



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c.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    the victim shall not be published in any document or broadcast or transmitted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. JC, 2021 ONCA 131

DATE: 20210303

DOCKET: C67587

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

JC

Appellant

Christopher Rudnicki, for the appellant

Lisa Joyal, for the respondent

Heard: January 15, 2021 by video conference

On appeal from the conviction entered by
    Justice Michael G. Quigley of the Superior Court of Justice on September 20,
    2018, with reasons reported at 2018 ONSC 5547.

Paciocco J.A.:


OVERVIEW

[1]

The appellant, JC, was acquitted after a trial
    by judge alone of sexual assault and voyeurism charges. Those charges arose
    from a sexually explicit video recording that JC made of the complainant, HD. The
    Crown theory was that at the time the video recording was made, HD was incapable
    of consenting either to the video recording or the sexual activity that
    occurred. The trial judge was left with a reasonable doubt about HDs incapacity,
    and acquitted JC of both these charges.

[2]

However, the trial judge found JC guilty of
    sexual assault and extortion, based on his finding that after making the video
    recording, HD engaged in unwanted sex with JC on several occasions. He accepted
    HDs testimony that JC had threatened to post the video recording on the
    internet if she did not continue her sexual relationship with him. The trial
    judge found HD to be credible on these allegations and did not accept JCs
    testimony that he never made the threat that HD alleged. The extortion charge
    was stayed pursuant to
Kienapple v. R
.
, [1975] 1 S.C.R. 729.

[3]

JC appeals his sexual assault conviction and the
    finding that he was guilty of extortion. He submits that the trial judge made
    two errors.

[4]

The first alleged error is that the trial judge
    impermissibly used stereotype to reject JCs testimony about his practice of
    expressly seeking HDs consent before engaging in specific sexual acts with her.
    The trial judge said that JCs testimony about this was too perfect, too
    mechanical, too rehearsed, and too politically correct to be believed.

[5]

The second alleged error relates to the trial
    judges rejection of JCs claim that HD concocted the allegations against JC to
    conceal her cheating with JC from her boyfriend. JC submits that the trial
    judge erred in finding that, in advancing this claim, JC was relying on a stereotype,
    when the inference that HD had a motive to mislead was in fact grounded in the
    evidence. JC also attacks other reasoning the trial judge relied upon to reject
    JCs suggestion that HD was motivated to make false sexual assault allegations
    against him in order to preserve her relationship with her boyfriend.

[6]

The Crown does not actively resist JCs claim
    that the first error occurred. It argues, however, that when the trial judges
    reasons are reviewed as a whole, any such error was not material, or was harmless
    and occasioned no miscarriage of justice. The Crown denies that the second
    alleged error occurred and defends the trial judges reasoning.

[7]

I would allow JCs appeal. With respect to the
    first alleged error, the trial judges improper reliance on stereotype had a
    material effect on his rejection of JCs evidence about securing HDs consent.
    This finding, in turn, played an important role in the trial judges overall evaluation
    of JCs credibility. This error cannot be treated as harmless or as not
    occasioning a miscarriage of justice in what was a pure credibility case.

[8]

I would also find that the trial judge committed
    the second alleged error by incorrectly characterizing JCs motive theory as
    based on stereotype, and by relying on stereotype and the willingness of HD to
    endure a criminal trial in rejecting JCs motive theory.

[9]

Because of these errors, I would set aside the
    convictions and order a new trial.

THE MATERIAL EVIDENCE

[10]

The appellant, JC, and the complainant, HD, met
    in 2014 when he was 28 and she was 19. They became friends. They would periodically
    get together at JCs apartment, discuss music, and smoke marijuana. Although
    neither JC nor HD considered themselves to be in a boyfriend/girlfriend
    relationship, it was common for them to have sex during these visits.

[11]

In the fall of 2014, HD began a relationship
    with another man. The trial judge found that at this point, JC and HD ceased
    having casual sex, notwithstanding that JC wanted the sexual relationship with
    HD to continue. He also found that JC persistently pursued her in his text
    messages.

[12]

In late 2014, HD contacted JC. HD testified that
    she did not do so for the purpose of resuming their sexual relationship, but
    because she believed JC could help her to find work in the entertainment
    industry.

[13]

HD, who testified that she has memory problems
    which she attributes to her mental health and partially to alcohol use and her
    addictions to cocaine and ketamine, was uncertain about when she reconnected
    with JC. As the following summary of her evidence shows, at times her evidence altered
    as it unfolded, and she often expressed uncertainty or a lack of memory.

[14]

What is known is that on January 22, 2015, HD
    went to JCs apartment to hang out. At trial, she said this was after she had
    broken up with her boyfriend, but she had told the police that she believed she
    was still with him at the time. During that visit, using a GoPro camera, JC
    video recorded HD, in what the Crown aptly referred to as extreme close-ups, naked
    from the waist down, lying in a bed. In this short, 51-second video, HD is
    actively masturbating. On several occasions, JC prompts HD what to do and she
    complies. At times, JC can be seen touching her intimately with his hand. The
    video recording ends suddenly. JC testified that the battery in the camera died.
    No sexual intercourse is depicted but JC testified that they subsequently had
    vaginal intercourse.

[15]

The Crown theory was that HD was intoxicated into
    incapacity when this event occurred. The sole direct evidence that HD had
    consumed an intoxicant was her testimony that she had smoked marijuana,
    consistent with her daily habit, in an amount that would not cause her to
    become intoxicated. She may also have had alcohol but was not intoxicated by
    it. At trial, HD retracted her preliminary inquiry testimony that she and JC
    had been drinking at a party prior to this event, saying that she had confused
    two different occasions.

[16]

HD testified that she was not feeling drunk or
    impaired when she arrived at JCs apartment. She said that she and JC never
    discussed having sex. She said that JC gave her a glass of water. She testified
    that as the evening progressed, she began to feel fuzzy and nauseous. She said
    that the last thing she remembered was talking to JC, she believes on the
    couch, and then she blacked out. She said she remembered waking up dizzy and
    disoriented, wearing only a shirt.

[17]

Later in her testimony, despite her earlier evidence
    that she had blacked out after a conversation on the couch and awoke not
    wearing pants, HD testified that she remembered JC holding the camera when he
    began filming her. She also testified that she was aware that she was being
    filmed. In cross-examination, she testified that although she had no memories
    of the filmed event when she made her statement to the police or when she
    testified at the preliminary inquiry, she subsequently recovered memories of
    the events captured in the video. She also walked back her testimony that JC
    had given her a glass of water, saying that she had no memory of him doing so
    and believed, but was not sure, that she poured herself a glass of water from
    the tap.

[18]

HD testified that after she woke up, JC played
    her a video recording of him sexually assaulting her. She was upset and scared.
    She testified that JC told her that he would put the video recording on the
    internet if she did not continue to have sex with him. She was not sure whether
    this conversation took place on the day that the video recording was made, or a
    few days later. While she said it was possible it happened the same day, she
    stated that it was probably a few days later. She said she probably asked
    him to delete the video recording. She said, I cant recall exactly, but I
    likely protested. In cross-examination, she confirmed that she only remembers one
    occasion on which the video recording was discussed but said that she probably
    asked for it to be deleted once or twice.

