



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. W.E.G., 2021 ONCA 365

DATE: 20210531

DOCKET: C65992

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.E.G.

Appellant

Margaret Bojanowska, for the appellant

Elena Middelkamp, for the respondent

Heard: January 28, 2021 by
    video conference

On appeal from the convictions entered by
    Justice Nancy J. Spies of the Superior Court of Justice, sitting with a jury, on
    June 26, 2018, and from the sentence imposed on October 22, 2018, with reasons
    reported at 2018 ONSC 6246.

Fairburn A.C.J.O.:

A.

Overview

[1]

The appellant was convicted of sexual assault,
    uttering a threat to cause death, and two counts of assault against the
    complainant, with whom he was in a domestic relationship. He appeals from those
    convictions.

[2]

This was a two-witness jury trial: the
    complainant testifying for the Crown and the appellant testifying in his own
    defence. Credibility was the sole issue at trial. If the complainant was
    telling the truth, she was the victim of a serious sexual assault at the hands
    of the appellant, as well as multiple assaults and a threat to cause death. The
    appellant denied everything. He said that the complainant had fabricated the
    allegations because she wanted to obtain sole custody of their child and
    because she thought that her chances of obtaining immigration status would be
    improved if she made the false allegations.

[3]

The appellant raises four grounds of appeal:

(1)

the application
    judge, who was not the trial judge, erred in dismissing the appellants
    third-party records application on the basis that the records were not likely
    relevant;

(2)

the trial
    judge erred in failing to instruct the jury on the permitted and prohibited
    uses of the complainants prior consistent statements;

(3)

the trial
    judge erred in failing to adequately instruct the jury on issues of credibility;
    and

(4)

the trial
    judge erred in failing to provide an adequate corrective instruction to the
    jury respecting improper aspects of the trial Crowns submissions.

[4]

In my view, the appeal must be allowed on the prior
    consistent statements issue. In light of that result, with one exception, there
    is no need to address the other grounds of appeal. The exception relates to the
    third-party records issue. As this issue may arise again at the new trial, for the
    sake of efficiency, I will explain in these reasons why the application judge
    did not err in her analysis.

B.

The Prior Consistent StatementS Issue

(1)

Background Information

[5]

The complainant and the appellant met in March
    2012. After a few dates, the complainant moved in with the appellant, who
    resided in his parents home. Not long after moving in together, the
    complainant became pregnant. While she testified that everything was good at
    the beginning of their relationship, she said that this all changed when she
    was one to three months pregnant. By then, the appellant began to verbally
    abuse the complainant.

[6]

Once their child was born, the verbal aggression
    escalated to physical assaults. This abuse continued over the course of their
    three-year relationship. The complainant testified that the appellant would
    yell at her, insult her, and strike her. She testified that on one occasion,
    the appellant threatened her with death, and on another occasion, he sexually
    assaulted her.

[7]

The appellant challenged the complainants evidence
    on the basis of alleged inconsistencies between her trial testimony and things
    she had previously said in: (1) a statement she had given to the police; (2)
    her testimony at the preliminary inquiry; and (3) a document she had filed in
    the context of a family court proceeding. Many of the alleged prior inconsistent
    statements were put to the complainant during cross-examination by the defence
    counsel.

[8]

In an effort to rehabilitate the complainant
    during re-examination, the trial Crown took her to different parts of the same
    three prior statements, drawing her attention to things that she had
    purportedly said to others and things she had re-enacted for the police
    (collectively referred to in these reasons as the prior consistent
    statements), all of which the trial Crown maintained were consistent with her
    trial testimony. As these prior consistent statements lay at the core of the
    appellants complaint about the jury charge, a few examples are offered in the
    following paragraphs.

(a)

The Choking
    Incident

[9]

In her examination-in-chief, the complainant
    testified about having been choked by the appellant in their bedroom. She
    testified that once the appellant grabbed her by the neck, she stood up from
    the bed and he leaned her against the wall. During cross-examination, the defence
    counsel confronted the complainant with a transcript excerpt from her police
    statement, suggesting that she had previously told the police that the choking
    incident took place while she was seated on the bed with her back against the
    wall.

