



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Sanclemente, 2021 ONCA 906

DATE: 20211220

DOCKET: C66228

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Juan Solorzano Sanclemente

Appellant

Zaire Puil
, for
    the appellant

Lisa Fineberg
,
    for the respondent

Heard: April 22, 2021 by video conference

On appeal from the
    conviction entered on June 1, 2018 and the sentence imposed on January 28, 2019
    by Justice Mario D. Faieta of the Superior Court of Justice, sitting with a
    jury.

Watt J.A.:


[1]

A plan and its execution do not always align. Even
    simple plans, uncomplicated in their execution. Like drug deals. A buyer with
    money. A seller with drugs. Cash for cocaine. Cocaine for cash.

[2]

Sometimes, the problem is the buyer. A rip-off.
    Drugs for free. Other times, the snag is the seller. Take the money and run.

[3]

M.C. wanted to buy some cocaine. Enough for an
    evenings use at an event she planned to attend. The appellant had cocaine to
    sell, at his place. M.C. agreed to meet him there to conclude their deal.

[4]

In the end, the drug transaction was completed.
    M.C., the buyer, got her cocaine. And the appellant, the seller, got his money.
    But before the deal was done, something happened. Something that M.C. and the
    appellant did not agree on. Sexual activity.

[5]

The appellant was charged with sexual assault as
    a result of M.C.s claim that she did not consent to the sexual activity that
    admittedly took place. The jury at the appellants trial agreed with M.C.s
    characterization of what occurred. The jury rejected the appellants assertion
    that the activity was consensual, M.C. an enthusiastic participant.

[6]

The appellant appeals his conviction and the
    blended sentence of a term of imprisonment followed by a period of probationary
    supervision imposed upon him. These reasons explain why I have concluded that,
    like the defence he advanced at trial, this appeal fails and should be
    dismissed.

The Background Facts

[7]

The events upon which the prosecution was
    grounded took place over a few hours of the same day, in the same place, and
    involved the same people, M.C. and the appellant. Both testified at trial. No
    one else did.

[8]

The narratives provided by M.C. and the
    appellant had much in common about what occurred in the appellants apartment
    on that day. However, their recollections differed about how some of the events
    unfolded, about who said what to whom, and their respective states of mind at
    different times.

[9]

An overview of the relevant events will suffice
    to furnish the background necessary for an evaluation of the merits of the
    claims of error advanced. Where necessary, further detail will be added to
    assay the merits of individual grounds.

The Principals and Their Relationship

[10]

M.C. was a university student. The appellant was
    a club promoter and drug dealer who lived with his girlfriend. M.C. was
    introduced to the appellant the previous summer by a friend. The introduction
    was at a dance club where the appellant worked. The appellant and M.C. met
    briefly on two other occasions.

The Text Message

[11]

At about 4:00 p.m. on February 27, 2016, M.C.
    sent the appellant a text. She referred to him as Papi and herself by a diminutive
    of her name. She mentioned her relationship with her friend who had previously
    bought cocaine from him. M.C. denied that she considered Papi a term of
    endearment.

[12]

In guarded language, M.C. told the appellant
    that she wanted to buy some cocaine. She offered to meet the appellant to
    complete the purchase. The appellant suggested that M.C. come to his apartment
    and provided his address. About two hours later, M.C. arrived at the
    appellants apartment building. The appellant opened the front door remotely
    from his unit and told her his apartment number.

The Entry

[13]

When M.C. arrived at the door to the appellants
    apartment, he greeted her with a hug and invited her into his apartment. The
    appellant told M.C. to take off her shoes. The appellant took M.C.s coat and
    hung it up in a closet. He offered to make some tea. M.C. declined, but the
    appellant said he would make some anyway.

[14]

As the tea was brewing, M.C. told the appellant
    about her plans for the evening. She planned to attend a fetish event that
    evening  Subspace  where people dress up in bondage and latex then go out to
    drink and dance. She denied inviting the appellant to join her at Subspace.

The Balcony

[15]

The appellant invited M.C. onto the balcony of
    his apartment to admire the view of the city from there. There, they talked.
    The appellant claimed, but M.C. denied, that they shared a kiss on the balcony.

The Return to the Apartment

[16]

M.C. and the appellant returned to the
    apartment. They sat on the living room couch. The appellant asked for a
    backrub. M.C. said no. She explained that a backrub would feel as if she were
    stabbing him. The appellant repeated his request several times. M.C. eventually
    agreed and gave the appellant the massage he had repeatedly requested. She went
    along with it because she didnt know what would happen if she continued to
    refuse.

The Activities on the Couch

[17]

As M.C. and the appellant continued to sit on
    the couch, they smoked a marijuana joint and talked about Subspace. M.C.
    recalled that the appellant draped his arm around her neck and blew smoke in
    her face. She tried to pull away, then giggled, protested and said no. She
    tried to tell the appellant that she didnt want his arm around her and that
    she had some place else to be. The smoke in her face bothered her. The
    appellant then leaned in and kissed her. She kissed him back. The initial kiss
    was gentle, but then the appellants kissing became more aggressive. Although
    she was not assertive in her reactions and comments, M.C. meant no.

[18]

The appellant could not recall exactly what was
    said prior to the kissing although they continued talking about Subspace. There
    was no verbal communication from the moment they began making out until the
    sexual activity ended.

The Touching

[19]

M.C. testified that the appellant had an
    erection. In a sexual and breathy tone of voice, he asked her to squeeze his
    genitals. She said no, not forcefully or in a serious tone, but she meant
    what she said. She tried to sound convincing about having some place else to
    go. But she realized that it may not have come out in precisely that way.

[20]

M.C. recalled that the appellant then took her hand
    from outside his sweatpants and put it on his bare, erect penis under his
    pants. He repeatedly told her to squeeze it. She said no in the same tone of
    voice in which she had said the same thing to no avail previously. She did not
    pull her hand out of the appellants sweatpants or stand up.

[21]

M.C. squeezed the appellants penis as he
    repeatedly told her to do. She was afraid to do otherwise. She was alone in his
    apartment, a place to which she had never previously been. He was a drug
    dealer. She did not know whether he may have had weapons around for his
    protection in his drug dealing business. The appellant did not appear to be
    catching on to her discomfort and paying any attention to no. She continued
    to laugh and giggle.

The Next Phase of Sexual Activity

[22]

The parties differed about the circumstances in
    which
fellatio
occurred, but not that it did take place.

[23]

M.C. gave evidence that the appellant stood up,
    exposed himself, and repeatedly told her to perform
fellatio
on him.
    She said no, giggled and moved away. He repeated his request in a harsher
    tone of voice, barking at her aggressively. Initially M.C. said that the
    appellant grabbed her head and forced his penis into her mouth for about 60 or 90
    seconds. Later, she acknowledged that she leaned in and opened her mouth to
    perform
fellatio
without the appellant touching her head for the first
    30 seconds of their 90 second encounter.

[24]

The appellant testified that when he stood up,
    M.C. pulled his pants down, got on her knees, and began performing
fellatio
on him. He moaned. M.C. denied that she edged forward and got on her knees
    because she was actively engaged in performing
fellatio
on the
    appellant. Neither M.C. nor the appellant said anything.

The Sexual Activity Continues

[25]

When M.C. stopped performing
fellatio
,
    she stood up and, along with the appellant, moved to the side of the couch. The
    appellant removed M.C.s pants, then began to penetrate her digitally. She
    arched her back to facilitate the penetration. She moaned and made sexual
    sounds in an attempt to bring the appellant to climax and end the activity. She
    did not ask the appellant to stop or physically resist. She communicated as if
    she wanted to participate. She was trying to make noise and make the appellant
    ejaculate. She acted in this way because the appellant had not listened to any
    of her prior protests.

The Concluding Sexual Activity

[26]

About a minute or so later, the appellant brought
    M.C. to the arm of the couch. She did not resist. She said nothing. The
    appellant bent M.C. over the arm of the couch and pulled her underwear down.
    The appellant penetrated her vaginally from behind. She said nothing. Each of
    them moaned. Sexual intercourse ended when the appellant said that he was ready
    to climax. M.C. got down on her knees and, once again, began to perform
fellatio
.
    She swallowed the ejaculate. M.C. acknowledged that the appellant did not ask her
    to perform this act of
fellatio
. She assumed that this was what he
    wanted to do so she complied.

