



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    that could identify the complainant or a witness shall not be published in any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. Sanderson, 2017 ONCA 470

DATE: 20170608

DOCKET: C57359

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Michael Sanderson

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Andrew Cappell, for the respondent

Heard: February 2, 2017

On appeal from the conviction entered on December 7, 2012
    by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a
    jury.

Pepall J.A.:

A.

introduction

[1]

The appellant was charged with eight counts
of
    sexual assault of an historical nature. He was acquitted of six counts relating
    to one complainant that were alleged to have taken place in the years 1982 and
    1984. He was convicted of one count of indecent assault and one count of gross
    indecency relating to the complainant TS for which he received a 12-month conditional
    sentence which has now been served. The events in issue took place in 1978. He
    appeals from the two convictions. For the reasons that follow, I would dismiss
    the appeal.

B.

Background facts

[2]

TS was a skater. The appellant became her
    skating coach when she was 14 or 15 years old and he was 21. In the late fall
    of 1978, when she was 16, the complainant asked the appellant to drive her home
    from skating one night. When asked, the appellant hemmed and hawed because he
    had to get back to the rink for his next lesson. In the end, he did drive her
    home.

[3]

At trial, the appellant was self-represented but
    had the assistance of
amicus

in the cross-examination of the complainant. Both the complainant
    and the appellant testified. Their descriptions of events on their arrival at the
    complainants home that evening varied.

(1)

Complainants Evidence

[4]

I will first describe the complainants
    evidence. At trial, she testified that when she and the appellant arrived at
    her home, the appellant initially declined her offer to come into her home for
    a drink but moments later, he knocked on the door. She gave him something clear
    to drink, a soft drink or water, and after taking one sip, the appellant told
    her there was something that he always wanted to do. She testified that he then
    kissed her, put his hands down her pants and touched her pubic area. She pushed
    him away and asked, What about your wife, MJ, dont you love her? to which he
    replied that of course he did. He then asked whether she wanted to go upstairs
    for a quickie. She told him that it was not a good idea as her parents were
    not home and the neighbours would be checking on her. The appellant then left.

[5]

In cross-examination, the complainant testified
    that although she had a huge crush on the appellant when he was her coach, she was
    angry and scared by his behavior that night.
Amicus
questioned her about her
    boyfriend (MS), the state of their relationship, and how the complainant
    might have used a false story about their mutual skating coach to make her
    boyfriend jealous:

Q.: Well, I am suggesting that you told your
    boyfriend that you guys were fighting, kind of rocky, and you told him that [the
    appellant] had shown interest in you and your boyfriend went out and confronted
    him in the parking lot?

A.: I dont know anything about that.

[6]

The complainant acknowledged that her
    relationship with MS was rocky at that time, but denied telling him about the
    incident at the time it happened and had no recollection of MS ever confronting
    the appellant in the parking lot of the rink.

[7]

The complainant testified that she did not tell
    anyone for a while and only told MS after they both stopped taking lessons from
    the appellant in April 1979.

[8]

The complainant went to the police about this
    incident in 2009 after learning of the other charges the appellant was facing.

(2)

Appellants Evidence

[9]

Turning then to the appellants evidence, he
    denied all the allegations made against him and denied that he went into the
    complainants house.

[10]

He testified that he was able to drive her home
    and only be a few minutes late for his lessons depending on the traffic. He had
    some 15 minutes while the ice was flooded before his next lesson and he
    calculated that he would be, at most, one to three minutes late if he drove the
    complainant home. He also testified that the ride to her home was about ten
    minutes each way.

[11]

He gave evidence on coaching practice at the
    time and testified that the coaching and scheduling arrangements were such that
    he would never ask another coach to watch his students until he arrived. He
    also testified about the strictness of ice time and that coaches were not
    permitted to be on the ice beyond their allocated time.

[12]

After driving the complainant home, the
    appellant returned to the rink to give his private figure skating lessons. The
    lessons did not have a free skate component where the coach did not need to be
    in attendance.