[10]

In re-examination, the trial Crown read out from
    the transcripts of the police statement and the preliminary inquiry and played
    a portion of the complainants videotaped police statement. These were said to
    be the complainants prior consistent statements relating to the choking
    incident. By way of example, during re-examination, the trial Crown played a
    44-second video clip of the police statement, involving the complainant acting
    out the alleged choking incident, a re-enactment that showed the complainant in
    a standing position.

(b)

The Assaults in
    Bed

[11]

During cross-examination, the defence counsel
    suggested that there was an inconsistency between the complainants trial
    testimony and her prior statements regarding the alleged assaults that took
    place in bed. Specifically, the defence counsel said that the complainants
    police statement did not refer to the appellant punching the complainant in the
    leg.

[12]

The trial Crown attempted to rehabilitate the
    complainant on this point in re-examination by playing a 1 minute and 22 second
    portion of the video from the police statement, showing another re-enactment
    for the police, with the complainant demonstrating two different gestures. The
    trial Crown suggested to the jury that the complainants video re-enactment was
    consistent with the complainants testimony at trial.

(c)

Whether the
    Appellants Family Intervened

[13]

During cross-examination, the complainant
    testified that while the appellants family never witnessed any of the alleged
    assaults, they would come to her defence when the appellant became verbally
    aggressive.

[14]

The complainant was then confronted with passages
    from a document that she had filed in a family court proceeding involving the
    custody of the complainant and appellants child. This document was said to
    reflect inconsistencies between what the complainant testified to at trial and
    what she said in the family court proceeding about the appellants familys
    response to his abusive behaviour. Specifically, the document referenced the
    fact that she had no trust in the
[appellants]
family, as they did not try to stop the
[appellants]
abusive behaviour. The complainant attempted to explain that the
    family court document was referring to abusive conduct other than the abusive
    conduct forming the subject of the trial.

[15]

In re-examination, the trial Crown read the same
    passages from the family court document aloud. One of those passages follows:

During the time living together, the [appellant]
    verbally, physically and sexually abused her. Besides using derogative and
    profane language at her, he also made death threats towards her. He physically
    pushed her. He physically hit her and pushed her . He acted violently and
    aggressively in front of the child. The child witnessed this abusive behaviour.

[16]

After reading from the document, the trial Crown
    attempted to explore with the complainant what the other abusive behaviour
    was that she had referred to during cross-examination. The trial judge
    intervened to stop the complainant from answering the question, the
    re-examination came to an end, and the complainant left the witness stand.

[17]

The trial judge then gave the jury a mid-trial
    instruction about how to approach prior inconsistent statements. The content of
    this mid-trial instruction will be discussed shortly. Following the mid-trial
    instruction, the trial Crown closed the prosecutions case, the defence counsel
    provided an opening address, and the appellant testified.

(d)

The Positions of the Parties

[18]

The appellant argues that the trial judge
    committed a reversible error by failing to instruct the jury on the permitted and
    prohibited uses of the complainants prior consistent statements. While the
    respondent agrees that there was an absence of a limiting instruction in the
    jury charge, and that as a general rule an instruction should be given, the
    respondent points to a number of factors that demonstrate that the absence of
    the instruction in this case did not constitute a reversible error.
    Respectfully, I do not accept that the matter is as benign as the respondent
    suggests.

(2)

The Governing Principles

[19]

A lie can be repeated just as easily as the
    truth. Accordingly, the fact that a complainant says something prior to trial
    that is consistent with what that complainant testifies to at trial does not
    make that complainants evidence more likely to be true. This is why prior
    consistent statements are generally inadmissible at trial.

[20]

Like most rules of evidence, there are notable
    exceptions. Some exceptions relate to where the prior consistent statements
    properly form the subject of narrative, serve to rebut allegations of recent
    fabrication, and serve to refute alleged prior inconsistent statements: see
R.
    v. M.P.
, 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 77-78;
R. v. M.A.J.
,
    2015 ONCA 725, 329 C.C.C. (3d) 149, at paras. 45-47.