[19]

She also testified that during their
    conversation about the video recording, JC told her she could not prove that
    she had not consented because she had not said no while being video recorded.

[20]

HD testified that she ultimately made a police
    complaint, in circumstances I recount in more detail below. She told the police
    that the video recording depicted her and JC having intercourse, which it does
    not.

[21]

HD testified that after the video recording was made,
    she received calls and texts from JC. He would ask her to come over but never
    mentioned the alleged sexual assaults or the video recording. She did not
    produce any of these messages to the police and none were placed into evidence.
    HD testified that she deleted them because she did not want the reminder.

[22]

HD testified that she agreed to go to JCs house
    because of her fear that he would share the video recording online. She said that,
    on approximately six to eight occasions, after going to his apartment, she had non-consensual
    sex with JC. This included incidents after she reunited with her boyfriend in
    the spring of 2015.

[23]

In her evidence-in-chief, HD testified that she
    never initiated contact with JC after the video recording incident. However, in
    cross-examination, she agreed that sometimes she would reach out to him for
    marijuana, and that sex would then occur. She said she never wanted to have sex
    with him after the video recording was made. She testified that she also went
    out with him on a few occasions when sex did not occur, because she did not
    feel that she could refuse.

[24]

HD testified that she did not recall whether she
    had ever tried to tell JC no when he asked her for sex after the video recording
    incident. During cross-examination, she said she believes she would have said stop,
    no, or that she did not want to have sex. When confronted with her
    evidence-in-chief, in which she had said that she had no memory of ever saying no,
    she said, I was speaking about the incident with the video. When asked again
    whether she ever said no or stop, she replied, I didnt say those things
    specifically, but I did protest after the creation of the video that I did not
    want to have sex with him.

[25]

HD also said in her evidence-in-chief that on a
    few separate occasions, JC arranged for her to have sex with his friends. She
    could remember only one occasion on which she had sex with one of his friends, but
    believed there were more such incidents. Although she did not recall what JC
    said to her, her understanding was that if she declined these requests, the
    video would be posted online. In cross-examination, when asked if JC told her
    to have sex with his friends, she said, He didnt use those exact words, I
    dont believe.  I dont think it would have been that direct. When it was put
    to her that JC had no idea that she was sleeping with his friends she replied,
    I dont think that is true.

[26]

HD testified that she last saw JC in June or
    July of 2015, she could not be sure. On July 30, 2015, she went to the police
    station and complained. She said this was approximately three weeks after she
    disclosed events with JC to her boyfriend. She explained, I ended up telling
    my boyfriend sort of accidentally. She described the circumstances. She was
    high on ketamine, she and her boyfriend were discussing issues in their
    relationship, and she was upset. There was a disagreement, but she testified that
    it was not a fight. She said she told him she had been assaulted. Defence
    counsel suggested that this led to an argument, but HD denied that it did. She
    said that it was really unlikely that they were arguing about this but given
    that she could not remember the entirety of the discussion, she said it was
    possible. During her testimony, she said her boyfriend freaked out and was
    very upset and obviously distraught because of the situation. She said, He
    was upset with me and upset for himself, and sad and angry at the situation.
    He wanted her to call the police and she did so several weeks later. She denied
    defence counsels suggestion, made in cross-examination, that she lied about events
    because she was afraid her boyfriend would leave her if he found out she was
    cheating on him.

[27]

JC, who gave evidence on his own behalf, was the
    only other witness to testify. He described his friendship with HD, which he
    said was an ongoing sexual, but not exclusively sexual, relationship. He said
    that although he was not interested in a monogamous relationship, he had
    genuine and sincere feelings for HD. He testified to his belief that he felt
    much more strongly about her than she did about him. JC said that once HD
    started seeing her boyfriend in October 2014, they stopped seeing each other.
    He said that he reached out to her and was a bit persistent at first, sending
    her a few messages over a couple of weeks, but then stopped until she contacted
    him about employment in the end of November or early December.

[28]

Although he agreed that there were points when
    it just stopped, when it was not happening, he did not think his relationship
    with HD was ever at an end, there was just never consistency. He described
    the period from October to November or December 2014 as a break. That break
    did bother him because he felt that he was entitled to closure if she was going
    to end their relationship, and communication had ended abruptly. He was not
    angry, but it affected him emotionally, leaving him sad.

[29]

He testified that after she contacted him and
    asked about employment, HD brought a resume, and they smoked marijuana. He told
    her he missed her and made an advance and she reciprocated and they had sex. Contrary
    to HDs recollection that her relationship with her boyfriend had ended by this
    point, he said she was still with her boyfriend at the time.

[30]

JC said he had no contact with HD for another
    month after this incident, until mid-January 2015, when the video recording was
    made. He believes he would have invited her to his apartment to smoke
    marijuana. She agreed and arrived at the apartment sober, not showing any indicia
    of impairment. He denied putting anything in HDs drink. JC said that after an
    hour or so of chatting and smoking marijuana they began consensual sexual
    activity. He was asked during his examination-in-chief if they had discussed
    sex or whether it just happened. JC said:

Typically when I engage her, Ill kiss her,
    and if she reciprocates and then, as we proceed, you know, Ill ask her, you
    know, do you want foreplay or would you like to have sex type of thing.

[31]

During cross-examination, JC was asked about the
    testimony he had given about what he normally does to secure consent from HD.
    He was not challenged on the routine he claimed, but he was asked how he knows
    what he did on this occasion. JC responded:

Because I have consensual sex with my
    partners, and its very similar. Normally is a bad word. I guess I shouldnt
    have used it, but what I meant is that when I engage someone, Ill kiss them.
    If they reciprocate, and this isnt someone, like I wouldnt kiss someone I
    havent been with before, you know, to engage them. The first time that I sleep
    with someone, same with [HD], its something that we spoke about first.

[32]

He said that he remembered the video recording event.
    After they kissed, he asked her if she wanted oral sex. She said yes, took
    her own pants off, and sat on his bed. He was performing oral sex on HD and he
    thought of his new camera. He asked her if he could turn it on, and she agreed.
    He said this had not been planned. He began filming with the camera, which he
    held in his hand using a selfie stick. The battery soon died. He threw the
    camera on the couch, and they continued their sexual activity. She ultimately
    put on her clothes and went home. He said there was no indication that she was
    intoxicated or inebriated.

[33]

JC testified that he did not show her the video
    recording, and that it was not discussed. He said it would not have been
    possible to show her the video recording until the battery in the camera was
    charged. He testified that he eventually transferred the video to a laptop that
    he had use of, owned by his friend, PY. JC said he used the laptop during his
    gigs as a DJ. He labelled the file [H] and when he put it on the computer
    it was placed in a folder titled [PY].

