



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Steele, 2021 ONCA 186

DATE: 20210325

DOCKET: C67111

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Thomas Steele

Respondent

John
    Patton, for the appellant

Lindsay
    Board and Mark Halfyard, for the respondent
[1]

Heard: November 30,
    2020 by video conference

On appeal
    from the acquittals entered by Justice Edward J. Koke of the Superior Court of
    Justice on May 27, 2019, with reasons reported at 2019 ONSC 3207.

Benotto J.A.:

[1]

This is a Crown appeal from acquittals.

[2]

The respondent, T.J., was charged with sexual
    assault against A.V. and two counts of breaching a recognizance. T.J. was 23
    years old at the time of the alleged assault and A.V. was 18. The only issue at
    trial was consent. There were no witnesses to the alleged assault. Credibility
    was the main issue.

[3]

The Crown submits that the trial judge erred by:
    (i) excluding the complainants prior consistent statement; and (ii) improperly
    assessing the complainants credibility by relying on stereotypes about victims
    of sexual assault.

[4]

For the reasons that follow, I have
    concluded that the trial judge erred in law by relying on rape myths to assess
    the complainants credibility. It is therefore not necessary to address the
    other ground of appeal.

Background

[5]

A.V. lived in the small town of Britt, Ontario,
    near Parry Sound. T.J. lived in Bracebridge, but his parents lived in Britt. In
    July 2018, T.J. went to Britt and asked his mother about meeting people his age.
    His mother told him about A.V. T.J. sent A.V. a friend request on Facebook,
    they exchanged messages and agreed to meet when he was in Britt.

[6]

They first met at a school yard. The next day
    they, together with a female friend of A.V.s, went swimming at the local docks.
    While there, they drank alcohol. They then went to A.V.s home, visited with
    A.V.s parents and consumed more alcohol. They were both noticeably intoxicated
    when it was time for T.J. to go home. A.V. said she would walk him halfway.

[7]

Up until this point in the narrative the
    evidence of A.V. and T.J. was consistent. It then diverged.

[8]

A.V. testified as follows. During the walk, T.J.
    attempted to kiss her, but she pushed him away. Further along the walk, they
    came upon an abandoned trailer. T.J. suggested they go inside. When they
    entered the trailer, T.J. tried to kiss her, but she told him she just wanted
    to go home. T.J. then kissed her, came up behind her, grabbed both of her
    wrists and held them while pulling her shorts down. He then penetrated her
    vaginally and anally while she repeatedly asked him to stop and insisted that
    she wanted to go home. T.J. was bigger than she was, and she could not get away
    from him. T.J. called her a bitch, ordered her to shut up, and told her
    that he could provide for her and buy a house for her.

[9]

T.J. testified as follows. They shared a kiss on
    the walk, and A.V. did not resist or push him away. A.V. suggested they go
    inside the trailer. He was reluctant to go inside because it was someone elses
    property. They kissed some more. Once inside the trailer, A.V. took off her
    clothes, he did the same and they then had vaginal and anal intercourse for
    about 30-40 minutes. They hugged goodbye before they separated.

[10]

A.V.s parents started calling her because she
    was taking too long. She eventually responded and told her father that she was
    near the legion and would be home soon. Her mother testified that after the
    phone call it took A.V. longer to get home than it should have if she was at
    the legion.

The trial judges credibility assessment

[11]

The trial judge concluded that both T.J. and
    A.V. were credible, but there were two areas of A.V.s testimony that raised
    questions about her credibility:

1.

A.V. could not
    provide a reason or explanation for her decision to enter the abandoned
    trailer. The trial judge said she could not have been motivated by curiosity
    because she had been inside the trailer previously and also noted that she did
    not say she was coerced into the trailer. The trial judge found that A.V.s
    decision to walk T.J. part-way home and enter the trailer was inconsistent with
    her testimony that she did not like T.J.

2.

There was inconsistency
    with respect to the phone call with A.V.s parents. A.V.s parents had been
    calling her to find out where she was because it was getting dark. When A.V.
    returned the call, she told her father she was close to home, by the legion.
    A.V.s mother testified that it took quite a while for A.V. to get home even
    though the legion was only a few minutes from her home. The testimony of A.V.s
    mother was consistent with T.J.s testimony that A.V. talked to her father
    after they had engaged in sexual activity and then walked home, which was about
    a 20-minute walk. The trial judge found that this meant A.V. was not being
    candid with her father. The trial judge found that this was not the response
    of someone who has just been sexually assaulted and has been kept in the
    trailer against her wishes.

[12]

The trial judge relied on
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, and found that while he was not prepared to believe all of
    T.J.s evidence, he was left with a reasonable doubt. The trial judge entered
    acquittals on all counts.

Position of the parties

[13]

The Crown submits that it was an error for the
    trial judge to demand a reason for the complainants decision to go into the
    trailer. The Crown submits that A.V. did not have to advance a reason for going
    into the trailer because a location does not imply consent to sexual activity.
    The Crown submits that the fact that A.V. entered the trailer with T.J. is not
    inconsistent with her testimony that she did not like T.J. in a sexual way. The
    complainant explained her decision to walk T.J. home as being polite. The Crown
    submits that the entire topic of
why
A.V. went into the trailer was
    irrelevant to whether she consented to sexual contact with the respondent. As
    such, the trial judge erred in drawing an inference that the complainant wanted
    to have sex with T.J. based on her decision to enter the trailer. The Crown
    submits that this conclusion was based on stereotypical and myth-based
    reasoning.

[14]

The Crown submits that the trial judge also
    erred in finding that A.V.s conversation with her father was not consistent
    with how someone who had been sexually assaulted would act. The trial judges
    comments amount to a direct violation of the fundamental legal principle that
    there is no inviolable way a victim of crime, in particular a victim of a
    sexual crime, may react. The Crown submits that any reaction to sexual
    violation, including selective or delayed disclosure, is personal and should
    have no bearing on whether a complainant should be believed.

[15]

The respondent submits that the trial judge did
    not demand a reason for entering the trailer. The trial judge concluded that A.V.s
    decision to enter the trailer was inconsistent with her evidence that she did
    not like the respondent. The respondent submits that this was an appropriate
    and necessary line of reasoning as to credibility.

