



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding judge or justice may
    make an order directing that any information that could identify the
    complainant or a witness shall not be published in any document or broadcast or
    transmitted in any way, in proceedings in respect of

(a)       any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162,
    163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01,
    279.02, 279.03, 346 or 347,

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

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

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

(2)
In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)  at the first reasonable opportunity, inform any witness under the
    age of eighteen years and the complainant of the right to make an application
    for the order; and

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

(3)
In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.





CITATION:
R. v. G.M., 2011
          ONCA 503



DATE: 20110712



DOCKET: C51371



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Epstein
          JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



G.M.



Appellant



Kristin Bailey, for the appellant



Holly Loubert, for the
          respondent



Heard: December 6, 2010



On
          appeal from the conviction entered by Justice Robert F. Scott of the Superior
          Court of Justice on October 14, 2009.



Epstein J.A.:



I.         OVERVIEW

[1]             On
    the afternoon of November 17, 2008, the complainant, then 15 years old, went to
    the apartment that the 37-year old appellant shared with his 17-year old
    girlfriend, J.P., to smoke marijuana and drink alcohol. The complainant alleges
    that the appellant asked to speak to her privately and, when out of sight of
    the others, forced himself on her and engaged in sexual intercourse against her
    will.  The appellant testified.  He denied that any sexual encounter took
    place between him and the complainant on the night in question.  In fact, he denied ever being alone with the
    complainant at all.

[2]             After
    a two-day, judge-alone trial, the trial judge found that he did not believe the
    appellant and that he was satisfied, based on the Crowns evidence, that the
    appellant had sexually assaulted the complainant. He convicted the appellant of
    sexual assault and sentenced him to 54 months imprisonment.

[3]             The
    appellant appeals his conviction, arguing that the trial judge relied on
    inadmissible evidence in assessing his credibility, allowed the Crown to ask
    impermissible questions and failed to properly apply the analysis prescribed by
D.W. v. The Queen
, [1991] 1 S.C.R.
    742.

[4]             The
    appellant and the Crown have each brought an application seeking leave to
    introduce fresh evidence.

[5]             I
    would dismiss the appeal.  In my view,
    the appellant received a fair trial.  I
    find no fault in the trial judges treatment of the evidence or in his analysis
    leading to his conclusion that the Crown had proven, beyond a reasonable doubt,
    that the appellant sexually assaulted the complainant. For the reasons set out
    below, I would not admit the fresh evidence.

II.
           FACTS

[6]             At
    the time of the alleged offence, the appellant shared an apartment with J.P.,
    his friend, J.B. and the appellants 16-year-old son, S.M. The complainant,
    having recently decided to run away from home following a fight with her
    mother, went to the apartment with two female friends, K.C. and B.G., around
    3:30 in the afternoon.  Shortly after
    their arrival, the complainant began smoking marijuana with K.C., B.G., and
    J.P. The appellant, J.B. and S.M. were also at the apartment when the
    complainant and her two friends arrived.

[7]             B.G.
    left the apartment before 5:00 p.m. as she had a curfew.  The complainant, K.C., J.P., the appellant
    and J.B. began to drink.

[8]             K.C.
    testified that at one point during the evening, she, J.P. and the complainant
    were together in the apartment bathroom. J.P. asked whether either of the
    others would like to have a threesome with me and [the appellant]. Both the
    complainant and K.C. immediately declined the invitation.

[9]             The
    complainant testified that, at one point after K.C.s departure at about 10:00
    p.m., the appellant asked if he could speak with her. He led her down the
    hallway towards the bedroom area. The two stopped outside of S.M.s bedroom
    where the appellant began touching the complainant, called her a very pretty
    girl and told her that she had a nice body.

[10]         The
    complainant did not respond to these comments.  The next thing she remembered was being in the appellants bedroom
    sitting on the edge of the bed.  The
    appellant asked if he could kiss her.  She responded, What do I want with an older man?

[11]         The
    appellant then pushed the complainant onto her back and began to unbutton her
    sweater as he kneeled on the bed. The complainant clutched her sweater closed
    and asked the appellant to stop. He told her to just relax. The appellant then
    removed the complainants pants and underwear.  When he inserted his fingers into her vagina, the complainant grabbed
    his wrist and tried to push him away.  The appellant removed his hand.