The Drug Transaction

[27]

After the sexual activity ceased, M.C. and the
    appellant completed their drug transaction. They then watched a short video and
    sampled the cocaine. The appellant said that they didnt talk much, but both
    were smiling. There was little subsequent contact. Three days later, M.C. went
    to the police and complained that she had been sexually assaulted.

The Grounds of Appeal

[28]

The appellant challenges not only his
    conviction, but also the sentence imposed upon him.

[29]

On the appeal from conviction, the appellant
    says that the trial judge erred in:

i.

dismissing his application to introduce evidence
    of extrinsic and contemporaneous sexual activity of the complainant under s.
    276 of the
Criminal Code
, R.S.C.,
    1985, c. C-46
;

ii.

failing to instruct the jury on the defence of
    mistaken belief in communicated consent;

iii.

failing to exclude the video recorded interview
    of the appellant for a breach of s. 10(b) of the
Charter
; and

iv.

delivering a charge to the jury that was
    unbalanced.

[30]

The appellant also contends that the trial judge
    erred in imposing a sentence that offended the principle of parity expressed in
    s. 718.2(b) of the
Criminal Code
.

The Appeal from Conviction

Ground #1: The Section 276 Application

[31]

This ground of appeal alleges that the trial
    judge wrongly excluded evidence the appellant sought to adduce about M.C.s
    sexual activity with him other than the sexual activity that formed the subject
    matter of the charge. The application, which was argued prior to jury
    selection, was governed by the statutory scheme then in force, not the current
    provisions in ss. 278.93 and 278.94.

[32]

The application was based on the affidavit and
    testimony of the appellant who gave evidence as the only witness on the
    application.

[33]

A brief reference to the evidence tendered for
    reception and the trial judges reasons for dismissing the application will
    provide the background necessary to evaluate the allegation of error.

The Application at Trial

[34]

The circumstances alleged to constitute sexual
    assault took place at the appellants apartment on February 27, 2016. The
    appellant denied liability on the basis that sexual activity was consensual or
    that he honestly believed that the complainant, by her words and actions, had
    consented to what took place.

[35]

The evidence of the complainants extrinsic
    sexual activity the appellant sought to elicit occurred at two different times,
    in two different places, and in dissimilar circumstances.

[36]

The first incident occurred at a nightclub about
    six months before the offence alleged. The appellant was a promoter at the
    club. He could facilitate the entry of the patrons by by-passing the lineup and
    provide them with free bottle service at one of his booths. M.C. and one of her
    friends gained entry to the club in this way. M.C. was very flirtatious with
    the appellant. She complimented his clothing, danced with him in a sexually
    provocative way, and engaged in a brief make out session of kissing with him
    that lasted less than a minute.

[37]

The second incident occurred at the appellants
    apartment on the day of the alleged offence. The subject-matter of the proposed
    evidence was a conversation the appellant had with M.C. about their individual
    sexual experiences, including a threesome, and their preferences.

[38]

The appellant contended that the proposed
    evidence had significant probative value on several controverted issues at
    trial. Whether M.C. consented or the appellant honestly believed that M.C.
    consented to the sexual activity that occurred. The appellants subjective
    belief and state of mind at the relevant time. The credibility of M.C. And the
    narrative of relevant events.

The Ruling of the Trial Judge

[39]

The trial judge dismissed the application at the
    conclusion of argument.

[40]

In his written reasons released within days of
    the argument on the application, the trial judge found that the evidence about
    M.C.s conduct with the appellant at the nightclub was evidence of prior sexual
    activity, its admissibility governed by s. 276 of the
Criminal Code
.
    However, the evidence had no probative value on the issue of consent and little
    or no probative value on the issue of honest but mistaken belief in
    communicated consent. Thus, the evidence lacked the significant probative
    value required to justify admission when balanced against the danger of
    prejudice to the proper administration of justice. Further, when considered on
    the issue of consent, the proposed evidence invoked the twin myth reasoning
    prohibited by s. 276(1)(a) of the
Criminal Code
.

[41]

The evidence of the contemporaneous discussion
    of sexual preferences and prior sexual experiences was not evidence of specific
    instances of sexual activity of M.C. as required by s. 276(2)(c). Rather, it
    related to M.C.s general sexual behaviour. Thus, it could not be admitted
    under the inclusionary exception to the exclusionary rule. Like the nightclub
    evidence, this evidence lacked significant probative value on whether the
    appellant honestly but mistakenly believed the complainant communicated her
    consent to the sexual activity with which the appellant was charged. And
    finally, there was no basis upon which to cross‑examine M.C. on her
    sexual preferences or prior sexual activities to attack her credibility.

The Arguments on Appeal

[42]

The appellant says that, among the
    considerations of which a trial judge is to take account when evidence is
    tendered for admission under s. 276(2), are the right of the accused to make
    full answer and defence and whether there is a reasonable prospect the proposed
    evidence will assist in reaching a just determination of the case. The evidence
    must relate to a specific instance of sexual activity and be relevant to an
    issue at trial. When these requirements have been met, it is for the trial
    judge to say whether the proposed evidence not only has
significant
probative value, but also that its probative value is not
substantially
outweighed by its prejudicial effect on the proper administration of justice.

[43]

In this case, the appellant continues, exclusion
    of this evidence of extrinsic sexual activity of M.C. deprived him of the opportunity
    to cross-examine M.C. on the specific issue of credibility in relation to her
    statement about the extent of her relationship with the appellant.

[44]

The contemporaneous discussion about sexual
    experience, practices, and preferences was admissible on several discrete, but
    related bases. To provide context for the allegations. It was relevant to
    M.C.s credibility because she had denied any prior sexual activity with the
    appellant. The proposed evidence showed her willingness to lie about the nature
    of their relationship. Further, the proposed evidence was also an essential
    part of the narrative and provided context for an evaluation of the appellants
    claim that he honestly believed that M.C. consented to the sexual activity that
    occurred.

[45]

The respondent asserts the contrary. No error
    has been established. All that occurred was that the trial judge reasonably
    exercised his discretion to exclude evidence that fell short of what s. 276(2)
    requires to permit reception. This is essentially a relitigation of the
    findings of fact the trial judge made at first instance with no basis to do so.

[46]

Section 276, the respondent submits, enacts a
    rule of presumptive inadmissibility for evidence of a complainants sexual
    activity extrinsic to that which is the subject-matter of the offence charged.
    The requirements for exceptional admission include that the proposed evidence
    be of specific instances of sexual activity that is relevant to an issue at
    trial and has significant probative value that is not substantially outweighed
    by the danger of prejudice to the proper administration of justice. The use an
    applicant proposes to make of the proffered evidence must not invoke twin myth
    reasoning. Nor are claims that the evidence will provide context, assist in the
    completion of narrative, or help the trier of fact determine credibility
    sufficient to overcome the presumptive inadmissibility of this evidence.

[47]

The respondent says that the trial judge was
    right to conclude that the proposed evidence about the interaction of the
    appellant and M.C. at the nightclub was inadmissible. Evidence of kissing and
    sexually provocative dancing six months earlier had no probative value on
    either defence advanced at trial  consent or honest but mistaken belief in
    communicated consent. And, as the authorities makes clear, unparticularized
    assertions that the evidence is relevant to complete the narrative, provide
    context or assist in determining M.C.s credibility are inadequate to reverse
    the rule of presumptive inadmissibility. Further, there is no defence of
    implied or broad advance consent, only activity-specific contemporaneous
    consent to which the proposed evidence is not relevant.

[48]

As for the evidence about contemporaneous
    discussions of sexual preferences and prior experiences, the respondent
    continues, this is not evidence of specific instances of sexual activity as
    s. 276 requires. In addition, the proposed evidence impermissibly tread on
    M.C.s general sexual behaviour and engaged a prohibited chain of reasoning
    from prior conduct to the likelihood of consent. It provided no evidentiary
    support for a defence of honest but mistaken belief in communicated consent because
    it relied on the same prohibited chain of reasoning. The trial judge was right
    to exclude this evidence although, as the respondent points out, some of it
    trickled in during the appellants cross-examination.

