



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. L.S., 2017 ONCA 685

DATE: 20170906

DOCKET: C60617

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.S.

Appellant

Andrew Menchynski and Jeff Marshman, for the appellant

Eric Siebenmorgen, for the respondent

Heard:  March 22, 2017

On appeal from the convictions entered on September 19, 2014
    and, if leave be granted, from the sentence imposed on January 19, 2015, by
    Justice Clayton Conlan of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:


I



[1]

The appellant and E.K. met in 2007.  They began living together in
    E.K.s home almost immediately.  They had a baby together in 2009 and remained
    together until early June 2012, although there were separations from time to
    time, especially in 2011.

[2]

The relationship ended on June 4, 2012.  The next day, E.K. spoke to her
    mother, claiming the appellant had physically abused her.  Her mother spoke
    with the police, and the police contacted E.K.

[3]

In her interview with the police on June 5th, E.K. described an assault
    on June 3, 2012, leading to the end of the relationship.  She also described an
    assault in May 2012.

[4]

E.K. made a videotaped statement to the police, in which she described
    the two assaults.  After the videotaping was finished, while E.K. and the
    officer were filling out a form, E.K. in response to questions, told the officer
    that she had been sexually assaulted by the appellant.  E.K. refused to talk
    about that assault on video.  She did, however, describe the assault to the
    officer who took notes of her description.  According to E.K., the sexual assault
    occurred in May 2009.

[5]

The appellant was charged with two counts of assault and one count of
    sexual assault.  E.K. testified and described the three assaults.  The
    appellant testified and denied the three assaults.  The investigating officer also
    gave brief evidence.

[6]

The jury convicted on all three counts.  Counsel made a joint submission
    on sentence and the trial judge accepted that submission.  He sentenced the
    appellant to two years on the sexual assault charge, and six months concurrent
    on the two assaults.  The trial judge also imposed the usual ancillary orders.

[7]

Initially, the appellant appealed conviction and sentence.  He later
    abandoned his sentence appeal.  He now seeks an order allowing him to reopen
    his sentence appeal and if that order is granted, he asks this court to reduce the
    total sentence to time served (about five months).


II



the june 3, 2012 assault (Count 2)

[8]

E.K. testified that on June 3, 2012, she, their young son, and the
    appellant were living together in E.K.s house.  He was preparing breakfast and
    was looking for clean utensils.  When E.K. offered to help, the appellant, who
    was already angry, became even angrier and left the kitchen.  An argument
    ensued.

[9]

During the argument, the appellant pushed E.K. and charged at her,
    putting his hands on her head and squeezing tightly.  The altercation moved
    into the bedroom.  The appellant pushed E.K. and she landed on the bed.  She
    kicked at him in an attempt to defend herself.  The appellant grabbed E.K.s
    legs, pulling her off the bed onto the floor.  He threw a telephone at her
    saying, Heres the phone, call the fucking cops.  As E.K. lay on the floor
    crying, the appellant moved toward her, grabbing her by the arms and trying to
    pick her up. He told her to stop crying.  The appellant grabbed E.K. so tightly
    that he bruised her arms.  The bruising could be seen on the photographs taken
    by the police two days later.

[10]

In his evidence, the appellant acknowledged an argument in the kitchen
    that occurred shortly before the end of his relationship with E.K.  He was
    somewhat confused about the dates.  As the appellant recalled it, both he and
    E.K. were angry.  She left and went into the bedroom.  The appellant prepared
    breakfast.  He denied assaulting E.K. on that occasion or any other occasion.

the may 2012 assault (count 1)

[11]

E.K. testified that on May 18, 2012, she and the appellant were in a
    nearby town shopping for fish to have for dinner.  She and the appellant saw
    E.K.s former boyfriend.  The appellant became angry.  E.K. told him to get
    over it and they drove home.

[12]

Later that evening at the house, the conversation turned to the former
    boyfriend.  The appellant was obviously upset that E.K. had been with that
    person, even though it had occurred when the appellant and E.K. were
    separated.  The appellant referred to E.K. as a slut and threw something at
    her.  She became angry and spoke harshly to the appellant.  He grabbed her and
    shook her, causing E.K. to fall to the floor.  E.K. started to cry.  The
    appellant grabbed E.K. by the arms and tried to pull her up from the floor. 
    She remained on the floor for about five minutes.  The assault ended with the
    appellant sitting at the table and E.K. crying in the kitchen.

[13]

The appellant and E.K. spoke about the altercation later that evening.  The
    appellant admitted that he could not get over E.K.s relationship with other
    men, even though he had had relationships with other women when they were
    separated.  The appellant told E.K. that he knew he should not take his anger
    out on her, but he was reluctant to apologize.

[14]

In his evidence, the appellant denied that the events described by E.K.
    occurred.  He had no recollection of seeing E.K.s former boyfriend while he
    and E.K. were out shopping.  He did recall that at some point, he told E.K.
    that he did not like the idea that she had been seeing other people while they
    were separated.  The appellant adamantly denied physically assaulting E.K.

the sexual assault (count 3)

[15]

E.K. testified that in early May 2009 (before her birthday on May 14th),
    she and the appellant had been out-of-town at a party.  They returned home the
    next morning.  Their son, who was about four months old, was staying with her
    parents.  E.K. and the appellant were lying on the bed laughing and talking
    about the party.

[16]

The appellant asked E.K. if she wanted to have sex.  She said no.  He
    asked why not, and she said she did not feel like it.  The appellant persisted
    and started to remove E.K.s clothing.  She tried to cover herself with the
    blanket on the bed.

[17]

The appellant climbed on top of E.K. and inserted his penis into her
    vagina.  She started to cry.  He said, How can you not like that? E.K.
    continued to cry and refused to look at the appellant, although he told her to
    look him in the eyes and say she wasnt enjoying it.

[18]

E.K. said nothing and remained motionless.  She did not assist the
    appellant in removing her clothing, nor did she physically resist.  E.K.
    testified that she didnt think she could do or say anything to stop the
    appellant.

[19]

The appellant ejaculated into E.K.s vagina.  He got off of E.K. and
    started to clean himself up.  There was a knock on the door.  It was the
    appellants mother.