[12]         According
    to the complainant, the appellant then took his pants off and climbed on top of
    her. He penetrated her vagina with his penis and had forced sexual intercourse
    with her for approximately 15 minutes, during which time he continued to tell
    her to relax. After 15 minutes, the appellant stood up, put his pants back on,
    and left the room.

[13]         The
    complainant then got dressed and returned to the living room where she found
    the appellant seated with J.P. and J.B. No one reacted to her absence.

[14]         The
    complainant testified that half an hour later, the appellant and J.P. went to
    bed.   Her evidence was that she slept on
    the couch in the living room, while J.B. slept on the loveseat.

[15]         The
    complainant left the apartment the next afternoon. She disclosed the assault to
    her guidance counsellor a short time later.

III.
         THE TRIAL DECISION

[16]         The
    trial judge, noting that the appellant flatly denied having any sexual contact
    with the complainant, identified the issue at trial as either he did it or he
    didnt do it, explaining that all other issues, such as consent, are not in
    question.

[17]         Considering
    first the defence evidence, the trial judge found that the testimony of each of
    the defence witnesses  the appellant and J.B.  was not credible.

[18]         Beginning
    with the appellant, the trial judge noted his lengthy criminal record that,
    while comprised predominantly of drug offences, also included crimes of dishonesty.

[19]         In
    his rejection of the appellants testimony, the trial judge appears to have
    attached particular importance to an exchange between the appellant and Crown
    counsel during cross-examination, an exchange that the trial judge found to
    have constituted an attempt by the appellant to mislead the court:

A large
    part of [the appellant]s evidence was for the purpose of convincing the court
    that he had no interest in [the complainant] as a sexual partner. In
    cross-examination in response to a question of whether he found [the
    complainant] attractive he responded, Are you aware that I have a 19-year old
    daughter? implying that he was somewhat insulted by such a suggestion that he
    would be sexually attracted to a 15-year old girl, a teenager. Later, following
    further cross-examination, he reluctantly agreed that he was attracted to
    younger women. This testimony was extremely troubling to me. When put in the
    context of the evidence of [K.C.] about the suggestion of a ménage trois to
    which evidence she was not cross-examined on, the lack of interest particularly
    by [J.P.] later on during and following the alleged sexual assault becomes more
    plausible.

Under the
    circumstances, I did not find [the appellant] very helpful except to say his
    aforementioned attempt to mislead the court did not assist his position.

[20]         J.B.
    gave evidence about certain peripheral matters such as where he slept that
    night.  His evidence contradicted that of
    the complainant, particularly as to who slept where.

[21]         The
    trial judge did not accept J.B.s evidence, noting his extensive criminal
    record for acts of dishonesty and his consumption of drugs and alcohol, both on
    the night in question and during the course of his adult life.  He commented on J.B.s propensity to
    disregard the rule of law and concluded that his evidence was less than
    convincing in nature.

[22]         Despite
    inconsistencies and contradictions in her testimony, the trial judge found the
    complainant credible on the central issue in this trial.  The trial judge was not troubled by her
    behaviour following the alleged attack; describing her actions as unusual but
    believable. The trial judge also found that K.C.s evidence corroborated that
    of the complainant, observing that there was no suggestion of collusion between
    the two.

[23]         With
    reference to
R. v. Lifchus
, [1997] 3
    S.C.R. 320,
R. v. Starr
, [2000] 2
    S.C.R. 144, and
D.W. v. The Queen
,
    the trial judge instructed himself at some length on the concept of reasonable
    doubt. He then indicated that he had followed the direction contained in these
    cases and had considered all of the evidence in the context of the evidence as
    a whole.

[24]         After
    his summary of the evidence and assessment of credibility, the trial judge briefly
    concluded his analysis as follows: Applying the third branch of
D.W. v. The Queen
, based on the evidence
    that I do accept, I am convinced beyond a reasonable doubt of the guilt of the
    defendant.

IV.
         ISSUES

[25]         The
    appellant raises the following issues on appeal:

Did the
    trial judge err in relying on hearsay evidence that the appellant was
    interested in a threesome?

Did the
    trial judge err in permitting the Crowns cross-examination of the appellant
    concerning whether he found the complainant attractive?

Did the
    trial judge err in his application of the principles set out in
D.W. v. The Queen
?