The Governing Principles

[49]

The application of s. 276 of the
Criminal
    Code
is governed by recent and well-settled precedent. An exegesis is not
    required. A brief discussion will suffice.

[50]

First, s. 276 enacts a regime governing the
    reception of evidence of extrinsic sexual activity by the complainant in
    proceedings in respect of listed offences. The regime has two components. Rules
    of admissibility. And procedural requirements to be met when evidence of the
    complainants extrinsic sexual activity is offered for admission:
R. v.
    Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 64;
R. v. R.V.
,
    2019 SCC 41, 378 C.C.C. (3d) 193, at paras. 2, 36, 44. The procedural
    requirements included by reference in s. 276(2) have been amended since the
    appellants trial. These reasons refer to and apply the provisions in force at
    trial, as do the precedents on which reliance is placed.

[51]

The evidentiary rule enacted by s. 276(1) is
    exclusionary in nature. The rule is one of inadmissibility engaged when its
    three components coalesce:

i.

proceedings in respect of a listed offence;

ii.

a species of evidence, evidence of extrinsic
    sexual activity by the complainant; and

iii.

a specific purpose for which the evidence is
    tendered for admission.

The rule is unremitting in its
    exclusionary effect:
Barton
, at paras. 60, 80;
R.V.
, at
    paras. 2, 44;
R. v. Goldfinch
, 2019 SCC 38, 380 C.C.C. (3d) 1, at
    paras. 40, 43, 90.

[52]

Section 276(2) is primarily, but not exclusively
    exclusionary. It does permit the admission of evidence of the complainants
    extrinsic sexual activity provided the evidence proposed for admission
    satisfies the conditions precedent imposed by the subsection:
Barton
,
    at para. 61;
R.V.
, at paras. 2, 45;
Goldfinch
, at para. 40.
    To engage the inclusionary exception, the evidence must be of specific
    instances of sexual activity relevant to an issue at trial. It must not be
    adduced to support an inference prohibited by the exclusionary rule of s.
    276(1) and have significant probative value that is not substantially
    outweighed by the danger of prejudice to the proper administration of justice.
    In determining whether the evidence will be received, the trial judge must
    consider the factors in s. 276(3):
Barton
, at para. 63;
Goldfinch
,
    at para. 50.

[53]

Second, the language the complainant has
    engaged in sexual activity, which appears in both ss. 276(1) and (2),
    designates the nature of the evidence which may be exceptionally admitted. But,
    as s. 276(2)(c) clarifies, it must be evidence of specific instances of sexual
    activity. Neither the term specific instances nor the term sexual activity
    are defined in or for the purposes of s. 276. However, when read
    purposively and contextually specific instances refers to discrete acts of
    sexual activity not general reputation. The degree of specificity required
    depends upon a variety of factors. The circumstances of the case. The nature of
    the activity. And the use proposed for the evidence:
R.V.
, at paras.
    48‑49;
Goldfinch
, at para. 53. The section enjoins broad exploratory
    questioning:
R.V.
, at para. 47.

[54]

Third, the requirement of relevance to an issue
    at trial in s. 276(2)(b).

[55]

Evidence is relevant if it has some tendency, as
    a matter of logic and human experience, to make the proposition of fact for
    which it is advanced slightly more likely than that proposition would be
    without that evidence. The standard is not demanding:
R. v. Calnen
,
    2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108.

[56]

Bare assertions that evidence of a complainants
    extrinsic sexual activity is relevant to provide context for other evidence, to
    amplify the narrative or to impugn the complainants credibility, fall short of
    the standard required by s. 276(2)(b):
Goldfinch
, at paras. 5, 40, 51,
    95-96, 120, 124.

[57]

Evidence of a complainants extrinsic sexual
    activity may be relevant to rebut evidence adduced by the Crown:
R.V.
,
    at paras. 56, 66;
Goldfinch
, at paras. 57, 113. Or to a defence of
    honest but mistaken belief in communicated consent. However, that belief cannot
    simply rest upon evidence that the complainant consented at some time in the
    past. For that would implicate twin myth reasoning:
Goldfinch
, at para.
    62. No proposed use of the evidence may invoke twin myth reasoning which is
    subject to the exclusionary rule of s. 276(1):
Goldfinch
, at paras.
    51, 56, 58, 120.

[58]

Fourth, an applicant who wishes to introduce
    evidence of a complainants extrinsic sexual activity will not succeed simply
    by showing that the proposed evidence is sufficiently specific and relevant to
    an issue at trial. The evidence must also have significant probative value that
    is not substantially outweighed by the danger of prejudice to the
    administration of justice considering the factors enumerated in s. 276(3):
R.V.
,
    at para. 60.

[59]

A final point has to do with the reviewability
    of an order made on an application to admit evidence by exception under s.
    276(2). Like other orders relating to the conduct of a trial, including those
    having to do with the admissibility of evidence, orders made under s. 276(2)
    may be varied or revoked should there be a material change in circumstances as
    the trial unfolds:
Barton
, at para. 65;
R.V.
, at para. 74.

The Principles Applied

[60]

A combination of factors persuades me that this
    ground of appeal cannot prevail.

[61]

In assessing the validity of claims of error in rulings
    on the receivability of evidence, the context in which the claim arises is of
    critical importance. It is especially so where a deficit alleged in the
    evidence in issue is its relevance. After all, relevance is not an inherent
    characteristic of any item of evidence. Relevance does not exist in the air,
    rather as a relationship between the item of evidence in issue and the
    proposition of fact the proponent of the evidence seeks to establish by its
    admission.

[62]

In this case, the items of evidence in issue
    have to do with extrinsic sexual activity of the complainant. Kissing and
    sexually provocative dancing with the appellant at a nightclub six months
    before the alleged offence. And discussions about prior sexual experiences and
    preferences prior to the beginning of the sexual activity that forms the
    subject matter of the charge. The evidence tendered in support of defences of
    consent and honest but mistaken belief in communicated consent.

[63]

The nightclub evidence was not relevant to the
    defence of consent because, in addition to its temporal remoteness, no defence
    of advance or implied consent exists. Consent exists, if at all, in the here
    and now. Contemporaneous voluntary agreement to the specific touching at issue,
    its sexual nature, and the identity of the complainants sexual partner. On
    this issue, the events at the nightclub had nothing to say. Equally so, on the
    claim of honest but mistaken belief in communicated consent, where its only
    claim to relevance follows a path of prohibited twin myth reasoning.

[64]

The failure of this evidence to satisfy the
    modest threshold required for relevance renders it inadmissible under s. 276(2)
    because it lacks significant probative value that is not substantially outweighed
    by the danger of prejudice (through twin myth reasoning) to the proper
    administration of justice.

[65]

The evidence of the contemporaneous conversation
    about sexual experiences and preferences may not qualify as evidence of
    specific instances of sexual activity as s. 276(2)(c) requires. However, its
    relevance to the issue of consent and honest but mistaken belief in
    communicated consent could only be established by invoking a prohibited chain
    of twin myth reasoning. It also comes uncomfortably close to reputation evidence,
    the admissibility of which is barred by s. 277 when offered to challenge the
    credibility of the complainant.

[66]

The trial judge correctly rejected this evidence
    when it was tendered for reception on a pre-trial application. Nothing that
    occurred during the trial warranted a re-evaluation of its admissibility, much
    less a contrary conclusion.

Ground #2: Honest but Mistaken Belief in Communicated
    Consent

[67]

The second ground of appeal alleges judicial
    error in failing to instruct the jury on the defence of honest but mistaken
    belief in communicated consent. The parties and trial judge frequently
    discussed the availability of this defence at trial. In the end, the trial
    judge concluded that the evidence adduced was not up to the task set for it by
    the air of reality standard. He declined to instruct the jury on the defence.

[68]

The evidentiary background has been canvassed
    earlier and requires no repetition here. A brief reference to the basis upon
    which the appellant relied to press the defence into service is sufficient for
    our purposes.

The Essential Background

[69]

In support of his submission that the defence
    should be left to the jury, the appellant relied upon a mélange of his own and
    M.C.s testimony about the applicable roles. The respondent does not gainsay
    the availability of this means of satisfying the evidentiary threshold, only
    the conclusion that should follow.