[13]

The appellant testified in chief that he had a
    confrontation with MS in the parking lot of the skating rink a couple of days
    after he drove the complainant home. He testified that MS asked him why he
    kissed the complainant. He replied that nothing had happened and that he did
    not know what MS was talking about. He told MS that if he had a complaint, he
    should go to the president of the skating club. The appellant was then
    cross-examined on his evidence about this alleged parking lot confrontation and
    his version of events remained unchanged.

C.

Trial judges Decision

[14]

In reviewing the evidence, the trial judge
    observed that given the appellants testimony that the ride to the
    complainants home was 10 minutes each way, this would suggest that the
    appellant would be at least more than five minutes late for his next lesson. She
    found that the appellants evidence that he could have driven the complainant
    home and returned in time for his next lesson did not ring true, especially in
    light of his apparent conscientiousness as a coach.

[15]

She said:

Stated differently, timing was the focus of
    [the appellants] evidence  the time for the drive to and from [the
    complainants] house, and the timing of the lessons and ice time  and the
    contradictions and inconsistencies on this issue cause me to reject his
    evidence. For these reasons, [the appellants] evidence does not leave me with
    a reasonable doubt about his guilt.

[16]

The trial judge found the complainant to be
    clear and logical in her evidence and her evidence was sequential, common
    sensible and credible. The trial judge was satisfied that the appellant kissed
    and touched the complainant in the manner she described and that she did not
    consent to this activity. Having considered the circumstances as a whole, she
    was satisfied beyond a reasonable doubt of the appellants guilt.

D.

ANALYSIS OF grounds of appeal

(1)

Credibility
    Findings

[17]

The appellant challenges the trial judges credibility
    findings. He submits that the trial judges assessment, including her basis for
    rejecting the appellants evidence, under the first and second branches of
R.
    v. W.D.
,
[1991] 1 S.C.R. 742 was
    unreasonable, as was her assessment of t
he
    complainants evidence under the third branch of
W.D.


[18]

I do not accept this submission. As the
    appellant readily acknowledged, assessments of credibility are entitled to
    strong deference on appeal. An appellate court may only intervene if the
    credibility findings are based on palpable and overriding error. No such error
    is present here. The trial judges reasons for her credibility findings were
    admittedly brief but they did explain why, following a four-day judge alone
    trial, she found as she did.

[19]

The trial judge rejected the appellants version
    of events as a result of perceived inconsistencies between the appellants
    version of what occurred and his skating schedule and coaching practices. She
    observed that timing was the focus of the appellants evidence. In essence, she
    found that his testimony of professed rigorous adherence to the skating
    schedule such that he could not have spent much time at the complainants home
    was at odds with his willingness to be late for the lesson on the night in
    issue.

[20]

As for her findings relating to the
    complainant, the trial judge clearly accepted her evidence and her findings are
    not infected by any error in that regard.

(2)

Reply
    Evidence

[21]

The appellants other arguments relate to the
    evidence called in reply by the Crown.

[22]

At the commencement of the trial, the trial
    judge made an order excluding witnesses. When the complainant began to give her
    evidence-in-chief,
amicus

observed that the complainants husband, MS, was present in the
    courtroom. The Crown advised the court that she was not calling him as a
    witness and did not know if
amicus
potentially
    could. The exchange continued:

Judge:  Counsel, theres an order excluding
    witnesses and if theres a possibility that [the complainants] partner is
    going to be a witness for either side, weve got an order.

Crown:   It wouldnt be from the Crown. He has
    never spoken to police. Its just my friend is anticipating defence evidence
    and what might be revealed from that.

Amicus
:   I was just alerting my
    friend to a point, but I will leave it at that.

Court.     All right, so we are content.

Amicus
:   We can continue.

[23]

Following this exchange, the complainant was
    asked about MS in cross-examination:

Q.      I am going to suggest to you that, in
    fact, you never confronted [the appellant] about this, what you did do was you
    told [MS] about it at that time when you were 16 and it was [MS] that went and
    confronted [the appellant] in the parking lot of the arena. Does that ring a
    bell?