[26]         There
    is also the issue regarding the admissibility of the fresh evidence. I will
    deal with this issue first.

V.
           ANALYSIS

A.        Fresh
    Evidence Application

[27]         Section
    683(1) of the
Criminal Code
allows an
    appellate court to receive evidence on appeal where it considers it in the
    interests of justice.

[28]         The
    factors to be considered in exercising the discretion to receive fresh evidence
    have been set out in a long line of cases, most notably the often cited
Palmer v. The Queen,
[1980] 1 S.C.R. 759,
    at p. 775.  Recently, this court, in
R.
    v. Snyder
, 2011 ONCA 4561, identified three questions as relevant in
    deciding whether to exercise the discretion:

1.      Is the evidence admissible under the operative
    rules of evidence?

2.      Is the evidence sufficiently cogent that it
    could reasonably be expected to have affected the verdict?

3.      What is the explanation offered for the
    failure to adduce the evidence at trial and should that explanation affect the
    admissibility of the evidence?

[29]         The
    appellants proposed fresh evidence includes a summary of a statement that K.C.
    provided to the police after the trial had concluded and a summary of a
    statement that the complainant gave to the police in response to K.C.s
    statement. Both statements focus on the complainants sexual interaction with
    S.M.

[30]         K.C.
    provided her statement to the police after the trial was completed.  The summary indicates that, according to
    K.C., the complainant told her that she had had sex with S.M. on the night of
    the alleged incident. The complainant, in her statement, denied K.C.s
    allegation. She told the police that she had neither had sex with S.M. on the
    night in question, nor told K.C. that she had done so. The summary indicates
    that the complainant told the police that she did mention to K.C. that she slept
    with S.M. at a party, but that the encounter had taken place long before the
    night of the alleged assault.

[31]         The
    Crowns proposed fresh evidence is intended to be in response to that put
    forward on behalf of the appellant, if it is admitted. The Crown has tendered
    the affidavit of Gail Tanner, an assistant in the Belleville Crown Attorneys
    Office. Ms. Tanner attests to the fact that prior to the trial, the appellants
    trial counsel was provided with disclosure of a synopsis of a police interview
    with S.M. in which S.M. indicates that the complainant slept in his bed on the
    night in question and that they had a sexual moment.

[32]         S.M.
    did not testify at trial.  J.B.s
    evidence at trial was that the complainant and S.M. slept in the same bed on
    the night in question.

[33]         The
    appellants argument that K.C.s evidence should be accepted hinges on two
    aspects of the complainants trial evidence.  First, she testified that she and S.M. were only casual friends.  Second, in her evidence, the complainant made
    no mention of having had any sexual contact with S.M. on the night in question.

[34]         In
    my view, what the appellants girlfriend told K.C. is inadmissible; it is
    hearsay that does not fall within any exception and could not meet the
    conditions for admissibility under the principled approach.  This courts power to admit fresh evidence
    does not permit it to dispense with the hearsay rule:
R. v.
    OBrien
, [1978] 1 S.C.R. 591, at p.
    602.

[35]         As
    to K.C.s other evidence, it cannot meet the test for fresh evidence.

[36]         I
    will start with the third criterion set out in
Snyder
, commonly thought of as the due diligence obligation.  While this criterion will not be strictly
    applied in criminal cases,
(Palmer v. The
    Queen
, at pp. 775-776) it is a factor to be considered and, in this case,
    is an important factor.  As a result of
    the disclosure, the appellant was in possession of evidence suggesting that the
    complainant had slept in S.M.s bed on the night of the alleged sexual assault
    and that they had had some type of sexual contact.  There is nothing in the material to explain
    why the evidence was not called or to rebut the inference that this was a
    tactical decision.

[37]         I
    now turn to the second criterion  cogency.  In my view, the evidence does not bear on a potentially decisive issue
    in the trial.  The evidence supports the
    conclusion that the complainant and S.M. had had a relationship of some sort at
    some time.  They may have slept
    together.  However, this fact is not
    relevant to the resolution of the issue of whether the appellant sexually
    assaulted the complainant.  Moreover,
    K.C. does not actually say that the complainant admitted to her that she slept
    with S.M. the night of the assault.  That
    link comes only from the hearsay statement from J.P. and the statement from
    S.M., which was already in the appellants hands at the time of trial.