[16]

The respondent acknowledges that the trial
    judges language was not ideal with respect to the A.V.s conversation with her
    father. However, the respondent submits that the trial judges finding was one
    that was available to him based on the larger context of the complainants
    evidence and considering the respondents contrary evidence. The respondent
    submits that the trial judges challenged remarks should not be viewed in
    isolation and relies on
R. v. Morissey
(1995), 97 C.C.C. (3d) 193, at p.
    203, for the following: [w]here a phrase in a trial judges reasons is open to
    two interpretations, the one which is consistent with the trial judges
    presumed knowledge of the applicable law must be preferred over one which
    suggests an erroneous application.

Analysis

[17]

The Crowns right of appeal from acquittals is restricted to
    questions of law alone: s. 676(1)(a) of the
Criminal Code
. An
    assessment of the evidence on a wrong legal principle constitutes and error of
    law:
R. v. J.M.H
., 2011 SCC 45, [2011] 3 S.C.R. 197, at para 29;
R.
    v. Luceno
, 2015 ONCA 759, 341 O.A.C. 223, at para. 34.
    Reliance upon stereotypical views about how victims of sexual assault would
    behave is an error of law:
R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.

[18]

R. v. Ewanchuk
, [1999] 1 S.C.R. 330,
at para. 95,
    demonstrates that
the law has been seeking to eradicate
    myths about the appropriate behaviour of victims of sexual assault for decades
:

Complainants should
    be able to rely on a system free from myths and stereotypes, and on a judiciary
    whose impartiality is not compromised by these biased assumptions. The
Code
was amended in 1983 and in 1992 to
    eradicate reliance on those assumptions; they should not be permitted to
    resurface through the stereotypes reflected in the reasons of the majority of
    the Court of Appeal. It is part of the role of this Court to denounce this kind
    of language, unfortunately still used today, which not only perpetuates archaic
    myths and stereotypes about the nature of sexual assaults but also ignores the
    law.

[19]

The use of a common-sense approach to credibility assessment is fraught
    with danger for it can mask reliance on stereotypical assumptions:
R. v. A.B.A.
,

2019 ONCA 124, 145 O.R. (3d) 364, at para. 7.

[20]

Here, the trial judge applied irrelevant stereotypical views about the
    behaviour of sexual assault victims under the guise of a common-sense approach
    to credibility assessment. He did this twice: first when considering A.V.s
    evidence about why she went into the trailer; second when discussing her call with
    her parents.

A.V.s reasons for entering the trailer:

[21]

The trial judge said this:

A.V. was unable to provide the court with a
    reason or an explanation for her decision to enter the abandoned house trailer
    with T.J.
She could not have been motivated by
    curiosityshe testified that she had been inside the trailer previously. Also,
    she did not suggest that she was talked into or in any way coerced into
    entering the trailer by T.J.




In my view, A.V.s
    decision to walk T.J. partway home, for no discernable reason, followed by her
    decision to enter the trailer with [him] especially at that late hour, is
    inconsistent with her testimony that she did not like T.J. Her refusal or
    inability to provide the court with a reason for entering the trailer with T.J.
    detracts from her credibility. [Emphasis added.]

[22]

Although the trial judge refers to the
    inconsistency in A.V.s testimony  not liking T.J. but going into the trailer
    with him anyway  as part of his credibility assessment, inherent in the
    analysis is a stereotypical assumption. The implication in the trial judges
    reasons is that consent can be inferred from the complainants entry into the
    trailer. This is wrong in law.

[23]

In the emphasized text above, the trial judge went
    beyond assessing credibility and made an inference about consent because he could
    not imagine another reason to enter the trailer other than to have consensual
    sex. It was open to the trial judge to hold that the complainants inability to
    answer impacted her credibility, but he went further. In so doing, he relied on
    stereotypes and assumptions  that a woman would not enter a building at night
    with a man unless she wanted sex  to conclude that the complainant wanted to
    have sex.

[24]

It may be that a persons reasons for entering a
    premise  whether a trailer or a hotel room  may have relevance to a
    credibility assessment. I recognize the subtlety. But stereotypical assumptions
    are often couched as credibility assessments. Significantly, this was not the
    trial judges only use of stereotypical reasoning. His use of the evidence
    concerning the phone call significantly crosses the line into impermissible
    reasoning and compounds my concern about his use of the complainants reasons
    for entering the trailer.

A.V.s communication with her parents

[25]

The evidence surrounding A.V.s communication
    with her parents was imprecise at best.

[26]

A.V. testified that she texted her father that
    she would be home soon. She did not recall speaking to either parent but
    testified that she did not speak to either parent when she was in the trailer.

[27]

T.J. testified that they had sex for 30-40
    minutes. He said that A.V. got a call and declined it, then she got another
    phone call and answered it. In chief he said, I think it was her dad, and he
    said where are you, and shes like Im at the Legion, Ill be home soon. In
    cross-examination he said he was not sure if it was the father or the mother.

[28]

A.V.s mother  who was not on the call 
    testified. The father did not. The mother said her husband was told that A.V.
    was close to the Legion and would be home in a few minutes.

[29]

The trial judge said this about A.V.s communication
    with her parents:

The second area of concern I have about A.V.s
    testimony is in relation to her conversation with her father. A.V.s mother
    testified that after noticing how dark it was becoming she called A.V. on her
    cell phone, but did not receive an answer. She then called 10 to 15 minutes
    later and again no answer. Later, her husband called A.V. and A.V. returned his
    call, informing him that she was close to home, by the legion and would be home
    shortly. Notwithstanding the fact that the legion was only a several minute
    walk from her home, her mother testified that it was quite a while before
    A.V. returned home.

Her mothers testimony with respect to the phone
    call is consistent with the evidence of T.J., who testified that after they had
    engaged in sexual activities for about 30-40 minutes A.V. received a call from
    her father and informed him that she would be home soon. Immediately
    thereafter, she put her clothes back on and started her walk home, which was
    about a 20 minute walk.

If I accept her mothers evidence about the phone
    calls, which I do, I can only come to the conclusion that A.V. was not being
    candid with her father when she informed him that she was close to the legion,
    only minutes away and would be home shortly. Given the time it would have taken
    her to walk home from the trailer, it would appear that she was still in the
    trailer when she spoke to her father, but for some reason she did not want him
    to know this.