[70]

The appellant described M.C. as a willing participant
    in the several incidents of sexual activity that occurred. She did not say
    no, indeed initiated some of the activity herself, including the acts of
fellatio
,
    then positioned herself in such a way as to facilitate digital penetration and
    vaginal intercourse. This signalled to the appellant that M.C. was a consenting
    partner, or at the very least, led him to honestly believe that by her conduct
    that M.C. was consenting to what was taking place.

[71]

M.C. said no when the appellant asked for a
    kiss. Although she meant no, she did not speak in a serious tone. She
    laughed, giggled and smiled, her usual conduct when flirting with someone. She
    meant no even though she kissed the appellant back. She reacted the same way
    when he asked her for
fellatio
. When he repeated his requests in a
    barking tone, she complied.

[72]

As the sexual activities continued, progressing
    to digital penetration, vaginal intercourse, and further
fellatio
,
    M.C. said that she played along, moaned, and pretended that she enjoyed and
    wanted what was happening. She put on a show, hoping that this would prompt
    the appellant to ejaculate so that she could get her drugs and leave.

The Arguments on Appeal

[73]

The appellant submits that the trial judge erred
    in failing to leave the defence of honest but mistaken belief in communicated
    consent to the jury. There was evidence that satisfied the air of reality
    standard. And both parties, albeit for different reasons, agreed on the
    availability of the defence.

[74]

The trier of fact, the appellant says, can
    accept or reject some, none, or all of any witnesss testimony. A defence may
    be cobbled together in this way by taking bits and pieces of evidence from
    different sources and assessing their combined force against the air of reality
    standard. Although the trial judge was aware of this means of satisfying the
    standard, he erred in its application to the evidence adduced at trial.

[75]

In this case, the appellant urges, the trial
    judge failed to consider several relevant aspects of M.C.s evidence. That her
    no was not no spoken in a serious tone, although she meant what she said.
    Her body language was consistent with flirting and communicated a willingness
    to participate in sexual activity. She was acting throughout, moaning and
    making sexual sounds whose purpose was to make the appellant reach a sexual
    climax earlier.

[76]

The appellant adds that the trial judges
    failure to instruct the jury on the defence that he honestly but mistakenly
    believed that M.C. communicated her consent as to the sexual activity was
    exacerbated when the jury asked and the trial judge answered a question during deliberations.
    The question clearly indicated that the jury was struggling with this very
    issue even though they had never been instructed about it. The appellant sought
    a mistrial. The Crown agreed. But the trial judge continued with the trial,
    erring further and causing a miscarriage of justice.

[77]

The respondent supports the trial judges
    conclusion not to leave the defence to the jury. M.C. said no to the various
    forms of sexual activity. The appellants attempts to invoke honest but
    mistaken belief in communicated consent are foreclosed for several reasons. He
    took no reasonable steps to find out whether M.C. consented. He was reckless or
    wilfully blind to the absence of consent.

[78]

In this case, the central issue involved the
    credibility of the authors of two competing versions about sexual conduct that
    was largely uncontroversial. M.C. said she did not consent to the activity. If
    believed with the necessary degree of certainty, her evidence was dispositive of
    the issue of consent as an element of the
actus reus
. The appellants
    perception of M.C.s state of mind was of no consequence on this issue.

[79]

The Crown also had to prove the fault element in
    sexual assault. This required evidence to establish that the appellant intended
    to touch M.C. and at that time knew, was reckless, or was wilfully blind that
    M.C. did not consent to the touching. It was to this element that the claim of
    honest but mistaken belief in consent related. If the appellant honestly
    believed that M.C., by her words or conduct or some combination of both,
    communicated her consent to engage in each specific sexual activity alleged, he
    was entitled to be acquitted.

[80]

The respondent says that, like any defence,
    whether honest but mistaken belief in communicated consent can be considered by
    the trier of fact depends on whether the evidence adduced at trial provides an
    air of reality for the defence. And that requires that there be evidence on the
    basis of which the trier of fact, acting reasonably, could find that the
    appellant took reasonable steps to ascertain M.C.s consent and honestly
    believed M.C. communicated her consent to the relevant activity. And the belief
    must not originate in a state of self-induced intoxication, recklessness, or
    wilful blindness.

[81]

In this case, according to the respondent, the
    defence was unavailable. There was no evidence that the appellant took any
    reasonable steps to determine whether M.C. consented to the sexual activity.
    She said no. He asked no questions. He simply did not listen to, instead
    ignored, her opposition. Nor does M.C.s evidence support any reasonable steps
    on the appellants part.

[82]

The respondent accepts that the jurys question
    related to the appellants state of mind. After all, the Crown must prove as an
    essential element of the offence that the appellant knew that M.C. did not
    consent to the sexual touching in issue, or was reckless or wilfully blind as
    to whether she consented. This is a different question that required and
    received a correct response. That it was asked does not mean that the trial
    judge should have instructed the jury on the defence asserted. The availability
    of defences depends on an air of reality, not jury questions.

The Governing Principles

[83]

The principles that inform our assessment of
    this ground of appeal derive from two sources. The first describes the standard
    required to satisfy the air of reality requirement to put a defence in play at
    trial. And the second defines the scope of the specific defence in issue 
    honest but mistaken belief in communicated consent.

[84]

The air of reality standard requires a trial judge
    to consider all of the evidence adduced at trial and to assume the evidence an
    accused relies upon in support of a defence in issue to be true:
R. v.
    Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53. The test is whether
    there is evidence upon which a properly instructed jury acting reasonably could
    acquit if it believed the evidence to be true:
Cinous
, at paras. 49,
    82;
R. v. Gauthier
, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23;
R.
    v. Mayuran
, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21.

[85]

A trial judges threshold determination about an
    air of reality does not target the substantive merits of the defence,
    justification, or excuse in issue. The reason is simple: that issue falls
    within the exclusive province of the jury. And so it is that the trial judge
    does not:

i.

make determinations about the credibility of
    witnesses;

ii.

weigh the evidence;

iii.

make findings of fact; or

iv.

draw determinate factual inferences.

Whether the defence is likely,
    unlikely, somewhat likely, or very likely to succeed at the end of the day is
    beside the point for the trial judge:
Cinous
, at para. 54.

[86]

Where the defence, justification, or excuse upon
    which an accused relies depends upon circumstantial evidence, or contains an
    objective (reasonableness) component, the trial judges task is to examine the
    field of factual inferences that can reasonably be drawn from the evidence.
    This field of factual inferences must extend to those necessary for the defence
    to succeed:
Mayuran
, at para. 21, citing
Cinous
, at para. 91.

[87]

The fault element in sexual assault consists of
    the intention to touch the complainant knowing that, or being reckless or being
    wilfully blind to, a lack of consent on the part of the complainant:
Barton
,
    at para. 87, citing
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 42.

[88]

For the purposes of the defence of honest but
    mistaken belief in communicated consent, consent means that the complainant,
    by words, conduct, or a combination of both, affirmatively communicated her
    agreement to engage in the sexual activity alleged with the accused. In other
    words, the question to be answered is whether the accused honestly believed the
    complainant effectively said yes through her words and/or conduct:
Barton
,
    at para. 90, citing
Ewanchuk
, at para. 49.

[89]

The requirement for the defence that an accused
    have an honest but mistaken belief that the complainant actually
communicated
consent by words, conduct, or both means that the principal considerations in
    determining its availability are:

i.

the complainants actual communicative
    behaviour; and

ii.

the totality of the relevant and admissible
    evidence explaining how the accused perceived the complainants behaviour to
    communicate consent.

See,
Barton
, at para. 91,
    citing
R. v. Park
, [1995] 2 S.C.R 836, at para. 44.

[90]

The availability of the defence of honest but
    mistaken belief in communicated consent is circumscribed by the provisions of
    s. 273.2. Those limitations include restrictions on the source or origins of
    the appellants belief and the requirement in s. 273.2(b) that the accused take
    reasonable steps, in the circumstances of which the accused was aware at the
    time, to ascertain that the complainant was consenting to the sexual activity
    in which they were engaged. No reasonable steps, no defence:
Barton
,
    at para. 104.

[91]

The reasonable steps requirement in s. 273.2(b)
    includes both objective and subjective elements. The steps of the accused must
    be objectively reasonable. The reasonableness of those steps must be assessed
    in the circumstances as they were then known to the accused:
Barton
,
    at paras. 101, 104.