A.       No, not at all.

Q.      So thats not your recollection?

A.       I dont recall any of that.

Q.      Okay. But do you recall telling - -
    your recollection is that you told [MS] later than that, told your husband, [MS],
    later?

A.       Yes, absolutely. I didnt tell him
    until after we were done with [the appellant] because I was afraid to.

Q.      Well, I am suggesting that you told
    your boyfriend that you guys were fighting, kind of rocky, and you told him
    that [the appellant] had shown interest in you and your boyfriend went out and
    confronted him in the parking lot?

A.       I dont know anything of that.

Q.      And in fact invited him to make a
    complaint if that was the case to the president of the arena. You dont have
    any recollection of that?

A.       No, not at all. I actually dont have
    any idea what you are talking about, the president of the arena. Are you
    talking about the president of our club?

Q.      Of the club, sorry.

A.       No, I had no thoughts or any idea of
    anything like that ever happening.

Q.      No, you didnt make a complaint at
    that time?

A.       No, no. Like I said, I didnt say
    anything to anybody. I told my girlfriend Cheryl from high school. I told her. She
    was the first person and only person I had told and after we were finished with
    [the appellant], I then told [MS], my boyfriend at the time. Those were the
    only people that ever knew up until more recently.

Q.      And I understand that this Cheryl you
    dont know her last name?

A.       I cant remember what her last name
    is, no. I dont remember.

Q.      And you have lost all touch with her
    so we dont have any way of getting a hold of her?

A.       She was a high school friend, you
    know. I havent kept in touch with anybody from high school.

Q.      And so the only other person that you
    told then was [MS]?

A.       Exactly.

[24]

As I have previously described, the appellant
    then gave evidence that he was confronted by MS in the parking lot where MS
    accused him of having kissed the complainant.

[25]

Following the appellants testimony, the Crown
    sought to call MS in reply. The trial judge observed that the issue of the
    confrontation arose during the Crowns case in chief because it was raised
    during the cross-examination of the complainant. She also noted that the Crown
    is prohibited from introducing evidence that initially should have been part of
    the Crowns case.

[26]

However, she accepted the Crowns submission
    that there was no positive evidence adduced in the cross-examination of the
    complainant, in that she had responded that she did not know anything about the
    confrontation. The questions had been suggestive in nature and had not elicited
    any actual evidence.

[27]

The trial judge stated at p. 362:

[T]he Crown can lead further evidence to rebut
    evidence that you have introduced. The question is the Crown is right; it isnt
    evidence when [
amicus
] merely asks a question about it, its evidence when you introduce
    it and the Crown is entitled to do that.

The Crown is prohibited from introducing
    evidence that should initially have been part of the Crowns case, but there is
    no evidence about this. There has [
sic
] only been questions about it, so I am prepared to let the Crown
    call the rebuttal witness, but it is very clear to me and it is clear to you
    and certainly the Crown is aware that the weight to be given to this evidence
    is potentially affected by the fact that he has been in here the entire time,
    no question about that, and that [the complainant] was under no prohibition to
    not discuss things after her evidence concluded as well.

[28]

She went on to say that the weight to be given
    to the evidence was potentially affected by the fact that MS had been in the
    courtroom during the trial and the complainant had not been under any
    prohibition to refrain from any discussions following the conclusion of her
    evidence. Ultimately, she permitted the Crown to call MS in reply.

[29]

MS then testified that the confrontation
    described by the appellant did not take place. MS only heard from the
    complainant about the inappropriate behaviour after the skating season had
    ended.

[30]

The trial judge did not refer to any of the
    evidence given in reply in her reasons for decision.

[31]

On appeal, the appellant submits that the trial
    judge erred in admitting the reply evidence. He relies on two grounds: first, allowing
    the reply evidence improperly permitted the Crown to split its case, and
    second, it offended the collateral fact rule.

Splitting of Crowns Case

[32]

Dealing first with the issue of splitting the
    Crowns case, the general rule is that the Crown is not allowed to split its
    case. As stated by McIntyre J. in
R. v. Krause
,
[1986] 2 S.C.R. 466 at p. 473, as part of its case, the Crown must
    enter all the clearly relevant evidence it has, or that it intends to rely
    upon, to establish its case with respect to the issues raised in the indictment
    and any particulars. As McIntyre J. explained, at the close of the Crowns
    case, the accused is entitled to know the full case that must be met.