[38]         The
    proposed evidence, while vague and somewhat confusing is credible, in the sense
    that it is likely that K.C. is telling the truth about what she was told by the
    complainant and by J.P.  However, the
    evidence could not reasonably, when taken with the other evidence adduced at
    trial, be expected to have affected the result.  K.C.s proposed evidence does not undermine the complainants
    credibility.  K.C. does not say that the
    complainant told her she did sleep with S.M. the night of the incident; only
    that she did so at some earlier time, a matter not denied by the complainant.

[39]         There
    is one further problem with the evidence; it is questionable whether
    cross-examination of the complainant about her relationship with S.M. could
    have been permitted at trial in view of s. 276 of the
Criminal Code
.  However, I
    need not resolve that issue, since the evidence otherwise fails to meet the
Palmer
test for admission of fresh
    evidence.

[40]         As
    I have said, I would not admit the proposed fresh evidence.

B.
           Main Grounds of Appeal

1. The Hearsay Evidence

[41]         The
    appellant challenges the trial judges use of the following evidence given by
    K.C. during her examination-in-chief about the appellants girlfriend J.P.s
    having proposed a threesome with the appellant on the night in question:

Well girls
    naturally, when were together, well go to the bathroom together. All three of
    us went into the bathroom, and [J.P.] said, Would either of you like to have a
    threesome with me and [the appellant]? Right away I said no. Right away.

[42]         The
    appellant argues that the trial judge improperly relied on J.P.s threesome
    suggestion in order to draw an inference about the appellants state of mind 
    that the appellant was attracted to or had a sexual interest in the complainant
    or at least in younger women in general.

[43]         In
    support of his argument, the appellant points to where this passage appears in
    the reasons.  It immediately follows a
    discussion about evidence of the appellants attraction to young girls and
    precedes the trial judges conclusion that the appellant is not credible.
    However, this placement, without more, is not a sufficient reason to conclude
    that the trial judge used the evidence as proof of the appellants attraction
    to the complainant.

[44]         I
    agree with the appellant that it would have been improper for the trial judge to
    use the evidence about the proposed threesome to draw any conclusion about the
    appellants state of mind.  The evidence
    is to the effect that J.P. suggested a threesome.  Her proposal indicated nothing about the
    appellants state of mind.  It did not
    even give rise to a permissible inference that the appellant knew about the
    proposal, let alone supported it.

[45]         However,
    I see nothing in the reasons that indicates that the trial judge used it for
    this improper purpose.  In his reasons, the
    only reference the trial judge makes to this evidence is the following portion
    of the quotation set out in para. 21 above, repeated here for ease of
    reference:

When put in the context of the evidence of [K.C.]
    about the suggestion of a ménage trois to which evidence she was not
    cross-examined on, the lack of interest particularly by [J.P.] later on during
    and following the alleged sexual assault becomes more plausible.

[46]         As
    a secondary argument, the appellant suggests that the trial judge improperly
    used this evidence to find that J.P. was not opposed to a sexual encounter
    between the appellant and the complainant and that this lack of concern
    bolstered the credibility of the complainants evidence that when she returned
    to the living room after the appellant had had sex with her, J.P. did not
    react.

[47]         In
    my view that is precisely how the trial judge used the evidence.  He used it to provide context to J.P.s
    conduct, conduct that may be considered consistent with her disinterest in a
    sexual encounter involving the appellant and the complainant.

[48]         In
    my view, there is nothing objectionable about this use of the evidence. The
    evidence was available to the trial judge to support an inference as to J.P.s
    state of mind; a use specifically endorsed by this court in
R. v. Candir
(2009), 257 O.A.C. 119
    (C.A.), at para. 56, where Watt J.A. explains as follows:

The prosecutor may tender explicit statements of
    the declarants state of mind
or
    statements that give rise to an inference about the declarants state of mind.
The former are hearsay and require an exception to establish their
    admissibility. The latter are not hearsay and are admitted as circumstantial
    evidence from which the declarants state of mind may be inferred:
P.(R.)
at 341. Whether admitted by
    exception or as beyond the exclusionary reach of the hearsay rule, the
    statements should be contemporaneous with the state of mind of which they are
    evidence. [Emphasis added.]