[21]

When prior consistent statements properly form
    part of the trial record, the trial judge is generally required to instruct the
    jury on both the permitted and prohibited uses of those prior consistent
    statements:
M.P.
, at paras. 79-80. The trial judge is required to warn
    the jury that a concocted statement will remain concocted despite the number of
    times that it is repeated. As Watt J.A. puts it in his model jury instruction, Once
    a lie, always a lie: David Watt,
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015), at p. 419 (Final 35-D).

[22]

Therefore, the trial judge is generally required
    to inform the jury that what the witness said before the trial about the same
    events described in the witnesss testimony cannot be used as evidence of the
    truth of what was said. It also cannot be used to bolster the witnesss
    credibility. Put a different way, the trial judge should instruct the jury that
    repetition of what is said to have happened does not lend truth to a witnesss
    account. Nor does the repetition act as independent evidence of what occurred. The
    trial judge should also instruct the jury on the limited use that can be made
    of the prior consistent statements, which permitted use will be informed by the
    particular exception that is engaged:
M.P.
, at para. 79.

(3)

The Absence of a Necessary Instruction

[23]

In this case, the trial Crowns purpose for
    taking the complainant through some of her prior consistent statements in
    re-examination, including what were said to be consistent video re-enactments,
    was to endeavour to rehabilitate her following the defence attack on her
    credibility in cross-examination, an attack that was at least partially
    predicated upon prior inconsistent statements. In other words, the prior consistent
    statements were used to rebut the defence assertion that the complainant had
    been inconsistent in her prior statements: see
R. v. L.O.
, 2015 ONCA
    394, 324 C.C.C. (3d) 562, at para. 36.

[24]

The appellant acknowledges that the prior
    consistent statements, including the video re-enactments, were admissible for
    that purpose. Therefore, admissibility is not the issue on appeal. Rather, the
    issue is focused upon the trial judges failure to instruct the jury about the
    limited use they could make of the prior consistent statements and the fact
    that they could not infer that the complainant was telling the truth or that
    the alleged events happened, simply because she had said the same things on
    previous occasions.

(a)

Responding to the Respondents Arguments

[25]

While the respondent fairly acknowledges that
    the prior consistent statement instruction should have been given to the jury
    in this case, the respondent goes on to emphasize that perfection is not the
    standard by which to measure the adequacy of a jury charge. The respondent
    stands on solid ground with this submission.

[26]

Undoubtedly, perfection is not the standard by
    which jury charges should be assessed:
R. v. Araya
, 2015 SCC 11,
[2015] 1 S.C.R. 581,
at para. 39. The task
    of an appellate court is not to ensure that a jury received a perfect
    instruction, but to ensure that the trial judges instructions properly and
    adequately prepared the jury for deliberation:
Araya
, at para. 39;
R.
    v. Barrett
, 2016 ONCA 12, 346 O.A.C. 1, at para. 13. As Moldaver J. said
    in
R. v. Calnen
, 2019 SCC 6,
[2019] 1 S.C.R.
    301,
at para. 8, a functional approach in reviewing a
    jury charge on appeal is required, one that asks whether the jury charge as a
    whole enabled the trier of fact to decide the case according to the law and
    the evidence. See also
R. v. Daley
, 2007 SCC 53,
[2007] 3 S.C.R. 523,
at para. 31.

[27]

In applying a functional approach, the
    respondent encourages this court to rely upon the criteria set out in
M.P.
,
    at para. 80, for assessing the effect of a trial judges failure to properly
    apprise a jury about the limited use to be made of prior consistent statements.
    As noted in
M.P.
, while [e]ach case falls to be decided according to
    its own idiosyncratic facts, there are five relevant considerations to be
    taken into account when determining whether the absence of the instructions
    constitute a reversible error: (1) the nature of the prior consistent
    statements; (2) how many prior consistent statements were introduced or
    repeated; (3) who introduced the evidence; (4) whether the party introducing
    the prior consistent statements relied upon them for an improper purpose; and
    (5) whether there was an objection to either the introduction of the prior
    consistent statements or the failure to provide an instruction to the jury
    limiting their use:
M.P.
, at para. 80.

