
    judge which are germane to the issue. If counsel takes the position that the
    issue raised by the trial judge is not relevant on sentencing, it will be a
    rare case where the trial judge will pursue that issue.

[65]

The Crown submits that the trial judges
    comments about battered woman syndrome were directly responsive to defence
    counsels submission that the complainants passivity during the second assault
    raised a reasonable doubt about lack of consent. I would note that at trial
    Crown counsel did not respond to the defences closing by drawing parallels
    with the syndrome. If the trial judge thought there might be a parallel, he was
    obliged to raise the issue with counsel before the trial concluded and afford
    counsel an opportunity to respond. His failure to do so was an error.

[66]

Second, since expert evidence is, by definition,
    neither notorious nor capable of immediate and accurate demonstration, judicial
    notice does not extend to an area that requires expert evidence: McWilliams, at
    §26:10. Yet, the trial judge, in effect, took judicial notice of expert
    evidence adduced in the
Lavallee
case and applied it to explain the
    conduct of the complainant in the present case.  Such use of the
Lavallee
decision constituted an improper use of judicial notice.

[67]

In
Lavallee
the accused had pleaded
    self-defence to the charge that she had murdered her common law partner. The
    accused adduced expert psychiatric evidence to assist the jury in understanding
    two elements of her defence: her reasonable apprehension of death; and the lack
    of possibility to otherwise preserve herself from death. In addressing that
    second element, the psychiatrist attempted to explain why the accused had
    remained with her violent partner. It was in that context that the psychiatrist
    testified about the condition of learned helplessness, which Wilson J.,
    writing for the majority, noted was related in the psychological literature to
    the concept of traumatic bonding: at p. 886.

[68]

In the present case, the trial judge drew on that
    part of the
Lavallee
decision to fashion an explanation for the
    complainants quite extraordinary evidence with respect to her helplessness and
    paralysis during the second sexual assault: at para. 81. The trial judge did
    so in the absence of any evidence from an expert who had examined the
    complainant and could provide an opinion explaining the complainants passivity
    at times during the second assault. Nor was there any expert evidence regarding
    the permissibility of using psychiatric evidence from a case about the conduct
    of a battered woman to explain the conduct of a person in the complainants
    circumstances.

[69]

The trial judge also did not provide counsel
    with any notice of his intention to use the evidence referred to in
Lavallee
in the present case. That was improper and unfair. As the Supreme Court stated in
R. v. Sappier; R. v. Gray
,
2006 SCC 54, [2006] 2 S.C.R. 686, at
    para. 71
: [I]t is generally wise not to incorporate evidence
    submitted in other cases without disclosing it to the parties and allowing them
    the possibility of challenging it or presenting contrary evidence.

(b)

The use of the Scientific American article

[70]

The final error was specific to the trial
    judges use in his reasons of an article that appeared in the August 4, 2017
    edition of Scientific American. The trial judge used the information in the
    article as evidence that the complainants passivity at the time of the
    attempted rape was explained by more recent social science research in the area.

[71]

Scientific American is a popular science
    magazine available in many retail outlets and online. According to the online
    reference, the article,
Sexual Assault May Trigger Involuntary Paralysis
,
    was written by a journalist who specializes in psychology and behavior. The
    article did not constitute original research. Instead, it summarized the
    results of a 2017 Swedish study that reported a majority of female rape
    survivors who had visited a Stockholm emergency clinic reported that they did
    not fight back. As well, the article noted a 2005 study with similar results and
    reported comments made by an Australian psychiatrist about the Swedish study.

[72]

The parties did not provide the trial judge with
    the article; his inclusion of a reference to the article in his reasons was the
    result of his own research. The trial judge did not invite the parties to make
    submissions about the article; they first discovered that the trial judge
    considered the article upon reading his reasons.

[73]

The Crown concedes that it was an error for the
    trial judge to refer to the Scientific American article without canvassing
    counsel. That was a proper concession for the Crown to make. In my view, the
    trial judges use of the article in his reasons as part of his assessment of
    the complainants credibility amounted to an error for two reasons.

[74]

First, its use compromised the integrity and fairness
    of the trial process. By relying on a popular scientific publication that was
    not put into evidence or referred to at the hearing, the trial judge breached
    the rules of natural justice. He used social science information obtained after
    the hearing without disclosing it to the parties and giving them an opportunity
    to meet it:
Hearn v. McLeod Estate
, 2019 ONCA 682, 439 D.L.R. (4th)
    217, at para. 28;
R. v. Désaulniers
(1994), 93 C.C.C. (3d) 371 (QC CA),
    at p. 377, leave to appeal refused, [1995] 1 S.C.R. vii. As was put by
    Goldstein J. in
R. v. Ghaleenovee
, 2015 ONSC 1707, 19 C.R. (7th) 154, at
    para. 21:

Checking indisputable facts [on the internet]
    is one thing.  Conducting an investigation and drawing inferences  especially
    without giving the parties an opportunity to respond  is another.

[75]

Second, it constituted an improper use of
    judicial notice.

In
R. v. Hernandez-Lopez
, 2020 BCCA 12, 384
    C.C.C. (3d) 119, leave to appeal to S.C.C. refused, 39090 (July 9, 2020), the British
    Columbia Court of Appeal saw no error in a trial judge using the parts of an
    academic article on the evidence of children that merely outlined generally
    understood and common features of the evidence of children, already reflected
    in judicial commentary and practice. The concepts described in the article did
    not lie outside the general knowledge that judges are required to apply in
    assessing the evidence of witnesses: at paras. 17-22.