In my view, A.V.s
    response to her
father does not
    appear to be the response of someone who has just been sexually assaulted and
    has been kept in the trailer against her wishes
. It
    is more consistent with the response of someone who is attempting to conceal
    her activities and whereabouts from her parents. [Emphasis added.]

[30]

The comments emphasized above reflect the use of an impermissible
    assumption.

[31]

Relying on
R. v. Roth,
2020 BCCA 240, 66 C.R. (7th) 107, the respondent submits that a
    complainants conduct after an alleged assault can be considered in the context
    of a particular set of facts. In
Roth,
the complainant testified that she was being assaulted by the accused
    when she realized that she left her phone in a taxi. The accused allowed her to
    call the taxi company and go to the door to get her phone provided that she say
    nothing about the assault. She testified that she answered the door, leaving it
    only partly open and remained inside fearing that the accused was nearby.
    Consequently, she said nothing to the taxi driver. The taxi driver testified
    that the complainant had come outside and closed the door behind her to keep
    her dogs from getting out. Under these circumstances, the court said at paras.
    129-30:

Let me pause here to note that the judge
    correctly rejected defence counsels improper suggestion, based on this
    evidence, that the mere fact the complainant did not say something about a
    sexual assault to the driver (or call the police), undermined her credibility
    on the issue of consent. It is an error for a judge to ground an adverse
    credibility finding in stereotypes or erroneous common sense assumptions
    about how a sexual assault complainant is expected to act, including that they
    would immediately disclose the fact of an assault or seek assistance.

However, this does
    not mean that the evidence surrounding the drivers attendance at the home,
    including the complainants conduct during that interaction, was not open for
    consideration in the credibility assessment and the trial judge was obliged to
    steer away from it. The risk of myths and stereotypes distorting a judges fact‑finding
    or reasoning process does not prohibit use of a complainants behaviour for all
    analytical purposes (assuming the evidence surrounding that behaviour is
    properly before the court). Although a piece of evidence may carry the
    potential for impermissible reasoning, it may also have a permissible role to
    play as a circumstance to consider in assessing the evidence as a whole, in the
    context of the cases particular factual mosaic. In my view, what
A.R.D.
and like cases warn against is the
    improper use of this type of evidence, not any use at all. [Citations omitted.]

[32]

Roth
is of no assistance here. There were
    no assumptions about the reason for the complainants conduct. There was no
    suggestion that the complainant was acting in an unexpected way for a victim of
    sexual assault. Rather, the complainants evidence that she did not ask the cab
    driver to call the police because she was afraid of the appellant was
    inconsistent with the cab drivers evidence that she was outside of the house
    and the door to the house was closed. The distinction is significant.

[33]

Here the trial judge specifically found that A.V.s
    conversation with her father
does not appear to be the
    response of someone who has just been sexually assaulted. This is a classic
    example of an assumption made by a trial judge as to what a victim of an
    assault would do.

Impact of the error

[34]

I do not agree with the respondent that regardless
    of the trial judges misuse of stereotypes, ultimately his
W.(D.)
analysis resolved the case. The respondent points to para. 77, where the trial
    judge states:

In this case I
    find that both T.J. and A.V. generally presented as credible witnesses,
    notwithstanding the fact that A.V.'s evidence raised some questions and
    concerns in my mind In the circumstances, although I am not prepared to find
    that I believe all of the evidence of T.J., his evidence does leave me with a
    reasonable doubt, and in the circumstances, I must acquit him.

[35]

The trial judges articulation of A.V.s failure
    to explain her decision to enter the trailer and his description of her
    communication to her father, were based on the legally impermissible assumptions
    that: (i) by going into the trailer A.V. must have consented to sex; and (ii) A.V.
    did not disclose to her father because she had consented. The compounding
    effect of these two references defeats the respondents reliance on
Morissey.


[36]

I now turn to remedy.

[37]

To overturn an acquittal, the Crown must show,
    to a reasonable degree of certainty, that the verdict might have been different
    had the error not been made:
Vézeau v. The Queen
, [1977] 2 S.C.R. 277,
    at p. 282;
R. v. MacKenzie
, [1993] 1 S.C.R. 212, at pp. 247-48.

[38]

As this court said in
R. v. A.B.A.
,
    2019 ONCA 124, 145 O.R. (3d) 634, at para. 15:

The Crown does not have to establish that the
    verdict would necessarily have been different. In
R.
    v. Graveline
, 2000 SCC 16, [2006] 1 S.C.R. 609, at
    para. 14, Fish J. for the majority held that the Crown must establish that the
    errors might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the acquittal, and elaborated as
    follows:

It has been long established, however,
    that an appeal by the Attorney General cannot succeed on an abstract or purely
    hypothetical possibility that the accused would have been convicted but for the
    error of law. Something more must be shown. It is the duty of the Crown in
    order to obtain a new trial to satisfy the appellate court that the error (or
    errors) of the trial judge might reasonably be thought, in the concrete reality
    of the case at hand, to have had a material bearing on the acquittal. The
    Attorney General is not required, however, to persuade us that the verdict
    would necessarily have been different.

[39]

The respondent submits that any alleged error is
    immaterial because there was an independent pathway to acquittal  the trial
    judge was left in doubt by the respondents evidence. Therefore, on the
W.
    (D.)
analysis, T.J. would have been acquitted. I do not agree that the
    issue of materiality can be so easily solved.

[40]

The only issue before the trial judge was credibility. The result
    turned on his weighing the evidence of the complainant and the respondent. The
    evidence of the complainant was considered in relation to the respondent and
    assumptions were made as to her consent. For example:
T.J.
    testified that A.V. initiated the visit to the trailer. The trial judge said
    that his evidence suggests that she
intentionally
    chose the privacy of the trailer to engage in sex with him
before returning home.


[41]

Had the trial judge not made the errors that he
    did in assessing A.V.s credibility, he might have come to a different
    conclusion with respect to T.J.s credibility and may not have been left with a
    reasonable doubt as to the respondents guilt.

[42]

The trial judge assessed the complainants
    credibility by applying stereotypical views about how victims of sexual assault
    would behave. The reasonable doubt that he found in the respondents evidence
    was inextricably linked to his credibility assessment of A.V. This assessment
    was fundamentally flawed.

[43]

I am satisfied that the errors had a
    material bearing on the acquittals.