[34]

JC said that their casual consensual sexual
    relationship continued after the video recording was made. He testified that he
    never played the video for HD, but probably a few weeks after it was taken,
    he did comment that she looked cute on camera. This prompted HD to ask JC to
    delete the video, because she was in a relationship. He told her [he] was
    keeping it for [himself] as it was something essential that he had never
    done with somebody. He said, I didnt refuse to delete it. I think I just
    explained why I wanted to keep it, and then it was left at that. He said in
    cross-examination that he kept it and watched it a few times.

[35]

JC testified that the video recording was never
    mentioned again. He denied that he ever used the video recording to extort HD
    into having sex with him. He agreed with the Crowns suggestion, in
    cross-examination, that HD would have been embarrassed and ashamed if the video
    recording was put on the internet. He said it was wrong for him not to have
    deleted it.

[36]

He said that for a short time in late April or
    early May 2015, HD was no longer with her boyfriend, and he and HD went out
    together and saw each other more frequently.

[37]

When asked about their relationship, JC said that
    he respected HD and had genuine romantic feelings for her. He said she had
    similar feelings about him, although not at the same level. He found her
    attractive. He did not encourage her to have sex with others, as he wanted more
    of a commitment, although not a monogamous relationship. He said he had not
    been aware of HD having sex with his friends.

[38]

In terms of the nature of their sexual relationship,
    JC testified that HD was always a responsive partner and never said no or
    stop. When asked about HDs willingness to engage in sex after the creation
    of the video recording, he again relied on his usual practice to support his
    response:

I believe it was consensual, for one, because
    before we proceed I generally ask her what she wants to do, and if she says she
    wants to you, have foreplay or have sex, I take that as consent. When I engage,
    I initiate, its never, you know, straight to it, its I would kiss her, engage
    in that way and if she reciprocates, you know, then we kind of start making out
    and then we go from there. Right? If she didnt reciprocate from the very
    beginning, then I wouldnt proceed, but there was never an instance where, you
    know, I went to kiss her and she never reciprocated.

[39]

In cross-examination, JC was challenged about
    HDs consent on the occasions that sex occurred after the video recording was
    made. He said he was positive she consented because she said so every time I
    asked her.

[40]

JC testified that he subsequently learned that HD
    was living with her boyfriend. In June 2015, she abruptly stopped messaging
    him. He said he may have messaged her a couple of times  perhaps three to five
    times during the summer  but did not pursue things. He suggested that he was
    hurt that she had suddenly stopped communicating with him, saying that he felt
    she should have given him closure.

THE TRIAL JUDGES REASONS

[41]

The trial judge provided extensive written
    reasons for the verdicts he rendered.

[42]

On the two charges relating to January 22, 2015
     the voyeurism charge and the accompanying sexual assault charge  the Crown
    theory was that HD had been incapable of consenting. The trial judge acquitted
    JC of both offences because he was not satisfied beyond a reasonable doubt that
    HD had been incapable of consenting. He also noted, on the voyeurism charge, that
    the Crown had failed to prove that the video recording was made surreptitiously
    or that JC intended to make the video recording surreptitiously.

[43]

With respect to the central issue of incapacity
    to consent, the trial judge said that while he did not reject HDs evidence about
    the events of January 22, 2015, or doubt her sincerity, he was unable to
    reconcile and accept that particular evidence as reliable in the context of the
    evidence as a whole, and in particular, the appearance of active and willing
    participation in the sex acts depicted on the 51 second video recording.

[44]

JCs evidence relating to the video recording incident
    also left him with a reasonable doubt. He said, I do not accept or believe all
    of JCs evidence, as I will discuss later in these reasons, but I do accept
    that his evidence on these counts
could

reasonably be true
    (emphasis in the original).

[45]

The trial judge found JC guilty of the extortion-related
    counts  extortion and sexual assault relating to the sexual contact that
    occurred after the video recording  finding that HDs testimony about these
    counts was entirely credible and reliable.

[46]

He found that HD was trying her best to be a
    careful, precise and honest witness and noted that she acknowledged her memory
    loss. He said that although there were some inconsistencies, relating mainly
    to timing and dates, and what happened at what point, she was never
    inconsistent with respect to the core allegations, and much of what she said
    was corroborated by JC. He found HD to be consistent throughout her evidence
    that after the relationship started with the new boyfriend in late October
    2014, she always told JC that she never wanted to have sex with him. He said
    that the inconsistencies that did occur were not surprising given the lapse of
    time. He accepted her evidence about her recovered memory and said, It is
    unrealistic to think, given her acknowledged memory issues, that she would
    remember everything in her initial statement to the police.

[47]

JC claimed that HDs allegations that their
    sexual relationship was non-consensual may have been motivated by her fear that
    her boyfriend might end their relationship if he learned she had been cheating
    on him. The trial judge addressed this. He began:

Finally, relative to an alleged motive to
    fabricate, there is absolutely no evidence to support the existence of such a
    motive. The suggestion that the mere fact that HD has a boyfriend is founded on
    stereotypical assumption. It is stereotypical reasoning that is often applied
    to victims of sexual assaults. The argument is that since HD had a boyfriend,
    therefore, she fabricated this chronology in order to get out of hot water
    with him, as the Crown put it, and continue their relationship. However, there
    was no evidentiary basis to support that contention, despite HD having been
    cross-examined about it extensively.

[48]

The trial judge went on to find that the fact
    that HD told her boyfriend about the relationship, albeit while she was under
    the influence of ketamine, adds to the veracity of her disclosure. He did
    not believe that she would fabricate this entire complex circumstance while
    impaired, leaving the motive theory, completely speculative and illogical. He
    also noted that HD had denied that her boyfriend had been abusive to her or
    threatened her, or that they had an argument. He said that when HD and her
    boyfriend had broken up, she had made no attempt to hide that she was with JC. The
    trial judge also said: JC agreed that the boyfriend did not contact him, or
    threaten him, so there is no evidence of a need to fabricate to appease the
    boyfriend. The trial judge then concluded his rejection of JCs motive theory,
    saying:

It also makes no sense that HD was
    sufficiently willing to fabricate that she would sit through a trial where she
    was cross-examined extensively about personal issues and again required to
    watch the explicit personal video, along with strangers  the participants in
    this trial.

[49]

In contrast, the trial judge did not believe the
    evidence of JC and found that JCs testimony relating to the extortion-related
    counts did not leave him in a reasonable doubt. In coming to this decision, he
    relied on his belief in HDs evidence, on aspects of JCs own evidence that he
    found supported the extortion-related allegations, and on his evaluation of JCs
    credibility.

[50]

The trial judges first observation about JCs
    credibility related to JCs testimony about his practice in securing consent
    from HD. The trial judge said:

I found JCs evidence suspect that on
each
and
every
occasion when he and HD had sexual activity, that he very carefully
    put the question of consent to her, and in all instances only proceeded after
    he specifically requested consent 
at each progressive stage of the sexual
    encounters
. Defence counsel contended that there was no reason not to
    believe that, especially in respect of the first alleged assault. However, I
    did not believe JCs evidence on that issue, and I found that declaration to be
    too perfect, too mechanical, too rehearsed, and too politically correct to be
    believed. [Emphasis in the original.]

