



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. M.D., 2020 ONCA 290

DATE: 20200514

DOCKET: C65149

Feldman, Harvison Young and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D.

Appellant

Howard L. Krongold, for the appellant

Catherine Weiler, for the respondent

Heard: November 27, 2019

On appeal from the conviction entered by
    Regional Senior Judge Calum U. C. MacLeod of the Superior Court of Justice on November
    16, 2017, with reasons reported at 2017 ONSC 6776.

Feldman J.A.:

A.

Overview

[1]

The appellant, M.D., was convicted following a
    judge-alone trial of one count of sexual assault, contrary to s. 271 of the
Criminal
    Code
. The central issues at trial were consent and honest but mistaken
    belief in consent.

[2]

On this appeal, the appellant raised a number of
    grounds of appeal relating to the trial judges reasons for disbelieving the
    appellant. It is not necessary to address all of the grounds because I would allow
    the appeal on the first ground and order a new trial.

[3]

As one reason for rejecting the appellants
    evidence, the trial judge stated that he formed the impression that many of
    [the appellants] answers were tailored precisely to the evidence he knew would
    be forthcoming or to the forensic disclosure: at para. 47. It was an error of
    law for the trial judge to criticize the appellant and impugn his credibility
    on the basis that his evidence responded to Crown evidence at trial (or at the
    preliminary hearing), when the appellant was constitutionally entitled to receive
    Crown disclosure and be present at his trial.

B.

Factual Background

[4]

The complainant was a 19-year-old university
    student who had recently been hired by the appellant, a bar manager, to work as
    a hostess at the bar. From the outset of the employment relationship, the
    appellant made sexually suggestive references toward the complainant in person
    and over private messages on various social media platforms, as part of a
    pattern of behaviour that the trial judge characterized as predatory: at
    para. 27. In text messages, the appellant requested that the complainant wear
    revealing clothing at work, including no underwear. Following her second shift,
    he asked her to send him revealing photographs of herself.

[5]

The complainant acknowledged flirting with the appellant,
    but she testified that in order to succeed in the bar industry, it was
    important for the bar manager to like her and staff her on more shifts.

[6]

The allegations forming the basis of the
    appellants criminal charges occurred on the night of February 15, 2015, during
    the complainants fifth shift at the bar. That night, the appellant gave the
    complainant the opportunity to train as a bartender, a much more lucrative
    position, during a private event. Before the shift began, the appellant texted
    the complainant about wearing something hot during her shift. Video footage
    of the bar shows the appellant and complainant flirting and touching throughout
    the night, but the footage ends before the assault allegedly occurred.

[7]

Because the trial turned on the credibility of
    the two accounts of what occurred, it is important to set out both versions.

[8]

The complainant testified that she consumed about
    ten one-ounce shots of alcohol between 10:30 p.m. and 12:30 a.m. that evening, five
    with the appellant. At one point he asked for her phone and she gave it to him.
    Shortly before 1:30 a.m., she asked the appellant for permission to go upstairs
    to get some candy from her coat pocket and tripped on the way up. At the top of
    the stairs she saw the appellant talking to another man, she went over to say
    hi and to get her phone back. After the other man walked away, the appellant
    took out the phone and went through her videos and photos, which included one
    of the complainant having sex with her boyfriend. She tried to grab the phone
    but he held it out of her reach. She then began vomiting in her mouth, and went
    into the washroom where she vomited into the toilet. The appellant came in
    behind her and shut the door. He began rubbing her back and kissing her neck.
    She felt drunk and sick and was not able to speak or move. Once she stopped
    vomiting, she closed the toilet seat. The appellant performed oral sex on her
    as she lay on her back on the floor, without saying anything. He then turned
    her over and penetrated her from behind. She was in and out of consciousness. He
    then stopped and told her to clean herself up; they would get back to work and
    finish this later. She locked the door behind him and looked for her underwear
    which was gone. She did not consent to the sexual activity.

[9]

She remained in the bathroom to gather herself,
    then went to the coat check to get her coat and down to the bar for her boots
    and purse. She saw the appellant outside, got her phone back, and took a taxi
    over to a nearby bar where her boyfriend was working. She arrived around 2 a.m.
    upset and crying. She threw up there as well. When she told her boyfriend that
    the appellant had forced himself on her in the bathroom, her boyfriend used her
    phone to text the appellant accusing him of the attack. At 5 a.m., the
    complainants boyfriend drove her to the hospital to have a sexual assault kit
    performed. She reported the assault to the police some weeks later.