[20]

E.K. was not physically injured during the incident.  She said nothing
    about it to the appellant or anyone else until about four months later when she
    told her cousin.  E.K. testified that after the incident, she and the appellant
    continued to live together as a couple as if nothing has happened, sharing
    the same bed.  They eventually separated permanently about three years later in
    June 2012.

[21]

E.K. testified that it occurred to her that the appellant did not take
    her refusal to have sex seriously.  E.K. disagreed, however, with counsels
    suggestion on cross-examination that it was possible that the appellant thought
    she was joking when she said she did not want to have sex.  E.K. testified that
    she did not say anything to the appellant to suggest that she was not serious
    when she told him she did not want to have sex.

[22]

The appellant testified that he did not recall any specific morning in
    May 2009 when he and E.K. returned from a party out-of-town in the early
    morning.  To the contrary, he testified that they would not have left their son
    with the in-laws to go to an overnight party when he was so young.

[23]

The appellant denied that he ever had sex with E.K. when she was crying,
    or that she had ever said she did not want to have sex.  He insisted that had
    E.K. ever refused to have sex, he would not have had sex with her.  The
    appellant also testified that had E.K. ever started to cry when they were
    having sex, he would have asked her what was wrong and tried to comfort her.

[24]

The tenor of the appellants evidence is captured in the following
    questions and answers from his examination-in-chief and cross-examination:

Question [In Chief]: Okay, do you recall ever being told that
    [E.K.] didnt want to have sex with you?

Answer: Absolutely not.

Question: Okay.

Answer: No.

Question: And, so I guess it would follow that you would recall
    that you do recall having sex after being told no?

Answer: Do I recall?

Question: Yes.

Answer: Did it ever happen?

Answer: No.



Question [Cross-Examination]: before you finish. Is it your
    position that you dont remember that ever happening, or that it never
    happened?

Answer: It never happened.

Question: Youve got a firm memory and you can say and my firm
    memory says that series of events never happened?

Answer: Ive never, Ive never raped [E.K.] ever.


III



grounds of appeal from conviction

A:  Did the trial judge err in
    failing to instruct the jury on the limited use of E.K.s prior statements?

[25]

The jury heard evidence that E.K. gave a statement to the police on June
    5, 2012 relating to all three alleged assaults.  The allegations relating to
    the physical assaults were videotaped.  The allegation relating to the sexual
    assault was not.  The jury also heard evidence that E.K. complained to her
    mother about one or more of the physical assaults, and that it was this
    complaint that led to the involvement of the police on June 5th.  Finally, the
    jury heard evidence that E.K. told her cousin about the sexual assault about
    four months after the sexual assault allegedly occurred.

[26]

In her closing submissions, Crown counsel suggested to the jury that
    inconsistencies in a witnesss evidence were relevant to credibility.  She went
    on to submit that E.K. had not been cross-examined on any inconsistencies between
    her evidence and any previous statements E.K. may have made.

[27]

Defence counsel objected to this part of the Crowns closing argument. 
    She submitted that the jury might be confused by the submission and take it as
    an assertion that E.K.s prior statements were all consistent with her
    testimony and made her testimony more credible.

[28]

The trial judge declined to give a corrective instruction.  In his
    assessment, the jury would not take from counsels comment that they should assume
    that the contents of E.K.s prior statements, of which they had heard no
    evidence, were consistent with her testimony.

[29]

The adequacy of a jury instruction on a particular point must be
    assessed by reference to the specifics of the individual case.  I will consider
    the adequacy of the charge first without regard to Crown counsels closing
    submission, and second, I will consider whether that submission demanded some
    comment by the trial judge in his instructions.

[30]

In this case, the evidence of E.K.s prior statements was general, minimal
    and peripheral.  The jury heard virtually nothing about the content of any of
    E.K.s prior statements with the exception of what she said to her mother.  The
    jury heard through the police officers testimony what the mother told the
    police officer E.K. had told her.  The trial judge immediately told the jury
    that evidence of what the mother said to the police officer was not evidence of
    the truth of the contents of the statement.

[31]

I see no risk that the jury would infer from the evidence it heard that
    E.K.s prior complaints were consistent with the substance of her testimony and
    made that testimony more credible.  There was no evidence of what E.K. said in
    the prior statements, and no basis upon which the jury could assess the
    consistency or inconsistency in those statements.  This is not a case like
R.
    v. Stirling
, 2008 S.C.C. 10 and other cases cited by the appellant, in
    which there was considerable evidence about the actual contents of the prior
    statements.  In those cases, there is a genuine risk that a jury might infer
    credibility from consistency.

[32]

In my view, the jury would treat the references to the fact that E.K.
    made statements to her cousin, her mother and the police as nothing more than
    part of the unfolding of the story as told by E.K. on the witness stand.  On
    the evidence heard by the jury, there was no need for a specific instruction as
    to the limited use of prior consistent statements.

[33]

Crown counsels comment in her closing submissions to the jury is of
    some concern.  While it was open to the Crown to point out that E.K. had not
    been cross-examined on any inconsistencies in her testimony, Crown counsels
    submission arguably went further and suggested that E.K. had been consistent in
    her various statements and was, because of that consistency, more credible.  If
    the jury took that latter meaning from counsels submissions, the jury may have
    misused the evidence of the prior statements.

[34]

Crown counsels submission could be understood in different ways. 
    Understood literally, it was no more than an observation that E.K. had not been
    cross-examined on any inconsistencies.  While it is possible that the jury
    could understand the submission in the way the appellant urges, I cannot say
    that the jury would necessarily have taken Crown counsels submission as an
    invitation to infer credibility from consistency.  The trial judge clearly did
    not understand the submission in that way.  He was better positioned than this
    court to consider how the jury would take counsels submission.

[35]

Some judges might have reacted to the Crowns submission by specifically
    telling the jury that evidence that E.K. had made prior statements had no value
    apart from the unfolding of the narrative.  Indeed, it may have been advisable
    to give that instruction.  I cannot say, however, that an instruction in those
    terms was essential in this case.  The evidence that E.K. had made prior
    statements was peripheral and unimportant.  The trial judge determined that
    Crown counsels submission did not alter the insignificance of that evidence so
    as to warrant a prior consistent statement instruction.  I would not interfere
    with that assessment.

B:  Did the trial judge err in
    refusing to instruct the jury on the defence of mistaken belief in consent?