[92]

Some things are not reasonable steps. For
    example, any steps grounded in rape myths or stereotypical assumptions about
    women and consent cannot constitute reasonable steps. Reliance on a
    complainants silence, passivity, or ambiguous conduct cannot constitute a
    reasonable step:
Barton
, at paras. 107, 109.

[93]

In some cases, the reasonable steps requirement
    will be elevated. Such as the invasive nature of the sexual activity in issue.
    Or the enhanced risk posed to health and safety of those involved. Or the lack
    of familiarity between the participants:
Barton
, at para. 108.

[94]

Where an accused seeks to rely on the defence of
    honest but mistaken belief in communicated consent, he must establish first
    that there is an air of reality to the defence. In concrete terms, this means
    that the trial judge must first consider and decide whether there is any
    evidence on the basis of which a reasonable trier of fact acting judicially
    could find that the accused:

i.

took reasonable steps to ascertain the
    complainants consent; and

ii.

honestly believed the complainant communicated
    consent.

See,
Barton
, at para. 121.

The Principles Applied

[95]

I would not give effect to this ground of
    appeal. In my respectful view the trial judge properly concluded that the
    evidence adduced at trial, taken as a whole, fell short of the air of reality
    threshold required to put this defence in play.

[96]

Honest but mistaken belief in communicated
    consent is a mistake of fact defence. A mistake of fact defence operates where
    an accused mistakenly perceives facts that negate or raise a reasonable doubt
    about the fault element in an offence. It is a defence that is rarely invoked.
    It does not arise by necessary implication in every case in which a complainant
    says sexual assault and an accused says consent. The evidence, taken as a
    whole, must satisfy the air of reality standard to put the defence in play in
    light of the statutory limitations imposed on its availability.

[97]

To satisfy the air of reality threshold and
    require submission of the honest but mistaken belief in communicated consent
    defence to the jury, the trial judge must be satisfied, on the basis of the
    evidence taken as a whole, that there is evidence on the basis of which a
    reasonable trier of fact, acting judicially, could find that the appellant:

i.

took reasonable steps to ascertain that M.C.
    voluntarily agreed to each physical act, its sexual nature, and that it occurred
    with the appellant as her sexual partner; and

ii.

honestly believed M.C. communicated her consent.

[98]

In this case, there was no evidence to satisfy
    the air of reality standard in relation to the reasonable steps requirement.
    M.C. testified that she said no to the appellants sexual demands. But he
    proceeded nonetheless, repeating his demands in a barking tone. The appellant
    claimed that M.C. was an active participant who initiated much, if not most, of
    the sexual activity. Nothing was said as the activity progressed through its
    various stages.

[99]

In addition, the appellants claim of honest but
    mistaken belief in communicated consent is flawed because it appears grounded,
    in some respects at least, on impermissible mistakes of law, not permissible
    mistakes of fact. An assumption of implied consent based on the appellants
    evidence that M.C. never said no, thus impliedly consented to any and all
    sexual activity. A failure to consider that M.C.s consent had to be contemporaneous
    and activity-specific, not an agreement to all activity of an undefined scope.

[100]

This is also a case in which the threshold for satisfying the
    reasonable steps requirement was elevated. The sexual activity was invasive in
    nature. There was an enhanced risk to M.C.s health because of unprotected
    sexual intercourse. The parties were not all that familiar with each other,
    never having been alone on any previous occasion. The risk of miscommunication,
    misunderstanding and mistake was palpable.

[101]

The jurys question does not mandate a different answer to whether
    the trial judge erred in failing to instruct the jury on the defence of honest
    but mistaken belief in communicated consent. What triggers the obligation to
    instruct the jury on a defence, justification, or excuse is the capacity of the
    evidence adduced at trial to satisfy the air of reality standard for each and
    every element of that defence, justification, or excuse. A question posed by a deliberating
    jury has nothing to say about the adequacy of the evidentiary record to meet
    the standard required.

[102]

The jurys question related to the fault element the Crown was
    required to prove to establish the appellants guilt of sexual assault. It was
    answered correctly and is of no consequence to this ground of appeal.

Ground #3: The Section 10
Charter
Infringement

[103]

This ground of appeal challenges the correctness of the ruling made
    on a pre-trial application to exclude evidence of a video recorded post-arrest
    interview of the appellant. The ruling was made at the conclusion of a blended
voir
    dire
in which the Crown sought to have it declared voluntary so that the
    appellant could be cross-examined on it if he testified. Defence counsel sought
    its exclusion for all purposes because of various
Charter
infringements,
    among them ss. 10(a) and (b).

[104]

In written reasons released about eight months after argument on the
    application, the trial judge was satisfied beyond a reasonable doubt that the
    interview was voluntary. He was not persuaded that the interview was the product
    of any
Charter
infringement. This ground of appeal contests the
    correctness of the ruling in relation to the infringement of s. 10 of the
Charter
.

The Essential Background

[105]

The sexual assault of M.C. took place on February 27, 2016. She
    reported it to police within a few days. Her report included reference to the
    appellants supply and her purchase of cocaine. Within a matter of weeks, the
    police began an investigation of the appellants involvement in drug
    trafficking.

The Undercover Drug Buy

[106]

On April 12, 2016, about three days after the drug investigation
    began, the appellant sold 3.5 grams of cocaine. The transaction occurred in a
    motor vehicle in the parking lot of an apartment building. The motor vehicle
    belonged to the police service conducting the investigation. The purchaser was
    an undercover police officer.

The Arrest

[107]

After the drug transaction had been completed, two men approached the
    vehicle. They were police officers dressed in plainclothes. They identified
    themselves as police officers and told the appellant he was under arrest. The
    appellant, who said he was concerned that the men may have been robbers,
    resisted. He was taken to the ground, a single elbow strike delivered to his
    forehead to distract him from resistance. The blow was not intended to hurt
    him.

The
Charter
Advice

[108]

The appellant was handcuffed and taken to a police van. There, an
    officer explained to him that he had been arrested on two counts of trafficking
    and two counts of possession of the proceeds of crime. The officer also read
    the appellant his right to counsel, including his right to free legal advice
    from duty counsel, in relation to the drug charges. The officer understood that
    the appellant would be investigated further by officers from the Sex Crimes
    Unit while he was in custody, but he did not mention any potential charges when
    he read the appellant his s. 10
Charter
advice.

[109]

The appellant told the police that he wanted to speak to duty
    counsel.

The Transport to 51 Division

[110]

On the way to 51 Division, the appellant cried. He said he was
    scared. His mother would be devastated when she learned of his arrest. He
    complained of pain because the handcuffs were too tight. During the 45-minute trip
    to 51 Division, the officers did not try to elicit any information from the
    appellant.

The Booking Procedure

[111]

At the booking desk at 51 Division, the appellant was again advised
    of the reasons for his arrest  charges of trafficking and possession of the
    proceeds of crime  and his rights under s. 10(b) of the
Charter
. He
    accepted the police offer to speak with duty counsel. He was also told that,
    since he had been arrested for drug trafficking, he would be required to
    undergo a strip search. When asked about any injuries, his only complaint had
    to do with the tightness of the handcuffs and the anxiety from which he
    suffered.

[112]

When the strip search had been completed, officers brought the
    appellant back to the booking area where he could be put in contact with Duty
    Counsel.

The Discussion with Duty Counsel

[113]

DC Peck, an officer with the Sex Crimes Unit, called Duty Counsel at
    9:17 p.m. She left a message explaining that the appellant was at 51
    Division after his arrest on two counts of each of sexual assault, trafficking,
    and proceeds of crime. When Duty Counsel called back at 9:23 p.m., he and the
    appellant spoke for about four minutes. Duty Counsel, the parties agreed, did
    not tell the appellant about the charges on which he had been arrested.

The Police Interview

[114]

DC Peck escorted the appellant from the holding cells to the
    interview room. As they walked along, she told the appellant that M.C. and
    another woman had alleged that he had sexually assaulted them. The only sexual
    offence with which the appellant was charged was the sexual assault on M.C.

