



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. I.W., 2022 ONCA 251

DATE:
20220328

DOCKET:
C67177

van
Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her
Majesty the Queen

Respondent

and

I.W.

Appellant

Mark C. Halfyard, for the appellant

Caitlin Sharawy, for the respondent

Heard: February 2, 2022 by video conference

On appeal from
the conviction entered on April 30, 2019 by Justice Stephen T. Bale of the
Superior Court of Justice, sitting with a jury.

George J.A.:

[1]      The appellant was charged
with sexual assault, sexual interference, uttering a threat to cause death, and
sexual exploitation. He pleaded not guilty, but after his trial a jury found
him guilty of all three sexual offences. He was found not guilty of the uttering
a threat offence.

OVERVIEW

[2]      The complainant, M.B., was a
friend of the appellants daughter, M.S. At the time of these events, the
appellant was 38 and 39 years old. The allegations span a period beginning when
M.B. was 15 years old and ending when she was 16 years old.

[3]      The appellant acknowledged
that he had a sexual relationship with M.B. but denied that it began before she
turned 16 years old. On the exploitation count, he denied providing the
complainant alcohol and cigarettes.

[4]      Apart from the exploitation
count  which required a distinct consideration and had more to do with whether
the appellant gave M.B. alcohol and cigarettes in exchange for sex  and the uttering
a threat count, the central question for the jury was when did their sexual
relationship commence. This was crucial because, when M.B. was under the age of
16, as a matter of law, she could not consent. Setting aside for a moment the
question of exploitation, if M.B. was over 16, she was capable of consenting.
M.B. turned 16 in mid-May 2016.

[5]      The appellant appeals against
conviction, advancing these three grounds:

i.)

the trial judge erred by failing to provide a no probative value
instruction to the jury after the complainants outbursts;

ii.)

the
trial judge erred by permitting the Crown to lead a prior consistent statement,
and in not instructing the jury on its limited use; and

iii.)

the trial
judge erred by failing to adequately correct the Crowns misstatement of the
facts relating to the timing of the alleged assaults in its closing address to
the jury.

[6]      The appellant also seeks to
introduce fresh evidence that speaks to when he took possession of a rental apartment
in Brooklin, which is where M.B. says most of the sexual activity occurred.

[7]      For the reasons that follow,
I would not admit the fresh evidence and I would not give effect to any of the
grounds of appeal. Accordingly, I would dismiss the appeal.

evidence at trial

Complainant, M.B.

[8]      M.B. was 18 years old at the
time of trial. As indicated, she alleged that the events in question took place
when she was between 15 and 16 years old. Pursuant to s. 715.1 of the
Criminal
Code
, she adopted her police statement as part of her evidence at trial.

[9]      M.B. and the appellant met in
2015. As mentioned, she and the appellants daughter, M.S., were friends. M.B.
testified that, before New Years Eve 2015, the appellant purchased bras and
underwear for her. She said that after the purchase the appellant texted her and
asked her to send him a picture of her in the underwear. In her statement to
the police, she said she told him no. However, at trial she testified that she
did take a selfie in the underwear and sent it to the appellant. When
cross-examined on the inconsistency she explained that I guess I didnt really
remember it before.

[10]    A short time after this event
(and when she was still 15), on New Years Eve 2015, the complainant went
to the residence of M.S.s mother where she spent time with M.S. and the
appellant. M.B. testified that the appellant supplied them both with vodka and
that she became intoxicated. At some point during the evening, M.S. went
upstairs to have a shower. While M.S. was doing that, M.B. said that the
appellant sat beside her on the couch and started to touch her. She testified
that she told him no, but that he moved on top of her and because he was much
bigger there was little she could do to stop him. She said the appellant pulled
her pants down and had intercourse with her. M.S. returned downstairs a short
while later. It seemed, to M.B., that M.S. knew something was amiss, though
nothing was said.