[33]

In
R. v. G.P.
(1996), 31 O.R. (3d) 504(C.A.), Rosenberg J.A. observed at p. 514, that both
    the rule against splitting the Crowns case and the collateral fact rule
    attempt to balance fairness to the parties with the need for trial economy:

They are designed, so far as is possible, to
    avoid unfair surprise, confusion of the issues, and prejudice. The rules ensure
    that trials are not unduly prolonged but that, as it was put by McIntyre J. in
Krause
at the end of the day each party will have had an equal
    opportunity to hear and respond to the full submissions of the other.

[34]

However, where the defence evidence raises a new
    matter, a new fact, or a defence which the Crown had no opportunity to deal
    with, or could not have reasonably anticipated, McIntyre J. observed in
Krause
at p. 474:

[T]he Crown may be allowed to call evidence in
    rebuttal after completion of the defence case, where the defence has raised
    some new matter or defence which the Crown has had no opportunity to deal with
    and which the Crown  could not reasonably have anticipated. But rebuttal will
    not be permitted regarding matters which merely confirm or reinforce earlier
    evidence adduced in the Crowns case which could have been brought before the
    defence was made.

[35]

As Rosenberg J.A. noted in
G.P.
at p. 514, despite the
    broad language from
Krause
,

it has
    always been understood that the trial judge has discretion to admit evidence in
    reply concerning an issue that was of only marginal importance during the
    prosecutions case in chief, but took on added significance as a result of the
    defence evidence.

[36]

The Supreme Court in
R. v. Chaulk
, [1990] 3 S.C.R.1303 at p. 1364, adopted the following statement
    from
R. v. Drake

(1970), 1 C.C.C. (2d)
    396 (Sask. Q.B.):

There is a well-known principle that evidence
    which is clearly relevant to the issues and within the possession of the Crown
    should be advanced by the Crown as part of its case, and such evidence cannot
    properly be admitted after the evidence of the defence by way of rebuttal. In
    other words, the law regards it as unfair for the Crown to lie in wait and to
    permit the accused to trap himself. The principle, however, does not apply to
    evidence which is only marginally, minimally or doubtfully relevant.

[37]

Bearing these principles in mind, I turn to the
    appellants submissions. The appellant argues that, in compliance with the rule
    in
Browne v. Dunn
(1893), 6 R. 87 (H.L. (Eng.),
amicus
questioned the complainant on the
    confrontation between MS and the appellant and on when she told MS about the
    incident. He submits that the issue of MSs evidence was therefore foreshadowed
    by
amicus
 cross-examination of the
    complainant and the Crown was on notice to call evidence on the issue in its
    case in chief.

[38]

It is true that compliance with
Browne
    v. Dunn
, as a general matter, may

give notice of
    potential issues that the opposing party wishes to explore. That does not mean,
    however, that every suggestion put to a witness in compliance with the rule in
Browne
    v. Dunn
,
or any question
    which foreshadows a possible attack on a witnesss credibility, necessitates
    the Crown calling evidence on the issue in its case in chief. Such a rule would
    amount to chasing after every shadow. This is particularly true where the
    witness has not accepted a suggestion advanced and where, at the end of the
    Crowns case, the witness has not been successfully impeached and there is no
    need to rehabilitate the witness:
G.P.
,
at p.
    515.

[39]

Moreover, while a cross-examination may reveal
    part or all of an accuseds defence or version of events, the relevance of a
    particular line of inquiry may be only marginal at this stage. As stated in
McWilliams
    Canadian Criminal Evidence
, loose-leaf, 5th ed. (Toronto:
    Thomson Reuters Canada Limited, 2017), at para. 21:50:60:

[] Sometimes the Crown learns of a possible
    defence
before
the close of its case, for
    example through questions asked during the cross-examination of prosecution
    witnesses, or as a result of out-of-court communications with defence counsel.
    Crown counsel thus knows that certain evidence may, or even will, be required
    to counter the anticipated defence.