[36]

The trial judge correctly instructed the jury that the Crown had to
    prove beyond a reasonable doubt that the appellant knew, or was reckless in the
    relevant sense, that E.K. was not consenting to the sexual activity.  The
    instruction included the following:

You should look at their words and conduct before, at the time
    and after [the appellant] intentionally applied force to E.K. Take into account
    the nature of what happened or didnt happen between [the appellant] and E.K.,
    any words/gestures that may have accompanied it (including any alleged threats)
    and anything else that indicates [the appellants] state of mind at the time he
    intentionally applied force to E.K.

On this question, the relevant evidence is Miss E.K.s
    testimony that she made it known and clear to [the appellant] that she did not
    consent to having sex with him and [the appellants] evidence that he would not
    have had sex with E.K. if he had known she did not consent.

If you have a reasonable doubt that [the appellant] knew that
    E.K. did not consent to the force that [the appellant] intentionally applied,
    you must find [the appellant] not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that [the
    appellant] knew that E.K. did not consent to the force that [the appellant]
    intentionally applied, you must go on to the next question.

[37]

The appellant does not, and indeed could not, take issue with the trial
    judges instruction on the knowledge requirement.  The appellant submits,
    however, that the trial judge should have gone further and instructed the jury
    on the defence of mistaken belief in consent.  That defence is not in fact
    a defence, but is rather a variation on the requirement that the Crown prove
    beyond a reasonable doubt that the accused knew that the victim was not
    consenting: see
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 44.

[38]

Section 273.2(b) addresses the mistaken belief in consent defence.  It
    provides, in part:

It is not a defence to a charge [of sexual assault]
    that the accused believed that the complainant consented to the activity that
    forms the subject matter of the charge where

(b) the accused did not take reasonable steps, in the
    circumstances known to the accused at the time, to ascertain that the
    complainant was consenting.

[39]

If an accused argues that he had a belief, albeit mistaken, that the
    complainant consented to the sexual activity, the accused is in effect arguing
    that the Crown has failed to prove the knowledge requirement beyond a
    reasonable doubt.  If that doubt is said to be based on the accuseds honest
    belief in consent, the accused must show that he took reasonable steps to ascertain
    that the complainant was consenting.  Evidence in support of a mistaken belief
    in consent argument may come from the complainant, the appellant, other sources
    or some combination of the three: see
R. v. Esau
, [1997] 2 S.C.R. 777,
    at para. 15.

[40]

I agree with the trial judge that there was no air of reality to a
    mistaken belief in consent claim on the evidence adduced in this case.  On
    E.K.s evidence, she made it clear both verbally and by her actions that she
    was not consenting to any sexual activity with the appellant.  On her evidence,
    the appellants remarks during the sexual activity demonstrate that he knew she
    was not consenting.  Nor is there anything in her evidence offering any air of
    reality to the suggestion that the appellant may have misapprehended E.K.s
    words and actions as somehow a consent to sexual activity.  E.K.s evidence
    that it occurred to her that the appellant was not taking her refusal to have
    sex seriously is not evidence of the appellants state of mind, but rather
    evidence of what E.K. was thinking when the appellant persisted in having
    sexual intercourse despite her express refusal.  Finally, nothing in her
    evidence offers any support for any reasonable steps the appellant may have
    taken to determine whether E.K. was consenting.

[41]

On the appellants evidence, the sexual assault described by E.K. did
    not happen and could not have happened.  The appellant was adamant that he
    would not have proceeded with any sexual advances had E.K. said she did not
    want to engage in sexual activity, or had E.K. seemed upset with the sexual
    activity.

[42]

There is no evidence from any source other than the appellant or E.K.
    that provides any insight into what happened at the time of the alleged sexual
    assault.  The trial judge accurately and succinctly captured the essence of the
    case when he told the jury:

The real issue in this case is whether the events alleged to
    form the basis of the crime charged ever took place.

[43]

There was no air of reality to a mistaken belief in consent claim.  A
    reasonable jury could not, on this evidence, be satisfied that E.K. did not
    consent, but have a doubt about whether the appellant believed she was
    consenting:
R. v. Davis
, [1999] 3 S.C.R. 759, at para. 81.  An
    instruction on mistaken belief was not only unnecessary, but it could have
    served to muddy the clear instructions given to the jury on a knowledge
    requirement.

C:  Did the trial judge err in
    refusing to admit evidence of other sexual activity between the appellant and
    E.K.?

(a)

The relevant
Criminal Code
provisions

[44]

Evidence that a complainant engaged in sexual activity with the accused
    or anyone else, other than the sexual activity alleged in the charge (other
    sexual activity), is subject to the special evidentiary regime set out in the
Criminal
    Code
.  Section 276(1) declares inadmissible evidence of other sexual
    activity offered to support either the inference that the complainant is more
    likely to have consented by reason of the sexual nature of the other activity,
    or the inference that the complainant is less worthy of belief by virtue of the
    sexual nature of the other activity.

[45]

Section 276(1) does not create a new rule of evidence.  Rather, it is an
    expression of the fundamental rule that to be admissible, evidence must be
    relevant to a fact in issue.  Section 276 identifies two illegitimate inferences
    from a complainants sexual activity that have historically infected the
    criminal trial process.  The section declares that neither inference provides a
    road to admissibility of evidence of other sexual activity:  see
R. v.
    Darrach
, [2000] S.C.R. 443, at paras. 32-34.

[46]

Section 276(2) provides that evidence of other sexual activity is
    inadmissible at the instance of the accused, regardless of the purpose for
    which it is tendered, unless the accused meets the three criteria set down in
    s. 276(2).  The evidence of other sexual activity must be:

·

evidence
    of specific instances of sexual activity (s. 276(2)(a));

·

relevant
    to an issue at trial (s. 276(2)(b)); and

·

have
    significant probative value that is not substantially outweighed by the danger
    of prejudice to the proper administration of justice (s. 276(2)(c)).

[47]

Section 276(3) sets out several factors which the judge must consider in
    balancing the probative value against the prejudicial effect of the evidence of
    other sexual activity as required by s. 276(2)(c).

[48]

Section 276.1 and s. 276.2 describes the procedure to be followed when
    an accused seeks to tender evidence of other sexual activity.  Section 276.1
    requires that the accused apply for a hearing to determine the admissibility of
    the evidence.  In making the application, the accused must provide detailed
    particulars of the evidence that the accused seeks to adduce (s. 276.1(2)(a))
    and must also set out the relevance of the evidence to an issue at trial (s.
    276.1(2)(b)).