[11]    M.B. told the police that
after the New Years Eve incident she became depressed and began to use alcohol
and marijuana to cope. She acknowledged at trial, however, that her problematic
use of alcohol had begun before New Years Eve. According to her police statement,
about three to four weeks after New Years Eve  at some point near the end of
January or start of February 2016  she posted on Facebook asking if anyone
could buy [her] a bottle. The appellant messaged her that he could, and they
began communicating over text and Facebook Messenger. She ended up going to his
home in Brooklin, where he lived alone in a basement unit. This was when the
appellant began providing her alcohol and cigarettes and when their sexual
relationship began in earnest. She said something different at trial,
indicating that the first incident after New Years Eve occurred at a home in
Oshawa and not Brooklin. When asked about this inconsistency M.B. explained
that when she spoke to the police, she was merely confused about the location
because most of their sexual encounters occurred in the appellants Brooklin
apartment. According to M.B., the pattern that developed went something like
this: The appellant would supply her with alcohol  usually Raspberry Smirnoff 
which led to her getting intoxicated and the two having sex. On her account,
they met up once or twice per week. She maintained that she had no other way to
obtain alcohol, except through the appellant.

[12]    The two would routinely communicate
through text and Facebook Messenger. M.B. had saved the appellants contact on
Facebook Messenger under a pseudonym. They spoke occasionally by phone, but not
before M.B. turned 16.

[13]    During her testimony, several Facebook
messages were tendered. All were sent (or received) after the complainant
turned 16. She testified that she initially deleted their messages on the
appellants request, but she eventually stopped deleting them. Most messages were
from the appellant. M.B. testified that she did not recall responding to most
of them. Near the end of their relationship the appellant sent several angry
messages where, in some of them, he called M.B. derogatory names.

[14]    M.B. estimated that they had
sex about 30 to 40 times, on most occasions at the appellants Brooklin
apartment, but sometimes at a house in Oshawa. M.B. was not able to provide an
address for the Oshawa house.

[15]    This all came to a head when
M.S. found out about the relationship between M.B. and her father. M.S. learned
of it after looking through M.B.s phone. M.S. blamed M.B., which led to M.S.
and her boyfriend confronting M.B. on August 15, 2016, which ended in
the two having a physical confrontation. As a result, M.S. was charged with
assault. For obvious reasons, the friendship ended.

[16]    At trial, and during her
testimony, M.B. had several outbursts. At one point, in the presence of the
jury, she said to defence counsel: Youre defending a creep. Youre defending
a fucking creep. At other points, again with the jury present, she referred to
the appellant as a loser, a creep and a rapist. After the first outburst,
the jury was immediately excused. The appellant then brought a mistrial
application, which was denied. The trial judge did, however, provide a limiting
instruction, which I will return to in my discussion of the first ground of
appeal.

Complainants father, J.B.

[17]    The complainants father,
J.B., testified about New Years Eve 2015. He advised that after M.B. returned
home  just before midnight  she was upset but would not say why. He just
assumed it was because she was having some difficulties with her mother. He
testified that M.B. told him of the relationship in April 2017.

[18]    He spoke of the day M.B. made
her complaint to the police, in August 2017. He testified that he drove M.B. to
her part-time job. Once they arrived, M.B. advised that she did not want to
leave the car and go in. It was J.B.s understanding that this was on account
of the rumours that had been swirling among her peers, including her
co-workers, about M.B. and the appellant, rumours that were getting worse and
worse and which had spread online. He then drove her directly to the police
station.

Appellant

[19]    The appellant testified that
on New Years Eve 2015 his plan was to visit with his daughter, M.S., at his
ex-wifes house. They were going to celebrate the occasion by eating junk food
and watching movies. He advised that M.B. arrived at around 10:00 p.m., and
that she appeared to be intoxicated. Neither he nor M.S. had been drinking. As
he was getting ready to leave to go and purchase firewood and snacks at a
nearby gas station, M.S. went upstairs, not to have a shower  which is what
M.B. said she did  but to remove her makeup. The appellant acknowledged that
he got a little frustrated waiting for M.S. as he wanted to return to the house
before midnight. He denied having any sexual contact with M.B. while M.S. was
upstairs. He denied having sex with M.B. that evening or at any time before she
turned 16.

[20]    The appellant denied ever
purchasing alcohol or cigarettes for M.B. He acknowledged taking his daughter
and M.B. to the movies and for a pedicure, and taking them to shop before
Christmas in 2015. He explained that he did this as he thought it would assist
in his efforts to repair the relationship with his daughter, which had been
strained.