[28]

The respondent emphasizes that the bulk of the
    evidence involving the complainants prior statements was introduced by the defence
    in an attempt to discredit the complainant by putting alleged prior
    inconsistencies to her in cross-examination. Therefore, the trial Crowns
    references to the prior consistent statements in re-examination were introduced
    and advanced for a proper purpose: to respond to the defence attack on the
    complainants credibility.

[29]

The respondent also points out that the trial
    Crown did not invite the jury to use the prior consistent statements for an
    improper purpose, such as inferring credibility from the complainants consistency.
    Indeed, the trial Crown specifically told the jury in his closing address that
    he was not relying on consistencies between the trial evidence and the prior
    statements for any purpose other than rebutting the suggestion of inconsistencies
    on various material points.

[30]

The respondent also points to the trial judges proper
    jury instructions as they related to what the jury should make of the alleged
    prior inconsistent statements, including that the jury was instructed that
    those prior inconsistent statements could not be used for the truth of their
    contents.

[31]

Finally, the respondent notes the lack of an
    objection at trial by the defence counsel in relation to the absence of any
    instruction to the jury as it related to prior consistent statements.

[32]

A failure to object is a factor on appellate
    review, because it may be indicative of the seriousness of the alleged
    violation, but it is not dispositive of a ground of appeal predicated on an
    erroneous jury charge:
Daley
, at para. 58. See also
Thériault v.
    The Queen
,
[1981] 1 S.C.R. 336,
at pp. 343-44;
Calnen
, at paras. 37-40;
R. v. Jacquard
,
[1997] 1 S.C.R. 314,
at para.
    38. While a failure to object will often be taken as a reflection of the
    overall accuracy of the instructions and the seriousness of the error alleged
    for the first time on appeal, from time-to-time, a failure to object can simply
    constitute a serious oversight on the part of trial counsel.

[33]

In this case, the failure to object to the
    inadequacy of the jury charge as it related to the prior consistent statements appears
    to fall into this latter category.

[34]

In addition to the transcripts of the police
    statement and the preliminary inquiry being read to the complainant in front of
    the jury, the video clips of the complainants police statement, where she re-enacted
    the choking incident and the assaultive behaviour in bed, were played for the
    jury. This all occurred during re-examination. Accordingly, some of the most
    central aspects of the complainants version of events described in her
    examination-in-chief were reinforced through prior consistent statements, which
    were the very last things the jury heard from the complainant right before the
    trial Crown closed the prosecutions case.

[35]

Therefore, while I agree with the respondent
    that the prior consistent statements were only elicited because of the defence
    use of alleged prior inconsistent statements, those statements were the last
    thing that the jury heard during the Crowns case and they went to the heart of
    the allegations. They called out for instructions on their permitted and prohibited
    uses.

[36]

Instead, the only instruction the jury received
    was in relation to the alleged prior inconsistent statements elicited by the
    defence. In my view, that instruction aggravated the error.

(b)

The Impact of the Prior Inconsistent Statements Instructions

[37]

The jury received two instructions regarding the
    proper approach to prior inconsistent statements.

[38]

First, immediately following the complainants
    evidence, and just prior to the trial Crown announcing that the prosecutions
    case was closed, the trial judge provided the jury with a mid-trial instruction
    relating only to the alleged prior inconsistent statements.

[39]

That instruction included the standard direction
    often given to juries when forced to consider allegedly inconsistent statements:
    common sense may suggest that when a person says things at trial that are
    different from what they have said before, this difference may be important in
    deciding whether or how much you believe of or rely upon the witnesss
    testimony. The jury was then told to consider the nature and extent of any differences
    in the statements to decide whether they will believe or rely upon the
    witnesss testimony. Finally, the jury was instructed as follows:

You cannot use the earlier statement as
    evidence of what actually happened, unless you are satisfied that the witness
    accepted it as true while in the witness box in this courtroom.

