



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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. K.T., 2013 ONCA 257

DATE: 20130425

DOCKET: C54055

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. T.

Appellant

K. T., appellant, in person

Breese Davies, duty counsel for the appellant

Marcella Henschel, for the respondent

Heard:  November 19, 2012

On appeal from the convictions entered by Justice Nancy
    J. Spies of the Superior Court of Justice, sitting without a jury, on June 6,
    2011.

Watt J.A.:

[1]

Several rules govern the order of proof in a criminal trial. One of
    them, a rule of general application, requires the Crown to produce and enter,
    in its own case, all the clearly relevant evidence it has, or that it intends
    to rely upon to prove its case. This rule is essential because an accused is
    entitled to know, at the end of the Crowns case, to what she or he must
    respond.

[2]

Nevertheless, on occasion the law permits the Crown to call evidence in
    reply following the defences case. Specifically, the Crown is permitted to
    call evidence in reply where the accused has raised some new issue or defence
    with which the Crown had no opportunity to deal, and that the Crown could not
    reasonably have anticipated.

[3]

In this case, trial counsel for the appellant (who was not Ms. Davies) agreed
    that the Crown could call reply evidence to rebut a defence claim of recent
    fabrication in the complainants version of events. But when the reply evidence
    was given, it strayed beyond what recent fabrication principles permit. Significantly,
    the trial judge relied upon this evidence to confirm the complainants version of
    events about two incidents of sexual assault.

[4]

Duty counsel challenges the admissibility of this reply evidence, and takes
    issue with the manner in which the trial judge used it to reach her findings of
    guilt on the counts of sexual assault.

[5]

The reasons that follow explain why I think substantial parts of the
    reply evidence were inadmissible and improperly used by the trial judge to
    conclude that the allegations of sexual assault had been proven beyond a
    reasonable doubt.

the background facts

[6]

The issue of admissibility of the Crowns reply evidence raised by duty
    counsel requires a brief review of the evidence adduced at trial where both the
    complainant and appellant, among others, testified.

The Principals

[7]

The principals occupied different rooms in the home of R.S., a Crown
    witness at trial.

[8]

The complainant had two rooms in R.S.s home.  In one room, she and her
    two young children slept on a queen-size mattress on the floor. The other room
    contained their clothing and other belongings. The complainant did not work outside
    the home. She did not go to school. Her children were not of school age.

[9]

The appellant and his wife occupied the master bedroom in R.S.s house. 
    The appellant worked a 4:00 p.m. to midnight shift at least five days a week.
    He usually left for work around 2:30 p.m. His wife attended school.

[10]

R.S.
    occupied another bedroom in her house. She was friends with both the
    complainant and the appellants wife.

[11]

It
    was common ground at trial that the appellant, the complainant, and her two
    children were alone in the house most weekday mornings and early afternoons.

The Allegations of February 1, 2010

[12]

The
    complainant testified that the appellant entered her bedroom, uninvited, early
    in the morning of February 1, 2010, while she was asleep on the mattress with
    her two children. The appellant told her repeatedly that he wanted her and
    began to rub various parts of her body. The complainant resisted these advances,
    but did not scream or cry out for fear that she would wake her children.
    Eventually, she abandoned her resistance. The appellant had vaginal intercourse
    with her, then left the bedroom. The complainant fell back asleep.

[13]

The
    appellants account was different. He said that he went to the complainants bedroom
    because she had invited him earlier to do so.  After some mutual foreplay, the
    appellant and complainant had sexual intercourse. The complainant consented.
    The appellant left the bedroom and returned to the bedroom he shared with his
    wife.

[14]

The
    complainant spent most of the remainder of the day with the appellants wife.
    She said nothing to anybody about any contact with the appellant in her bedroom
    earlier in the day.

The Allegations of February 2, 2010

[15]

The
    complainant recalled that around 8:00 a.m. on February 2, 2010, while sleeping
    with her children on the mattress on the floor of her room, she was awakened by
    a noise at the bedroom door. The appellant entered. He told her repeatedly that
    he wanted to have intercourse with her again. The complainant expressed her
    resistance out loud, awakening her children. The appellant kissed the
    complainant on the neck, then left the room. Afterwards, the complainant
    noticed a hickey on her neck.