[21]    According to the appellant,
his sexual relationship with M.B. began after she turned 16 and after she sent
him a picture of herself wearing sunglasses. On his account, he could see, in
the reflection of her sunglasses in the photograph, a pornographic website on
her computer. The photograph was captioned I am legal now (M.B. acknowledged
the image and that she might have sent it, but denied it was to initiate sexual
contact with the appellant). The appellant said he thought the picture was a
joke and he showed it to his daughter. He said that, about 40 minutes after
receipt of this message, M.B. wrote him and told him she liked him and asked if
he wanted to hang out. M.B. started coming over and they, typically, either watched
movies or went out for dinner.

[22]    He acknowledged having a
sexual relationship with M.B., but not until after she turned 16 in May 2016.
He denied ever offering or providing alcohol or cigarettes in exchange for sex.
He testified that he never owned or rented a home in Oshawa and that he was
never at a home in Oshawa with M.B.

[23]    Recognizing the significant
age gap, the appellant described this relationship as unconventional and that,
in hindsight, his was a terrible lapse in judgment. He explained that he was
flattered by the attention of a younger woman. The relationship ended when he
learned she was dating someone closer to her age. He acknowledged sending her
angry and vulgar text messages. He said he did so because he believed she
cheated on and lied to him.

Appellants daughter, M.S.

[24]    M.S. is the appellants
daughter. She was also one of M.B.s closest friends. She confirmed, in large
measure, the appellants testimony. She testified that the appellant bought
M.B. a sweater (not underwear), on her behalf, for Christmas, and that he
bought her a sweater and underwear. She also largely corroborated his evidence
about the New Years Eve incident. For instance, she said neither she nor the
appellant consumed alcohol, and that the plan was indeed for the two of them to
watch movies. She testified that when M.B. arrived it was clear she had been
drinking. She said she spoke to M.B. for a moment before going upstairs to, as
the appellant said, take off her makeup. She did not have a shower. She
testified that when she returned downstairs the appellant was wearing boots and
a coat and was ready to go to the store. M.B. did not go with them and was not
at the home when they returned.

[25]    M.S. acknowledged having learned
of the relationship between M.B. and her father after perusing M.B.s phone, and
to confronting and assaulting M.B. on August 15, 2016. M.S. was charged and
ultimately pleaded guilty to assault.

Other Defence Witnesses

[26]    The tenant who lived in the
Brooklin apartment immediately before the appellant, testified. He said that
while his lease expired on March 31, 2016, he moved out near the end of
February or beginning of March. He recalled that, as he was moving his
belongings from the unit, the landlord brought the appellant by for a showing.

[27]    He also recalled that when he
moved into the unit in 2013 the landlord allowed him to take possession a day
or two before the commencement of the lease.

[28]    While the jury was not advised
who she was, the appellants parole officer testified. She said the appellant
told her that he was moving into the Brooklin apartment on April 21, 2016. She
visited him there on April 28, 2016, and observed that there was very little
furniture in the unit.

DISCUSSION

Ground #1  Did the trial judge err by
failing to provide a no probative value instruction to the jury after the
complainants outbursts?

[29]    The appellant submits that the
trial judge did not sufficiently address M.B.s outbursts. Instead of simply cautioning
the jury against placing too much emphasis on how she testified and directing
them to not rely on it to conclude that the appellant is a bad guy and more
likely to have committed an offence like this, the trial judge should have said
that it was irrelevant and directed them to disregard it in its entirety.

[30]    I think it important to,
first, place these outbursts in their proper context. M.B. was a youthful
witness, 18 years old at time of trial, testifying about events that occurred
when she was 15 and 16. Upon my review of the record, it is fair to say that
hers was a lengthy and vigorous cross-examination. She was, understandably, upset
and emotional.

[31]    While events like these are
always regrettable, and require some intervention by the trial judge, a
significant degree of deference is owed to their choice of remedy. To that end,
consider what the trial judge actually did. First, he immediately excused the
jury and sought counsels input. The appellant argued that a mistrial should be
declared. He submitted that the outburst was irrelevant, had no probative
value, and was highly prejudicial. The Crown submitted that it was admissible
but urged the trial judge to give an instruction that cautioned the jury
against placing undue reliance on the witnesss demeanour, and against engaging
in propensity reasoning.

[32]    Second, he dismissed the
request for a mistrial.