[49]

A judge may order an evidentiary hearing only if satisfied that the
    three prerequisites in s. 276.1(4) are met.  The first two are procedural.  The
    third requires that the judge be satisfied:

That the evidence sought to be adduced is capable of being
    admissible under s. 276(2).

(b)

The appellants s. 276(2) application

[50]

Prior to trial, the appellant brought an application for an evidentiary
    hearing pursuant to s. 276.2.  He sought an order:

Allowing the applicant to adduce, at his trial on a single
    charge of sexual assault, evidence of consent by the complainant to sex with
    this applicant in similar circumstances to those complained of.

[51]

In the grounds for the application, the appellant indicated that the
    context of the relationship, including its intimate nature, was relevant to
    the features of the offences that were allegedly committed.  The appellant
    further contended that evidence of previous and post-dating sexual
    relationships were relevant to whether or not he could have reasonably
    believed that the complainant was consenting to the sexual contact in issue.

[52]

The notice of application did not identify any specific event or events
    upon which the appellant proposed to adduce evidence.  Instead, the appellant sought
    an order allowing him to adduce evidence of the sexual history of the
    relationship both before and after the alleged incident.

[53]

The appellant filed a brief five-paragraph affidavit in support of the
    application.  He described himself and E.K. as involved in a relationship
    between July 2007 and July 2012.  He noted that there were several breakups
    during the relationship.  In paragraph 3 of his affidavit, the appellant
    asserted:

We were together as a couple for the entire year of 2009, we
    had an active sex life for that year.  We had sex on a regular basis.

The appellant also stated that he could not remember
    the exact times that he had sex with E.K.

[54]

The appellants affidavit makes no reference to any specific instances
    of sexual activity between himself and E.K.  Nothing in the affidavit
    identifies specific features of the other sexual activity upon which the
    appellant sought to either cross-examine E.K. or adduce evidence.  Nothing in
    the affidavit affords any insight as to how evidence of other sexual activity
    could lend credence to a claim that the appellant reasonably believed E.K. was
    consenting to the sexual activity alleged in the charge.

[55]

In addition to his affidavit, the appellant filed E.K.s preliminary
    inquiry testimony on the application.  Her preliminary inquiry evidence was
    consistent with her trial testimony.  The appellant filed no other material in
    support of his application.

[56]

In oral argument on the application, counsel submitted that cross-examination
    of E.K. on the other sexual activity was relevant to her credibility on the
    issue of consent, the availability of the defence of mistaken belief in consent,
    and to place the allegation in the proper context of a relationship between the
    appellant and E.K. which included regular consensual sexual intercourse both
    before and after the alleged sexual assault.

[57]

By way of alternative, defence counsel submitted that s. 276(2) had no
    application because the proposed evidence described only the nature of the
    relationship between E.K. and the appellant and not specific instances of
    sexual activity.  Counsel relied on
R. v. C. (A.R.)
, [2002] O.J. No.
    5364 (Sup. Ct.), at paras. 9-10.

[58]

The trial judge held that the proposed evidence failed to meet two of
    the three prerequisites to admissibility under s. 276(2).  First, the evidence
    was not evidence of specific instances of sexual activity as required by s.
    276(2)(a).  Second, the evidence was not sufficiently probative to
    substantially outweigh the prejudicial effect of the evidence as required by s.
    276(2)(c).  The trial judge held that admitting the evidence could lead the
    jury to reason once a willing participant, always a willing participant, at least
    in the eyes of your common law spouse.  He observed that this very line of
    reasoning was one of the myths s.  276 was designed to eradicate:
R.
    v. L.S.
, [2014] O.J. No. 315, at paras. 19-23.

[59]

The trial judge also held that even if the evidence, because it referred
    only to the nature of the relationship, was not captured by s. 276(2) should be
    excluded under the common law rule that excludes evidence proffered by the
    defence if its probative value is substantially outweighed by its prejudicial
    effect:
R. v. L.S.
, at para. 24.  The trial judge excluded the
    evidence.

[60]

The trial proceeded.  The defence did not ask the trial judge to
    reconsider his s. 276(2) ruling at any time during the trial.

(c)

Arguments on appeal

[61]

On appeal, counsel argued that evidence that the appellant and E.K.
    regularly engaged in consensual sexual activity before and after the alleged assault
    would make the appellants professed inability to recall the specific events
    described by E.K. more credible.  Counsel further argued that had the jury
    regarded the appellant as more credible because of the evidence of other sexual
    activity, this would inevitably have furthered his mistaken belief in consent
    defence.  This submission, of course, assumed that there was some air of
    reality to that claim.

[62]

The arguments made on appeal are somewhat different from those made at
    trial.  The trial judges ruling on admissibility was made on a pretrial motion
    when no one knew whether the appellant would testify.  The submissions made to
    the trial judge were not directed at the potential impact of the evidence of
    other sexual activity on the appellants credibility.  On appeal, the arguments
    focused mainly on how that evidence would have made the appellant more credible.

[63]

Usually, the correctness of a trial judges ruling is tested against the
    record that was before the judge when she made the ruling.  I appreciate that
    in
R. v. Harris
, [1997] O.J. No. 3560, at para. 81, this court
    observed that circumstances may require a trial judge to reconsider an
    evidentiary ruling made under s. 276(2) on her own initiative in light of
    evidence adduced during the trial.  I think
Harris
describes a
    situation in which the nature of the evidence given by the complainant at trial
    cried out for a reconsideration of the s. 276(2) ruling.

[64]

Generally speaking, absent a request at trial for a reconsideration of
    the ruling, the merits of the trial judges pretrial evidentiary ruling should
    be reviewed in the context of the record upon which the ruling was made.  Routine
    appellate review of evidentiary rulings in the light of evidence that was not
    before the trial court when the ruling was made would severely compromise
    finality principles.  I see no basis in this case to reconsider the trial
    judges ruling based on the evidence adduced at trial.  In any event, I see
    nothing in the trial evidence that advances the appellants position on the
    admissibility of the evidence of other sexual activity.