[16]

The
    appellant acknowledged that he entered the complainants room during the
    morning of February 2, 2010. He said that the complainant consented to their
    sexual activities that morning, just as she had done the previous day.

The Report to Police

[17]

Shortly
    after the events of February 2, 2010 had concluded, the complainant called the
    father of her children and two female friends to tell them what had happened to
    her. She decided to call the police from a transit station.  She provided a
    formal statement to investigators.

[18]

The
    appellant was arrested on charges of sexual assault. After his release from
    custody, he was re-arrested on further charges of breaching his recognizance (by
    communicating indirectly with the complainant) and obstructing justice (by
    offering the complainant $3,000 not to testify). All counts were joined in a
    single indictment after the appellant had been committed for trial.

The Trial Proceedings

[19]

The
    appellant was tried by a judge of the Superior Court of Justice sitting without
    a jury.

[20]

The
    case for the Crown consisted of the testimony of the complainant and of her
    friend, R.S., the person in whose house the offences are alleged to have
    occurred. R.S. gave evidence about a telephone call she received from the
    complainant on February 2, 2010 alleging that the appellant had sexually
    assaulted her. R.S. also testified about a second telephone call she had
    received several months later from the appellant. What the appellant said to
    R.S. during this later call formed the basis of the counts of breach of
    recognizance and obstructing justice.

[21]

The
    defence case consisted of the testimony of the appellant, his wife, and  her
    friend, J.M. The appellant admitted to having sexual activity with the
    complainant on both days, including sexual intercourse with her on February 1,
    2010, but claimed the complainant had consented to, indeed had invited, what
    had occurred. According to the appellant, the complainants discovery of the
    hickey on her neck on February 2, 2010, a condition she would have trouble
    explaining to her childrens father, precipitated her spurious claim of non-consensual
    activity.

The Reply Evidence

[22]

In
    reply, and with the express agreement of trial counsel for the appellant, Crown
    counsel adduced the evidence of A.M. to rebut the defence claim of recent
    fabrication of the complainants testimony.

[23]

A.M.,
    who was a friend of the complainant, testified about two telephone calls she
    had received from the complainant during the morning of the same day.  Although
    the witness could not recall the precise date of the calls, the parties
    proceeded on the basis that they occurred during the morning of February 2,
    2010, likely between 9:00 and 10:00 a.m.

[24]

During
    the first call, the complainant said that K., a man who lived with his wife in
    another room in the same house as her and her children, came into her bedroom
    and forced sexual intercourse on her while her children slept beside her on the
    mattress.  K.s wife was home at the time. The complainant did not know what to
    do or whether she should call the police to report the incident.  A.M. told her
    to call the police.

[25]

The
    complainant called A.M. a second time, later that same morning. As they spoke,
    the complainant told A.M. that the same man was coming into her room again.
    A.M. heard noises consistent with what the complainant described, as well as a
    man saying things that could be characterized as reflecting a desire to have
    sexual contact with the complainant. The man left after the complainant began
    shouting at him to get out of her room.

[26]

A.M.
    also testified that several months earlier, the complainant had told her that a
    man who lived in the same house had been watching her. The man had been coming
    on to her and repeatedly told her that he wanted to sleep with her.

[27]

A.M.
    neither called the police nor had any intention of doing so after the
    complainant, her good friend, had reported her allegations to the police
    resulting in the charges against the appellant. The police contacted and
    interviewed A.M. the day before she testified at the appellants trial, about
    16 months after the events about which she testified.

the ground of appeal

[28]

Duty
    counsel advances a single ground of appeal relating to the admissibility of the
    reply evidence. The ground has two aspects. The first is that A.M.s testimony
    was inadmissible in reply. The second is that the trial judge erred in relying
    on this inadmissible evidence in reaching her conclusion that the counts
    charging sexual assault had been proven beyond a reasonable doubt.