[49]         Similarly,
    at para. 16 of
R. v. P.(R.)
(1990),
    58 C.C.C. (3d) 334 (Ont. H.C.J.), on which Watt J.A. relied, Doherty J.
    explained that:

Assuming relevance, evidence of utterances made by
    a deceased (although the rule is not limited to deceased persons) which
    evidence her state of mind are admissible. If the statements are explicit
    statements of a state of mind, they are admitted as exceptions to the hearsay
    rule. If those statements permit an inference as to the speakers state of
    mind, they are regarded as original testimonial evidence and admitted as
    circumstantial evidence from which a state of mind can be inferred. The result
    is the same whichever route is taken, although circumstantial evidence of a
    state of mind poses added problems arising out of the inference drawing
    process.

[50]         Based
    on the reasoning in these two cases, K.C.s evidence was admissible for the
    purpose for which it was used by the trial judge  to support an inference
    concerning J.P.s state of mind.  In
    other words, it was evidence relevant to the trial judges assessment of the
    complainants description of what transpired, or more accurately, what did not
    transpire, when she returned to the living room having been in the bedroom area,
    with the appellant, for a period of time. Because the statement was not an
    explicit statement of J.P.s state of mind, but rather merely supported an
    inference as to her state of mind, it does not violate the hearsay rule.

2. The Appellants Out-of-Court Statement

[51]         The
    appellant submits that the trial judge erred in admitting, and then relying on,
    evidence that was elicited in response to Crown counsels cross-examination of
    him concerning whether he found the complainant attractive.  The appellant argues that this line of
    questioning was not probative of any material issue; therefore questions
    relating to it were improper and evidence elicited in response to the
    questioning should not have been available to the trial judge.

[52]         The
    appellant contends that the trial judges error in this regard is particularly serious
    in the light of his heavy reliance on the appellants evidence in this area in concluding
    that the appellants denial of a sexual encounter with the complainant was not
    credible.  As previously indicated, the
    trial judges reasons indicate that he found this aspect of the appellants
    testimony extremely troubling and concluded that it amounted to an attempt to
    mislead the court.

[53]         In
R. v. M.F.
(2009), 253 O.A.C. 12, at
    paras. 19-25, Simmons J.A. considered whether a trial judge had erred in
    finding an accused not credible in part because of his difficulty in answering
    questions about whether he found his nieces, whom he was accused of sexually
    assaulting, attractive:

There are at least two problems with the line of
    questions relating to whether the appellant found his nieces to be attractive.
    Because of these problems, the questions were unfair to the appellant and the
    trial judge should not have relied upon the appellants difficulty in answering
    these questions in assessing his credibility.

First, the questions are ambiguous. It is unclear
    from the questions whether the Crown was using the term attractive to mean
    pretty or sexually attractive. In the context of a trial involving
    allegations of sexual misconduct, such ambiguity is extremely unfair to an
    accused person.



Second, whatever their meaning, the questions are
    essentially irrelevant. On one reading of the line of questions, they were
    directed at determining whether the appellant considered his nieces to be
    pretty. Such a line of questioning would appear to be premised on a
    stereotypical assumption that only pretty females are sexually assaulted. There
    is no empirical support for such an assumption and questions about whether the
    appellant considered his nieces pretty were therefore wholly irrelevant to the
    issues at the trial.

On another reading of this line of questions, they
    were directed at determining if the appellant found his nieces sexually
    attractive. Except perhaps in circumstances where a particular crime involves
    sexually deviant behavior, e.g. paedophilia, the fact that one person finds
    another sexually attractive, does not make it more likely that the first person
    sexually assaulted the second person. Even if such questions might be viewed as
    being marginally relevant, the risk of attributing undue weight to a positive
    answer should, in most circumstances, mandate their exclusion.

[54]         I
    agree that whether the appellant found the complainant attractive is not
    relevant to the issues before the trial judge.  However, as will be seen from the analysis that follows, even though at
    first blush it may appear that based on the reasoning in
M.F.,
the Crown was permitted to embark upon a prohibited line of
    questioning, on closer examination this case is distinguishable from
M.F.
in that here there was a legitimate
    basis for the impugned questioning.

[55]         The
    distinction has to do with evidence in this case that forms a foundation for
    the Crowns cross-examination about whether the appellant found the complainant
    attractive, evidence that was not part of the record in
M.F.