[44]

I have read my colleague's concurring reasons. I
    agree with her articulation of the error of the trial judge in refusing to
    admit the evidence of the complainant's call with C.D. In my view this error
    exacerbates his improper use of the stereotypical reasoning I have described.

[45]

I would allow the appeal and order a new trial.

M.L.
    Benotto J.A.

I
    agree Thorburn J.A.


van Rensburg J.A.
    (Concurring):

[46]

I have read my colleagues reasons for allowing
    the Crowns appeal in this case. I agree that the appeal should be allowed, however,
    I reach this result for different reasons.

[47]

The Crown raised two issues on appeal, having to
    do with: (1) the trial judges reliance on prohibited stereotypical reasoning
    in two areas of the complainants testimony; and (2) his refusal to admit
    evidence of the complainants prior consistent statements. Both errors are said
    to have affected the trial judges assessment of the complainants credibility
    in a fundamental way, such that the Crown would meet its heavy burden of
    showing that there is a reasonable possibility that, if the errors had not been
    made, the verdict would have been different.

[48]

As I will explain, I disagree with my colleague
    that the trial judge relied on stereotypical assumptions about how victims of
    sexual assault behave in his treatment of A.V.s evidence about why she entered
    the trailer, where the alleged sexual assault occurred. I do however agree that
    the trial judge crossed the line into impermissible stereotypical reasoning in
    his treatment of A.V.s lie about her whereabouts in her conversation with her
    father. Because in my view this error standing alone would not be sufficient to
    undermine the trial judges assessment of the complainants credibility, I find
    it necessary to also address the Crowns second ground of appeal: that the
    trial judge erred in refusing to admit evidence of the complainants call with
    C.D.

[49]

In my view the trial judge erred when he
    considered
only
whether A.V.s prior consistent
    statement to C.D. was admissible to rebut an allegation of recent fabrication,
    and he did not address the Crowns argument that the evidence of the call
    should be admitted as narrative as circumstantial evidence to assist in the
    assessment of the complainants credibility. Nor did the trial judge consider
    the admissibility of the evidence of A.V.s emotional state when she made the
    call.

[50]

I am satisfied that, when these legal errors are
    considered together, the Crown has met its burden to satisfy this court that
    the errors might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the acquittal: see
R. v. Graveline
,
    2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14.

[51]

I will begin my concurring reasons by discussing
    the trial judges alleged reliance on impermissible myths and stereotypes,
    explaining where my views differ from those of my colleague. Then, I will
    address the trial judges decision not to admit the evidence of A.V.s
    conversation with C.D. I will conclude by explaining why the errors in this
    case are sufficient to warrant allowing the Crowns appeal, setting aside the
    acquittals, and directing a new trial.

(1)

The Trial Judges Alleged Reliance on
    Impermissible Myths and Stereotypes

[52]

This case highlights the challenge that
    appellate courts can face in distinguishing between prohibited lines of
    reasoning and reasonable, context-specific inferences drawn by a trial judge in
    assessing credibility in sexual assault cases. I begin with a summary of the
    principles that in my view inform the consideration of this ground of appeal.

[53]

The point of departure is that evidence of the
    surrounding circumstances, including the complainants conduct, leading up to,
    during, and after an alleged sexual assault can be relevant to the
    determination of whether or not a complainant consented. Because consent, which
    is part of the
actus reus
of the offence, is subjective, the court
    must determine the complainants state of mind at the time of the sexual
    activity. Although the complainants testimony is typically the only direct
    evidence regarding her subjective state of mind, credibility must still be
    assessed by the trial judge, or jury, in light of all of the evidence: see
R.
    v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 29. As the majority of the
    Supreme Court observed, in defending a sexual assault allegation, [i]t is open
    to the accused to claim that the complainants words and actions, before and
    during the incident, raise a reasonable doubt against her assertion that she,
    in her mind, did not want the sexual touching to take place: at para. 29. The
    trial judge will consider whether the totality of the complainants conduct is
    consistent with her claim of non-consent: at para. 30.

[54]

Accordingly, it is appropriate and necessary for
    the trier of fact to consider the circumstances surrounding the alleged sexual
    assault, which may include an analysis of the nature of the interactions
    between the accused and the complainant leading up to and following the
    incident. Circumstantial evidence can assist the defence in raising a
    reasonable doubt on the issue of consent; it can also assist the Crown in
    proving non-consent: see
Lisa Dufraimont, Myth,
    Inference and Evidence in Sexual Assault Trials (2019) 44:2 Queens L.J. 316,
    at pp. 328-29
.

[55]

It is however an error for the trier of fact to
    rely on erroneous myths and stereotypes about how a sexual assault complainant
    is expected to act. It is impermissible to assess a complainants credibility
    by looking at consistencies or inconsistencies grounded in a search for
    expected post-sexual assault behaviour:
R. v. A.R.D.
, 2017 ABCA
    237, 422 D.L.R. (4th) 471, at para. 64, affd 2018 SCC 6, [2018] 1 S.C.R. 218.
    Triers of fact may rely on reason and common sense, life experience and
    logic in making assessments of credibility; however, they fall into error if
    they rely on prejudicial or stereotypical reasoning in making such assessments:
    see
R. v. Delmas
,

2020 ABCA 152, 452 D.L.R. (4th) 375, at
    para. 31, affd 2020 SCC 39, 452 D.L.R. (4th) 371.

[56]

The concern arises when the trier of fact draws
    inferences based on generalizations about human behaviour; it is in this
    process that drawing a common-sense inference may mask stereotypical or
    discriminatory reasoning: see
A.R.D.
, at paras. 6-7;
R. v. A.B.A.
,
    2019 ONCA 124, 145 O.R. (3d) 634, at para. 7; and
R. v. Cepic
, 2019
    ONCA 541, 376 C.C.C. (3d) 286, at para. 13. Stereotypical reasoning is a
    substitute for reasoning that is grounded in the evidence: see
R. v. Mann
,
    2020 BCCA 353, at paras. 64, 70-72. See also
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.