[10]

The appellant testified and told a different
    story. He said that while they were working downstairs, he asked the
    complainant when he was going to see the naked photos of her on her phone. She first
    showed him some photos downstairs at the bar, then they went upstairs and she
    showed him more photos and two videos, including a video of her having sex. At
    that point he held the phone so he could see the video more clearly. Then she
    led him by the hand into the washroom. She spat a few times into the toilet, he
    asked if she was ok, and she said she was.

[11]

The appellant testified that he sat down on the
    toilet and the complainant pulled down her shirt to expose her breasts. She
    told him he was going to see what he saw in the photos, then allowed him to
    remove her underwear. She put her leg up onto the toilet. He inserted his
    finger into her vagina and engaged in cunnilingus. When she stopped responding
    to him, he determined that she was too drunk, like she had hit a wall, so he
    stopped. He picked up her underwear, he said, so she would not be embarrassed
    if someone came in and saw the underwear. He went down and brought back a
    bottle of water. He recalled smoking a cigarette outside and that the
    complainant came and asked for her phone back. He texted her later asking if
    she had left. He also responded to her boyfriends text denying that he had forced
    himself on the complainant.

[12]

As part of the complainants sexual assault kit,
    blood samples were taken at the hospital at 8 a.m. on the morning following the
    alleged assault. At that time, she had a blood alcohol level of 74 milligrams
    of alcohol in 100 milliliters of blood. The toxicologists evidence was that at
    1:30 a.m., the level would have been between 120 and 206 milligrams of alcohol
    per 100 milliliters of blood. The vaginal swab showed male DNA in trace amounts
    belonging to someone other than the complainants boyfriend. The DNA found on
    her underwear  a new pair that she put on at her boyfriends house before
    heading to the hospital  was a match for the appellant and amylase traces were
    consistent with saliva.

C.

Reasons of the Trial Judge

[13]

The trial judge found that the Crown had proven beyond
    a reasonable doubt that the complainant was sufficiently impaired by alcohol
    that she was incapable of providing consent. Moreover, despite noting some problems
    with the complainants testimony, the trial judge accepted her evidence that
    she did not seek out the sexual encounter or consent to it. As a consequence,
    even if consent were possible, it was not given or was vitiated by the
    appellants position of authority.

[14]

The trial judge rejected the appellants defence
    of honest but mistaken belief in consent. In order to successfully invoke this
    defence, s. 273.2(b) of the
Criminal Code
requires the appellant to
    have taken reasonable steps in the circumstances known to him at the time to
    ascertain that the complainant was consenting. The trial judge found that the
    appellants circumstances included knowledge of the complainants level of
    intoxication and the power dynamic inherent in their employment relationship. He
    found that the appellant had made no effort, in light of these circumstances,
    to assess whether the complainant was sufficiently sober to consent.

[15]

Although he noted that the appellant described
    in elaborate detail how matters unfolded and why he believed the complainant
    was inviting him to touch her, the trial judge largely rejected the
    appellants evidence that the complainant initiated the sexual activity and
    that it was entirely consensual: at paras. 36, 45. He gave several reasons for
    rejecting the appellants evidence, at paras. 45-47:

In the first place he denied seeing the
    complainant vomit but he did describe her as spitting into the toilet. It is
    hard to imagine spitting into the toilet as a prelude to a sexual encounter and
    his clear need to downplay the event by describing it as spitting did not
    have a ring of truth.

Similarly he had no convincing explanation of
    why he took the complainants underwear. He was evasive on that point and the
    suggestion made by the Crown that he took the underwear as a trophy seems the
    most likely explanation. He had no good answer for why he could not have taken
    the complainant into his office which was right next to the washroom if this
    was consensual sexual activity. Finally his evidence that she was initially not
    too intoxicated to consent but then suddenly hit a wall and became too
    intoxicated is not credible and is too dependent on split second assessment as
    she succumbed to the effects of alcohol to have any air of reality.

While credibility of evidence cannot be
    assessed purely [by] demeanour, observation of the accused and the manner in
    which he testified is a useful tool. I found the evidence of the accused to be
    delivered in a manner that was bordering on glib. He was clearly an intelligent
    and sophisticated witness who admitted that many of his activities were
    immoral, wrong and perhaps even illegal but he did so with no real conviction.
    I formed the impression that many of his answers were tailored precisely to the
    evidence he knew would be forthcoming or to the forensic disclosure. His
    vagueness about the number of drinks he knew the complainant had drunk, the
    precise timing of her blackout and his inability to describe what happened to
    the complainant after he left her alone in the bathroom left me entirely
    unconvinced.