Nonetheless, in such circumstances the rule
    against case-splitting does
not
impose a general obligation to
    lead the countering evidence as part of the prosecution case in chief. This is
    so because Crown counsel will often be unsure whether the defence will be
    called, and even where certain on this point will usually be unaware of its
    precise contours and/or the specific evidence to be presented in support. To
    force the Crown to call evidence to refute an anticipated defence would thus
    frequently waste court time and create confusion, and may also cause unfairness
    by forcing the Crown to call the very evidence that it seeks to refute.


[40]

For these reasons, as concisely summarized in
McWilliams

at para. 21:50.30:

[T]he law is now clear: evidence marginally
    relevant, and thus strictly speaking admissible as part of the Crown case in
    chief, may nonetheless be admissible in reply where it takes on real
    significance only because of a position advanced during the defence case.
    Another way of saying the same thing, adopted in several Canadian cases, is
    that the matter to which the proposed reply evidence relates only became a
    live issue once the defence put in its case.


[41]

This courts decision in
R. v.
    Campbell
(1977), 17 O.R. (2d) 673 (C.A.) is frequently
    cited for this principle. In
Campbell
, Martin
    J.A. held that even though the accuseds version of events was foreshadowed by
    the cross-examination of the complainant, its relevance was only marginal at
    that stage and arose when the accused testified. It was accordingly within the
    trial judges discretion to admit reply evidence from the Crown.

[42]

In this case, in her cross-examination, the
    complainant did not adopt
amicus
 suggestion
    that she had told MS about the incident shortly after it occurred and that MS
    had confronted the appellant in the parking lot of the skating rink. There was
    no affirmative evidence of any confrontation and in any event, at that stage,
    it had little to no relevance.

[43]

Only when the appellant testified did it gain
    significance, not only because it contradicted the complainants evidence that
    she had not told MS about the assault until much later, but because the evidence,
    if accepted, allowed for an inference that the complainant may have fabricated
    the story to make her boyfriend jealous, thus prompting a confrontation. The
    reply evidence became necessary to provide the trial judge with accurate facts
    of what happened after the assault and, from the Crowns perspective, correct
    the distorted picture created by the appellants evidence that the complainant
    was motivated to make a false allegation and use the false story to make MS
    jealous, thus provoking a confrontation between MS and the appellant.

[44]

Finally, I would note that even if one concluded
    that MSs evidence could or should have been called in the Crowns case in
    chief, it cannot be said that allowing the reply evidence created an unfair
    advantage in favour of the Crown, nor that the appellant was caught off guard
    by the evidence. It was the appellant who anticipated the issue through his
    cross-examination of the complainant. Moreover, the Crown was not in
    possession of any evidence from MS. It is apparent from the transcript that he
    had not given a statement to the police and that the Crown did not anticipate
    MS to be a witness in the proceedings. Lastly, it bears noting that this was a
    judge alone trial and the risk that the late introduction of the evidence might
    magnify its importance beyond what was warranted is much less significant:
R.
    v. T.K.
,

2013 ONCA 257 (Ont. C.A.), at para. 46;
R. v. Markman
,
    [2002] O.J. No. 4250 (Ont. C.A.), at para. 3
.

[45]

In summary, when the complainant was
    cross-examined, the relevance of the evidence about MS was, at best, marginal. It
    was within the trial judges discretion to permit MS to be called in reply in
    this judge alone trial. Moreover, the evidence provided the trial judge with a
    more complete and accurate picture of what actually happened. The appellant
    incurred no prejudice as a result of the trial judges decision to allow the
    reply evidence. In these circumstances, it was properly within the trial
    judges discretion to permit the Crown to call MS in reply. I would therefore
    not give effect to this submission by the appellant.