[40]

Second, during the final jury charge, a whole
    section was devoted to the complainants prior statements, prefaced with the
    heading: Prior Statements of [the complainant] to Police, Her Evidence at the
    Preliminary Inquiry and Her Application to the Family Court. The instructions
    that followed provided a somewhat detailed recounting of both the allegedly
    inconsistent and consistent prior statements, including, but not limited to, a
    suggestion to the jury that they consider what [they] observed when [the trial
    Crown] played those portions of the videotaped interview. The passage from the
    document filed in the family court proceeding cited by the trial Crown at the
    end of re-examination, and set out earlier in these reasons, was also read out
    again in the jury charge.

[41]

The review of the prior statements  both the
    inconsistent and consistent portions of those statements  was followed by a
    legal instruction focused only on how to approach the alleged prior
    inconsistent statements. That instruction loosely tracked the specimen
    instruction provided in
Watts Manual of Criminal Jury Instructions
and,
    to a large extent, repeated the mid-trial jury instruction on prior
    inconsistent statements, as just previously reviewed. The instruction concluded
    with the following legal direction:

Whatever you choose to make of the
    differences, you can only use the evidence given under oath in this trial as
    evidence of what actually happened. You cannot use the earlier statement as
    evidence of what actually happened, unless you are satisfied the witness
    accepted it as true while in the witness box.

[42]

If anything, the mid-trial and final jury instructions
    regarding how to approach the prior inconsistent statements aggravated the
    prejudice arising from the failure to instruct the jury on the permitted and prohibited
    uses of the complainants prior consistent statements.

[43]

In the case of the mid-trial instruction, it
    immediately followed the complainants evidence, where the jury had heard both
    inconsistent and consistent prior statements. In the case of the final jury
    instructions, the legal direction to the jury immediately followed the trial
    judges review of both the consistent and inconsistent statements. Yet, both
    legal instructions only addressed how to approach the alleged prior inconsistent
    statements.

[44]

The instructions relating to the prior inconsistent
    statements, contrasted with the silence relating to the prior consistent
    statements, may well have left the jury with the mistaken impression that they
    could use the consistent statements as they pleased  perhaps as independent
    evidence of the truth of their contents and/or evidence that could serve to bolster
    the complainants credibility. Clearly, neither of these options was available
    to the jury, but they needed to be instructed on that legal rule.

[45]

As well, both the mid-trial and final jury
    instructions contained the following legal direction: You cannot use the
    earlier statement as evidence of what actually happened, unless you are
    satisfied the witness accepted it as true while in the witness box. While
    there is nothing wrong with this instruction when it comes to the prior
    inconsistent statements, the jury may well have been left thinking that they
    could also use the prior consistent statements   which were obviously accepted
    as true by the complainant  as evidence of what actually happened. They
    would have been wrong if they proceeded on that mistaken belief.

[46]

It is true that this court has previously
    dismissed appeals where an instruction relating to prior consistent statements
    has been missed: see
M.P.
, at paras. 84-88;
L.O.
, at para.
    38;
M.A.J.
, at paras. 63-66. However, this case is distinguishable, as
    it turns on its own facts, including the nature of the prior consistent
    statements, the timing of those statements and where they sat in the context of
    the trial as a whole, and the importance of the absent instructions when
    considered against the instructions that were actually provided to the jury
    regarding the prior inconsistent statements.

(c)

Conclusion

[47]

While the respondent is right that the trial Crown
    told the jury that he was not inviting them to infer credibility based on the complainants
    prior consistent statements, and this comment may have helped soften the blow
    arising from the absence of the instruction, the fact remains that the jury was
    left without guidance on how to use this potentially powerful and highly
    problematic evidence.

