



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C.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    shall not be published in any document or broadcast or transmitted in any way.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. Luceno, 2015 ONCA 759

DATE: 20151106

DOCKET: C59248

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Luceno

Appellant

Philip B. Norton, for the appellant

Susan G. Ficek, for the respondent

Heard: October 7, 2015

On appeal from the convictions entered on June 5, 2014 by
    Justice Robert F. Goldstein of the Superior Court of Justice, sitting without a
    jury.

Weiler J.A.:

A.

Overview

[1]

Following an 11-day trial, the appellant was found guilty of sexual
    assault. The complainant, then 13 years old, was not legally capable of
    consenting to sexual activity pursuant to what was then s. 150.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46.
[1]

The appellant's defence was that the sexual act did not occur.

The appellant was also found guilty of sexual interference
    but his conviction was stayed on the basis of
Kienapple v. R.,
[1975]
    1 S.C.R. 729.

[2]

Apart from these offences, the appellant has no prior criminal record.
    He was sentenced to three and a half years imprisonment after credit for
    restrictive bail conditions that included a form of house arrest for three and
    a half years.

[3]

The appellant appeals his conviction only and seeks a new trial. He submits
    that the trial judge erred in his credibility assessments of the appellant and the
    complainant. The alleged errors include the trial judges reasons for rejecting
    the evidence of the appellant, his use of evidence to corroborate the
    complainants allegations, and his finding that the complainant had no motive
    to fabricate her evidence. The appellant submits that the cumulative effect of
    the trial judges errors led to a misapplication of the test for assessing
    credibility, as set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[4]

Despite the appellants able oral argument, we did not call on the Crown
    as we were of the opinion that the trial judge made no palpable and overriding error
    nor did he misapply the test in
W.(D.).
We indicated that the reasons
    for dismissing the appeal would follow shortly. These are those reasons.

B.

Facts

[5]

The appellant and the complainant connected on a dating website in 2008.
    Both had profiles on several social media and dating sites. There was a dispute
    as to whether the complainants dating profile indicated her actual age, 13, or
    18. Whether the appellants profile indicated he was 17 was also in dispute.
    The appellant testified he might have indicated on his profile that he was 18
    or 19 because he was often told he looked younger, even though he was 25, but he
    never posted an age younger than 18.

[6]

The complainant and her female friend R agreed that the appellant
    appeared younger than his actual age. It was conceded that the appellant
    sometimes passed himself off as 17 on the dating site through messages, but the
    appellant denied lying about his age in order to attract younger girls.

[7]

The complainant and the appellant chatted online and via text message. The
    complainant testified that, in the early hours of the morning while the two
    were messaging on MSN, the appellant said he wanted to meet. The complainant snuck
    out of her house and got into the appellants car, where the appellant started
    touching her leg and then had sexual intercourse with her. She believed this happened
    when she was in Grade 8 and before November 2008 when she had a boyfriend.

[8]

The appellant testified that he never met the complainant in the middle
    of the night and denied having sex with her. He said he did not find her
    attractive. Based on the photographs on her profile, he could not tell that she
    was 13. He acknowledged that he made no attempt to ascertain her age.

[9]

The complainant met the appellant on a separate occasion in the park
    near her house with her friend, R, to discuss having a threesome. R testified
    that she was with the complainant when they met the appellant in the park and
    that she was not in agreement with having a threesome. She did not take the
    suggestion seriously. The appellant agreed that he drove from his home in
    Toronto to Brampton to discuss having a threesome. There were other people in
    the general area, one of whom the appellant believed might have been R. He
    testified that he assumed R was around the same age as the complainant, whom he
    believed was 18. After speaking to the complainant for a few minutes, the
    appellant realized that the threesome was not going to happen and left.

[10]

At
    trial, there was a dispute as to whether the idea of a threesome was initiated
    by the complainant or the appellant. The appellant asserted that the meeting in
    the park was the extent of his interaction with the complainant.

[11]

A
    few days after the meeting, the complainant left a message on the appellants
    dating profile to the effect of Really? Seriously? She was upset because they
    had sex then he stopped communicating with her.