D.

Issues

[16]

The appellant raises the following issues on the
    appeal:

1)

The trial judge erred in law by rejecting the
    appellants evidence on the basis that he seemed to have tailored his testimony
    to the evidence he knew would be forthcoming and to the disclosure;

2)

The trial judge erred by misapprehending the
    evidence of the appellant and the toxicologist on a number of issues;

3)

The trial judge erred by applying an objective
    test to the appellants defense of honest but mistaken belief in consent; and

4)

The trial judge applied uneven scrutiny to the
    evidence of the appellant and that of the complainant.

[17]

I would allow the appeal on the basis of the
    first ground of appeal and find it unnecessary to address the other three
    grounds.

E.

Analysis

(1)

The trial judges impugned finding

[18]

Among his reasons for rejecting the appellants
    evidence, the trial judge referred to his impression that the appellants
    testimony was tailored precisely to the evidence he knew would be forthcoming
    or to the forensic disclosure: at para. 47.

[19]

The trial judge did not elaborate on this
    comment with specific examples. However, the appellant had attended a
    preliminary inquiry, he had received Crown disclosure, and he heard the
    evidence of all the Crown witnesses including the toxicologist and the DNA
    expert. Due to a procedural anomaly, the accused first testified on a pre-trial
voir dire
having already heard the testimony of the toxicologist and
    the DNA expert. The DNA evidence confirmed that the appellant had performed
    oral sex on the complainant and deposited his DNA in her vagina, but not that
    they had had intercourse. On the
voir dire
, the appellant admitted in
    his evidence that he performed cunnilingus on the complainant and that he
    digitally penetrated her, but denied that he had had intercourse with her, as
    she claimed. The Crown suggests that the trial judge was merely referring to
    this procedural anomaly, which allowed the appellant to tailor his
voir
    dire
testimony having benefitted from knowing the DNA evidence, and to then
    keep his evidence consistent when he subsequently testified in the trial
    proper.

[20]

Regardless of the reason the trial judge drew
    this conclusion, he fell into legal error by using the appellants presence at
    his trial and his receipt of Crown disclosure against him.

(2)

Case law on tailoring

[21]

This court has discussed and explained this
    issue in a number of cases and contexts, including in
R. v. G.V.
, 2020
    ONCA 291, released concurrently with these reasons.

[22]

The issue first arose in relation to Crown cross-examination
    of the accused regarding the disclosure, during jury trials. In
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.), and in
R. v. Schell

(2000),
    148 C.C.C. (3d) 219 (Ont. C.A.), the Crown had tried to suggest to the accused
    in cross-examination that his answers were formed based on his knowledge of
    Crown disclosure.

[23]

In
White
, Doherty J.A. acknowledged the
    basic logic underlying an allegation that the accused tailored his evidence to the
    disclosure, but explained that cross-examination of the accused suggesting such
    reasoning is improper and potentially prejudicial, stating, at para. 20: That
    inference, no matter how logical, cannot be drawn without turning fundamental
    constitutional rights into a trap for accused persons. He directed trial
    judges to ensure that such any such inference in cross-examination be eradicated:
    at para. 20. As the trial judge in that case had given immediate instructions
    to the jury to undercut the improper suggestion put forth by the Crown, the
    appeal was dismissed.

[24]

In
Schell
, the following year,
    Rosenberg J.A. repeated the same admonition against the Crowns insinuation, in
    cross-examination and in a closing address, that the accused was tailoring his
    evidence to the disclosure he had received and the testimony he had heard.
    Rosenberg J.A. stated, at para. 57: It was wrong and unfair for Crown counsel
    to attempt to exploit the appellants exercise of his rights.

[25]

This court has applied similar reasoning in the
    context of judge-alone trials. In
R. v. Thain
, 2009 ONCA 223, 243
    C.C.C. (3d) 230, the trial judges analysis of the credibility of the accused
    included the observation that the appellants testimony came long after
    disclosure was available to him and having regard to the totality of the
    evidence: at para. 15. On appeal, this court approached the case as one of
    first instance, given that the issue was not improper Crown use of disclosure
    against the accused, but improper use of it by a trial judge in his reasons.