[33]    Third, after considering the
position of each party, he had the jury return and provided this instruction:

You will recall, Im sure, that before we
broke for lunch you witnessed an outburst on the part of [M.B.] in which she
expressed the opinion that [the appellant] is a, quote, fucking creep.
Although I will be giving you further instructions at the end of the trial in
relation to the assessment of a witnesss evidence, I want to say something
about it now as a result of that incident. Do not jump to any conclusion, based
entirely upon how any witness has testified. Giving evidence in a trial is not
a common experience for most people. People react and appear differently.
Witnesses come from different backgrounds. They have different abilities, values,
and life experiences. There are simply too many variables to make the witnesss
manner in the witness box, or in this case, the CCTV room, the only or most
important factor in making your decision.

In particular, you must not use the opinion of
[the appellant] expressed by [M.B.] to conclude or help you conclude that he is
a person of bad character and, therefore likely committed the offences charged
because of that bad character.

[34]    This instruction, which was
based on wording proposed by the Crown, was adequate in the circumstances. It
addressed both the risks of undue reliance on a witnesss demeanour and
propensity reasoning, which is where the mischief lay. Beyond that what we are
really talking about is a risk that the emotional force of it was too much and
would overwhelm the jury, which would in turn lead them to effectively ignore
instructions on the law. First, this concern is unfounded. There was no reason
to believe that the jury would have ignored instructions on the law on account
of the outbursts. Second, if the concern was that the outbursts would unduly
influence the jurys attitude towards the accused, I would defer to the trial
judges discretion and judgment because he was better positioned than I am now
to assess the potential risks and what would best ameliorate against them.
Short of the trial judge exercising his discretion in a way that is clearly
wrong or based on an erroneous principle, they must be given considerable
leeway to manage what can sometimes be very challenging proceedings:
R. v.
Chiasson
, 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Here, the
trial judge was alive to the issues the outbursts raised, and the concerns of
trial counsel, and then dealt with them in a measured and reasonable manner.

[35]    The sufficiency of this
instruction addresses the appellants argument that the jury should have been
told to disregard the outbursts entirely. In other words, while it was open to
the trial judge to provide a stronger instruction, the failure to do so, in the
circumstances of this case, was not an error. This was the trial judges call
to make, and he made it after recognizing the risks that arose from the
outbursts and after seeking and receiving counsels input. I will note, as well,
that this type of evidence can typically cut both ways as defence counsel will
often seize upon such outbursts and rely on them during their final submissions
to show that a witness has an
animus
against the accused.

[36]    In any case, the appellant was
not prejudiced by M.B.s outbursts as the jury was sufficiently instructed on
the limited use they could make of it. I would accordingly reject this ground
of appeal.

Ground #2  Did the trial judge err by permitting
the Crown to lead a prior consistent statement and in not instructing the jury
on its limited use?

[37]    The appellant submits that the
trial judge erred by allowing the jury to hear that M.B. disclosed what
happened between her and the appellant to her father in April 2017. This, he
submits, was a clear violation of the rule against oath helping as any motive
to fabricate already existed and began either when M.S. learned of M.B.s
relationship with her father or when the physical altercation occurred, which
was in August 2016, some eight months earlier. He also submits that, even if
this disclosure was admissible, the trial judge erred in failing to give a
limiting instruction on its prohibited and permissible uses. He argues that
these errors warrant a new trial.

[38]    Prior consistent statements
are presumptively inadmissible:
R. v. Stirling
, 2008 SCC 10, [2008] 1
S.C.R. 272, at para. 5. This is so for good reason. They are self-serving,
typically lack probative value, and are by their very nature repetitive and
redundant. In the normal course, they amount to an improper attempt to bolster
a witnesss credibility. The rationale for excluding prior consistent
statements is that repetition does not enhance the value or truth of the
testimony:
R. v. Ellard
, 2009 SCC 27, [2009] SCC 27, at
para. 31. However, there are exceptions:
Stirling
, at para. 5. For
present purposes, the question is whether the trial judge properly admitted
this evidence as a way for the Crown to rebut an allegation of recent
fabrication.