(d)

Analysis

[65]

A consideration of the admissibility of evidence of other sexual
    activity tendered under s. 276(2) must begin with a clear understanding of the
    nature of the evidence the defence seeks to adduce.  A finding of relevance and
    a balancing of probative value against prejudicial effect, both of which are prerequisites
    to admissibility under s. 276(2), can only be properly done if the nature of
    the proposed evidence is clearly articulated.  For example, in balancing
    probative value against prejudicial effect, the trial judge is required to
    consider, among other factors, the potential prejudice to the complainants
    personal dignity and right of privacy (s. 276(3)(f)).  Evidence indicating
    that the complainant and the accused, who were in a spousal relationship,
    regularly engaged in consensual sexual intercourse, would raise very different concerns
    about prejudice to the complainants personal dignity and privacy than would
    evidence of the details of the sexual activity between the complainant and the
    accused.

[66]

The integrity of the trial process is also protected by insisting that
    the proposed evidence of other sexual activity be clearly described.  Evidence
    of other sexual activity runs the real risk of derailing a trial by turning it
    into an inquiry about the complainants sexual character rather than the accuseds
    guilt.  Evidence of other sexual activity involving the complainant, particularly
    cross-examination of the complainant about other sexual activity, can, unless
    carefully controlled, interfere with the trial process by unfairly compromising
    the complainants ability to give an accurate and complete account of the
    relevant events.  Far-ranging cross-examination of complainants about other sexual
    activity runs the very real risk of intimidating, humiliating and distracting
    the complainant in the course of his or her testimony.  None of those
    conditions are conducive to a witness providing an accurate and credible account
    of the relevant events.

[67]

The importance of clearly identifying the evidence sought to be
    introduced under s. 276(2) is apparent from an examination of the statutory
    regime governing admissibility.  Section 276.1(2)(a) requires that the
    application for an evidentiary hearing provide detailed particulars of the
    evidence that the accused seeks to adduce.  Absent compliance with that
    provision, the judge cannot order an evidentiary hearing under s. 276.2.  If an
    evidentiary hearing is ordered, the judge can admit the evidence only if it is
    evidence of specific instances of sexual activity:  s. 276(2)(a).

(i)

What kind of evidence did the appellant seek to adduce?

[68]

The material filed on the pretrial motion, particularly the appellants
    affidavit, indicated that the defence wanted to introduce evidence that the
    appellant and E.K. were in a spousal relationship before and after the alleged sexual
    assault and that as part of that relationship they regularly engaged in consensual
    sexual activity.  Nothing in the material suggests that the defence sought to
    elicit, either by cross-examination of the complainant or otherwise, evidence
    of specific sexual encounters or the details of the sexual activity between
    E.K. and the appellant.

[69]

The general nature of the evidence the defence sought to adduce at trial
    is further demonstrated by the defence argument that s. 276(2) did not apply to
    the evidence.  The defence contended that s. 276(2) had no application because
    the defence sought to adduce evidence of the nature of the relationship and s.
    276(2) applied only to evidence of specific instances of sexual activity.

[70]

On appeal, counsel expanded the argument.  While maintaining the
    position that the defence should have been allowed to lead evidence of the
    nature of the relationship before and after the alleged sexual assault, counsel
    on appeal argued that the defence should have been allowed to cross-examine the
    complainant and lead evidence on the usual practices and frequency of sex in
    their relationship.  This submission invites a much more open-ended and
    far-reaching inquiry into the sexual activity of the complainant and the
    appellant.

[71]

Nothing in the trial record would allow the trial judge to admit
    evidence of either specific instances of prior sexual activity between E.K. and
    the appellant, or details of sexual activity between the two.  It was incumbent
    on the appellant if he wished to adduce evidence of that kind to provide a
    basis for doing so in his affidavit.  It works no unfairness on an accused, who
    is after all one of the participants in the relationship underlying the
    evidence, to require that the accused identify any specifics in which he seeks
    to adduce evidence as part of his application for an evidentiary hearing:  see
R.
    v. Darrach
, at paras. 53-56.  The affidavit provided no details or
    specifics.

[72]

Section 276.1(4)(a) confirms that evidence of other sexual activity can
    only be admitted if the accused has offered detailed particulars of the
    evidence (s. 276.1(2)(a)).  The appellant provided no particulars of any
    specific incidents or acts involving sexual activity between himself and E.K. 
    Evidence of other specific instances of sexual activity, or the details of other
    sexual activity, was inadmissible by virtue of the appellants failure to
    comply with s. 276.1(2)(a):  see
R. v. S. (P.)
(2007), 221 C.C.C. (3d)
    45, at para. 15-17 (Ont. C.A.).

[73]

I also see no relevance, based on the material filed in support of the
    application, to any fact in issue of evidence of specific instances of other
    sexual activity involving E.K. and the appellant, or the details of their sex
    life.  The appellants submission that evidence including details of other
    consensual sexual activity could somehow make the appellants assertion that
    the incident alleged by E.K. never happened more credible, makes no sense to
    me.  This was not a case in which the appellant testified that whatever sexual
    incident E.K. was talking about, must have been consensual, but that because of
    the many consensual sexual encounters they had, he could not recall the details. 
    The appellant insisted that the encounter described by E.K. did not and could
    not have happened as it was entirely inconsistent with the nature of their
    sexual relationship.

[74]

Nor, would evidence of the details of other sexual encounters between
    E.K. and the appellant assist the appellant in advancing a mistaken belief in
    consent claim.  Without some indication of the specific nature of the evidence
    to be adduced, and some explanation of how the specifics impacted on the
    appellants state of mind at the relevant time, evidence merely describing the
    details of other consensual sexual activity between E.K. and the appellant cannot
    inform an assessment of the appellants state of mind at the time of the
    alleged incident.  In any event, for the reasons outlined above, the evidence
    gave no air of reality to a claim of mistaken belief in consent.

(ii)

Is relationship evidence admissible?

[75]

I come back to the argument advanced at trial.  It was clear from the
    evidence adduced at the preliminary inquiry that the jury would hear evidence
    that E.K. and the appellant were in a spousal relationship of some length
    before and after the alleged sexual assault.  It was equally clear that the
    jury would hear evidence from which it could readily conclude that the
    relationship included consensual sexual activity, both before and after the
    alleged assault.  The defence wanted to make that inference explicit by
    adducing evidence that before and after the alleged assault, E.K. and the
    appellant, as part of their spousal relationship, regularly engaged in consensual
    sexual intercourse.