THE POSITIONS OF THE PARTIES

[29]

Duty
    counsel says that the event that triggered the fabricated allegations of sexual
    assault in this case occurred on the morning of February 2, 2010, when the
    complainant discovered the hickey on her neck after the appellant had kissed
    her. To be admissible in rebuttal of the appellants allegation of recent
    fabrication,
duty counsel
contends,
    any statement of the complainant must have been made prior to, not
    contemporaneous with or following after, the precipitating event. Most of the
    statements A.M. attributed to the complainant were either contemporaneous with
    or subsequent to the motivating factor of the hickey, thus could not be
    admitted to rebut the allegation of recent fabrication.

[30]

Duty counsel adds that
    even if A.M.s evidence about the complainants earlier statement was
    admissible to rebut the allegation of recent fabrication, the balance of her
    evidence about the events of February 1 and 2, 2010 was not admissible to rebut
    this allegation or admissible in reply. A.M.s evidence about the complaint on
    February 2, 2010 was not evidence of a
prior
consistent statement, but rather of a
    contemporaneous complaint. And what A.M. overheard on February 1, 2010, should
    have been tendered as part of the Crowns case-in-chief and not in reply.

[31]

The respondent says that
    A.M.s evidence was properly admissible in reply to rebut the allegation of
    recent fabrication made by the defence. Trial counsel for the appellant
    conceded that the evidence was admissible on this basis and must be taken to
    have done so fully apprised of what the witness would say. Much of the evidence
    now said to be inadmissible was elicited by counsel for the appellant at trial
    in cross-examination of A.M.

[32]

The respondent also
    points out that the trial judges reasons betray any suggestion that she used
    this evidence in a legally impermissible way.  Further, the respondent says,
    the nature of the trial forum, being that the appellant was tried by a judge
    alone, eliminates the concerns that arise from allowing the Crown to split its
    case. All the evidence adduced in reply was admissible. That some of it should
    have been adduced as part of the case-in-chief caused the appellant no
    prejudice. The appellant had the opportunity to challenge the evidence and did
    so. No prejudice resulted.

the governing principles

[33]

The
    principles that inform the decision in this appeal involve the admissibility of
    prior consistent statements to rebut an allegation of recent fabrication and
    the admissibility of reply evidence.

Recent Fabrication

[34]

Evidence
    of the prior consistent statements of a witness who testifies in trial
    proceedings is generally held to be inadmissible. The rule rests on sound
    policy considerations. Evidence of a witness prior consistent statements lacks
    probative value, is self-serving, superfluous in light of the witness
    testimony, and constitutes hearsay when adduced for the truth of their
    contents:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    36. Despite these concerns, however, evidence of spontaneous, exculpatory
    statements made by an accused upon or shortly after arrest may be admitted to
    show the accuseds reaction when first confronted with the allegation, provided
    the accused testifies and thereby exposes himself or herself to
    cross-examination:
R. v. Edgar
, 2010 ONCA 529, 260 C.C.C. (2d) 1, at
    para. 24.

[35]

The
    general rule that prohibits introduction of prior consistent statements of a
    witness is not absolute. The rule yields when a party alleges that a witness
    has recently fabricated his or her account of an event about which she or he
    testifies.

[36]

A
    recent fabrication is one made up
after
the event about which the
    witness testifies:
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at
    para. 33. The fabrication need not be recent, in the sense of proximity to
    the witness testimony, but it must post-date the event that is the
    subject-matter of the witness testimony:
R. v. Stirling
, 2008 SCC 10,
    [2008] 1 S.C.R. 272, at para. 5.

[37]

An
    allegation of recent fabrication need not be made expressly. It is enough that,
    in light of the circumstances of the case and the conduct of the trial, the
    apparent position of the opposing party is that there has been a prior
    contrivance:
Stirling
, at para. 5; and
Ellard
, at para. 32.
    That said, it is not sufficient that contradictions appear or are exposed in
    the testimony of the witness in order for the recent fabrication exception to
    be engaged:
Ellard
, at para. 33.