[56]         The
    evidence I refer to is that of the complainant who, as previously mentioned, testified
    that once in the hall, the appellant started to touch her, called her a very
    pretty girl and told her that she had a very nice body. The next thing she
    remembered was being in the appellants bedroom sitting on the edge of the bed
    as the assault began to escalate.

[57]         The
    appellants statement that he found the complainant a very pretty girl and that
    she had a very nice body, was admissible.  The statement was part of the narrative; it was the beginning of the
    unfolding of the events that led directly to the sexual assault.  The admissibility of the statement does not
    attract a hearsay problem; as an admission by the appellant, it was admissible
    for its truth as an exception to the hearsay rule.

[58]         In
M.F.
there was no statement by the
    accused, in the course of the sexual assaults, indicating that he found the
    victims attractive.  The problem there
    was with the cross-examination.  The
    accused was asked to respond to an ambiguous question and the questioning was aimed
    at eliciting answers that could be relevant only if  the stereotypical assumption that only
    pretty females are sexually assaulted is also accepted.  This problem does not arise in this case.

[59]         This
    brings me to the key issue  whether in cross-examination in this case, the
    Crown was entitled to ask the appellant the following questions:

Q.        I suggest to you that you were feeling
    the effects of those substances, uh, in quite a strong way that night, before
    you went to bed, and certainly by 11 p.m. that night. Youre shaking your head.

A.        Yeah, I ..  if youre getting to the
    point where I was drunk and had to go to bed, youre wrong.

Q.        No, Im suggesting that you were, uh ..
     your judgment was significantly impaired?

A.        My judgment for what?

Q.        Well...

A.        My ability to drive might be impaired.

Q.        ...for one thing Im going to suggest,
    uh, in a short while that you took a shining to [the complainant] and found her
    attractive that night, right?

A.        Are you aware that I have a 19-year old
    daughter? Four daughters?

Q.        I am, given your evidence, but Im also
    aware that you have a 17-year old girlfriend.

A.        Thats correct.

Q.        Right. And Im suggesting to you that
    you found [the complainant] attractive that night.

A.        A 37-year old man, I find a 15-year old
    girl attractive?

Q.        Thats what Im suggesting to you.

A.        Well I suggest youre wrong.

[60]         Crown
    counsel used the appellants answer to engage in a protracted examination of
    the appellants relationship with his 17-year-old girlfriend ending with this
    question and answer:

Q.        So youre not here to suggest to the
    court that  that because youre  because someone is 19, thats too young for
    you to be attracted to, are you?

A.        No.

[61]         The
    questions and answers to which the appellant objects, must be put in
    context.  As the trial progressed, Crown
    counsel developed the theory that because the appellant was impaired by drugs
    and alcohol he started to find the complainant attractive and he knew that
    because everyone else in the apartment was intoxicated he could make a
    physical move, a sexual move on [the complainant].  In the course of developing this theory, he
    directly put to the appellant what he had said to the complainant:

Q.        I suggest that you made it known to [the
    complainant] that you thought she was attractive by telling her that shes got
    a nice body and that shes a pretty girl.

A.        Thats not true either.  I never had no conversation with [the
    complainant].

[62]         In
    my view, the cross-examination was not improper.  I have already explained why the initial
    evidence from the complainant was admissible.  For similar reasons, the cross-examination does not run afoul of the
    holding in
M.F.
In the context of this case, the question was
    not ambiguous; the question was directed at whether the appellant considered
    the complainant sexually attractive.  The
    question was rooted in the chain of events testified to by the
    complainant.  Similarly, in the unusual
    circumstances of this case, it does not run afoul of the problem identified in
M.F.
; the impermissible resort to
    stereotypical reasoning described by Simmons J.A. in the passage set out above.

[63]         Crown
    counsels question was not premised on a stereotypical assumption; but rather
    was anchored in the complainants description of the narrative giving rise to
    the sexual assault.  Crown counsel could
    have begun his cross-examination of the appellant by first asking him whether
    he told the complainant that she was pretty.  But if he denied it, which he was bound to do, since he claimed that he
    was never alone with the complainant, Crown counsel would have been entitled to
    test the assertion.  The fact that Crown
    counsel did not ask the questions in any particular order did not make the
    question improper.