[39]    In
Stirling
, the
Supreme Court held that prior consistent statements can be admitted to rebut an
allegation that a witness has recently fabricated parts of their evidence. The
allegation need not be expressly made. It is enough that the apparent position
of the opposing party is that there has been a prior contrivance:
Stirling,
at para. 5, citing
R. v. Evans
, [1993] 2 S.C.R. 629, at p. 643.
Furthermore, the alleged fabrication need not be recent. What matters is that
an allegation, or suggestion, that the complaint is fabricated must have been
made at some point after the event in question: see
Stirling
, at para.
5;
R. v. OConnor
(1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp.
294-295.

[40]    The trial judge failed to
articulate the basis on which the prior consistent statement was admissible.
However, he appears to have accepted the Crowns argument that it should be
admitted to rebut an allegation of recent fabrication. I say that, having
regard to how the issue was raised at trial, and then resolved. First, the appellant
objected to the admission of M.B.s fathers testimony about M.B.s disclosure
as a prior consistent statement, on the basis that it was irrelevant. Second, in
response to the appellants objection, the Crown argued that J.B.s evidence
about the timing of M.B.s disclosure to him was relevant to rebut the
allegation of fabrication. The Crowns position was that, while a motivation to
fabricate may have arisen when people first learned of M.B.s relationship with
the appellant, or when M.B. and M.S. had their fight  which the appellant says
is why M.B.s conversation with J.B. should not have been allowed  it was the
culmination of events, and the fact that rumours continued to spread, that led
M.B. to go to the police when she did.

[41]    The trial judge also failed to
provide any limiting instruction to the jury on the prior consistent statement.
It is true that when a prior consistent statement is admitted, regardless of
the exception it falls under, the trial judge should instruct the jury on its
permissible and impermissible uses. That said, the failure to do so will not
always amount to a reversible error. First, the adequacy of a trial judges
instruction is to be assessed in the context of the particular case on a
functional basis:
R. v. Demetrius
(2003), 179 C.C.C. (3d) 26 (Ont.
C.A.), at para. 21. Second, this court has noted that a limiting instruction
may be unnecessary where it is clear to the jury that the statement is not
offered as proof of the underlying facts:
Demetrius
, at para. 22,
citing
R. v. G.M.
, [2000] O.J. No. 5007 (Ont. C.A.). In
R. v. M.P.
,
2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 80, Watt J. observed that the
absence of a limiting instruction about the use of prior consistent statements
is not always fatal, and he helpfully identified a number of relevant
considerations:

The effect of the failure of a trial judge to
properly apprise a jury about the limited use of prior consistent statements in
reaching its verdict varies. Sometimes fatal. Other times, not. As noted above,
perfection is not the standard by which we are to judge the adequacy of jury
instructions. Each case falls to be decided according to its own idiosyncratic
facts, but the authorities yield some relevant considerations:

i.)

Did the prior consistent statement extend beyond
the mere fact of its making to include incriminatory details?

ii.)

How many prior consistent statements were introduced
or repeated?

iii.)

Who introduced the evidence?

iv.)

Did the party introducing the evidence rely on
it for a prohibited purpose?

v.)

Was any objection taken to the introduction of
the prior consistent statements or to the failure to provide instructions
limiting their use?

[42]    I will consider each in turn.
First, did the impugned statement extend beyond the mere fact of its making to
include incriminatory details? Here is the exchange between the Crown and M.B.s
father:

Q. [D]id [M.B.] ever tell you about what happened
between her and [the appellant]?

A. Yes.

Q. I dont want to get into anything about
what she told you, okay, thats for her to have told the court. So, I dont
want to hear from you about what it was or words that she used. But my question
for you is, that she told you about these events with [the appellant], when was
it that she came out to you with this information?

A. Two years ago, almost to the day.

Q. Almost two years ago?

A. Yeah.

Q. Okay. So that would be, we are in 2019, we
are in April of 2019?

A. Yes.

Q. So, April of 2017?

A. Yeah. In and around that area. Yes.

[43]    This does not elicit anything
beyond the fact and timing of the disclosure. Indeed, the Crown specifically
avoided eliciting anything beyond that.

[44]    Second, how many prior
consistent statements were introduced? Just one. The exchange noted above, which
sets it apart from cases relied upon by the appellant, in particular
R. v.
D.C.
, 2019 ONCA 442, where three witnesses testified about what the
complainant told them and which, in each instance, included substantive
details of abuse: at para. 25. There you had a clear risk that the jury would
improperly view the statements as corroborative or confirmatory. That is simply
not the case here.