[26]

In his analysis, Sharpe J.A. noted two
    circumstances where, contrary to the general principle, the Crown may
    cross-examine an accused regarding disclosure:
Thain
, at para. 24. One
    such situation arose in
White
, where the accused used telephone
    records produced prior to trial to assist with times and dates of meetings with
    the complainant, and the Crown was entitled to bring out that he had had access
    to the records before testifying: see
White
, at para.
22;
R. v. Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.), at
    para.
45, leave to appeal refused, [1999] S.C.C.A. No.
    600;
R. v. Kokotailo
, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58. Similarly,
    the Crown may cross-examine the accused on disclosure to substantiate a claim
    of recent fabrication or concoction of an alibi by the accused: see
R. v.
    Khan
(1998), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to
    appeal refused, [2001] S.C.C.A. No. 126;
R. v. Marshall
(2005), 77
    O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105.

[27]

Sharpe J.A. also referred to
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.), in which the Crown argued in its closing
    address to the jury that the accused had concocted his evidence after receiving
    disclosure, but never put that proposition to the accused. The court found the
    Crowns conduct unfair and prejudicial both because of the misuse of disclosure
    against the accused and the failure to give the accused the opportunity to
    respond to the charge of recent fabrication:
Peavoy
, at p. 625.

[28]

Taking this jurisprudence into account, Sharpe J.A.
    found that the trial judge in
Thain
had no legal basis to use the fact
    of receiving disclosure against the accused. None of the exceptions applied, nor
    had the Crown ever suggested to the accused that he recently fabricated his
    evidence. Any comment on the accuseds use of the disclosure thus first emerged
    in the trial judges reasons. In these circumstances, Sharpe J.A. concluded, at
    para. 29, that in a judge-alone trial, fairness is undermined if the accused
    has no opportunity to respond to allegations of fabrication on the basis of
    Crown disclosure:

In my view, the fact that the accused enjoyed
    his constitutional right to disclosure had no bearing on his credibility in
    this case and the trial judge erred in law by stating that it did. Even if the
    disclosure might possibly have had a bearing on credibility, trial fairness
    demanded that the accused be confronted with the suggestion and afforded the
    opportunity to refute it or make submissions before being disbelieved on that
    account.

[29]

The issue arose again in
R. v. Jorgge
,
    2013 ONCA 485, 4 C.R. (7th) 170, another sexual assault trial by judge alone.
    In her reasons for judgment dealing with her credibility assessment of the
    accused, the trial judge discounted his evidence because he had had the benefit
    of listening to the legal arguments presented by his counsel and by the Crown
    and therefore understood the issues at stake: 2010 ONSC 8038. At paras. 10-14
    of her reasons, she made several comments that were the subject of the accuseds
    appeal to this court:

Mr.
    Jorgge had the benefit of listening to the various arguments raised by his
    counsel at the
voir dire
. He also understands now that
    consent to sexual relations means more than a woman not protesting as sexual
    activity progresses.



I
    conclude that this evidence given by Mr. Jorgge at the trial when he said that
    unless I gave him something, I was never going to get out of there was
    evidence carefully tailored to fit the arguments raised by the Crown and his
    counsel during the
voir dire
.



I conclude that the evidence given by Mr.
    Jorgge in his statement about the sexual activity that took place on July 18,
    2008, and in particular whether Ms. R. was moving or was inert as she was
    sleeping or passed out, is truthful. I conclude that his commentary given at
    the trial is simply an attempt by Mr. Jorgge to distance himself from any
    concessions made in the statement relevant to the issue of consent now that Mr.
    Jorgge has a better understanding of the issues.

I conclude that his evidence given at the
    trial, when it conflicts with his prior statement, is an attempt to challenge
    the ruling as to the voluntariness of his statement after hearing the capable
    arguments of his counsel. In drawing this conclusion I have considered all of
    the statement and all of Mr. Jorgges evidence at this trial.

[30]

While this court again acknowledged that there
    may be a natural temptation to reason in the way the trial judge did, that
    temptation must be resisted: at para. 12. It subverts an accuseds statutory
    right and obligation to be present at his or her trial under s. 650(1) of the
Criminal
    Code
, which is grounded in the guaranteed
Charter
rights to a
    fair trial and to make full answer and defence: ss. 7 and 11(d). In
Jorgge
,
    this court explained that a trial judge is entitled to consider inconsistencies
    between an accuseds statement to police and his testimony at trial, but may
    not attribute any such inconsistencies to the accuseds presence at the
voir
    dire
.