[38]

An
    allegation of recent fabrication allows the party who called the witness to
    introduce evidence that the witness made a statement or statements consistent
    with his or her testimony, prior to the existence of a motive or of
    circumstances that led to the fabrication:
Ellard
, at para. 33;
R.
    v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 145, reversed on
    other grounds, [1990] 2 S.C.R. 1421; and
R. v. Campbell
(1977), 17 O.R.
    (2d) 673 (C.A.), at p. 687. In some instances, evidence of these prior
    statements may be admitted in reply.

[39]

As
    a general rule, limiting instructions are required where prior consistent
    statements have been admitted to rebut an allegation of recent fabrication. 
    These instructions explain that consistency and accuracy are not the same
    thing, and that the prior statements can only be used to rebut the allegation
    of recent fabrication, not to support the fact at issue or the general
    reliability of the impeached witness:
Ellard
, at paras. 31 and 42. However,
    the requirement of limiting instructions about evidentiary use of prior consistent
    statements also yields on occasion, as for example, where


i.

the defence itself relies on the prior statements;


ii.

the prior statement is not offered to prove the underlying facts and;


iii.

the concerns over self-corroboration and bolstering the reliability of
    the witness are not present.

Ellard
, at para. 43.

Reply Evidence

[40]

The
    second admissibility rule that has a say in the disposition of this appeal
    governs the reception of reply evidence.

[41]

The
    general rule with respect to the order of proof is that the Crown must
    introduce all the evidence in its possession upon which it relies to prove the
    guilt of an accused in its case-in-chief, before the accused is required to
    decide whether to adduce evidence in response, and to actually introduce that
    evidence:
Campbell
, at p. 693;
R. v. Krause
, [1986] 2
    S.C.R. 466, at pp. 473-474. Inherent in this requirement are principles of
    trial fairness and the notion of a case to meet.

[42]

The
    rule governing the order of proof in the context of a criminal trial prevents
    unfair surprise, prejudice, and confusion that could result if the Crown were
    allowed to split its case.  Were it not for this rule, the Crown could put in
    part of its evidence in its case-in-chief, enough to survive a motion for a
    directed verdict, allow the defence to play through with its case, then add
    further evidence to bolster the case presented in-chief:
Krause
, at
    pp. 473-474;
R. v. Biddle
, [1995] 1 S.C.R. 761, at para. 13.

[43]

But
    the rule about the order of proof erects no absolute bar to the introduction of
    further evidence by the Crown after the defence has closed. The Crown may be
    permitted to call evidence in reply after completion of the defence case where


i.

the defence has raised some new matter or defence with which the Crown
    had no opportunity to deal and that the Crown could not reasonably have
    anticipated; or


ii.

some matter that emerged during the Crowns case has taken on added
    significance as a result of evidence adduced in the defence case.

Krause
, at pp. 473-474;
R. v. Quance
(2000), 146 C.C.C. (3d) 153 (Ont. C.A.), at para. 21; and
R. v. P. (G.)
(1996), 31 O.R. (3d) 504 (C.A.), at pp. 513-514.

[44]

Two
    further observations warrant mention in connection with the introduction of
    reply evidence. The first has to do with the position on admissibility taken by
    defence counsel at trial. The second concerns the relevance of the mode of
    trial on the issue of prejudice where reply evidence has been wrongly admitted.

[45]

The
    position of trial counsel on an issue of admissibility of evidence, including
    the admissibility of reply evidence, is important for an appellate court responsible
    for determining whether the evidence was rightly or wrongly admitted and, if
    wrongly admitted, whether the error affected the result:
R. v. Lomage
(1991), 2 O.R. (3d) 621 (C.A.), at pp. 629-630; and
R. v. A. (J.F.)
(1993), 82 C.C.C. (3d) 295 (Ont. C.A.), at p. 300.