[45]    Third, who introduced the
evidence? Without question the Crown elicited the evidence that there had been
a prior disclosure.

[46]    Fourth, did the Crown rely on
M.B.s disclosure for a prohibited purpose? To answer that question, one must
consider what the Crown said about this in its closing address:

[M.B.] did not make up allegations of being
assaulted sexually by [the appellant] just to get her ex-friends off her back.



She didnt just go to the police in August of
2017 and make up allegations because she was being made fun of by her peers. It
was time, and she was ready to talk about it. And you heard from both her and
her father that she had told him about this relationship well in advance of
going to the police.

This is the third piece of evidence that [the
complainants father] assists you with. This wasnt made up on August the 2nd
when she went into the police station for the first time. She didnt go to the
police earlier, because, as she told you, she was afraid. She was afraid that
nothing would happen, because she had seen other people in similar situations,
and nothing had come of it. She was afraid of the very process of having to
talk about it.

[47]    This did not invite the jury
to improperly use the evidence. To the contrary, the Crown relied on the timing
of M.B.s disclosure to her father to rebut the appellants allegation of
recent fabrication. It was a fair argument to make, in light of the evidence
that had been presented. At no point during this trial was the jury asked to
rely on the prior consistent statement for the truth of its contents, or to
bolster the complainants credibility through repetition.

[48]    Consider also this exchange
between defence counsel and M.B.:

Q. Okay. And after that, [M.S.] and [someone
else] told other people, your peers, about the relationship, correct?

A. Correct.

Q. And that word got out about it, and it
caused a lot of rumours to go around about you, correct?

A. Only the bad people realized it. Like, the
people who actually heard it and had a brain thought it was wrong. So, yeah.

Q. Okay. But there were these, my point is
just that there were these rumours and they caused you a lot of discomfort, a
lot of pain, correct?

A. Yeah.

Q. And I will just show you, I am not, I will
just show you one of those, one of the types of things that you heard. I am
actually, I am not going to put it up on the screen because I dont want to put
it up on the screen unless you want me to refresh your memory. But there was a
message, for example, from someone, one of your friends

A. Yeah. Put it up on the screen.



Q. So, for example, this is [someone] saying:

You used her dad for alcohol, you chose to
be with him even while you had a fucking boyfriend and now you act like you are
all innocent?

Q. That was the type of thing that you heard,
correct?

A. Correct.

Q. Okay. And you didnt, you dont like now it
being portrayed, the relationship with [the appellant] after you turned 16, as
something you chose, correct?

A. Correct.

Q. And actually, what prompted you to go to
the police, I am going to suggest, these sorts of rumours and the things you
were hearing, they drove you nuts, correct?

A. If I really want to protect my image I
would.

Q. I am not sure what you mean

A. I am

Q. by that.

A. not embarrassed by what these people are
saying about me. If I really wanted to put something out there about this guy,
then I would. I am not worried about what these people are messaging me. I went
to the police because it was, I was sick of getting these messages like it was

Q. Thats was my next

A. It didnt drive me crazy. I was tired of
hearing about this situation and not doing anything about it.

Q. Okay. So, what ultimately prompted you to
go to the police, you had got a job at McDonalds, correct?

A. Yes.

Q. And you would see your peers there,
correct?

A. Yes.

Q. They knew about the relationship and they
teased you, correct?

A. Incorrect.

Q. Okay. They said mean things to you like
[someone] did, correct?

A. Not in McDonalds, but, yeah.

Q. Okay. Fine. But you, they didnt say it
when you were at work but that day you went to the police you saw some of your
peers, correct?

A. Correct.

Q. And you said, you know what, I cant do it.
Today is the day that I am going to the police, correct?

A. Correct.

[49]    Defence counsel appears to be
suggesting to M.B. that she went to the police when she did because she was
about to encounter some of her peers at her place of work, who were spreading
rumours about her, which is contrary to what the appellant now says, which is,
because this was long after M.S. learned of the relationship, and their fight,
that the disclosure to J.B. could not rebut his allegation that M.B.
fabricated.