[76]

This submission raises two questions  does s. 276(2) apply to relationship
    evidence and, if so, should the evidence have been admitted in this case?

(iii)

Does s. 276(2) apply?

[77]

In
R. v. C. (A.R.)
, the judge was asked to admit evidence that
    between and before the two alleged sexual assaults, the accused and the complainant
    had been involved in an intimate relationship involving consensual sexual
    activity.  The trial judge held that the exclusionary rule in s. 276(2) did not
    apply to evidence describing the nature of the relationship.  He reasoned that
    since s. 276(2)(a) required, as a precondition to admissibility, that the
    evidence refer to specific instances of sexual activity, the exclusionary
    rule did not reach evidence that was not evidence of specific instances of
    sexual activity.  The trial judge went on to consider the admissibility of the
    evidence under the generally applicable rules of evidence.

[78]

The analysis in
R. v. C. (A.R.)
produces an interpretation of s.
    276(2) that is inconsistent with the purpose of the statute and its plain
    language.   On the approach adopted in
R. v. C. (A.R.)
, the language
    in s. 276(2)(a)  specific instances of sexual activity  intended to create
    a precondition to admissibility, becomes a basis upon which one kind of evidence
    about sexual activity is entirely exempted from the exclusionary rule in s.
    276(2).  A provision clearly designed to limit the admissibility of evidence of
    other sexual activity would instead limit the scope of the exclusionary rule.

[79]

The purpose behind the enactment of ss. 276(1) and (2) is well-understood. 
    Evidence of other sexual activity can be important to an accuseds ability to
    make full answer and defence.  At the same time, however, that evidence has
    historically been misused to blacken the character of the complainant, distort
    the trial process, and undermine the ability of the criminal justice system to
    effectively and fairly try sexual allegations.  Sections 276(1) and (2) are
    designed to create an evidentiary filter, which separates evidence of other
    sexual activity that is germane to an accuseds ability to make full answer and
    defence, from evidence of other sexual activity that will prejudice the proper
    conduct of the trial.

[80]

Evidence referring to other sexual activity of a complainant in general
    terms as part of the description of a relationship between the complainant and
    an accused carries the potential to distort the trial process and unfairly disparage
    the complainant, as does more detailed evidence of specific sexual activity.  While
    the latter perhaps carries greater risk than the former, the risk exists when
    either kind of evidence is tendered.  The purpose driving ss. 276(1) and (2) is
    best served by subjecting all evidence of other sexual activity, whether
    specific or general, to the exclusionary rule in s. 276(1), and the test for admissibility
    in s. 276(2).

[81]

The plain meaning of the words of ss. 276(1) and (2) is consistent with
    the purpose of those sections.  The phrase sexual activity is not qualified
    in either section.  Evidence that two people were in a relationship involving
    regular consensual sexual intercourse is clearly evidence that those two people
    were engaged in sexual activity.  As the plain meaning of the words promotes
    the purpose underlying the sections, I see no reason to depart from the plain
    reading.
R. v. C. (A.R.)
was wrongly decided on this point.  Section
    276(2) applies to relationship evidence of sexual activity.

(iv)

Was the relationship evidence admissible?

[82]

As outlined above, there are three preconditions to the admissibility of
    evidence under s. 276(2). The first, found in 276(2)(a), requires that the
    evidence refer to specific instances of sexual activity.  This provision is
    designed to ensure that the nature of the proposed evidence is properly
    identified so that the criteria for admissibility in s. 276(2) can be
    accurately applied.  The provision also serves to ensure that the Crown has
    full notice of the evidence to be adduced and that the complainants legitimate
    interests can be properly safeguarded:
R. v. B. (B.)
, [2009] O.J. No.
    862 (Ont. Sup. Ct.), at para. 16.

[83]

The phrase specific instances modifies the phrase sexual activity. 
    The degree of specificity required to meet s. 276(2) (a) depends to a large
    extent on the nature of the sexual activity that the accused seeks to adduce: 
    see
R. v. Aziga
, [2008] O.J. No. 4669, at paras. 21-22 (S.C.).  If an
    accused wants to lead evidence of a specific incident of sexual activity, the
    details must identify that specific incident.  If, however, the accused seeks
    to adduce evidence of a general nature, describing the relationship between himself
    and the complainant, the specificity requirement speaks to factors relevant to
    identifying the relationship and its nature and not to details of specific
    sexual encounters.  Insofar as relationship evidence is concerned, the required
    specifics would include reference to the parties to the relationship, the
    relevant time period, and the nature of the relationship.

[84]

The appellant gave notice that he sought to introduce evidence that
    during the currency of his spousal relationship with E.K., both before and
    after the alleged assault, he and E.K. regularly engaged in consensual sexual
    intercourse.  The appellant identified the sexual activity by reference to the
    parties, the time period, and the general nature of the activity.

[85]

Having regard to the nature of the evidence the appellant sought to
    adduce, the description of the evidence provided permitted the trial judge to
    properly determine its admissibility under s. 276(2) and, if admitted, to fully
    protect E.K. against questioning that was unfair, irrelevant or unnecessarily
    intrusive.  I am satisfied that the appellant adequately identified the sexual
    activity in respect of which he sought to adduce evidence.

[86]

The second admissibility requirement, common to all evidence, requires
    that the evidence of other sexual activity be relevant to an issue at trial
    (s. 276(2)(b)). Relevance is fact-specific.  It depends on the material facts
    in issue, the evidence adduced, and the positions of the parties.  The
    appellant was charged with sexual assault, arising out of a specific incident
    described by the complainant as occurring in early May 2009.  On E.K.s
    evidence, the appellant raped her over her clear objections.  On the
    appellants evidence, the incident never happened.  As the trial judge told the
    jury, their verdict turned on whether the Crown had proved that the incident
    described by E.K. occurred.

[87]

On the evidence heard by the jury, the appellant and E.K. had a spousal
    relationship that began sometime before the alleged sexual assault and carried
    on long after the alleged sexual assault.  In her evidence, E.K. acknowledged
    that after the sexual assault, she and the appellant carried on as if nothing
    had happened.  It was the defence position that in fact nothing had happened.