[57]

It is a fact-finders reliance on myths and
    stereotypes as part of the credibility assessment that is objectionable, and
    not the consideration of evidence of the complainants conduct itself. A trial
    judge is entitled to draw reasonable inferences which are rooted in the
    evidence to assess the complainants conduct as part of the credibility
    analysis. In
R. v. Roth
, 2020 BCCA 240, 66 C.R. (7th) 107, after
    noting that it is an error for a judge to ground an adverse credibility finding
    in stereotypes or erroneous common sense assumptions about how a sexual
    assault complainant is expected to act, DeWitt-Van Oosten J.A. observed at
    para. 130:

The risk of myths
    and stereotypes distorting a judges fact-finding or reasoning process does not
    prohibit use of a complainants behaviour for all analytical purposes (assuming
    the evidence surrounding that behaviour is properly before the court). Although
    a piece of evidence may carry the potential for impermissible reasoning, it may
    also have a permissible role to play as a circumstance to consider in assessing
    the evidence as a whole, in the context of the cases particular factual
    mosaic.
In my view, what
A.R.D
. and like cases warn against is the
    improper use of this type of evidence, not any use at all
. [Emphasis added;
    citations omitted.]

[58]

It can be difficult on appeal to determine
    whether a trial judge crossed the line from drawing legitimate inferences from
    circumstantial evidence to reliance on stereotypical reasoning. See, for
    example, the majority and dissenting reasons in the Alberta Court of Appeal and
    the Supreme Court in
Delmas
about whether the trial judge relied on
    myths and stereotypes in his assessment of the evidence of the appellant who
    was convicted of sexual assault. As Pepall J.A. observed in
R. v. Lacombe
,
    2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 55, express identification by the
    trial judge of the impugned assumptions is unnecessary; a review of the trial
    judges reasons may demonstrate that impermissible stereotypical sexual and
    myth-based reasoning was employed in assessing a complainants credibility and
    reliability. Trial judges may rely on stereotypical reasoning, even where they
    have instructed themselves appropriately to avoid such reasoning: see e.g.
A.B.A.
,
    at para. 8. In determining the issue, the trial judges reasoning must be taken
    as a whole and viewed in context: see
Mann
, at para. 72.

[59]

It is helpful in conducting the analysis of
    whether impermissible reasoning has occurred to specifically identify the myth
    or stereotype that the trial judge is said to have relied on. A non-exhaustive
    list of common myths and stereotypes about victims and perpetrators of sexual
    assault is set out in
R. v. Seaboyer
;
R. v. Gayme
, [1991] 2
    S.C.R. 577, at pp. 651-54. The central issue is to determine whether the trier
    of fact has drawn inferences that are rooted in the particular facts of the
    case and supported by the evidence or has drawn inferences based on
    generalizations about human behaviour that on closer examination reveal
    stereotypical reasoning.

[60]

I turn now to address the two areas where the
    trial judge is alleged to have relied on impermissible myths and stereotypes in
    his assessment of the complainants credibility. The first has to do with the
    evidence about the entry of A.V. and the respondent T.J. into the abandoned
    trailer where the sexual contact took place. The second is said to arise in the
    trial judges treatment of the complainants lie in a conversation with her
    father.

(a)

A.V.s Reasons for Entering the Trailer

[61]

The Crown argued, and my colleague agrees, that
    inherent in the trial judges analysis is a stereotypical assumption that
    consent could be inferred from A.V.s entry into the trailer, and that the
    trial judge went beyond assessing credibility and drew an inference about
    consent because he could not imagine that a woman would enter a building at
    night with a man unless she wanted to have sex.

[62]

I disagree. In my view the trial judges
    treatment of the evidence about why A.V. and the respondent entered the trailer
    was a proper, and in the circumstances of this case necessary, part of his
    overall assessment of the evidence. The trailer was where the sexual contact
    took place and the evidence of A.V. and T.J. about what happened before, during,
    and after they entered the trailer was relevant to the issue of consent.

[63]

A.V. testified that she had no problem when her
    mother refused her request that the respondent sleep over because she did not
    want T.J. at her home in the first place, he was loud and obnoxious, she was
    pretty sure he had asked her father for marijuana, and he was giving her weird
    vibes. She explained that she had offered to walk the respondent partway home
    because she did not want to be rude, and that they left the house around 8:00
    p.m. A.V. testified that T.J. tried to kiss her as they were walking past the
    Legion (about a minute away from her house), and she had pushed him away.

[64]

A.V. testified that when they were about 20
    minutes away from her house, they came upon a trailer that was about 20 feet
    off the road in a field. She knew the trailer had been abandoned for years and
    she had been in it before. When asked whose idea it was to go to the trailer,
    A.V. responded that it was T.J.s idea. She added however that she walked to the
    trailer willingly (in contrast to the police statement put to her in
    cross-examination, in which she said she had been taken or brought to the
    trailer). When the Crown asked why she walked to the trailer A.V. replied, I
    do not know  We just kind of walked there. She was asked what her thoughts
    were when T.J. asked her about the trailer before they entered it. She
    responded, I didnt think anything of it at all. Under cross-examination A.V.
    reiterated her response about why she thought she would be entering the
    trailer, [n]othing, there was no thought about it. When asked what she was
    expecting to do in the trailer, she said: Nothing, we were just looking
    around.

[65]

T.J.s evidence was that he and A.V. had shared
    a kiss by the Legion and that it was mutual, that it was A.V. who suggested
    they go inside the trailer, and that they had kissed for a while on the road in
    front of the trailer before entering it.

[66]

The Crown points to para. 70 of the reasons for
    judgment as revealing reliance on impermissible myths and stereotypes where the
    trial judge stated:

In my view, A.V.s
    decision to walk T.J. partway home, for no discernable reason, followed by her
    decision to enter the trailer with [T.J.], especially at that late hour, is
    inconsistent with her testimony that she did not like T.J.
Her refusal or
    inability to provide the court with a reason for entering the trailer with T.J.
    detracts from her credibility.
[Emphasis added.]

[67]

The Crowns first argument about this passage is
    that the trial judge erred in demanding a reason from A.V. for why she entered
    the trailer when no explanation was required. The Crown submits that the
    entire topic of why A.V. entered the trailer was irrelevant. I disagree.
    Repudiating myths and stereotypes means rejecting certain discriminatory lines
    of reasoning, but it does not make whole categories of evidence irrelevant or
    inadmissible:
Roth
, at para. 131, citing Dufraimont, at p. 353;
R.
    v. Cooke
, 2020 NSCA 66, at para. 29. In the circumstances of this case
    what was in A.V.s mind when she entered the trailer  which is where the alleged
    sexual assault took place  was something that was appropriate for the trial
    judge to consider.