[51]

The trial judge continued:

JC wanted me to accept that at
each

and
every
stage of
each

and
every
sexual encounter, he
continuously
asked HD if
    he could go further, but this simply is not in accord with common sense and
    experience about how sexual encounters unfold. It seemed excessively rehearsed
    and staged, as he specifically turned to give this answer directly to me. [Emphasis
    in the original.]

[52]

When the trial judge returned to the evaluation
    of JCs evidence in the context of the extortion-related charges, he said that
    he found JCs evidence to be contrived and that it simply does not make
    sense in the context of the evidence as a whole. In explaining those
    conclusions, the trial judge returned to JCs testimony about his practice in
    securing consent:

It was repeatedly said that JC always engaged
    in appropriate behaviour with respect to consent at all times, as a normal
    practice, but I did not believe this aspect of his evidence, or his evidence
    relating to the post-January 22, 2015 events. I find that his evidence about
    carefully staged and sequential inquiries into consent defies actual human
    behaviour, and is contrived. His evidence was challenged by the entirety of
    HDs evidence on these matters, whether it related to post-January conduct in
    the first apartment at the entertainment district, or the second apartment off
    the Danforth.

[53]

After making this comment, the trial judge returned
    to the evaluation of JCs evidence. The trial judge noted that JCs evidence
    was not shaken in cross-examination, but said this requires this analysis to
    be more nuanced, noting:

JC did say some other things in this case
    which are, perhaps, again, not major inconsistencies, because there was no
    prior statement to compare it against in the way that the complainants
    evidence has been analyzed surgically.

[54]

Overall, he found JCs evidence to be self-serving
    and designed to explain what I find inexplicable, at least as it relates to the
    latter two counts. He said there were some things that did not make sense about
    his evidence. Specifically, he noted that though JC claimed to respect HD, his
    conduct after January 22, 2015, did demonstrate a pattern of callous disregard
    for HDs wishes in an attempt to control her. He then returned to JCs
    evidence about his practices in ensuring HDs consent, saying:

The notion that he asked for her consent on every
    occasion and at every stage of their increasing intimacy, and ensured he had
    her full-fledged consent, does not jive with the external circumstances of his
    conduct.

[55]

The trial judge also identified aspects of JCs
    own evidence that he concluded could only support the inference that JC
    extorted sex from HD. Most centrally, the trial judge relied heavily on JCs
    refusal to delete the video. He found that JCs continuing possession of this
    compromising video of HD  a person nine years his junior  created a power
    imbalance that enabled JC to command sexual favours from her. He noted that
    JC admitted that he was not happy that the relationship had ended and wanted to
    continue a romantic relationship. The trial judge found that JCs persistence
    in attempting to contact HD when she was not responding, and his decision to
    keep the video recording for his own gratification as a piece of third party
    pornography in spite of HDs wishes, showed a pattern of callous disregard for
    HDs wishes. Simply put, the trial judge reasoned that JCs motive, opportunity
    and mindset supported his conviction on these charges.

ISSUES

[56]

The issues in this appeal centre on the trial
    judges use of stereotype in his reasoning. JC argues that the trial judge
    erred by impermissibly relying on stereotype to reject his evidence relating to
    securing HDs consent, and also erred in finding that JCs theory regarding
    HDs motive was based on stereotype. The Crown does not defend the trial
    judges use of stereotype in evaluating JCs testimony about securing HDs
    consent, but submits that any such error is immaterial or harmless, and that no
    miscarriage of justice occurred. The Crown disputes that the trial judge relied
    on stereotype to reject JCs motive theory and defends the trial judges
    reasoning in rejecting the motive theory that JC advanced. The issues can be
    stated, and approached conveniently, in the following order:

1.

Did the trial judge err by relying on stereotype
    or in his reasoning in rejecting JCs theory about HDs motive to mislead?

2.

Did the trial judge err by relying on stereotype
    to reject JCs testimony about the steps he took in securing HDs consent, and,
    if so, was the error immaterial or harmless, or an error that did not occasion
    a miscarriage of justice?

ANALYSIS

A.

THE LAW

[57]

There are two relevant legal rules that identify
    impermissible reasoning relating to the plausibility of human behaviour. These
    rules overlap in the sense that both may be breached at the same time.

(1)

The Rule Against Ungrounded Common-Sense Assumptions

[58]

The first such rule is that judges must avoid
    speculative reasoning that invokes common-sense assumptions that are not
    grounded in the evidence or appropriately supported by judicial notice:
R.
    v. Roth
, 2020 BCCA 240, at para. 65;
R. v. Cepic
, 2019 ONCA 541,
    376 C.C.C. (3d) 286, at paras. 19-27;
R. v. Perkins
, 2007 ONCA 585,
    223 C.C.C. (3d) 289, at paras. 35-36. For clarity, I will call this the rule
    against ungrounded common-sense assumptions.

[59]

To be clear, there is no bar on relying upon common-sense
    or human experience to identify inferences that arise from the evidence. Were
    that the case, circumstantial evidence would not be admissible since, by
    definition, the relevance of circumstantial evidence depends upon using human
    experience as a bridge between the evidence and the inference drawn.

[60]

Nor is there any absolute bar on using human
    experience of human behaviour to draw inferences from the evidence. If there
    was, after-the-fact conduct evidence about things such as flight or the
    destruction of evidence would not be allowed. Such evidence is relevant because
    human experience tells us that these behaviours, flight and destroying evidence
    after a criminal act, are generally undertaken to hide guilt. An absolute bar on
    using human experience of human behaviour to draw inferences would also mean
    that evidence that an accused drove a protesting sexual assault complainant to
    a secluded location could not be used as proof of his intention or her lack of
    consent. The inferences to be drawn from that evidence depend on common-sense conclusions
    about what a person acting in a particular manner is likely to be thinking.

[61]

Properly understood, the rule against ungrounded
    common-sense assumptions does not bar using human experience about human
    behaviour to interpret evidence. It prohibits judges from using common-sense
    or human experience to introduce new considerations, not arising from evidence,
    into the decision-making process, including considerations about human
    behaviour.

[62]

It was therefore an error in
R. v. J.L
.
,
    2018 ONCA 756, 143 O.R. (3d) 170, at paras. 46-47, for the trial judge to infer
    that a complainant would not have consented to sex outside on the dirt, gravel
    and wet grass where the sexual act occurred, in mid-December. This conclusion was
    not a permissible logical inference drawn from the evidence. It was, instead,
    an additional factor for consideration introduced impermissibly into the
    deliberation process based on an untethered generalization about human
    behaviour. Had there been evidence from the complainant that she was careful or
    concerned about her appearance, her clothing, or her physical comfort, the
    impugned inference would have been grounded in evidence and would have been
    permissible.