[48]

Ultimately, this was a two-witness trial where
    credibility lay at the core of what the jury needed to resolve. The complainant
    was the only Crown witness, and her prior statements formed a significant
    portion of both the defence counsels cross-examination and the trial Crowns
    re-examination. On the most central issue at trial, the jury required proper
    instructions. Failing to instruct the jury on the fact that the prior
    consistent statements could not be used as proof of what happened or as
    evidence of credibility ran a significant risk of misuse.

[49]

In the circumstances of this case, the absence
    of an instruction to the jury regarding the permitted and prohibited uses of
    the complainants prior consistent statements constitutes a reversible error.
    Therefore, I would allow the appeal and order a new trial.

C.

Third-Party RecordS Issue

[50]

As I would order a new trial in this matter,
    there is no need to deal with the grounds of appeal pertaining to other alleged
    difficulties with the trial judges instructions to the jury. This comment
    should not be taken as suggesting that those grounds of appeal had any
    traction. However, since the third-party records issue may arise again at a new
    trial, for the sake of efficiency, I will briefly address this issue.

[51]

Prior to his convictions, the appellant brought
    a third-party records application, which was dismissed by Justice Wailan Low on
    June 7, 2018, with reasons dated June 28, 2018.

[52]

The complainant came to Canada from El Salvador
    in 2009. She was eventually denied refugee status, but she continued in her
    efforts to obtain permanent residency in Canada.

[53]

The appellant brought a pre-trial application to
    obtain 
[
a
]
ll records in the possession of the
    Immigration and Refugee Board of Canada pertaining to any claim made by
[
the complainant
]
.

[54]

The appellant filed an affidavit from his sister,
    dated May 8, 2018, as evidence on the application. His sister attested to the
    fact that about one month before the complainant went to the police to disclose
    the allegations of abuse, the complainant had told the appellants sister that she
    had been advised by someone else that if she reported that she had been abused
    in Canada, it would improve her chances of staying in the country. The
    appellants sister deposed as follows: I believe that
[the
    complainant]
has fabricated the allegations against
[the appellant]
to obtain some benefit with
    respect to her immigration claim that the application has changed to
    Humanitarian and Compassionate Grounds.

[55]

The application judge dismissed the third-party
    records application, concluding that the appellant has not established that the
    third-party records were likely relevant within the meaning of s. 278.5(1)(b)
    of the
Criminal Code
, R.S.C. 1985, c. C-46.

[56]

The appellant claims that the application judge
    misunderstood the central nature of the application when she found that, 
[o]bjectively speaking,
the making of a
    claim of abuse in Canada would not likely have the effect of improving the
    chances of allowing someone to remain within Canada. As the appellant puts it
    in his factum on appeal, The issue was not whether the allegation of abuse
    would, in the eyes of the Immigration and Refugee Board, affect the
    application, but whether the complainant
believed
the allegation could
    affect the outcome and was motivated to make an allegation based on her belief
    (emphasis in original).

[57]

As well, the application judge is said to have
    erred by concluding that the defence only wanted the third-party records to
    challenge the complainants credibility, when in fact those records were
    necessary to show that the complainant had a motive to fabricate the
    allegations.

[58]

I see no error in the application judges
    conclusion that the third-party records were not likely relevant.

[59]

A third-party records application involves two
    stages. Within the first stage, there are two steps, the first being whether
    the subject records are likely relevant:
Criminal Code
, s. 278.5(1)(b).
    If the third-party records are likely relevant, then there must be a
    determination as to whether it is necessary in the interests of justice to
    produce the records to the court for review:
Criminal Code
, s.
    278.5(1)(c). This application started and ended at the first step of the first
    stage, the one involving likely relevance.

[60]

Likely relevance means that there is a reasonable
    possibility that the information is logically probative to
an issue at trial or the competence of a witness to testify

    (emphasis in original):
R. v. OConnor
,
[1995]
    4 S.C.R. 411, at para. 22,
per

Lamer C.J. and Sopinka J. (dissenting, but
    not on this point);
R. v. Mills
, [1999] 3 S.C.R. 668, at para. 45
. This is
    a higher threshold than the very modest threshold test for regular Crown
    disclosure:
Mills
, at para.
45;
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 72.