[115]

The police interview of the appellant began about 20 minutes after
    the appellant had spoken to Duty Counsel. The appellant confirmed that he had
    spoken to Duty Counsel and had been advised to say nothing to the police.
    However, and despite this advice, he agreed to speak to DC Chin who said that
    he was from the Sex Crimes Unit and was not there to talk about the drug
    charges. The appellant did not deny that he had been advised of the two charges
    of sexual assault and told the names of the complainants. He knew one of them
    (not M.C.) but could not recall the name of the other (M.C.).

[116]

DC Chin explained the meaning of sexual assault to the appellant.
    They canvassed the allegations of the second complainant. The appellant repudiated
    sexual activity with her. They also discussed M.C.s allegations. The appellant
    denied that M.C. had visited him at his apartment. He also denied that M.C. rubbed
    his back and his penis and that she performed
fellatio
on him, or that
    they had sexual intercourse.

[117]

At no time during the police interview did DC Chin advise the
    appellant of his right to counsel or read either the primary or secondary
    police caution to him on the sexual assault charge. The appellant denied any
    police threats. At the end of the interview, the appellant asked DC Chin for a
    hug. The officer obliged. He also facilitated a telephone call between the
    appellant and his girlfriend.

The Ruling of the Trial Judge

[118]

The trial judge concluded that the Crown had proven the
    voluntariness of the appellants interview beyond a reasonable doubt. This, he decided,
    entitled the Crown to cross-examine the appellant on any statements made during
    the interview that were inconsistent with his testimony at trial should he give
    evidence in his own defence.

[119]

Turning to the allegation of
Charter
infringement, the
    trial judge was satisfied that the appellant had been advised of the reasons
    for his arrest as required by s. 10(a). DC Peck had told him about the two
    charges of sexual assault, including the names of the complainants, before the
    interview with DC Chin began. This occurred shortly after completion of the
    booking on the drug related charges. The judge rejected the appellants
    evidence that he had not been advised of his right to counsel until after he
    had spoken to duty counsel. The appellant had failed to establish, on a balance
    of probabilities, a breach of s. 10(b) of the
Charter
.

The Arguments on Appeal

[120]

In support of this claim of error, the appellant asks that we keep
    in mind that ss. 10(a) and (b) of the
Charter
work together. Section
    10(a) requires that a detainee be advised promptly of the reasons for their
    detention. Section 10(b) requires prompt advice about the right to counsel and demands
    that police facilitate access to counsel when the detainee requests it. And
    hold off eliciting evidence from the detainee until legal advice has been
    provided. The combination ensures that the detainee is aware of the extent or
    nature of their jeopardy and thus is in a position, with the benefit of legal
    advice, to make a meaningful and informed decision about whether to cooperate
    or decline to participate in subsequent investigative requests.

[121]

Where a detainees jeopardy changes, as it did here when the
    investigation turned to allegations of sexual assault, police have a duty to
    readvise the detainee of the reasons for their detention and of their right to
    retain and instruct counsel. In each case, the duty is to be discharged
    promptly. Here, neither duty was discharged as it should have been. The advice
    about the reasons for detention was not provided in a timely way, rather casually
    at best after the appellant had spoken to duty counsel about the drug charges.
    And the record is barren of any evidence that the appellant was advised of his
    right to the advice of counsel on the sexual assault charge.

[122]

The appellant says that the trial judge erred in concluding that
    there had been no breach of either ss. 10(a) or (b) of the
Charter
.
    Serious breaches of both occurred. These breaches had a significant impact on
    the appellants
Charter
protected interests. In combination, these factors
    warranted exclusion of the video recorded interview as evidence, no matter the
    manner in which the Crown used it to advance its case.

[123]

The respondent contends that the critical findings of fact made by
    the trial judge were reasonably available to him on the evidence adduced on the
    pre-trial application. These findings are entitled to deference in this court.
    The appellant has failed to demonstrate any error in the application of the
    governing legal principles to those factual findings. As a result, this ground
    of appeal should be rejected.

[124]

In this case, the respondent says, the trial judge was entitled to
    find that the appellant was not a credible witness and that his evidence on the
    relevant issues was unreliable. Equally available on the evidence was a finding
    that the appellant had been properly informed about the reasons for his arrest,
    in particular, the allegations of sexual assault, before he spoke with duty
    counsel and was advised to say nothing to the police. Likewise, findings that
    the appellant understood the nature and extent of his jeopardy and whether he
    should speak to investigators or decline to participate in any questioning.

[125]

In the alternative, the respondent submits that any s. 10 breach
    that may have occurred was minor and had a minimal impact on the appellants
Charter
-protected
    interests. These two factors, as well as societys interest in the adjudication
    of the case on its merits, would result in reception of the evidence under s.
    24(2) of the
Charter
.

The Governing Principles

[126]

In this court, the appellant restricts his complaint about the
    ruling admitting the video recorded interview as evidence to complaints about infringements
    of ss. 10(a) and (b) of the
Charter
.

[127]

Among other things, s. 10(a) of the
Charter
is an adjunct to
    the right to counsel for which s. 10(b) provides. This is so because an
    arrested or detained person can only exercise their rights under s. 10(b) in a
    meaningful way if the person knows the nature and extent of their jeopardy:
R.
    v. Evans
, [1991] 1 S.C.R. 869, at p. 887.

[128]

In determining whether there has been a breach of s. 10(a), what
    controls is the substance of what the detainee can reasonably be supposed to
    have understood from what they were told, not the formalism of the precise
    words used in the advice. The question is whether what the detainee was told,
    viewed reasonably in all the circumstances of the case, was enough to permit
    them to make a reasonable decision to undermine the right to counsel:
Evans
,
    at p. 888.

[129]

Breaches of s. 10(a) can occur in either or both of two ways. A
temporal
breach of s. 10(a) occurs when the detainee is not promptly advised of the
    reasons for their detention. An
informational
breach takes place if
    the reasons for their detention are not communicated in a way that permits the
    detainees adequate understanding:
R. v. Roberts
, 2018 ONCA 411, 360
    C.C.C. (3d) 444, at para. 63. When the reason for a persons detention has
    changed, police are required to re-perform their s. 10 duties including those
    of s. 10(a):
Roberts
, at para. 71.

[130]

The purpose of the right to counsel in s. 10(b) of the
Charter
is to allow a detainee, apprised of the reasons for their detention under s.
    10(a), not only to be informed of their rights and obligations under the law, but
    also, equally if not more important, to obtain advice about how to exercise
    those rights:
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at
    para. 26.

[131]

Section 10(b) fulfills its purpose in two ways. The first is by
    requiring that the detainee be informed of their right to counsel. This is the
informational
component. The second is by requiring that the detainee be given a reasonable
    opportunity to exercise their right to consult counsel. This is the
implementational
component:
Sinclair
, at para. 27;
R. v. Willier
, 2010 SCC 37,
    [2010] 2 S.C.R. 429, at paras. 29-30. The implementational duty also includes a
    requirement that police hold off in their questioning or other conduct designed
    to elicit evidence from the detainee until the detainee has had a reasonable
    opportunity to exercise their right to counsel:
Willier
, at paras. 32-33.

[132]

The emphasis in the right to counsel is on assuring that any
    decision by the detainee to cooperate in the investigation, or to decline to do
    so, is at once voluntary and informed by legal advice. Section 10(b) does not
    guarantee a wise decision by the detainee or a decision free of the influence
    of subjective factors, only an opportunity to access legal advice to inform
    that decision:
Sinclair
, at para. 26.

[133]

A one-time only consultation rule is inadequate to fulfill the purpose
    of s. 10(b). And so it is that a detainee is entitled to speak to a lawyer
    again, and be advised of the right to do so, when a change in circumstances,
    such as a change in the nature and extent of jeopardy faced by the detainee,
    occurs:
Sinclair
, at paras. 48, 51;
R. v. McCrimmon
, 2010 SCC
    36, [2010] 2 S.C.R. 402, at para. 21.

The Principles Applied

[134]

I would not give effect to this ground of appeal. It largely
    recycles arguments advanced to and rejected by the trial judge and invites us
    to substitute findings of fact for those made at first instance.

[135]

It is beyond controversy that the appellants arrest and initial
    advice in compliance with ss. 10(a) and (b) of the
Charter
related to
    drug transactions in which he had engaged with an undercover police officer.
    The drug sale was opportunistic. It entitled the police, aware of a concurrent
    investigation into allegations of sexual assault, to arrest the appellant, take
    him into custody, and make him available for questioning by officers from the Sex
    Crimes Unit should he choose to do so.