[50]    Lastly, was any objection
taken to the introduction of the prior consistent statement or to the failure
to provide instructions limiting its use? While trial counsel for the appellant
did object to M.B.s father testifying about M.B.s disclosure, counsel did not
ask for a limiting instruction after the evidence was ruled admissible. No
mid-trial instruction was sought. No such instruction in the final charge was
sought. It was not discussed at all during the pre-charge conference.

[51]    Except for the fact that it
was the Crown who elicited the prior consistent statement, all factors point to
a finding that there was no error, notwithstanding the absence of a limiting
instruction.

[52]    I would, therefore, reject
this ground of appeal.

Ground #3  Did the trial judge err in not
correcting a Crown misstatement of the evidence in its closing address, about
when the appellant moved into the Brooklin apartment?

[53]    On the issue of when the
appellant took possession of the Brooklin apartment, the appellant submits that
the Crown misled the jury about the evidence, and invited speculation, by
saying this during its closing address:

You heard from [the prior tenant]  when he
signed his lease for the period of time starting October 1st, 2013. He signed
in advance of that date, which is, in the Crowns submission, the norm.



We know that that had to happen before [the
prior tenant] moved out of the apartment, because once he did that, he never
went back to it. So it had to be before the end of February, early March, which
is that [the prior tenants] evidence was about when he moved out.



[The prior tenant] also told us that he moved
out of the apartment in late February or the start of March. And once he moved
out, as I already said, he did not go back. When he moved out all of his
belongings, everything was moved out. There was nothing left there. Its a
reasonable inference for you to draw that the landlord extended the same
courtesy to [the appellant] once [the prior tenant] was out of the apartment.

[54]    The appellant contends that
the Crown was attempting to have the jury draw the inference that he took
possession of the Brooklin apartment in late February or early March  aligning
it more closely with M.B.s evidence about when she says they started having
sex in that apartment  even though his lease did not begin until April 1,
2016.

[55]    After defence counsel raised
concerns about this invitation to speculate, the trial judge reminded the jury
what [the prior tenant] actually said, relating it directly to the Crowns
closing by drawing a distinction between someone being allowed to move in a
day or two before a lease begins, and a month before.

[56]    The appellant says this was
insufficient as there was no basis upon which the jury could conclude that he
moved into the Brooklin apartment a month or more before the start date of the
lease. He further submits that, even though the trial judge accurately stated
what the evidence was, the Crowns misstatement created a miscarriage of
justice in that it reconciled a significant inconsistency in M.B.s evidence on
the core issue, which was when, apart from New Years Eve 2015, the sexual
relationship began.

[57]    The Crown argues that there
was no misstatement. It asks that we closely examine what the Crown at trial
actually said, which is as follows:

But if the first incident after New Years was
the beginning of February, if we take her evidence here at trial as she recalls
it, and after that she met him at the Brooklin apartment as she said in her
statement about every two weeks, then once a week, then several times a week,
the frequency increased for that part, gets us really close to the end of
February when [the prior tenant] says that he left that apartment for good, and
when you could infer that [the appellant] had access to it.

[58]    It further submits that, even
if the jury was improperly led to believe they could infer that the appellant
moved in a month or more before the lease start date, the trial judge made
clear in his charge what the evidence was, emphasizing the point by relating it
directly to the impugned portion of the Crowns closing submissions.

[59]    To start, I would agree that
the Crown went too far in asking the jury to draw an inference that, because a
prior tenant was allowed to move in a couple of days early, the appellant might
have moved in a month or so before his lease began. This was a wild stretch, as
there is a vast difference between a landlord allowing a tenant to move in a
day or two early, and letting a tenant move in a month early. However, while
the Crown went too far in drawing the comparison, there was no misstatement of
fact. That being the case, all the trial judge could do is what he in fact did
do, which was to instruct the jury as follows:

[The prior tenant] testified that he had been
the tenant at the Brooklin apartment before [the appellant]. He said that his
tenancy expired on March 31, 2016. He said that he had moved out at the end of
February or beginning of March, and that, as he was moving out, the landlord brought
[the appellant] in to view the apartment.