[61]

The application judge understood this legal
    threshold. She simply found that there was no evidence that there was anything
    in the complainants refugee claim file that could be relevant to the issues to
    be decided at trial. Indeed, the appellant acknowledged during oral submissions
    before the application judge that there would not be anything in the complainants
    file supporting the claim that the abuse allegations were falsified.

[62]

When pressed by the application judge to
    articulate the likely relevance of the third-party records, the appellant indicated
    that the records would not assist with determining whether the complainant
    falsified her allegations but would assist with determining a timeline of
    events. As the defence counsel put it:

What Im suggesting is that what it may
    provide us with is some corroboration of what my clients position would be
    with respect to the timeline of events that occurred in the months preceding
    these allegations being brought. I dont think that those records are going to
    substantiate that she admitted to my clients sister that she fabricated
    something.

[63]

In order to support the allegation of a motive
    to fabricate, the third-party records would have had to reference the advice
    that the complainant was said to have received about her refugee claim being
    strengthened by making an allegation of abuse. The application judge was right
    that there was no evidence that the complainants refugee file would contain
    information that would be relevant to determine the trial issues. Indeed, the
    defence counsel conceded that the file would not support the claim that the
    allegations were fabricated.

[64]

I do not agree that the application judge erred
    by failing to appreciate the nature of the application. While the application
    judge made passing reference to the fact that reporting an assault occurring in
    Canada would not likely improve ones chances of remaining in Canada, this
    observation was rooted in
viva voce
evidence given by the record
    holder before the application judge. The application judge was well aware of
    the defence position that the third-party records were relevant to the
    allegation that the complainant believed that making a claim of assault would
    improve her chances of remaining in Canada. Indeed, during a back-and-forth
    exchange with counsel, the application judge accurately summarized the defence
    position concerning motive to fabricate.

[65]

Nor do I accept the appellants suggestion that
    the application judge erred by characterizing the relevance of the third-party records
    as going only to the credibility of the complainant, as opposed to a motive
    to fabricate. At its core, an allegation of a motive to fabricate is, in fact,
    an allegation that the witness is lying  that the witness lacks credibility.
    Regardless, the application judge understood the appellants position that the
    complainant made a false allegation against the
[appellant]
in order to further her claim for refugee status. Clearly, the application
    judge understood the core nature of the appellants claim. She simply rejected
    it on the basis that she had no information before her that would suggest that
    there would be anything in the third-party records to support that claim.

[66]

Finally, I would highlight the following
    observation made by the respondent on appeal. The fact is that the appellant
    was able to advance his claim of motive to fabricate at trial without the
    third-party records. During cross-examination, the complainant confirmed that
    she had initiated an immigration claim prior to meeting the appellant, that she
    had a hearing in 2012, and that her claim had been denied later that year. She
    also acknowledged that her claim was ultimately allowed on October 31, 2017,
    after which she became a permanent resident of Canada. Finally, she
    acknowledged that she referenced her allegations against the appellant in her
    renewed claim.

[67]

Accordingly, the defence counsel was able to
    achieve through cross-examination at trial what she had hoped to achieve with
    the third-party records: she established a timeline of the immigration
    procedures; and she received an acknowledgement that the renewed claim for
    immigration status included the criminal allegations against the appellant.

[68]

Therefore, the application judge made no error
    in concluding that the third-party records were not likely relevant and by dismissing
    the appellants third-party records application.

D.

Disposition

[69]

For the reasons above, I would allow the conviction
    appeal, set aside the convictions, and order a new trial.

[70]

Although the Notice of Appeal contains reference
    to an appeal from sentence, given the need for a new trial, there is no reason
    to address the sentence appeal.

Released: JMF May 31, 2021

Fairburn
    A.C.J.O.

I
    agree David Watt J.A.

I
    agree Grant Huscroft J.A.