[136]

At the booking desk, the reasons for the appellants arrest were
    reconfirmed. Likewise, that he had been advised and had chosen to exercise his
    right to counsel on those charges. A strip search followed in light of his
    arrest and detention on trafficking charges.

[137]

The trial judge concluded that DC Peck had advised the appellant of
    the sexual assault allegations shortly after the booking and strip search
    procedure had been completed on the drug and proceeds charges. She also advised
    duty counsel in the message she left that the appellant was detained on two
    counts of each of sexual assault, trafficking, and possession of the proceeds
    of crime. Thus, duty counsel was aware of the sexual assault allegations when
    he and the appellant spoke and he advised the appellant to say nothing to the
    police. The appellants awareness of the charges was confirmed at the outset of
    the interview with DC Chin when he offered no demur to the officers mention of
    what he wanted to talk to the appellant about.

[138]

Despite the absence of any evidence from DC Peck about the details of
    any advice she gave the appellant about the sexual assault charges, the
    appellant admitted that she had told him about the allegations. This informal
    admission afforded a sufficient basis to find the required notice. It was the
    appellants burden to establish an infringement of the components of s. 10(b).
    The trial judge, for understandable reasons, rejected the appellants denial
    that he had received the requisite advice. In other words, the appellant failed
    to establish an infringement on a balance of probabilities.

[139]

This ground of appeal fails.

Ground #4: The Unbalanced Charge to the Jury

[140]

The final ground of appeal from conviction challenges the
    objectivity of the charge to the jury. The claim is grounded on an alleged
    disparity in the frequency of direct references to the evidence of the
    principals and a failure to balance a reference to the admitted lies of the
    appellant in his police interview with mention of what is said to be M.C.s
    perjury at trial. Assessment of this ground of appeal requires brief reference
    to two aspects of the evidence adduced at trial and a portion of the charge to
    the jury.

The Essential Background

[141]

In recounting her memory of the act of
fellatio
which she
    said lasted 60 to 90 seconds, M.C. initially testified that the appellant
    forced her mouth onto his penis by putting his hands on her head and shoving
    her head down to begin the act. When cross-examined on her testimony about the
    same events at the preliminary inquiry, M.C. accepted that the appellant had
    not touched her for the first 30 seconds although he did so for the balance of
    that sexual activity. The appellant characterizes this discrepancy as perjury.

[142]

On four occasions, the trial judge referred to the fact that the
    appellant admitted having lied to the police during the video recorded
    interview. He was not under oath. Nor had he been warned about the obligation
    to tell the truth or the consequences of lying.

[143]

The second inclusion alleged to have disrupted the balance necessary
    in the charge was a reference to some evidence elicited inadvertently in the
    trial Crowns cross-examination of the appellant.

[144]

The response revealed that another complainant had alleged that the
    appellant sexually assaulted her. When the evidence was adduced, defence
    counsel asked the trial judge, in the absence of the jury, to declare a
    mistrial. The trial judge refused.

[145]

In the charge to the jury, a written copy of which was provided to
    the jury, the trial judge included a summary of this evidence under the heading
    Irrelevant Evidence. He explained that jurors were to completely disregard
    the fact of a second complaint of sexual assault against the appellant and
    assign it no weight in determining whether the appellant was guilty of the
    offence charged. The appellant says this reference, which recalled evidence
    likely long forgotten by the jury, contributed to an imbalanced charge.

The Arguments on Appeal

[146]

The appellant accepts that an accused is entitled to a proper, but
    not a perfect charge. An essential component of a proper charge is a fair and
    balanced recital of the evidence that is relevant to the controverted issues at
    trial, in this case, consent. But the jury did not receive their entitlement.
    Instead, the jury was provided with numerous direct references to the testimony
    of M.C. and sparse mention of the appellants version of events. This imbalance
    could only have signalled that M.C.s testimony was entitled to greater weight
    in deciding what verdict to render than that of the appellant.

[147]

The trial judge repeatedly told the jury that the appellant lied and
    admitted that he lied to the police. He was not under oath nor warned about the
    consequences of lying at the outset of the interview. This would suggest to the
    jury that his evidence could not be believed. After all, he was an admitted
    liar. But M.C. had also lied. And her lies were under oath. She committed
    perjury in testifying about the early stages of
fellatio
. The trial
    judge should have counterposed his reference to the appellants lies with a
    citation of M.C.s perjury. His failure to do so contributed to an imbalance in
    the charge.

[148]

The trial judges reference to the sexual assault allegations of
    another complainant also contributed to an imbalance in the charge. This
    evidence, inadvertently disclosed by the appellant in cross-examination, was
    irrelevant, immaterial, and offended the admissibility rule relating to
    extrinsic misconduct. It invited propensity reasoning. Nothing should have been
    said about it in the charge. Instead, the trial judge reminded the jury of its
    substance before telling them not to use it in their deliberations. The recitation
    of the conduct nullified the prohibited use aspect of the instruction.

[149]

The appellant accepts that a trial judge is entitled to comment on
    the evidence of witnesses and factual controversies at trial. But the comments
    must amount to advice, not direction, and not leave the impression that the
    jury should make certain findings of fact. The references here fell foul of
    that distinction.

[150]

The respondent rejects any suggestion of imbalance in the charge to
    the jury. The charge was proper as is the appellants entitlement. That it may
    not have been perfectly congruent with the appellants perception of his due is
    of no moment. Perfection is the right of neither party.

[151]

In assessing the adequacy of final instructions to the jury, an
    appellate court applies a functional approach to determine whether those
    instructions achieve their purpose. And that purpose is to ensure that the jury
    understands the factual issues they are required to resolve; the legal
    principles to be applied to determine those issues; the positions of the
    parties; and the evidence relevant to the positions of the parties on those
    issues. There is no requirement of equal time in the review of the positions of
    the parties, nor any obligation to review all the evidence. Trial judges are
    entrusted with a discretion that permits them to decide the nature and content
    of the final instructions best suited to the needs of the case.

[152]

In this case, the respondent says, a functional approach to an
    assessment of the adequacy of the charge demonstrates that it conveyed the
    defence position fairly and adequately. The trial judge explained that it was
    the jurys duty to make their own findings of fact. These findings were to be
    made on the basis of the evidence as a whole, not just on those portions of the
    evidence the judge reviewed in his charge. Further, the jury was free to ignore
    any comments the judge made or opinions he expressed about issues of fact.

[153]

The trial judges approach to the evidence, the respondent urges,
    was fair and balanced. The issue for the jury to decide was whether the Crown
    had proven the allegations contained in the count beyond a reasonable doubt.
    The evidence on which the Crown relied was the testimony of M.C. The critical
    issue  consent  had to do with M.C.s state of mind. Thus, the need to review
    her evidence at some length. The same could be said about the importance of
    consent in connection with the fault element in sexual assault. Where
    appropriate, the trial judge summarized the contrary evidence of the appellant
    and fully and fairly recited the position of the defence in language of defence
    counsels own choosing.

[154]

The respondent dismisses the appellants claim of imbalance based on
    the trial judges failure to counterbalance his references to the appellants
    lies to the police with a mention of M.C.s perjury. M.C. was cross-examined
    on her evidence at the preliminary inquiry about the early stages of the
fellatio
in which she engaged with the appellant. She adopted a portion of that evidence
    as true. This was simply cross-examination on a prior inconsistent statement, a
    commonplace in criminal trials. The trial judge instructed the jury in terms to
    which no objection is or could be taken about the evidentiary value of the
    prior statements, including the effect of their adoption by a non-accused
    witness. Adoption of a prior inconsistent statement by a witness, without more,
    is not perjury. It follows that the trial judge did not err in failing to
    characterize it as such or to juxtapose it to the appellants admitted lies.

[155]

No imbalance was created, the respondent submits, by the instruction
    recalling the inadmissible evidence about the second allegation of sexual
    assault with which the appellant was not charged. Not only did this reference
    cause the appellant no prejudice, its mention, which included a prohibition
    against evidentiary use, was essential to ensure clarity and stifle any
    tendency, if left untutored, to propensity reasoning.