(2)

The Rule Against Stereotypical Inferences

[63]

The second relevant, overlapping rule is that
    factual findings, including determinations of credibility, cannot be based on
    stereotypical inferences about human behaviour. I will call this the rule
    against stereotypical inferences. Pursuant to this rule, it is an error of law
    to rely on stereotypes or erroneous common-sense assumptions about how a sexual
    offence complainant is expected to act, to either bolster or compromise their
    credibility:
Roth
, at para. 129;
R v. A.B.A.
, 2019 ONCA 124, 145
    O.R. (3d) 634, at para. 5;
Cepic
, at para. 14. It is equally
    wrong to draw inferences from stereotypes about the way accused persons are expected
    to act
: R. v. Quartey
, 2018 ABCA
    12, 430 D.L.R. (4th) 381, at para. 21,
affd 2018 SCC 59, [2018] 3
    S.C.R. 687
; and see
Cepic
,
    at para. 24.

[64]

Two points are critical in understanding this
    rule and ensuring that it does not impede proper judicial reasoning.

[65]

First, like the rule against ungrounded common-sense
    assumptions, the rule against stereotypical inferences does not bar all
    inferences relating to behaviour that are based on human experience. It only prohibits
    inferences that are based on stereotype or prejudicial generalizations:
R.
    v. A.R.D.
, 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, affd 2018
    SCC 6, [2018] 1 S.C.R. 218.

[66]

For example, it is a myth or stereotype that a
    complainant would avoid their assailant or change their behaviour towards their
    assailant after being sexually assaulted, and it is an error to employ such
    reasoning
: A.R.D.
, at paras. 57-58;
A.B.A.
, at paras. 6, 8-10;
R. v. Caesar
,

2015
    NWTCA 4, 588 A.R. 392, at para. 6. Similarly, it is a stereotype that women
    would not behave in a sexually aggressive manner, or that men would be
    interested in sex. Reasoning that is based on such inferences is not permitted:
Cepic
, at paras. 14-16;
Quartey
, at para. 21.

[67]

By contrast, no stereotype or prejudicial
    generalization is offended by inferring, where a man drives a resisting woman
    to a secluded location before touching her sexually, that she did not consent
    and that he intended to touch her without her consent. Hence, such inferences
    are appropriate.

[68]

The second critical point in understanding the
    rule against stereotypical inferences is that this rule
prohibits certain inferences
from being drawn; it does not prohibit the admission or use of certain kinds of
    evidence. Professor Lisa Dufraimont makes this point admirably in Myth,
    Inference and Evidence in Sexual Assault Trials (2019) 44:2 Queens L. J. 316,
    at pp. 345-46, 350; and it is reinforced
in
A.R.D.
, at paras. 6-8, 62; and
Roth
, at para. 73.

[69]

For this reason, it is not an error to admit and
    rely upon evidence that could support an impermissible stereotype, if that
    evidence otherwise has relevance and is not being used to invoke an
    impermissible stereotype:
Roth
, at paras. 130-38. For example, in
R.
    v. Kiss
, 2018 ONCA 184, at paras. 101-2, evidence that the complainant did
    not scream for help was admitted, not to support the impermissible
    stereotypical inference that her failure to do so undermined the credibility of
    her claim that she was not consenting, but for the permissible purpose of
    contradicting her testimony that she had screamed to attract attention.

[70]

By the same token, it is not an error to arrive
    at a factual conclusion that may logically reflect a stereotype where that
    factual conclusion is not drawn from a stereotypical inference but is, instead,
    based on the evidence. For example, although it is a stereotype that men are
    interested in sex, it was not an error to infer that the accused male was
    interested in sex at the time of the alleged assault where that inference was
    based on evidence:
Quartey
, at para. 21. Similarly, in
R. v.
    F.B.P.
, 2019 ONCA 157, the trial judge was found not to have erred in
    finding it implausible that the complainant would consent to spontaneous sex on
    a balcony, potentially in full view of others, because that inference did not
    rest in stereotypes about the sexual behaviour of women. The inference was
    based on evidence about the ongoing sexual disinterest the complainant had shown
    in the accused, and the ready availability of a private bedroom.

(3)

The Effect of Reasoning Errors Related to the Plausibility
    of Human Behaviour

[71]

Does a reversible error occur whenever a trial
    judge violates the rule against unfounded common-sense assumptions, or the rule
    against stereotypical inferences? As a matter of principle, such errors are
    reversible only when they ground the relevant inference by playing a material
    or important role in the impugned conclusion. Put otherwise, it is not
per

se

a reversible legal error to draw impermissible inferences that
    do not matter, but it is a reversible legal error to reach a material factual
    conclusion based on such reasoning.

[72]

Some passages could be taken as limiting the
    effect of these rules to cases where the impugned factual finding is based
solely
on impermissible reasoning. For example, the phrase sole reason was used by
    the majority in
A.R.D.
,

at para. 31, and, on further appeal,
Wagner
C.J. described the trial judge as erring
    by relying solely on impermissible stereotypical reasoning:
R. v.
    A.R.J.D.
, 2018 SCC 6, [2018] 1 S.C.R. 18, at para. 2. However, I do
    not take these decisions as holding that no error will occur so long as additional,
    permissible lines of reasoning are also offered. In
A.R.D.
,
the only reason provided by the trial
    judge for doubting the complainants testimony was the stereotype that she had
    not altered her behaviour towards the accused after the alleged assault. In my
    view, when these courts referred to the impermissible stereotypical reasoning
    as the sole reasoning, they were not defining a precondition to error but were
    referring to the particular facts of that case. It is instructive that in
A.R.D.
,
    at paras. 5-6, the majority described the error as 
relying on
an
    impermissible stereotype, or on prejudicial generalizations (emphasis added).
    The majority also quoted, at para. 45, from
R. v. R.G.B.
,
2012
    MBCA 5, 275 Man. R. (2d) 119, at para. 59: A judge would err in law if there
    is a sound basis to conclude, on appellate review, that a credibility finding was
    not
based on
a proper evidentiary foundation, but rather on
    inappropriate judicial stereotyping (emphasis added).

[73]

As a matter of principle, an error is based on
    a stereotype or improper inference when that stereotype or improper inference
    played a material or important role in explaining the impugned conclusion.
    Where it did so, even if the trial judge offered other reasons for the impugned
    conclusion, it cannot safely be said that the trial judge would have reached
    the same conclusion without the error. Where the erroneous reasoning does not play
    a material or important role in reaching the impugned conclusion, and was only
    incidental, the accused will not have been prejudiced by it and no reversible
    error occurs.

[74]

One final point. In argument before us, the
    Crown emphasized the importance of deferring to credibility determinations made
    by trial judges. I acknowledge this important practice, but where a trial judge
    contravenes the rules I have just described, resulting in a material effect on
    the impugned finding, an error of law has occurred:
A.B.A.
, at paras.
    4-5;
A.R.D.
, at para. 28. The error will be reversible, unless the
    curative proviso in the
Criminal

Code
, R.S.C. 1985, c.
    C-46, s. 686(1)(b)(iii), is successfully invoked by the Crown.

B.