[88]

I think that evidence that the relationship between E.K. and the
    appellant, including the sexual component of the relationship, carried on as it
    had before the alleged assault was relevant to whether the assault occurred.  The
    defence could argue that evidence that the sexual component of the relationship
    carried on as before, supported the defence position that the parties carried
    on as if nothing had happened because nothing had in fact happened.
[1]


[89]

I do not suggest that evidence that E.K. and the appellant continued a
    relationship that included consensual sexual intercourse after the alleged
    assault demonstrated that the assault did not occur.  Different people will react
    differently to the same event.  However, to acknowledge that evidence that the
    relationship continued as before was far from determinative of whether the assault
    occurred, is not the same as holding that the evidence is irrelevant.  Evidence
    does not have to establish or refute a fact in issue to be relevant; it need
    only, as a matter of common sense and human experience, have some tendency to make
    the existence or non-existence of that material fact more or less likely.  There
    is a big difference between evidence that is relevant and evidence that is determinative: 
    see
R. v. A.
(No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.).  This
    evidence was relevant.

[90]

The third and final condition to admissibility is found in s. 276(2)(c). 
    The accused must demonstrate that the evidence has significant probative
    value, and that the probative value is not substantially outweighed by the
    danger of prejudice to the proper administration of justice.  Evidence of
    significant probative value is evidence that has more than trifling
    relevance and is capable in the context of all of the evidence of leaving the
    jury with a reasonable doubt:
R. v. Darrach
, at paras. 39-41.

[91]

Evidence that a consensual sexual relationship existed between E.K. and
    the appellant before the alleged assault and that it continued after the
    alleged assault had probative value that was more than trifling.  A jury could reasonably,
    by considering and comparing the nature of the relationship between the two
    before and after the alleged assault, be assisted in deciding whether the
    assault described by E.K. had happened.

[92]

The potential probative value can be demonstrated by considering the
    effect of evidence that the relationship had ended immediately after the
    alleged assault.  Had the evidence been that the relationship ended, the Crown
    could have argued that the termination of the relationship was consistent with E.K.s
    testimony that she had been raped by the appellant.  The same logic applies to
    defence use of the evidence based on the absence of any change in the
    relationship, although evidence of absence of any change in the relationship may
    have less potential probative value than evidence that E.K. immediately
    terminated the relationship after the alleged assault.

[93]

Turning to the prejudice side of the balance sheet, I see virtually no
    risk of any prejudice flowing from the admission of this evidence.  The
    evidence the jury heard strongly indicated that the relationship between E.K.
    and the appellant, both before and after the alleged assault included
    consensual sexual intercourse.  E.K. candidly acknowledged that the
    relationship carried on after the assault just as it had been before the
    assault.  She specifically agreed that she and the appellant continued to share
    the same bed.  I think it highly probable that the jury inferred from this
    evidence that the appellant and E.K. continued to engage in consensual sexual
    intercourse after the alleged assault.  Express evidence to that effect would
    only have made explicit that which was strongly implied by the evidence the
    jury heard.

[94]

No one suggests that the jury should not have heard the evidence that it
    did hear about the nature of the relationship between E.K. and the appellant,
    both before and after the alleged assault.  Considered in the context of that
    evidence, there is no risk that additional evidence simply confirming the strong
    inference available from that evidence the jury heard, could have prejudiced
    the proper administration of justice:  s. 276(2)(c).

[95]

I also do not agree with the trial judge that the risk that the jury
    would misuse the evidence by reasoning that once a willing participant, always
    a willing participant justified the exclusion of the evidence.  There is
    always a risk that jurors will misuse evidence.  The risk can be high when the
    accused is charged with sexual assault and the evidence in issue relates to
    other sexual activity.

[96]

The risk of juror misuse of evidence of other sexual activity is taken
    into account by the scheme established under s. 276.  Section 276.4 requires
    that when a trial judge admits evidence of other sexual activity, she must
    instruct the jury as to the uses that the jury may and may not make of the
    evidence.  Any consideration of the potential prejudice under s. 276(2) (c)
    premised on the potential misuse of the evidence by the jurors must take into
    account that the jurors will be properly instructed in compliance with s.
    276.4.

[97]

I am confident that the trial judge could have effectively explained to
    the jury that evidence that there was no change in the relationship between
    E.K. and the appellant, including the sexual component of that relationship, after
    the alleged assault, was evidence to be considered, along with the other
    relevant evidence, in deciding whether the Crown had proved beyond a reasonable
    doubt that the incident described by E.K. had in fact occurred.  I am equally
    confident that the trial judge could have made it clear to the jury that if,
    after considering all of the relevant evidence, the jury was satisfied beyond a
    reasonable doubt that the incident described by E.K. had occurred, evidence
    that E.K. and the appellant had engaged in consensual sexual intercourse on
    other occasions had no relevance to, and was of no assistance in, determining
    whether E.K. had consented to sexual intercourse on the occasion in issue.

[98]

I have full confidence that a jury having received the proper
    instructions would have followed those instructions.  The jurys verdict on the
    sexual assault charge justifies that confidence.  The jury convicted the
    appellant in the face of evidence that left little doubt that he and E.K.
    engaged in consensual sexual intercourse, before and after the alleged
    assault.  The jurys verdict demonstrates that it did not reason once a
    willing participant, always a willing participant, even without the benefit of
    an instruction telling them they could not use that line of reasoning.

[99]

In summary, having regard to the evidence the jury actually heard and
    taking into account the instruction the jury would have received had the
    evidence been admitted, I see no risk of prejudice to the proper
    administration of justice flowing from admitting evidence that the
    relationship between E.K. and the appellant, before and after the alleged
    assault, included consensual sexual intercourse.  The evidence was admissible
    under s. 276(2).

[100]

I am, however,
    satisfied that the error caused no substantial wrong or miscarriage of justice.
     As explained above, the jury would inevitably have understood from the
    evidence it did hear that E.K. and the appellant were in a relationship that
    included consensual sexual intercourse, both before and after the alleged
    assault.  While the jury was not expressly instructed as to the use it could
    make of that evidence in deciding whether the Crown had proved that the alleged
    incident occurred, I think it would have been obvious to the jury that the
    evidence was capable of supporting the appellants claim that the relationship
    carried on as if nothing had happened between E.K. and the appellant, because
    nothing had happened.  The real risk inherent in the failure to give a more
    explicit instruction on the use of the relationship evidence lay in the danger
    that the jury would misuse the evidence in favour of the appellant on the issue
    of consent.  The verdict shows that the jury did not make that error.