The Governing Principles

[156]

Our approach to allegations of error in final instructions to the
    jury is functional. We test the instructions against the purpose for which they
    are given. Those purposes include ensuring that the jury understands what is
    and what is not evidence. And that the jury appreciates the value and effect of
    the evidence on the positions put forward at trial, especially, but not only,
    the position of the defence. Instructions do not warrant appellate intervention
    simply because more could have been said. Or because what was said could have
    been phrased differently or more felicitously:
R. v. Evans
, 2019 ONCA 715,
    147 O.R. (3d) 577, at para. 233.

[157]

A jury charge must leave the jury with a clear understanding of:

i.

the factual issues to be decided;

ii.

the legal principles governing the factual
    issues and the evidence received at trial;

iii.

the positions of the parties; and

iv.

the evidence relevant to the positions of the
    parties.

See,
Evans
, at para. 227.

[158]

The charge to the jury is a critical feature of every jury trial.
    Its strength is its objectivity. It is not the place for the taking of sides.
    Jury education. Not jury indoctrination. A charge must be fair and balanced so
    as not to compromise the actual or apparent fairness of the trial. It ought not
    promote unduly the case for the Crown. Nor should it effectively ignore and
    denigrate the defence case:
Evans
, at para. 229.

[159]

A trial judge is under no obligation to review every piece of
    evidence received at trial. Non-direction on an item of evidence amounts to
    reversable error only where the single item of evidence omitted from the charge
    is the foundation of a defence advanced at trial:
R. v. Daley
, 2007
    SCC 53, [2007] 3 S.C.R. 523, at para. 55, citing
R. v. Demeter
(1975),
    25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436, affd on other grounds, [1978] 1
    S.C.R. 538.

[160]

The extent to which a trial judge must review the evidence in their
    final instructions to the jury will depend on the circumstances of each case.
    The test is one of fairness. An accused is entitled to a fair trial at which
    they can make full answer and defence. They are not entitled to a perfect trial
    or the fairest trial possible. Provided the salient parts of the evidence are
    put to the jury so that the jury is able to fully appreciate its value and
    effect and the defence put forward, the charge is adequate:
Daley
, at
    para. 57.

The Principles Applied

[161]

In my respectful view, this ground of appeal lacks substance. I
    reach this conclusion for several reasons.

[162]

First, claims of imbalance in a jury charge cannot be sustained on
    the basis of a microscopic scrutiny of isolated portions of the charge.
    Imbalance can only be established, if at all, on a review of the charge as a
    whole and in the context of other trial events, such as the positions put
    forward and the addresses of counsel.

[163]

Imbalance in a jury charge is not determined as if it were an
    accounting exercise undertaken to produce a balance sheet. Debits on the one
    side of the ledger. Credits on the other. Precedent establishes no fixed number
    or ratio of evidentiary references among witnesses whose evidence is divergent.
    Fairness or balance is about assessing the whole to determine whether, in
    substance or effect, the instruction unduly promoted the case for the Crown and
    denigrated the defence case to such an extent that it was not fully presented
    to the jury.

[164]

In this case, the appellant relies upon three aspects of the charge
    to fund his claim of a lack of balance:

i.

the discrepancy in the number of times the trial
    judge referred to M.C.s evidence, as compared to the evidence of the
    appellant;

ii.

the failure to point out M.C.s perjury but
    repeated reference to the appellants lies to the police; and

iii.

the repetition of the substance of the inadmissible
    evidence about the other sexual assault allegation.

[165]

Whether they are considered singly or in combination, I am satisfied
    that these alleged deficiencies fall well short of what is required to
    establish the ground of appeal advanced.

[166]

This was a two witness case. The onus was on the Crown to prove the
    essential elements of the offence alleged beyond a reasonable doubt. Whether
    the Crown met or fell short of the standard of proof required depended on the
    jurys acceptance of the testimony of M.C. That more frequent reference would
    be made to M.C.s testimony in these circumstances is unremarkable. Without
    more, the mere fact that there were fewer mentions of the appellants testimony
    does not render the charge, considered as a whole in the context of this trial,
    unbalanced. This is all the more so when we consider the scope of the trial
    judges obligation to review the evidence and the standard applicable when we
    review a charge alleged to be deficient for failure to refer to items of
    evidence.

[167]

The charge also included repeated instructions that the jury was to
    consider the evidence as a whole in coming to their conclusion, not simply
    those portions of the evidence the trial judge rehearsed for them in his
    charge. In addition, they were told that it was their exclusive responsibility
    to find the facts from the evidence received at trial. And in this exercise
    they were required to ignore any views expressed directly or indirectly by the
    trial judge.

[168]

It is uncontroversial that the appellants evidence about a second
    allegation of sexual assault made against him was inadmissible. Trial counsel
    considered it sufficiently likely to induce propensity reasoning if left on its
    own that they sought a curative instruction or, failing which, a mistrial. The
    trial judge declined to provide a mid-trial corrective instruction or to
    declare a mistrial. In the trial judges view, a curative direction in the
    charge would be a sufficient prophylactic to prevent improper jury use of the
    evidence.

[169]

A commonplace occurrence in criminal jury trials is the inadvertent
    disclosure of inadmissible evidence. Depending upon its nature and extent and
    the other circumstances of individual cases, a trial judge, confronted with the
    unexpected, will often scan the jury and counsel to assess their reaction.
    Sometimes, the best course is to say and do nothing. On other occasions, some
    direction is required. But when? Immediately? After a short discussion with
    counsel, but still shortly after the evidence has been adduced? Or in the
    charge? Or both?

[170]

Whether to say anything, what to say, and when to say it are all
    issues for the trial judge to decide. They are the eye and ear witnesses to the
    proceedings, well versed in the trial environment. Their decisions on these
    issues are entitled to deference from those of us at one remove from the trial.
    And that is as it should be.

[171]

When intervention is left to await the charge, any instruction given
    will begin with a recital of the substance of the inadmissible evidence.
    Depending on the time that has elapsed between the two events, the substance of
    the evidence may have disappeared from the memories of the jurors. Thus, the
    instruction repeats the inadmissible evidence, only to direct the jury not to
    consider it in deciding the case. In other words, repeat the prejudice before
    removing it. But timing and repetition alone are not dispositive of whether the
    instruction caused any or irremediable prejudice.

[172]

In this case, the instruction headed Irrelevant Evidence, was
    brief as was the evidence to which it related. The prohibition against use was
    pointed and direct. It left no doubt that this evidence had no role to play in
    the jurys decision. It caused the appellant no prejudice and did not cause the
    charge to be unbalanced.

[173]

This ground of appeal fails, likewise the appeal from conviction.

The Appeal from Sentence

[174]

The trial judge imposed a blended sentence of a term of imprisonment
    of 20.5 months (26 months less 5.5 months credit for pre-trial custody and
    stringent release conditions) to be followed by a period of probation for three
    years. The appellant asks that we reduce the sentence to a term of imprisonment
    of 15 months.

[175]

The appellant identifies a single error in principle as the basis
    upon which we should intervene, set aside the sentence imposed at trial, and
    substitute the term of imprisonment he suggests. The principle is that of parity
    in s. 718.2(b) of the
Criminal Code
. It holds that a sentence should
    be similar to sentences imposed on similar offenders for similar offences
    committed in similar circumstances.

[176]

The trial judge made specific reference to the principle of parity
    in his reasons for sentence. It was for the trial judge to weigh that principle
    among others and impose a sentence that was proportionate to the gravity of the
    offence and the degree of responsibility of the appellant as the person who
    committed it. That another judge or this court might have assayed the influence
    of parity differently than the trial judge affords no basis for our
    intervention:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 49.

[177]

This sentence sits comfortably within the range of sentence imposed
    upon first offenders convicted of similar offences committed in similar
    circumstances. It gives proper effect to the fundamental principle that the
    sentence be proportionate to the gravity of the offence, which here included
    non-consensual unprotected sexual intercourse, and the degree of responsibility
    of the appellant as the principal offender.

[178]

I would grant leave to appeal, but dismiss the appeal from sentence.

Disposition

[179]

For these reasons, I would dismiss the appeal in its entirety.

Released: December 20, 2021 D.W.

David
    Watt J.A.

I
    agree. L.B. Roberts J.A.

I
    agree. B. Zarnett J.A.