THE TRIAL JUDGEs reJECTIoN OF jcS mOTIVE
    tHEORY

[75]

Just as it is an error for a trial judge to rely
    on a stereotypical inference in assessing credibility, it is an error for a
    trial judge to exclude an inference as based on stereotype, when it is not
    based on stereotype. JC claims that the trial judge committed this error in
    rejecting the inference that HD may have been motivated to falsely claim that
    their sexual relationship was not consensual, in order to protect her
    relationship with her boyfriend. JC contends that this inference was based on
    the evidence, and not on stereotype as the trial judge erroneously concluded.
    JC also challenges other reasoning the trial judge relied upon to reject the
    motive theory JC advanced at trial.

[76]

This is the impugned passage where the trial
    judge invoked stereotype:

Finally, relative to an alleged motive to
    fabricate, there is absolutely no evidence to support the existence of such a
    motive. The suggestion that the mere fact that HD has a boyfriend is founded on
    stereotypical assumption. It is stereotypical reasoning that is often applied
    to victims of sexual assaults. The argument is that since HD had a boyfriend,
    therefore, she fabricated this chronology in order to get out of hot water
    with him, as the Crown put it, and continue their relationship. However, there
    was no evidentiary basis to support that contention, despite HD having been
    cross-examined about it extensively.

[77]

Did the trial judge err by relying on stereotype
    or in his reasoning in rejecting JCs theory about the complainants motive to
    mislead? I conclude that he did.

[78]

The trial judge was incorrect in concluding that
    there was absolutely no evidence to support the existence of [JCs] motive
    theory. There was an evidentiary basis on which the trial judge could have inferred
    that HD may have been motivated to deny that her sexual relationship with JC
    was consensual, and that this motive could account for the police complaint. Specifically,
    there was evidence that, at the time HD told her boyfriend about her sexual
    contact with JC, HD and her boyfriend were having relationship difficulties and
    were discussing those difficulties in the hope of opening up greater lines of
    communication; that HD was upset during this conversation; that her boyfriend freaked
    out and was upset with her and angry at the situation when she told him
    about JC; and that, after the conversation, including when she was no longer
    intoxicated by ketamine, HDs boyfriend encouraged her to contact the police.

[79]

During argument, defence counsel made this
    submission to the trial judge:

[HDs boyfriend] became aware that there was
    interaction between [JC] and [HD], and in my respectful submission, thats,
    thats all thats needed to give rise to a motive to fabricate.

[80]

The Crown submits that when the trial judge characterized
    JCs argument as founded on a stereotypical assumption, he was not dismissing
    the entire submission as based on stereotype but was addressing only this
    specific submission, which does invoke the general stereotype that women with
    boyfriends are motivated to fabricate sexual assault allegations.

[81]

I do not agree with the Crown that the trial
    judges reference to stereotypical reasoning was so confined. I am satisfied
    that the trial judge treated JCs entire motive theory as resting on stereotype.
    This is evident in the way the trial judge characterized JCs motive argument.
    He said, [t]he argument is that since HD had a boyfriend, therefore, she
    fabricated this chronology in order to get out of hot water with him, as the
    Crown put it, and continue their relationship. In fact, JC relied on much more
    to support this motive theory than the fact that HD had a boyfriend. JCs
    position was that the manner of HDs disclosure to her boyfriend and her
    boyfriends reaction to this disclosure support the inference that HD may have
    been motivated to lie to protect her relationship with her boyfriend. JCs
    motive theory was therefore linked to fact-specific evidence. It was an error,
    in these circumstances, for the trial judge to find that the motive theory was
    founded on a stereotypical assumption.

[82]

The Crown also urges that since the trial judge
    addressed JCs motive theory more broadly on its merits, he did not ultimately rely
    on stereotype in rejecting that motive theory. I do not accept this.

[83]

First, a proper finding that JCs motive theory
    was founded on a stereotypical assumption would have been fatal to JCs motive submission.
    Any additional reasons offered for rejecting the motive theory would have been
    secondary. Simply put, the gravity of the trial judges finding that JCs
    motive theory was based on stereotype overwhelms the supplementary reasoning
    the trial judge engaged in. Without question, the trial judge relied on his stereotype
    characterization in rejecting JCs motive submission.

[84]

Second, there are problems with some of the additional
    reasons the trial judge offered in rejecting JCs motive theory. I will address
    two such problems.

[85]

In rejecting the motive theory, the trial judge
    said: JC agreed that the boyfriend did not contact him, or threaten him, so
    there is no evidence of a need to fabricate to appease the boyfriend. This
    represents a misconception of JCs motive theory. JCs theory was not that HD
    may have lied to prevent her boyfriend from confronting JC. As the trial judge
    appears to have recognized earlier in his reasons, JCs motive theory was that
    HD may have lied to preserve her relationship with her boyfriend. In linking
    the viability of the motive theory to evidence that the boyfriend acted
    aggressively towards JC, the trial judge allowed himself to become distracted
    from the real inquiry of whether HD had reason to seek to placate her boyfriend,
    who had freaked out when HD accidentally told him she had sexual relations
    with JC.

[86]

This mischaracterization by the trial judge of JCs
    motive theory raises an additional, more serious concern. The trial judges
    reasoning that the motive theory was not viable without evidence that HDs
    boyfriend confronted JC rests itself upon the stereotype of the aggressive,
    jealous boyfriend.

[87]

The other problematic reason the trial judge
    offered for rejecting JCs motive theory arose when the trial judge said:

It also makes no sense that HD was
    sufficiently willing to fabricate that she would sit through a trial where she
    was cross-examined extensively about personal issues and again required to
    watch the explicit personal video, along with strangers  the participants in
    this trial.

[88]

It is dangerous for a trial judge to find
    relevance in the fact that a complainant has exposed herself to the unpleasant
    rigours of a criminal trial. As this court said
in
R. v. G.R.A
(1994), 35 C.R. (4th) 340 (Ont. C.A.)
, the fact that a complainant
    pursues a complaint cannot be a piece of evidence bolstering her credibility.
    Otherwise it could have the effect of reversing the onus of proof. Of
    interest, in
R. v. K.(V.)
(1991), 68 C.C.C. (3d) 18 (B.C.C.A.), at p. 35,
    Wood J.A. disapproved of such reasoning because it would itself rest in
    gender-related stereotypical thinking that sexual offence complainants are
    believable. Such reasoning would be a stereotype because it is a prejudicial
    generalization that would be available in every case.

[89]

The primary concern with using a complainants readiness
    to advance a criminal prosecution is that doing so cannot be reconciled with
    the presumption of innocence. The trial is to begin on the rebuttable premise
    that the accused is not guilty, not on the basis that the mere making of a
    criminal sexual assault allegation favours a finding of guilt:
R. v.
    Stewart
(1994), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 252, leave to appeal
    refused, [1994] S.C.C.A. No. 290;
R. v. Nyznik
, 2017 ONSC 4392, 350
    C.C.C. (3d) 335, at para. 17.