[64]         Thereafter,
    however, the appellant, instead of answering the question, put his character in
    issue.  He clearly asserted by reference
    to the age of one of his daughters, that he was not the type of person who
    would have sexual relations with a young girl.  Crown counsel was also entitled to test the truth of this assertion.  The cross-examination falls within this
    courts holding in
R. v. McNamara
(1981), 56 C.C.C. (2d) 193, at pp. 348-50:

Mr. Robinette also argued that character means general reputation and
    that the accused can only put his character in issue by adducing evidence of
    general reputation. With respect, we do not agree. The common law rule was that
    evidence of good character could only be given by evidence of reputation, and
    could only be rebutted by evidence of reputation and not by specific acts of
    bad conduct:
R. v. Rowton
(1865), Le & Ca. 520, 169 E.R. 1497. That
    rule was, however, established at a time when the accused could not himself
    give evidence. A long series of cases in England (two of which were cited with
    approval in
Morris v. The Queen, supra
) have held that
an accused may put his character in issue by
    testifying as to his good character
. The word character in the
Criminal
    Evidence Act, 1898
has uniformly been held to mean not only reputation, but
    actual moral disposition:
Cross on Evidence
, 4th ed. (1974), p. 426;
Phipson
    on Evidence
, 12th ed. (1976), p. 218.
It
    is true that when the accused wishes to adduce extrinsic evidence of good
    character by calling witnesses, such evidence is confined to evidence of
    general reputation, but that has no application where the accused himself gives
    the evidence
.

It was also contended on behalf of the appellant that where evidence of
    good character, in whatever form, is introduced by the prisoner (whether it be
    extrinsic evidence or by his own testimony) it cannot be rebutted by evidence
    of specific acts of bad conduct: rather, the Crown is confined to rebutting the
    evidence of good character by evidence of general reputation or by proof of a
    previous conviction pursuant to s. 593 of the
Criminal Code
. Counsel for
    the appellant argued that the provisions in s. 593 constitute the only
    exception to the common law rule that evidence of good character can only be
    rebutted by evidence of bad reputation. There is at least one additional
    exception, namely,
the Crown may adduce similar fact evidence in rebuttal of
    evidence of good character
. In
Guay v. The Queen
(1978), 42 C.C.C. (2d) 536, 89 D.L.R. (3d) 532, [1979] 1 S.C.R. 18, Pigeon J.,
    delivering the judgment of the Supreme Court of Canada, said at p. 547:

On the admissibility of similar fact evidence, I
    think it should be said that it is essentially in the discretion of the trial
    Judge. In exercising this discretion, he must have regard to the general
    principles established by the cases. There is no closed list of the sort of
    cases where such evidence is admissible. It is, however, well established that
    it may be admitted to rebut a
    defence of legitimate association for honest purposes,
as well as to rebut
    evidence of good character
. Where the evidence is admissible on the first
    mentioned basis, it may be admitted as part of the case for the prosecution.

Whatever the
    limitations may be on the use of extrinsic evidence (i.e., evidence of
    other witnesses) to rebut evidence of good character, we are satisfied that
    those limitations did not preclude the cross-examination of the appellant with
    respect to the Marine Building transaction
. It is not necessary to decide the
    difficult question whether an accused who testifies to his good character
    (moral disposition) for honesty, thereby lays himself open to be cross-examined
    on every phase of his character, such as, for example, his sexual morality, nor
    to consider the extent of the Judge's discretion where the alleged bad conduct
    has not resulted in a conviction.
Here
    the appellant had asserted a good disposition in relation to honesty and
    integrity. The cross-examination on the Marine Building transaction related to
    that particular moral disposition and was highly relevant to rebut the
    appellant's assertion of good character.

The learned trial Judge also permitted the cross-examination of the
    appellant with respect to the Marine Building transaction because it was
    directly relevant to show that the appellant had lied in examination-in-chief.
    Mr. Robinette forcefully argued that the cross-examination could not be
    justified on the ground that it
directly
proved that the appellant had
    lied in his examination-in-chief, since the appellant had not testified about
    the Marine Building transaction in chief and hence the cross-examination could
    not prove that anything the appellant said in his examination-in-chief was
    false. We are disposed to think that, but for the fact that the accused had put
    his character in issue by testifying that he conducted his business affairs in
    an ethical manner, the cross-examination would not have been admissible on the
    ground that it showed directly that the appellant had lied.
Where, however, an accused puts his
    character in issue, thereby opening the door to cross-examination on his past
    conduct, the proof of the previous bad conduct may have a double effect: it not
    only rebuts his claim to a good character, but it directly proves that he lied
    in the witness-box if he has impliedly asserted that he is a law-abiding
    citizen. For example, if an accused puts his character in issue by saying: I
    have been honestly employed all my life, and the prosecution proves that he
    has knowingly been engaged in unlawful activities, the prosecution has not only
    rebutted his evidence of good character, but at the same time has proved that
    he lied
.  [Emphasis added.]