[68]

The Crown also contends that the trial judges
    reference to A.V. not providing a reason for entering the trailer demonstrates
    a reliance on the assumption or myth that a woman would not enter a building at
    night with a man unless she wanted sex to then conclude that A.V. consented to
    the sex.

[69]

I do not read the trial judges reasons in this
    way. In my view the trial judge was properly assessing A.V.s testimony that
    she did not like T.J. and was only walking him partway home to be polite
    against the fact that she had gone into the trailer with him at a late hour
    for no reason when she was expected home. In para. 69 of his reasons the
    trial judge referred to A.V.s testimony that she had no problem with her
    mothers refusal to permit T.J. to spend the night because she did not want him
    at her home that evening in the first place, that she did not like the way he
    talked to her parents, that he was loud and obnoxious, and that she was pretty
    sure that he asked her dad for pot. It was in the context of his assessment of
    this evidence that the trial judge stated that the complainant was unable to
    provide the court with a reason or an explanation for her decision to enter the
    abandoned house trailer with T.J. He had observed that A.V. could not have
    been motivated by curiosity, as she had testified that she had been inside the
    trailer previously, and that she did not suggest that she was talked into or
    in any way coerced into entering the trailer.

[70]

After concluding that A.V.s decision to walk
    T.J. partway home followed by her decision to enter the trailer with him,
    especially at that late hour, was inconsistent with her testimony that she did
    not like T.J., the trial judge fairly commented that A.V.s refusal or
    inability to provide the court with a reason for entering the trailer with T.J.
    detracts from her credibility. This final comment about A.V.s credibility,
    when read in context, does not imply that consent could be inferred from her
    entry into the trailer. As my colleague acknowledges, [i]t was open to the
    trial judge to hold that the complainants inability to answer impacted her
    credibility. The trial judges statement about A.V.s credibility was rooted
    in the evidence and did not invoke stereotypical assumptions.

[71]

I therefore disagree with my colleagues
    conclusion that the trial judge invoked impermissible myths and stereotypes in
    his analysis to infer consent from A.V.s entry into the trailer based on
    assumptions that a woman would not enter a building at night with a man unless
    she wanted sex.

(b)

A.V.s Communication with Her Parents

[72]

The second area of concern about A.V.s evidence
    identified by the trial judge is in relation to her having told her father she
    was at the Legion and would be home soon, when she was still in the trailer
    with the respondent. In asserting that the trial judge improperly relied on
    stereotypical myths, the Crown focusses on the statement in the trial judges
    reasons that A.V.s response to her father does not appear to be the response
    of someone who has just been sexually assaulted and has been kept in the
    trailer against her wishes. The Crown asserts that the trial judge improperly
    compared the complainant to a typical sexual assault victim who would have
    told her father the truth about her whereabouts.

[73]

I begin by observing that while this statement
    considered in isolation may suggest that there was stereotypical reasoning
    (because it compares the complainant with someone who has just been sexually
    assaulted) the statement must be considered in context to determine whether,
    as the respondent submits, this was simply an unfortunate choice of words in
    circumstances where the trial judge was properly considering a possible lie and
    inconsistency in assessing the complainants credibility.

[74]

The evidence about A.V.s communications with
    her parents while she was in the trailer was inconsistent and somewhat
    confusing.

[75]

A.V. testified that at the relevant time, in
    terms of outgoing communications, she could only send messages by text on her
    cell phone; and that, although she could receive calls, she could not make an
    outgoing call except by using her data. In her evidence-in-chief A.V. did not
    mention any text messages or calls with her parents. Under cross-examination
    A.V. said that, not long after she and the respondent got to the trailer, her
    parents started calling her. She testified that she thought she had responded
    to the first call with a text to her father saying that she would be home soon.
    She testified that her parents had called back 15 or 20 minutes later, but she
    could not remember speaking to her mother before she got home that night. In
    re-examination A.V. testified that her mother had called before she was assaulted,
    while she was in the bedroom of the trailer, and that she had ignored the call.
    She testified that she did not remember her mother calling and telling her
    mother that she was near the Legion and would be home shortly, and she denied
    having spoken to her parents while she was in the trailer.

[76]

A.V.s mother testified that, after noticing how
    dark it was, she made two calls to her daughter, receiving no answer, and that
    later A.V. had returned a call from her father in which she told him she was
    close to the Legion and she'll be home in a few minutes. It was however a
    while after shed made the call before A.V. got home.

[77]

The trial judge noted that the mothers
    testimony with respect to the call was consistent with the respondents
    evidence  he testified that A.V. received a call from her father while they
    were in the trailer, that she had responded that she would be home soon, and
    that she immediately got dressed and left the trailer.

[78]

It would have been appropriate for the trial
    judge to consider the evidence about the calls in assessing A.V.s credibility
     for example, in determining whether the timing of the calls and A.V.s
    response were consistent with her narrative of how the sexual assault had
    unfolded. In assessing the evidence of the text messages and calls and its
    impact on A.V.s credibility however the trial judge focussed only on the fact
    that during a call (that A.V. did not remember), she had lied to her father.
    His conclusion about how this affected the complainants credibility is stated
    at para. 74 of his reasons:

In my view, A.V.s
    response to her father does not appear to be the response of someone who has
    just been sexually assaulted and has been kept in the trailer against her
    wishes. It is more consistent with the response of someone who is attempting to
    conceal her activities and whereabouts from her parents.

[79]

The problem with the trial judges reasoning is
    that there was no evidentiary foundation for any inference or conclusion to be
    drawn about the credibility of the complainants assertion that she had been
    sexually assaulted based on the lie she told her father. She was not questioned
    about why she might have lied, because she did not remember the call, and she
    denied having talked to her parents when she was in the trailer. The trial
    judge appears to have assumed, based on a hypothetical victim of a sexual
    assault who was kept in the trailer, that the complainant would have told her
    father the truth if she had been sexually assaulted. He compared A.V.s lie
    with what he would have expected a victim of sexual assault to have done.
    However, there was nothing in the evidence to support the conclusion that A.V.
    would have told her parents the truth about her whereabouts if she had been
    sexually assaulted. Lying to her father about her whereabouts, and not telling
    her parents she was at the trailer, was equally consistent with non-consensual
    as consensual sex.