[90]

Having said this, there is a passage from this
    court, in
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at
    para. 123, in which it was found to have been open to the trial judge to
    instruct the jury that, if they found that the complainants did not have a
    motive to fabricate, they could consider why the complainants in that case
    would make the allegation and expose themselves to the rigors of
    cross-examination on very personal matters. In
R. v. L.L.
, 2009 ONCA
    413, 96 O.R. (3d) 412, at paras. 49-50, Simmons J.A. interpreted this comment
    in
Batte
narrowly, as having been made in response to an isolated
    comment by the trial judge in a case where the overall effect of the trial
    judges instruction would not have led the jury astray.

[91]

I would note further that the passage in
Batte
was conditioned on the jury making an affirmative finding that the complainant
    had no motive to fabricate. Here, the trial judge used the fact that the
    complainant was willing to endure the trial as a reason for rejecting her
    motive to fabricate. This was erroneous.

[92]

I would therefore allow this ground of appeal.

C.

THE TRIAL JUDGES rEJECTION OF jcS coNSENT
    TESTIMONY

[93]

Did the trial judge err by relying on stereotype
    to reject JCs testimony about the steps he took in securing HDs consent, and,
    if so, was the error immaterial or harmless, or an error that did not occasion
    a miscarriage of justice? I am persuaded that the trial judge did err in
    rejecting JCs testimony about the steps he took in securing HDs consent, and
    that the trial judges erroneous reasoning was material, not harmless. I am
    also of the view that it cannot be found not to have occasioned a miscarriage
    of justice. I would therefore allow this ground of appeal.

[94]

During oral argument on this ground of appeal,
    JC took issue with the way the trial judge interpreted his evidence relating to
    consent. The trial judge characterized JCs testimony as claiming that he specifically
    requested consent 
at each progressive stage of the sexual encounters

    with HD, and that at
each
and
every
stage of
each
and
every
sexual encounter, he
continuously
asked HD if he
    could go further (emphasis in the original). JC argues that this is not a fair
    reflection of his testimony, which was that he begins a sexual encounter by
    kissing, and if the kissing is reciprocated, he takes it from there, including
    by seeking consent before engaging in oral sex or intercourse.

[95]

I need not resolve whether the trial judge
    interpreted JCs testimony fairly. Whether he did so or not, the trial judges
    reasoning, in rejecting JCs testimony on obtaining consent, contravenes both
    the rule against ungrounded common-sense assumptions, and the rule against
    stereotypical inferences.

[96]

The trial judge committed the first error 
    invoking an ungrounded common-sense assumption  by concluding that JCs
    testimony is not in accord with common sense and experience about how sexual
    encounters unfold. This is a bald generalization about how people behave. It
    is not derived from anything particular to the case, or any evidence before the
    trial judge on how all sexual encounters unfold.

[97]

The trial judge committed the second error of
    relying on stereotypical reasoning when he rejected JCs claimed conduct as too
    perfect, too mechanical, too rehearsed, and too politically correct. The trial
    judge was invoking a stereotype that people engaged in sexual activity simply
    do not achieve the politically correct ideal of expressly discussing consent
    to progressive sexual acts. This is a generalization because it purports to be
    a universal truth and it is prejudicial because it presupposes that no-one
    would be this careful about consent.

[98]

In fact, the behaviour the trial judge rejected as
    too perfect, too mechanical, and too politically correct to be believed is
    encouraged by the law, and certainly prudent. The
Criminal Code
specifies, in s. 273.1(1), that consent means the voluntary agreement of the
    complainant to engage in the sexual activity in question. Consent must
    therefore attach to each progressive form of sexual touching. Meanwhile, an
    accused cannot legally act solely on a belief in consent; he must honestly
    believe that his sexual partner has communicated consent:
R. v. Ewanchuk
,
    [1999] 1 S.C.R. 330, at paras. 46-49;
R. v. Barton
, 2019 SCC 33, 435
    D.L.R. (4th) 191, at para. 121. Simply put, the behaviour the trial judge
    rejected as too perfect to be true is to be encouraged, not disbelieved
ab
    initio
.

[99]

The Crown did not advance specific arguments
    disputing these errors. Instead, the Crown contended that any error was not
    material, or was harmless, and, in any event, did not occasion a miscarriage of
    justice. If I understood the Crown, it used the two terms material or
    harmless interchangeably. Although both terms address whether impugned
    reasoning mattered, these terms describe distinguishable inquiries.

[100]

As indicated, it is not
per

se

a reversible legal error for a trial judge to draw impermissible inferences
    that do not matter, but it is a reversible legal error to reach a material factual
    conclusion based on such reasoning. In order to demonstrate a reversible error where
    a trial judge has drawn an ungrounded common-sense assumption or invoked stereotypical
    inferences, the burden is therefore on the appellant to show that such
    reasoning mattered in arriving at the impugned factual finding. I would reserve
    the term material to describe this inquiry. So, in this case the question is
    whether JC has shown that the trial judges reliance on an ungrounded
    common-sense assumption or stereotype was material to his finding that JC never
    asked about HDs consent to progressive acts of sexual contact.

[101]

In contrast, a harmless error inquiry is
    initiated by the Crown pursuant to the curative proviso in the
Criminal
    Code
, s. 686(1)(b)(iii), after a legal error has been found. Where the
    Crown invokes the proviso and argues that the error is harmless, the burden is
    on the Crown to show that the error is minor or has not prejudiced the accused,
    and therefore had no effect on the verdict:
R. v. Khan
, 2001 SCC 86, [2001]
    3 S.C.R. 823, at paras. 29-30. Although, in substance, a harmless error inquiry
    under the curative proviso is also about the materiality of an error, clarity
    is best achieved by maintaining a distinction between the inquiries that form
    part of the rules an appellant is relying upon on appeal, and the application
    of the proviso at the behest of the Crown. I will use the term material to
    describe the former, and harmless error to describe the latter.

[102]

I will begin with the Crowns claim that the impugned
    reasoning by the trial judge was not material, and therefore not a reversible
    error of law. I reject this submission. I am satisfied that the errors I have
    identified played a material and important role in causing the trial judge to
    reject JCs testimony relating to consent.

[103]

In arguing to the contrary, the Crown relied
    heavily on the additional, non-erroneous reasons that the trial judge gave for rejecting
    JCs testimony about consent. Specifically, the trial judge commented on JCs
    demeanour when he was testifying about his approach to securing HDs consent.
    The trial judge said: It seemed excessively rehearsed and staged, as he
    specifically turned to give this answer directly to me. The trial judge also
    said that JCs evidence on these matters was challenged on the entirety of HDs
    evidence. And he said this evidence does not jive with the external
    circumstances of his conduct, presumably the trial judges conclusion relating
    to JCs pattern of disregarding HDs wishes.

[104]

I acknowledge those additional explanations for
    the trial judges rejection of JCs testimony about consent, but they do
    little, in my view, to reduce the impact of the errors the trial judge made.
    The impermissible reasoning played the central role in the trial judges
    rejection of JCs testimony. Four points reinforce this.