[65]         In
    this case, by his answer to Crown counsels question, the appellant put his
    sexual morality in issue.  He asserted
    that he was not the type of person who would have sexual relations with teenage
    girls.  It was open to Crown counsel to
    cross-examine the appellant on this assertion of good character generally and
    to prove the particular assertion about attraction to young girls was
    untrue.  Crown counsel did so by the
    simple device of showing that the appellant had apparently become sexually
    attracted to a 17-year-old who, within 10 days, was living with him as his
    girlfriend and continued to live with him at the time he allegedly sexually
    assaulted the 15-year-old complainant.  The cross-examination had the double effect referred to in
McNamara
.  It rebutted his assertion of good character
    and showed that the appellant had lied about his lack of sexual attraction to teenage
    girls.

[66]         For
    these reasons, I am of the view that the evidence of what the appellant told
    the complainant was properly admitted as part of the events leading up to the
    sexual assault.  I am also satisfied that
    Crown counsels cross-examination of the appellant on that evidence was proper.  Since the evidence was properly admitted, it
    was open to the trial judge to use evidence of the appellants character, which
    he gratuitously put in issue, as he did.

[67]         I
    would therefore reject this ground of appeal.

3.
W.D.
Principles

[68]         The
    trial judge, in some detail, instructed himself on the burden and standard of
    proof applicable in criminal cases. He explained:

I specifically instructed myself of the burden upon
    the Crown to prove the existence beyond a reasonable doubt of all the essential
    elements of the offence. It was either he did it or he didnt do it and that
    was the issue that remains before the court. All other issues are not in
    question.

[69]         The
    trial judge then discussed at some length the principles arising from
R. v. Lifchus
,
R. v. Starr
, and, significantly,
D.W. v. The Queen
, all of which elaborate upon the concept of
    reasonable doubt and address the manner in which it should be explained to
    juries. He specifically quoted the following passage at pp. 757-758 of
D.W.
:

A trial judge might well
    instruct the jury on the question of credibility along these lines: First, if
    you believe the evidence of the accused obviously you must acquit. Second, if
    you do not believe the testimony of the accused, but you are left in a
    reasonable doubt by it, you must acquit. Third, even if you are not left in
    doubt by the evidence of the accused, you must ask yourself whether, on the
    basis of the evidence which you do accept, you are convinced beyond a
    reasonable doubt by that evidence of the guilt of the accused.

[70]         The
    appellant submits that while the trial judge correctly set out the principles
    in respect to
D.W.
, he failed to
    apply them.  The appellant argues that it
    is not clear from his reasons that the trial judge, upon concluding that he did
    not believe the evidence of the appellant, considered whether this evidence
    nevertheless raised a reasonable doubt as to his guilt.

[71]         I
    agree with the Crown that the reasons do not support the conclusion that the trial
    judge erred in his application of the
D.W
.
    principles. As indicated, it is clear that the trial judge was aware of and understood
    the requirements associated with his approach to the evidence in a case that
    was essentially a he said, she said.

[72]         Having
    indicated that he had considered the appellants evidence in the context of the
    evidence as a whole, and having explained that he was convinced beyond a
    reasonable doubt of the guilt of the accused, there was no need for the trial
    judge to go on to explain that the evidence that he did not believe also did
    not raise a reasonable doubt. According to
R.
    v. Boucher
, [2005] 3 S.C.R. 499, the
D.W.
test should not be treated as a magic incantation.   A decision should not be interfered with on
    this basis where, as here, the reasons contain the core of the instruction and
    indicate that the correct burden and standard of proof were applied.

[73]         I
    would therefore not interfere with the trial judges decision based on his
    treatment of the
D.W
. analysis.

DISPOSITION

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

RELEASED:

JUL 12 2011                                 Gloria Epstein
    J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree M. Rosenberg J.A.