[46]

Second,
    the impact of improperly admitted reply evidence may be less in a non-jury
    trial than in a jury trial. In a jury trial, the late introduction of a piece
    of evidence may create or magnify its importance well beyond what an objective
    assessment of it would warrant in relation to the balance of the evidence in
    the case:
R. v. Markman
, 2002  CanLII (Ont. C.A.), at para. 3;
Biddle
,
    at para. 14; and
Campbell
, at p. 693.

[47]

A
    final point about prejudice.  A distinction should be drawn between


i.

inadmissible evidence introduced in reply; and


ii.

evidence that is inadmissible only because it is introduced in reply.

Evidence that falls within the first category has no
    place in the trial and cannot be used, in whole or in part, as a basis upon
    which the trier of fact can ground any finding of fact. On the other hand,
    evidence in the second category could provide a foundation for findings of
    material facts, its prejudice arising from the time of its arrival in the
    proceedings.

the principles applied

[48]

The
    application of the governing legal principles satisfies me that much of the
    evidence admitted in reply, as evidence of prior consistent statements to rebut
    an allegation of recent fabrication, was not admissible as reply evidence. 
    Further, I am satisfied that the reasons of the trial judge demonstrate
    improper use of the evidence adduced in reply to such an extent that the
    convictions of sexual assault cannot stand.

[49]

For
    discussion purposes it is helpful to recall that A.M. testified about three
    separate conversations with the complainant concerning the appellant:


i.

a complaint, several months before the events of February 1-2, 2010, in
    which the complainant protested that the appellant was coming on to her and
    making comments that he wanted her;


ii.

a complaint of unwanted and non-consensual sexual intercourse on
    February 1, 2010; and


iii.

a complaint relating to the offence alleged on February 2, 2010 which
    included the sound of a male voice making remarks of a sexual nature to the
    complainant.

This evidence was offered as proof of prior consistent
    statements to rebut an allegation of recent fabrication said to be founded on
    the complainants discovery of a hickey on her neck after the encounter of
    February 2, 2010. Another witness, R.S., gave evidence about the complaint relating
    to February 1, 2010 during the Crowns case-in-chief.

[50]

I
    will consider first the admissibility of the evidence as prior consistent
    statements to rebut an allegation of recent fabrication, then the admissibility
    of this evidence in reply, and as a matter of general principle. Next, I will
    turn to the propriety of the manner in which the trial judge used the evidence
    to make her findings of fact and the consequences of that use on the integrity
    of her conclusions.

Rebuttal of the Allegation of Recent
    Fabrication

[51]

The
    first complaint reported by A.M. occurred several months before the events of
    February 1-2, 2010. Its subject matter involved expressions of sexual desire by
    the appellant directed to the complainant. This complaint could properly be
    characterized as a prior consistent statement and could be offered in rebuttal
    of the claim of recent fabrication.

[52]

The
    second complaint followed what the complainant alleged was a sexual assault
    involving non-consensual sexual intercourse on February 1, 2010. The statement
    preceded the events of February 2, 2010 the result of which, the hickey, was
    alleged to be the motive for fabrication. This statement could be construed as
    a prior consistent statement in that it alleged sexual interference before the
    event said to give rise to the motive to fabricate the allegations of sexual
    assault.

[53]

The
    third complaint, a blow-by-blow account of the sexual assault of February 2,
    2010, as recounted by the complainant and overheard by A.M., was
    contemporaneous with the event that gave rise to the motive to fabricate. This
    statement was not a prior statement, but rather a contemporaneous report on the
res gestae
. It was not admissible to rebut the allegation of recent
    fabrication because it was not a
prior
consistent statement.

[54]

In
    the result, the first two complaints qualified as prior consistent statements
    available to rebut the allegation of recent fabrication. The third complaint
    did not qualify, thus should not have been admitted as a prior consistent
    statement to rebut the allegation of recent fabrication.

The Admissibility of the Reply
    Evidence

[55]

From
    the record available to us, it is clear that, in cross-examination, it was put
    to the complainant that her evidence of sexual assault was a fabrication, the
    underlying motive for which was the hickey left on her neck when the
    appellant entered her room on February 2, 2010.  It cannot be said that this
    was some new issue that emerged only in the evidence adduced by the defence, nor
    that it took on added significance as a result of the defence evidence.