No Contravention of the Collateral
    Fact Rule

[46]

This brings me to the second arm of the
    appellants submission on the reply evidence, namely that it impermissibly
    contravened the collateral fact rule. In
G. P
.
, at p. 516, Rosenberg J.A. summarized
    the effect of the collateral fact rule:

The effect of the collateral fact rule is
    that, subject to certain exceptions, a party is not entitled to introduce
    extrinsic evidence to contradict the testimony of an adversarys witness unless
    that extrinsic evidence is relevant to some other issue in the case other than
    merely to contradict the witness.

[47]

Watts Manual of Criminal Evidence

(Toronto: Carswell, Thomson
    Canada Limited, 2002), describes the rule as follows at para. 22.03, p. 265:

The collateral facts rule prohibits the
    introduction of evidence for the
sole
purpose of
contradicting
a witness testimony concerning a collateral fact. The rule seeks
    to avoid confusion and proliferation of issues, wasting of time and
    introduction of evidence of negligible assistance to the trier of fact in
    determining the real issues of the case. It endeavours to ensure that the
    sideshow does not take over the circus.
In general
, matters that relate wholly and
exclusively
to the credibility
    of a non-accused witness are collateral, hence beyond the reach of
    contradictory evidence.

[48]

The appellant asserts that the only purpose of
    allowing MS to testify in reply was to impeach the appellants credibility by
    suggesting that his narrative was inaccurate. I disagree. MSs evidence in this
    case was relevant to more than a general attack on the appellants credibility.
    If believed, the evidence of MS could undermine the defence position that the
    complainant was an emotional teenager who, angry at the appellant because she
    was not special to him, and in the midst of a rocky relationship with her
    boyfriend, fabricated a story of sexual assault, then told that story to her
    boyfriend, which in turn resulted in a confrontation.

[49]

The question of whether or not a confrontation
    happened goes to understanding the context and, in my view, bears directly on
    the question of whether the complainant had a reason to fabricate a story, and
    ultimately, on whether a reasonable doubt was raised. Rosenberg J.A. observed
    in
G.P.
at p. 516:

As part of the defence case, the appellant was entitled to lead
    evidence to show that Ms. P. had a motive for falsely testifying and for
    putting her daughter up to making a false allegation: see
R. v. Busby
(1982), 75 Cr. App. R. 79
(C.C.A.);
R. v. Shaw
(1888), 16 Cox C.C. 503
. The appellant's
    evidence, if believed, cast the relationship between him and Ms. P. in an
    entirely different light. That evidence not only contradicted Ms. P. but
    provided a motive on the part of Ms. P. to fabricate her evidence. The Crown
    was then entitled to lead evidence, if it had any, to rehabilitate its witness
    by showing that she did not have the motive to fabricate alleged against her.
    The motive of the complainant to falsely charge the appellant was an essential
    element of the case. It was central to the theory of the defence and as the
    case was developed by the defence the relationship between Ms. P. and the
    appellant related to that question. Viewed this way, evidence concerning motive
    to fabricate could not be collateral.

[50]

Similarly, in
R. v. Prebtani
, 2008 ONCA 735, 240 C.C.C. (3d) 237, Rosenberg J.A. explained at
    para. 130:

I agree with the appellant that admission of
    this evidence would not offend the collateral fact rule.



In this case, the cousins evidence would not
    merely contradict the complainants assertion that she did not swear at the
    appellant on the occasion in question. The evidence, if believed, could
    undermine the complainants assertion that the appellant, rather than she, was
    the verbally abusive party in the relationship. It could also undermine her
    broad assertion that she would never swear at the appellant for fear that he
    would abuse her.

[51]

See also
R. v. Lawes
(1996), 187 A.R. 321, affirmed [1997] 3 S.C.R. 694.

[52]

In this case, the evidence could serve to debunk
    the picture painted by the appellant that the complainant was motivated to make
    a false allegation against the appellant and to use that story to provoke
    jealousy in her boyfriend, which in turn resulted in a confrontation. I
    therefore would not give effect to the appellants submission on the collateral
    fact rule.

E.

disposition

[53]

For these reasons, I would dismiss the appeal.

Released:

KF                                                     S.E.
    Pepall J.A.

JUN -8 2017                                       I
    agree K. Feldman J.A.

I
    agree E.E. Gillese J.A.