(3)

Application of the case law

[31]

This case law applies with full force to the
    reasons given by the trial judge in this case. The trial judge fell into the
    same error as in the cases discussed by discounting the appellants credibility
    on the basis that he tailored many of his answers to the case against him,
    which he knew from being present during the proceedings and from the
    disclosure. This reasoning, as in the previous cases, turned the appellants
    constitutional rights into an evidentiary trap.

[32]

The Crown referred the court to two cases that it
    submits may contradict the other authorities:
R. v. Brown
, 2018 ONCA
    9, and
R. v. Roble
, 2004 CanLII 23106 (Ont. C.A.). I do not regard
    either of these cases as undermining the statements of the law as articulated
    by the court in full reasons in
White
,
Schell
,
Thain
,
    and
Jorgge
.

[33]

Brown
was a
    chambers decision denying a motion to appoint counsel under s. 684 of the
Criminal
    Code
. One of the issues the motion judge considered was the potential
    merit of the appeal, including the submission that the trial judge improperly found
    the appellants evidence was tailored to the disclosure he had received. More
    specifically, the trial judge said that his answers had the air of being
    scripted, practiced and tailored:
Brown
, at para. 14. On the s. 684
    application, the motion judge commented that if the trial judges statement was
    made in response to the Crowns closing submissions which referenced
    disclosure, then the trial judges statement could be problematic, but not if
    the trial judge was referring to testimony being scripted to the Crowns case
    at trial: at para. 14. The Crown relies on the latter comment.

[34]

In
Brown
, the motion judge was
    acknowledging that the applicant had an arguable ground of appeal, but one that
    required closer examination of the record in the context of the parties
    positions and submissions at trial. I do not read his comment as intended to depart
    from the jurisprudence I have referred to. He was responding to the parties
    submissions, not articulating a general statement of law.

[35]

Roble
was a
    brief, six-paragraph endorsement by this court. One issue was whether the trial
    judge applied a different standard of scrutiny to the evidence of the
    appellant. In rejecting that submission, the court commented that the trial
    judge was entitled to find that the accused was tailoring his evidence to fit
    the events described and that his specific explanations of various counts were
    tailored, well thought out and convoluted: at paras. 4-5.

[36]

In his reasons, the trial judge in
Roble

characterized the accuseds

evidence

as

well

thought

out; scripted: 2002 CarswellOnt 5994 (S.C.), at para. 41.

For example,
    on one count, the complainant alleged that the accused butted her face and eye
    with a cigarette. The trial judge found the accuseds testimony that a woman
    with a cigarette slapped the complainant to be incredulous and another attempt
    to tailor his evidence: at para. 47. Rather than use the accuseds presence in
    court and access to disclosure as the starting point for impeaching his
    credibility, the trial judge focused on the internal implausibility of the
    accuseds account of the events. It cannot be said that he turned the accuseds
    enjoyment of his constitutional rights into a trap within the credibility
    analysis. Moreover, the issue on appeal was uneven scrutiny of the evidence, and
    this court did not consider whether the trial judges analysis undermined the
    appellants right to be present at the trial and to make full answer and
    defence.

(4)

Conclusion

[37]

For these reasons, I find that the trial judge
    fell into legal error when he reasoned that the appellant tailored his
    testimony to the evidence he knew would be forthcoming or to the forensic
    disclosure. That inference tainted the trial judges legal analysis and
    conclusion.

[38]

The Crown submits that if the court finds an
    error, it should apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
. The Crown argues that the tailoring point was only one of many
    reasons the trial judge gave for rejecting the appellants evidence, and that it
    was near the bottom of the list and therefore less significant to the trial
    judges analysis.

[39]

A similar request was made and rejected in
Thain
:
    at para. 38. As in
Thain
, I would not apply the proviso in this case,
    which turned on the trial judges credibility findings. While the tailoring
    issue was only one of the concerns the trial judge had with the appellants
    testimony, there is no basis to believe it was an unimportant one, particularly
    because the trial judge stated that
many
of the appellants answers
    appeared to be tailored to the disclosure and the evidence he knew was coming. This
    error is far from harmless. It goes to the heart of trial fairness and the
    right to make full answer and defence.

F.

Disposition

[40]

I would allow the appeal, set aside the
    conviction, and order a new trial.

[41]

Because of the COVID-19 emergency, the panel
    relieved the appellant from the term of his bail that requires him to surrender
    into custody prior to this decision being released.

Released: K.F. May 14, 2020

K. Feldman
    J.A.

I agree.
    Harvison Young J.A.

I agree. M.
    Jamal J.A.