[80]

For these reasons, while I do not agree with my
    colleague that the trial judge engaged in stereotypical reasoning in relation
    to the evidence about why the complainant entered the trailer, I agree that he
    engaged in such prohibited reasoning in his analysis of the evidence concerning
    the complainants call with her father. I turn to consider the second ground of
    appeal: that the trial judge erred in excluding evidence of the complainants
    prior consistent statements.

(2)

The Trial Judges Exclusion of A.V.s Prior
    Consistent Statements

[81]

The Crown contends that the trial judge
    misapprehended and misapplied the law in deciding that A.V.s prior consistent
    statements were inadmissible.

[82]

A.V. testified that after leaving the trailer
    she had immediately called her best friend C.D. through her data, that she told
    C.D. what happened, and that C.D., who had to go to work the next day, told her
    to go to the police. C.D. testified that she received a call from A.V. the
    night of the alleged assault in which A.V. said that T.J. raped her. C.D.
    testified that A.V. was clearly upset and crying very hard, and she had the
    impression A.V. was pretty intoxicated.

[83]

A.V. also testified that she had texted her
    sister and her ex-boyfriend on the way home, that both had called her back, and
    that she had told them what had taken place. She also stated that after she
    returned home, she had talked to her neighbour and had told him what had
    happened. There was no other evidence at trial about these calls or
    conversations, and the sister, ex-boyfriend, and neighbour were not called as
    witnesses at the trial.

[84]

At trial Crown counsel argued that the court
    should consider the evidence of C.D., which included the fact of the telephone
    call and its timing, the substance of what A.V. said, and the complainants
    demeanour during the call. The Crown argued that A.V.s statements to C.D. were
    admissible to rebut an allegation of recent fabrication. The Crown also relied
    on the narrative as circumstantial evidence exception recognized in
R. v.
    Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017]
    S.C.C.A. No. 139 to argue that the trial judge could use the statement as
    context and background to assist in his assessment of the complainants
    credibility. Finally, the Crown argued that C.D.s evidence about A.V.s
    emotional state so close in time to the incident was very probative evidence.

[85]

On appeal Crown counsel makes two arguments.
    First, he submits that the trial judge erred in failing to determine the
    admissibility of
all
of the complainants prior
    consistent statements, which included A.V.s evidence that she had called her
    ex-boyfriend and her sister and had told them she had been raped, and that she
    had spoken with her neighbour after she got home. The trial judge addressed
    only the admissibility of A.V.s prior consistent statement to C.D. in his reasons
    for judgment, when he should have considered all of A.V.s prior consistent
    statements which demonstrated a nuanced disclosure pattern.

[86]

Second, Crown counsel submits that the trial
    judge erred in considering the admissibility of C.D.s evidence only as
    evidence to rebut recent fabrication, and that he failed to consider the other
    viable ground argued by the Crown  that the evidence should be admitted under
    the narrative as circumstantial evidence exception. In addition, the trial
    judge failed to consider the evidence that C.D. provided of the complainants
    emotional state during the call, which occurred just after she left the
    trailer.

[87]

The respondent asserts that the trial judge
    addressed and properly rejected both grounds for the admission of C.D.s
    evidence, and that he may well have considered the post-offence demeanour
    evidence that the complainant was crying and upset when she called C.D. in his
    assessment of the complainants credibility, giving it the weight it deserved.

[88]

I would not give effect to the Crowns argument
    that the trial judge erred in failing to consider the admissibility of the
    evidence of prior consistent statements made by A.V. to her sister, former
    boyfriend, and neighbour. The trial judge did not rule on the admissibility of
    this evidence because he was not invited to do so, nor did the Crown at trial
    make an argument about the complainants disclosure pattern. The Crowns
    submissions at trial on prior consistent statements were all directed to the
    evidence of C.D. Since the statements to the sister, former boyfriend and
    neighbour were presumptively inadmissible, and the Crown did not argue for
    their admissibility for any purpose  whether to show a nuanced disclosure
    pattern or at all  the trial judge cannot be faulted for failing to address
    the admissibility of the complainants prior consistent statements other than
    those made to C.D.

[89]

I do however agree with the Crown that the trial
    judge erred in failing to consider the admissibility of C.D.s evidence about
    the conversation with A.V. under the narrative as circumstantial evidence
    exception and as post-event demeanour evidence. Contrary to the respondents
    submission, the trial judges reasons cannot be read as having addressed these
    bases for admission of the evidence. The trial judge referred only to the
    Crowns submissions on rebutting an allegation of recent fabrication and his
    reasons only respond to that argument.

[90]

The trial judge stated at paras. 61 and 62 of
    his reasons:

The Crown submits
    that the statements to C.D. should be admitted on the basis that their
    admission is intended to rebut a suggestion by the defence of a recent
    fabrication.

In my view, the
    statements to C.D. should be excluded. A.V. testified that on the way to her
    home from the trailer she spoke by telephone not only to C.D., but also to her
    sister and to a former boyfriend. She confirmed that she told all of them that
    she had been raped. I find that A.V.s statements that she was the victim of
    a sexual assault was consistent from the time of the trailer incident and
    thereafter, and that there is no evidence of recent fabrication. In the
    circumstances I cannot accept as evidence her statements to C.D. that she was
    raped as proof of their contents. Also, I cannot accept her statements to C.D.
    as evidence in support of her credibility. As was noted by the Court in
R.
    v. Divitaris
(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, a
    concocted statement, repeated on more than one occasion, remains concocted.

[91]

It is apparent from this passage that the trial
    judge only considered the admissibility of the statements to C.D. as evidence
    to rebut an assertion of recent fabrication. He concluded, correctly in my
    view, that such use could not be made because there was no recent fabrication.
    Defence counsel had suggested that the complainants motives to fabricate (to
    protect her reputation and in the hope of getting back together with her
    ex-boyfriend) occurred immediately, and
before
she
    spoke to C.D. The trial judge concluded that in the circumstances he could not
    accept the complainants statements for the proof of their contents (I note
    that the Crown did not seek to admit the statements for their truth) or in
    support of her credibility. The trial judge concluded with the quotation from
Divitaris
,
    suggesting that his focus was on preventing the improper use of a prior
    consistent statement  as enhancing credibility by mere repetition.

[92]

The trial judge did not however refer to or
    address the Crowns argument that C.D.s evidence, including the prior
    consistent statements made by A.V., were admissible as circumstantial narrative
    for the limited purpose of assisting with the assessment of the credibility of
    the complainant.