[56]

It
    is worth recalling that, as part of its case-in-chief, the Crown introduced the
    evidence of R.S. about a telephone call from the complainant seeking advice
    about what to do about the alleged sexual assault of February 1, 2010.

[57]

In
    the circumstances of this case, where the allegation of recent fabrication
    emerged during cross-examination of the complainant, the responsive prior
    consistent statements about which A.M. testified should have been adduced
    during the Crowns case-in-chief, not in reply:
Biddle
, at para. 18.

The Admissibility of the Third
    Statement

[58]

The
    third statement consisted of an amalgam of A.M.s report of the complainants
    account and A.M.s ear-witness report of the events. As a contemporaneous
    complaint of the sexual assault, this statement was not admissible to establish
    the truth of its contents. To the extent that it was offered to establish what
    happened on February 2, 2010, the evidence should have been tendered during the
    Crowns case-in-chief and its admissibility established.  The Crowns failure
    to do so left re-opening of the case as its only option to have this evidence
    admitted after the close of the defence case:
M. (F.S.)
, at para. 30.
    A judges discretion to permit re-opening the case after the close of the
    defence case is very restricted:
R. v. P. (M. B.)
, [1994] 1 S.C.R.
    555, at p. 570.

The Trial Judges Use of the Evidence

[59]

The
    trial judge was satisfied that the third statement occurred on February 2, 2010
    and that it began shortly before, but continued during, the alleged sexual
    assault on that date. The trial judge considered A.M. to be a very reliable and
    credible witness who had not colluded with her close friend, the complainant,
    about the content of her evidence.

[60]

The
    trial judge rejected the hickey as a motive or reason for the complainant to
    make up a story about what happened and did not consider A.M.s evidence to be
    of any assistance in rebutting the claim of recent fabrication.  The trial
    judge considered that A.M.s evidence of what she heard afforded strong
    corroboration of the complainants evidence and her allegations of forced
    intercourse and non-consensual touching.

[61]

The
    reasons of the trial judge describe how she used the evidence of A.M. to help
    her conclude that the Crown had proven both counts of sexual assault beyond a
    reasonable doubt. The trial judge said:

[135]  The second part of the call or second call that [A.M.]
    described is completely consistent with the evidence of [the complainant] that
    on the Tuesday morning, February 2, 2010, [the appellant] was following her
    around the house and continuing to press her to have sex with him, that she did
    not want this and that she called [A.M.] at some point while this was
    happening. The male voice [A.M.] heard while on the phone with [the
    complainant] must have been [the appellant].

[136]  I have considered the fact that [A.M.] did not hear what
    led up to the exchange between [the complainant] and [the appellant] that she
    did hear. However, even with that in mind, what [A.M.] heard is not at all
    consistent with what [the appellant] says happened after the hickey. He did say
    that after [the complainant]  returned from the bathroom that he tried to calm
    her and she told him not to touch her, but there was no suggestion from his
    evidence that he had left her bedroom or that she had made a phone call. He
    testified that when she told him to leave the bedroom he did.  [The appellant]
    testified that later, while he was in the living room, [the complainant] came
    downstairs, he thought maybe to look for her phone and he called her name and
    she yelled Cant you see that I am mad with you  please dont talk to me. 
    [The appellant] testified that he then went upstairs, watched some soccer and
    fell asleep. He had no further contact with [the complainant].

[137]  [Crown counsel] submitted that the evidence of [A.M.]
    puts the evidence of [the complainant] over the hurdle of a reasonable doubt. 
    I agree.  Although I have been careful to disregard [A.M.s] evidence about the
    prior consistent statements made by the [the complainant], as they clearly
    cannot be used to corroborate [the complainants] evidence, to the extent
    [A.M.] heard an exchange between [the appellant] and [the complainant], her
    evidence is admissible and extremely important.  [A.M.] is like an eyewitness
    in the sense she heard firsthand a voice that must have been [the appellants]
    and what she heard is consistent with what [the complainant] testified to.