[76]

The court in
Hernandez-Lopez
went on to
    note that the trial judge did not rely on the article to furnish critical
    evidence or as an instruction manual for assessing the evidence of children: at
    paras. 14 and 21. However, that is how the trial judge in the present case used
    the Scientific American article. His reasons disclose that he relied on the
    article as a source of expert evidence that was not properly before the court
    to assess the veracity of the complainant. It was an error for him to do so; he
    exceeded the proper limits of judicial notice.

VIII.   THE IMPACT OF THE ERRORS

[77]

As his reasons disclose, the errors identified
    above played an important role in the trial judges assessment of the
    complainants credibility.

[78]

The trial judge structured his reasons to begin
    with an examination of the complainants evidence, commenting on her
    credibility: at para. 21. In dealing with her evidence about the assault in the
    bedroom, the trial judge acknowledged that the defence argument that the
    complainants credibility was adversely affected by her failure to disassociate
    herself from the appellant was part of a broader submission encompassing both
    incidents of sexual assault: at para. 55. The trial judge treated the
    defences submission as a relevant one, requiring analysis. He stated, at para.
    56:

It is completely understandable that the
    defence would make this argument and it has more than just a superficial
    attraction. However, in the circumstance of this case, I disagree that this
    evidence detracts from the complainants credibility.

[79]

The trial judge then referred to the decision in
A.R.J.D. (AB)
, stating that he would go one step further than the
    judgment with respect to the association evidence: at para. 59. It was at this
    point that the trial judge drew upon his experience as counsel to conclude that
    instances in which a complainant fails to distance herself from the abuser are
    not unusual but commonplace: at para. 59. That conclusion informed, in part,
    the rest of his analysis of the complainants credibility.

[80]

After next reviewing some of the specifics of
    the complainants testimony, the trial judge examined her emotional state. It
    was at this point that he drew the parallel with the battered woman syndrome
    considered in the
Lavallee
decision. After quoting from
Lavallee
,
    he continued, at para. 81, by stating that: 
It is this
    psychology which helps to explain
the complainants quite extraordinary
    evidence with respect to her helplessness and paralysis during the second sexual
    assault. [Emphasis added.] The trial judge then immediately referred to the
    Scientific American article, as support for his further conclusion that the
    complainants passivity at the time of the attempted rape
is also explained by more recent social science research
in the area: at para. 82. [Emphasis added.] Shortly thereafter, at para. 84,
    the trial judge concluded that the evidence of after-the-fact association with
    the accused does not detract from the complainants credibility.

[81]

Accordingly, the trial judges reasons disclose
    that his errors did not relate to a peripheral issue. Instead, his erroneous
    use of his previous experience as counsel, the
Lavallee
decision, and
    the Scientific American article played important roles in his reasoning process
    regarding the complainants credibility, which was a key issue at the trial.

[82]

The Crown submits that if the trial judge erred
    in taking judicial notice of matters not in evidence, no substantial wrong or
    miscarriage of justice was occasioned, relying on the curative proviso in
Criminal
    Code
, s. 686(1)(b)(iii). I do not accept this submission.

[83]

Arguably the trial judges use of his prior
    experience standing alone could attract the application of the proviso.
    However, taken together with his other errors, I am unable to conclude that this
    is a case where the errors were harmless and had no impact on the verdict:
R.
    v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26. An error in taking
    judicial notice is a legal error and may be enough, on its own, to require an
    appeal to be allowed: Paciocco, at p. 577. As I concluded above, the trial
    judges erroneous use of judicial notice played an important role in his
    reasoning process regarding the complainants credibility.

[84]

Nor is this a case where the evidence is so
    overwhelming that no substantial wrong or miscarriage of justice occurred
    despite the error:
Khan,
at para. 26. As the trial judge noted, the
    trial turned principally on credibility, not reliability: at para. 45.

[85]

Finally, the trial judges resort to judicial
    notice without giving the appellant an opportunity to make submissions on the
    issue was procedurally unfair. It violated the procedural requirements of
    judicial notice. As a result, it denied the appellant a fair trial. In that
    circumstance, the curative proviso does not apply:
Khan
, at para. 27.

IX.     DISPOSITION

[86]

For the reasons set out above, I would allow the
    appeal, set aside the appellants conviction, and direct a new trial on the
    single count of sexual assault.

Released: March 11, 2021 S.E.P.

David
    Brown J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. K. van Rensburg J.A.





[1]
Given the Crowns
    position, I see no need on this appeal to offer a view on what legitimate
    inferences the Supreme Courts brief decision in
A.R.J.D. (SCC)
permits a
    trial judge to draw from the evidence, or lack of evidence, of a complainants
    after-the-fact conduct. In recent years, this court has grappled with the issue
    in two decisions:
R. v. L.S.
, 2017 ONCA 685, 354 C.C.C. (3d) 71, at
    paras. 88-89; and
R. v. Diabas
, 2020 ONCA 283, 387 C.C.C. (3d) 223, at
    para. 38. See also Professor Lisa Dufraimont, in
Myth, Inference and
    Evidence in Sexual Assault Trials
(2019), 44:2 Queens L.J. 316.



[2]
See,
    also, Sopinka, at §19.16: [T]he tacit judicial notice that surely occurs in
    every hearing is indispensable to the normal reasoning process.



[3]
See
    also, Paciocco, at p. 581: The fact that judicial notice of social context
    facts tends to have less impact on the adversarial function does not mean that
    the requirements of notoriety or incontrovertibility are immaterial.



[4]
In
    support of this proposition the trial judge cited the cases of
R. v. G.
    (A.V.)
, 2015 BCPC 438, [2015] B.C.J. No. 3050, at para. 41, and
R. v.
    Ashley
, 2012 ONSC 1678, affd 2012 ONCA 576.