[93]

The narrative as circumstantial evidence
    exception was explained by Hourigan J.A. in
Khan
, at paras. 31-34. It
    applies when there is something in the circumstances of the making of the
    statement that can assist in the assessment of the credibility or reliability
    of the witnesss in-court claims: see
Khan
, at para. 31; David M.
    Paciocco, The Perils and Potential of Prior Consistent Statements: Lets Get
    It Right (2013) 17 Can. Crim. L. Rev. 181, at p. 199. If admitted, the
    evidence can be used to assess a complainants credibility, but not for the
    prohibited inference that consistency enhances credibility or the incorrect
    conclusion that the simple making of a prior consistent statement corroborates
    in-court testimony. The probative value of the statement lies in the
    inferences that can be drawn from the timing and circumstances of the statement,
    rather than the simple fact that the complainant has said the same thing
    before:
R. v. M. E-H.
, 2015 BCCA 54, 319 C.C.C. (3d) 352, at para.
    46. In the circumstances of this case, the trial judge ought to have considered
    whether the evidence as to the timing of A.V.s call to C.D. and A.V.s
    emotional state during the call were admissible under the narrative as
    circumstantial evidence exception, and then, if admitted, evaluated the weight
    of such evidence and its effect on his assessment of A.V.s credibility.

[94]

Post-event demeanour evidence of a sexual
    assault complainant can serve as circumstantial evidence to corroborate the
    complainants testimony: see
R. v. Mugabo
, 2017 ONCA 323, 348 C.C.C.
    (3d) 265, at para. 25;
Murphy v. The Queen
, [1977] 2 S.C.R. 603, at
    pp. 612, 616. C.D.s evidence about how A.V. sounded during the call, if
    accepted, may have served to corroborate the complainants evidence that she
    had not consented to the sexual contact in the trailer. Contrary to the
    respondents submissions, I see nothing in the trial judges reasons to suggest
    that he considered and rejected or discounted such evidence. Indeed, he
    concluded at para. 77 that there was an absence of available corroborating
    evidence to support the testimony of either [the complainant or the
    respondent].

[95]

In my view, the trial judge erred when he
    applied too narrow a test in determining the admissibility of C.D.s evidence
    and A.V.s prior consistent statement to C.D. If he had considered the relevant
    permissible uses of C.D.s evidence, he may have concluded that C.D.s evidence
    was admissible, not for the truth of the contents of the prior consistent
    statement made by A.V., but as relevant circumstantial evidence to assist in
    his assessment of A.V.s credibility.

(3)

Do the Trial Judges Errors Meet the Threshold
    for a New Trial?

[96]

In an appeal from an acquittal, to obtain a new
    trial, the Crown must demonstrate that the error might reasonably be thought to
    have had a material bearing on the acquittal, or in other words, that had the
    error not been made, the verdict might have been different: see
Graveline
,
    at paras. 14-17;
R. v. Barton
, 2019 SCC 33, 435 D.L.R. (4th) 191, at
    para. 160; and
R. v. MacKenzie
, [1993] 1 S.C.R. 212, at pp. 247-48.

[97]

The respondent argues that, even if the trial
    judge made the errors alleged by the Crown, the verdict would have been the
    same. According to the respondent, the errors can only be relevant to the trial
    judges assessment of the credibility of the complainant, however, the trial
    judge stated that he found both A.V. and T.J. to be credible and that he
    decided the case based on the second branch of
W.(D.)
(
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742).

[98]

The trial judge stated at para. 77:

In this case I
    find that both T.J. and A.V. generally presented as credible witnesses,
    notwithstanding the fact that A.V.s evidence raised some questions and
    concerns in my mind. Also, there is an absence of available corroborating
    evidence to support the testimony of either of them. In the circumstances,
    although I am not prepared to find that I believe all of the evidence of T.J.,
    his evidence does leave me with a reasonable doubt, and in the circumstances I
    must acquit him.

[99]

In
A.B.A.
, this court allowed a Crown
    appeal from acquittal in a sexual assault case where the trial judge had relied
    on impermissible myths and stereotypes in her assessment of the complainants
    credibility, notwithstanding that the trial judge acquitted the respondent
    based on the first prong of
W.(D.).
Pardu J.A. noted that the trial
    judge gave several reasons for believing [the respondent] which were
    independent of her assessment of the complainants testimony, however, she
    also noted that the trial judges assessment of the complainants credibility
    played a prominent role in her determination of whether to believe the
    respondent.

[100]

Similarly, in the present case, although the trial judge acquitted
    the respondent based on the second branch of
W.(D.)
, this does not
    mean that his assessment of the complainants credibility had no bearing on his
    reasoning. To the contrary, the trial judge did not explain why the
    respondents evidence raised a reasonable doubt, nor had he specifically
    addressed the respondents credibility earlier in his reasons, apart from a
    general observation that both the complainant and the respondent had given
    testimony in a calm manner with few inconsistencies and that the essence of
    their testimony remained unchanged despite rigorous cross-examination. He had
    however discussed two areas of A.V.s testimony which raised questions about her
    credibility. He referred to these questions and concerns when coming to his
    conclusion on the verdict.

[101]

And, as I have already noted, the trial judge pointed to the absence
    of corroborating evidence. C.D.s evidence, if admitted, could have been considered
    as circumstantial evidence of A.V.s mental state after the sexual contact, and
    supportive of her testimony that she had been sexually assaulted. This could
    have been a factor in assessing A.V.s credibility, especially on the issue of
    consent, that could have helped the trial judge to resolve conflicting evidence
    and not be left with a reasonable doubt by the respondents evidence.

(4)

Conclusion

[102]

In my view the combination of the trial judges improper reliance on
    myths and stereotypes in assessing the evidence of A.V.s conversation with her
    father and his failure to consider the admissibility of the evidence of C.D. as
    circumstantial narrative constituted legal error in the assessment of the
    complainants credibility that, in the concrete reality of this case, had a
    material bearing on the acquittals, such that the Crowns appeal should be
    allowed.

Released: March 25, 2021  KMvR

K.
    van Rensburg J.A.





[1]
Mr. Halfyard was appointed by MacPherson J.A. to act as
amicus.
Prior
    to the hearing, he advised the court that the appellant was content that he
    represent him and did not wish to attend the appeal.