[138]  The crux of the difference between the position of [the
    appellant] and [the complainant] as to what happened between them is the
    question of whether or not the intercourse and sexual touching was consensual.
    The evidence of [A.M.] strongly supports the position of [the complainant] that
    it was not consensual as alleged by [the appellant]. As such, I agree that this
    evidence of [A.M.] not only corroborates the evidence of [the complainant] as
    to what was happening on the morning of February 2, 2010, but it also enhances
    the credibility of [the complainants] evidence generally.

[62]

For
    reasons that I will develop, I am satisfied that the trial judge made errors in
    her reception and use of the evidence adduced in reply.

[63]

First,
    the trial judge erred in receiving in reply evidence of the first two
    statements to rebut an allegation of recent fabrication. This evidence should
    have been adduced, as was similar evidence from R.S., in the Crowns
    case-in-chief.

[64]

Second,
    the trial judge erred in receiving the third statement as a
prior
consistent
    statement to rebut the allegation of recent fabrication. A.M.s account was not
    a prior statement.

[65]

Third,
    the trial judge erred in receiving the third statement in reply.  Among other
    things, this statement included evidence that tended to establish essential
    elements of the offence alleged to have been committed on February 2, 2010. It
    should have been introduced as part of the Crowns case-in-chief, or otherwise
    been the subject of an application to reopen the Crowns case after the defence
    had closed its case.

[66]

Ultimately,
    some evidence entered the proceedings too late. The prior consistent statements
    to rebut the claim of recent fabrication that emerged in the Crowns evidence
    in reply should have been led as part of the Crowns case-in-chief.  Other
    evidence  A.M.s report about the conduct on February 2, 2010, including her
    repetition of what the complainant said and she (A.M.) overheard  was not
    admissible in reply, and should have been tendered for admission and its
    admissibility determined as part of the Crowns case-in-chief, or made the
    subject of an application to re-open the Crowns case.

The Remedy

[67]

Where
    improper reply evidence has been admitted in a trial by judge alone, it is not
    automatically given that a new trial will be required. Sometimes, the concerns
    that arise in jury trials from allowing the Crown to improperly split its case
    take on much less significance in trials by judge alone:
Markman
, at
    para. 3. It is all the more so where the accused is offered or takes up the
    opportunity to adduce evidence in surrebuttal.

[68]

In
    this case, however, the errors made in connection with the order of proof were
    aggravated by the use the trial judge made of the evidence in her findings of
    guilt. The trial judge used A.M.s evidence, apparently as proof of the truth
    of what was said, to corroborate the testimony of the complainant and to
    enhance her credibility generally. As tendered, the evidence could not be used
    for either purpose. In somewhat similar circumstances, evidence adduced
    improperly in reply and used as a basis to disbelieve the accused was held to
    be beyond the reach of what is now s. 686(1)(b)(iii) of the
Criminal Code
:
R. v. Michael
,
[1954] O.R. 926 (
C.A.), at
    p. 933.

[69]

Trial
    counsel for the appellant consented to the admission of A.M.s evidence in
    reply on the basis that it comprised prior consistent statements offered to
    rebut the allegation of recent fabrication. Whether counsel misapprehended the
    scope of A.M.s evidence, or simply expected that it would be used as
    advertised, I am not prepared to say that his agreement should bar the claim of
    prejudice now being advanced. At all events, it was the trial judges
    obligation to ensure that the evidence adduced was properly admissible and that
    its use was confined to what the law permits.

CONCLUSION

[70]

For
    these reasons, I would allow the appeal, set aside the convictions of sexual
    assault, and order a new trial on those counts. The errors made do not affect the
    convictions of breach of recognizance and obstructing justice. The appeals from
    conviction on those counts should be dismissed.

Released:  April 25, 2013  RGJ

David
    Watt J.A.

I
    agree R.G. Juriansz J.A.

I
    agree Gloria Epstein J.A.