[105]

First, defence counsel challenged the trial
    judge, arguing that there was no basis for rejecting JCs testimony. The trial
    judge answered that challenge directly. The sole rejoinder he gave was that
    JCs evidence was too perfect, too mechanical, too rehearsed, and too
    politically correct to be believed.

[106]

Second, this reasoning was also the first reason
    the trial judge gave for rejecting JCs testimony about consent.

[107]

Third, the trial judge returned to this
    reasoning repeatedly during his analysis, making the point three times in the judgment.

[108]

Fourth, this reasoning was devastating. The
    trial judge relied upon it to find that JCs testimony about how he secured
    consent was contrived, in other words, a deliberate lie. In the
    circumstances, such a finding could not have been anything other than material
    or important to the ultimate rejection of JCs testimony about consent. This
    reasoning simply overwhelms the additional considerations mentioned by the
    trial judge.

[109]

Nor are the permissible factors that the trial
    judge relied upon compelling enough, when taken together, to overcome the material
    role that the trial judges reasoning errors played in his rejection of JCs
    testimony about consent. It can be assumed that the trial judge would have
    hearkened to the admonition not to place undue weight on demeanour evidence
:
    R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85. Further,
    the trial judges assessment of HDs evidence and his conclusions about JCs
    regard for HDs wishes are conclusions to be made on the evidence as a whole,
    including JCs testimony. Had the trial judge not greeted JCs testimony with
    the distorting influence of the errors of reasoning I have identified, he may
    well have come to a different conclusion.

[110]

JC has therefore satisfied me that the errors were
    material or important to the trial judge in rejecting JCs testimony about how
    he secured HDs consent.

[111]

To support its claim that the errors were not
    material, the Crown invited us to consider the trial judges reasoning as a
    whole, arguing that the trial judge gave many reasons for rejecting JCs
    testimony and for finding him guilty of the charges under appeal. In short, the
    Crown argues that JC would have been convicted even if these errors had not
    occurred. I would make two points in response.

[112]

First, as I have explained, the materiality of
    the reasoning errors is to be judged by examining their impact on the specific
    conclusion they support, not by examining the strength of the entire case. As I
    have also explained, it is an error of law to make a finding that rests
    materially on an ungrounded common-sense assumption or a stereotype. As
    Cartwright J. said in
Colpits v. The Queen
, [1965] S.C.R. 739, at p. 744,
    once error in law has been found to have occurred at the trial, the onus
    resting upon the Crown is to satisfy the Court that the verdict would necessarily
    have been the same if such error had not occurred. Therefore, the Crowns
    opportunity to rely on the whole of the case arises where the curative proviso
    is invoked, and not as part of the materiality inquiry. Even then, the
    examination is not of other reasons offered by the trial judge. In considering
    the curative proviso in s. 686(1)(b)(iii), the question is not whether
this
trial judge would have convicted: The appropriate inquiry is whether there is
    any possibility that
a trial judge
would have a reasonable doubt on the
    admissible evidence:
R. v. S.(P.L.)
, [1991] 1 S.C.R. 909, at p. 919
    (emphasis added).

[113]

Second, even if I was to engage in the exercise
    the Crown invites, I would still find the errors to have been material. This
    inquiry would necessarily invite a full examination of the reasons offered by
    the trial judge, which impels me to say that some of the other reasons the
    trial judge gave to support his decision, although not appealed, are problematic.
    For example, in addressing HDs memory issues, he excused her inability to remember
    everything in her initial statement to the police when the matter of concern
    was her ability to remember what happened. He considered the disclosure that HD
    made to her boyfriend as adding to the veracity of that disclosure, an
    inference that was arguably a misuse of a prior consistent statement. And he
    discounted the fact that JC stood up to cross-examination on the basis that,
    unlike HD, there was no prior statement to compare his testimony to. It is
    contrary to the right to silence to consider the absence of a prior statement
    by the accused in assessing their credibility, and the trial judges reasoning
    presupposes unfairly that JCs testimony may not have stood up to
    cross-examination had a prior statement been provided. I do not make these
    points to express gratuitous criticism of the trial judges credibility
    evaluation, but to illustrate the difficulties in relying on his other reasons
    as a palliative for the errors under appeal.

[114]

It must also be emphasized that the errors under
    appeal relate to the trial judges evaluation of JCs exculpatory testimony, a
    source of evidence that, in law, can raise a reasonable doubt even if not
    affirmatively believed. The trial judge gave few reasons for rejecting JCs
    evidence that did not depend on his finding that JCs testimony about consent
    was self-serving and contrived. I appreciate that he invoked
R. v. J.J.R.D.
,
    215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
    69, a case that permits, at para. 53, a trial judge to rely on the considered
    and reasoned acceptance of Crown evidence to reject conflicting, exculpatory
    evidence beyond a reasonable doubt, but the trial judge said this was only
    partially such a case.

[115]

In my view, even approaching things as the Crown
    would have us do, the trial judges errors in evaluating JCs evidence about
    consent were material, even to the outcome of the case.

[116]

What then of the curative proviso? In
R. v.
    R.V.
, 2019 SCC 41, 436 D.L.R. (4th) 265, at para. 85, Karakatsanis J.
    summarized the long-standing principles that guide its application:

The curative proviso set out in s.
    686(1)(b)(iii) may be applied where there is no reasonable possibility that
    the verdict would have been different had the error  not been made. Applying
    the curative proviso is appropriate in two circumstances: (i) where the error
    is harmless or trivial; or (ii) where the evidence is so overwhelming that the
    trier of fact would inevitably convict. [Citations omitted.]

[117]

As the decision in
R. v. Paulos
, 2018
    ABCA 433, 79 Alta. L.R. (6th) 33, at paras. 39, 47, leave to appeal refused,
    [2018] S.C.C.A. No. 336, shows, it is possible for the proviso to be applied
    where the trial judge has erred by relying on stereotype. But not, in my view,
    in this case.

[118]

As I have described, a harmless error is a
    minor error or an error that has not prejudiced the accused and therefore had
    no effect on the verdict. For the reasons I have just provided, the errors
    cannot be said to have been minor or non-prejudicial. The Crown has certainly
    not shown that they had no effect on the verdict.

[119]

Even a serious error will not be reversible
    where the Crown can show that it is clear that the evidence pointing to the
    guilt of the accused is so overwhelming that any other verdict but a conviction
    would be impossible:
Khan
, at para. 31 (citations omitted). The Crown
    cannot meet that burden. This was a credibility case in which there were material
    weaknesses in the complainants evidence. I will not canvass those weaknesses
    again. The most important of them are identified in the summary of the material
    evidence. I am far from persuaded that, on this evidence, any verdict other
    than a conviction would be impossible. The curative proviso cannot be applied.

CONCLUSION

[120]

I would allow the appeal, set aside the sexual
    assault conviction and the finding of guilt on the extortion charge and order a
    new trial.


Released: March
    3, 2021 R.G.J.

David M. Paciocco J.A.

I agree. R.G. Juriansz J.A.

I agree. M. Tulloch J.A.