[101]

The improper
    exclusion of the relationship evidence effectively kept nothing of substance
    from the jury, but did assist the appellant in the sense that the jury did not
    hear the limiting instruction it would have heard had the evidence been
    admitted under s. 276(2) as it should have been.

[102]

I would dismiss
    the conviction appeal.


IV



the sentence appeal

[103]

The appellant
    received a sentence of two years on the sexual assault conviction, and six
    months concurrent on each of the assault convictions.  The sentence reflected a
    joint submission made by counsel at trial.  In imposing the sentence requested,
    the trial judge described the sentence as within the range, although somewhat
    less, than he would have imposed absent the joint submission.

[104]

The appellant
    initially appealed conviction and sentence.  He was released on bail pending
    appeal.  The appellant abandoned the sentence appeal.  He now seeks to re-open
    that appeal.

[105]

The sentence
    appeal was not dismissed on its merits.  This court has jurisdiction to re-open
    the appeal and hear the appeal on its merits:
R. v. Sippos
, 2008 ONCA
    325, at para. 4.

[106]

Crown counsel
    opposes the motion to re-open the sentence appeal arguing that this court will
    vary an otherwise fit sentence based on post-sentence conduct only in
    exceptional circumstances.  Counsel contends there are no exceptional
    circumstances here.  He submits that the proposed fresh evidence alters only minimally
    the picture painted in the material that was before the trial judge.

[107]

There is merit
    to the Crowns position.  In my view, however, the sentence appeal if allowed
    to proceed must fail on its merits.  Rather than addressing the merits of the
    application to re-open the sentence appeal, I propose to go directly to the
    merits of the appeal itself.

[108]

The appellant
    raped his common law spouse.  He also physically abused her twice, although the
    assaults were relatively minor.  Denunciation, above all other sentencing
    principles, dictated the sentence to be imposed on the appellant.  A
    penitentiary sentence was fully warranted in light of the gravity of the sexual
    assault even having regard to the appellants rehabilitative potential.  I do
    not understand the appellant to suggest that the sentence was not fit when
    imposed.

[109]

Clearly the
    appellant has had a difficult life.  He also has a lengthy criminal record. 
    The appellants antecedents and his potential for rehabilitation were reflected
    in the sentence agreed upon by counsel and imposed by the trial judge.

[110]

The appellant
    has done well on bail pending appeal.  To the extent that the sentence imposed
    aimed at deterring the appellant from future criminal activity and encouraging
    him to lead a positive lifestyle, it is to be hoped that the time spent in
    custody has achieved that purpose.  Denunciation, however, remains as important
    now as it was when the sentence was imposed.  Varying the sentence to four to
    five months, would trivialize the serious nature of the offences and lend
    credence to the claim that the criminal justice system does not treat domestic sexual
    violence as the serious criminal conduct that it is.

[111]

When an offence
    calls for a denunciatory sentence, the length of the sentence imposed is most
    often the means used by the court to send the denunciatory message.  An
    appellants positive lifestyle while on bail pending appeal does not justify
    departure from that norm.

[112]

The appellant
    places considerable reliance on
R. v. Ghadban
, 2015 ONCA 760, to
    support his submission that the sentence should be reduced to time served.
Ghadban
assists the appellant in that it recognizes that this court will, on occasion,
    reduce a sentence that was fit when imposed to reflect changes in the
    circumstances relevant to sentence that occurred between the imposition of
    sentence and the hearing of the appeal.  Variation of sentences on this basis
    is the exception and not the rule:
Ghadban
, at paras. 13-15, 20.

[113]

In
Ghadban
,
    the accused played a secondary role in a serious home invasion.  The trial
    judge sentenced the accused to two years to be followed by three years
    probation.  In doing so, the trial judge emphasized specific deterrence and
    rehabilitation as the key drivers of the sentence:
Ghadba
n, at paras.
    7, 18.

[114]

In
Ghadban
,
    the accused appealed his conviction and sentence.  For reasons beyond his
    control, the appeal took over three years to be heard.  The accused was on bail
    pending appeal.  On appeal, he abandoned his conviction appeal, accepted
    responsibility for his criminal conduct, and pursued his sentence appeal based
    on fresh evidence detailing his conduct during his lengthy time on bail pending
    appeal.  This court referred to the changes in the appellants lifestyle while
    on bail as very significant, noting that he now accepted full responsibility
    for his crime:
Ghadban
, at para. 16.

[115]

In allowing the
    appeal and reducing the sentence to time served, this court said, at para. 22:

This was a serious offence that ordinarily, would clearly call
    for more than seven weeks imprisonment, on the other hand, we are dealing with
    a case in which however inadvertently, the criminal process and the sanction
    that was imposed have actually worked. The two sentencing objectives emphasized
    by the trial judge, specific deterrence and rehabilitation, have now been
    satisfied.

[116]

The appellant
    has not taken responsibility for his criminal acts.  There is no suggestion
    that he has come to terms in any way with the cause or the consequences of his
    repeated abuse of his domestic partner.  Equally importantly, denunciation, the
    principal goal underlying the appellants sentence, remains as vital now as it
    was when the sentence was imposed.

[117]

In most cases,
    and this is one, positive steps taken by the appellant between sentencing and
    the hearing of an appeal are best dealt with by the correctional authorities. 
    This court cannot act as a
de facto
parole board, but must trust the
    parole authorities to exercise their powers to facilitate the appellants
    reintegration into the community at the earliest appropriate time.  No doubt
    they will pay careful attention not only to the positive steps taken by the
    appellant since he was sentenced, but also to the very positive features of his
    background and character noted in the Gladue report and the pre-sentence
    report.

[118]

I would set
    aside the order dismissing the sentence appeal, grant leave to appeal sentence
    and dismiss the sentence appeal.

Released: DD  SEP 06 2017

Doherty J.A.

I agree. Grant Huscroft
    J.A.

I agree. B.W. Miller
    J.A.





[1]
I
    recognize that in
Darrach
, at para. 58, Gonthier J. states that
    evidence of other sexual activity will rarely be relevant to support a denial
    that the alleged act took place.  Justice Gonthiers observation does not alter
    the meaning of relevance and does not assist in determining relevance in any
    given case.