In her closing argument, Crown counsel argued
that the landlord had extended a courtesy to [the prior tenant] in September
2013 by allowing him to move into the apartment early, and that it would be
reasonable to assume that he would have extended the same courtesy to [the
appellant]. In considering this argument, you should take into consideration
the fact that [the prior tenant] evidence was that the landlord had allowed him
to move in a day or two early, that is a day or two before the commencement
of his lease on October 1, 2013.

[60]    With this, there can be no
doubt that the jury knew what the evidence was. Apart from that, the Crown made
a mistake by drawing an inapt comparison, and the trial judge fixed it. He
fixed it promptly, and in a way that ensured the jury treated the evidence
properly. As such, I would reject this ground of appeal.

FRESH EVIDENCE

[61]    At trial, the appellant
tendered his lease for the Brooklin apartment, which indicated that his tenancy
began on April 1, 2016. The appellant testified that he moved into the
apartment on April 12, 2016. The appellant now seeks to admit as fresh evidence
his rent cheques for the Brooklin apartment, the first of which is dated June
1, 2016; a copy of his SOIRA address update; and an MTO abstract with an
address update. The SOIRA notification indicates that he changed his address on
April 18, 2016. According to his affidavit in support of the application, he
was required to update his SOIRA address within seven days of moving or face
criminal charges. The MTO abstract indicates that he changed his address on
April 14, 2016.

[62]    When determining whether to
admit fresh evidence on appeal, the court must consider whether the interests
of justice warrant reception, based on these questions from
Palmer v. The
Queen
, [1980] 1 S.C.R. 759, at p. 775:

i.)

By due diligence, could the evidence have been
adduced at trial?

ii.)

Is the evidence relevant in the sense that it
bears on a decisive or potentially decisive issue?

iii.)

Is the evidence credible in the sense that it is
reasonably capable of belief?

iv.)

Is the evidence such that, if believed, when
taken with the other evidence adduced at trial, it could reasonably be expected
to have affected the result?

[63]    The
Palmer
criteria encompass
three components: admissibility, cogency, and due diligence:
Truscott (Re)
,
2007 ONCA 575, 83 O.R. (3d) 272, at para. 93. The due diligence component
becomes important if the admissibility and cogency components are met:
Truscott
(Re)
, at para. 93. Although the absence of an adequate explanation for not
producing material at trial will not necessarily lead to the exclusion of the
evidence on appeal, the finality of trial verdicts would be rendered illusory
and the integrity of the trial process undermined if evidence is routinely
admitted on appeal that could have been adduced at trial:
Truscott (Re)
,
at paras. 101-102.

[64]    The evidence of the SOIRA
address update and the MTO abstract is clearly admissible, relevant to the
issue of when the appellant moved into the Brooklin apartment, credible, and sufficiently
probative that they might well have had an impact at trial, as they suggest the
appellant moved into the Brooklin apartment in mid-April 2016. The rent cheques
are not sufficiently probative, as the first cheque is dated June 1, 2016, well
after the appellants lease began and when he testified that he moved into the
apartment. However, to admit the evidence of the SOIRA address update and the
MTO abstract, at this stage, would be to render the first prong of the test
meaningless, and be tantamount to saying fresh evidence will, in every case, be
admitted even if it was obviously relevant and easy to obtain at the time of
trial.

[65]    In support of his fresh
evidence application, the appellant suggests in his affidavit that he did not
think to secure these documents at or before trial because the issue of when he
moved in arose unexpectantly. That makes little sense because it would have
been well known to the appellant, long before trial, when and where M.B.
alleged the sexual relationship began, which never aligned with when he says he
moved into the Brooklin apartment. What he seems to be implying is that he
believed at trial that the lease was a complete answer to the conflict in the
evidence as to when he moved into the Brooklin apartment, but this does not
explain why he only now recognizes that the SOIRA address change or MTO
abstract would serve the same purpose, if not actually be more probative than
the lease, given that they indicate later move-in dates.

[66]    While the due diligence
principle is not to be applied as strictly in criminal matters, here there was
no diligence whatsoever and no good explanation for why these documents were not
obtained and presented at trial.

[67]    I would dismiss the
appellants fresh evidence application.

CONCLUSION

[68]    For these reasons, I would
dismiss the appeal.

Released: March 28, 2022 K.M.v.R.



J.
George J.A.

I
agree. K. van Rensburg J.A.

I
agree. I.V.B. Nordheimer J.A.