[12]

The
    complainant testified that about a month after she had sex with the appellant,
    a woman named Krista contacted her on Facebook when she became aware of the
    complainants Really? Seriously? message. The complainant testified that she
    met Krista online in September 2008. Krista did not testify  all of the
    evidence surrounding her came from the complainant. Krista told the complainant
    she was dating the appellant and was pregnant with his child but the appellant
    had simply stopped talking to her. According to the complainant, the two women
    discovered that they were having sex with the appellant during the same
    timeframe.

[13]

They
    became friends on social media and met in person once in 2010. The police
    recovered some, but not all, of their Facebook conversations. The complainant
    said she deleted her Facebook profile sometime between 2008 and 2011, and she
    assumed that the other messages were deleted along with it.

[14]

In
    2011, Krista contacted the police, alleging she had been sexually assaulted by
    the appellant. No charges were laid. The trial judge inferred that Krista told
    the police that the appellant had sex with the complainant when she was
    underage because the police then went to the complainants house and
    interviewed her.

[15]

The
    complainant testified that she did not know that Krista was going to tell the
    police about her having sex with the appellant when she was 13. There was evidence
    of an angry exchange on Facebook after the police went to the complainants
    house, wherein the complainant told Krista that she did not want to be involved
    with the police or a court case. Nevertheless, the complainant did attend at a
    police station to give a statement to the police in which she acknowledged
    having sex with the appellant in his car when she was 13.

[16]

The
    appellants position at trial was that the complainant and Krista colluded to
    frame him. He also submitted that Rs evidence was tainted because R remained
    in the courtroom for part of the complainants evidence in-chief during the
    preliminary inquiry, in violation of the court order excluding witnesses.

C.

The trial judges reasons

[17]

The
    trial judges reasons followed the three-stage analysis set out in
W.(D.)
,
    at p. 757, for assessing credibility when an accused testifies, namely: (1) if
    the trier of fact believes the evidence of the accused, it must acquit; (2) if
    the trier of fact does not believe the testimony of the accused, but is left in
    reasonable doubt by it, it must acquit; and (3) even if the trier of fact is
    not left in doubt by the evidence of the accused, it must assess whether, on
    the basis of the evidence which it does accept, it is convinced beyond a
    reasonable doubt by that evidence of the guilt of the accused.

(1)

Rejection of the Appellants Evidence

[18]

The
    trial judge gave eight reasons for rejecting the appellants evidence that he
    did not have sex with the complainant and held it did not leave him in a state
    of reasonable doubt, at para. 20:

1.

The appellant was interested in meeting females under the age of 18. The
    appellant agreed that he communicated with females under the age of 18 and indicated
    that his age was 18 or 19 on his dating profile.

2.

The appellant indicated in at least some communications on dating
    websites that he was 17, further support for the conclusion that the appellant
    was interested in girls under the age of 18.

3.

The appellants evidence that the complainant looked the same when she
    testified at trial as she did when he met her at age 13 was contrary to human
    experience and not credible.

4.

There was no evidence the appellant made any inquiries about the
    complainants age. Although the defence of mistake of age did not apply to the
    case, the appellants lack of curiosity about the complainants age was troubling.
    The appellant admitted in cross-examination that he knew that he might well
    have been meeting with someone underage.

5.

The complainants evidence that her profile indicated she was 13 was
    accepted, making it inconceivable that the appellant did not know her age.

6.

The appellant maintained that he did not find the complainant attractive
    from the beginning, yet he continued to contact her via MSN and text.

7.

The trial judge rejected the appellants evidence that the threesome was
    the complainants idea and that he rejected it because he did not find the
    girls attractive. The trial judge stated:

I observed both [the complainant] and her friend [R] during
    their testimony. [The complainant] was consistent throughout that the threesome
    was [the appellant]s idea. [R] corroborated that evidence. [The appellant] testified
    that he was interested in the threesome because [the complainant] had said that
    her friend was hot, gorgeous and would be into it. [The appellant] testified
    that he thought that [the complainant] was unclassy, foul-mouthed, overweight,
    and unattractive. I do not believe that [the appellant] would have relied on the
    say-so of [the complainant] about her friend given his assessment of [the
    complainant]s perceived looks and personality. I find that his evidence is not
    credible on this point.

8.

The trial judge inferred that the police became aware that the appellant
    had sex with the complainant when she was underage because of information
    provided by Krista. Krista knew the complainant was underage from the
    complainants dating profile, the appellant or the complainant  or from all
    three sources. While the trial judge recognized that Kristas knowledge could
    not be imputed to the appellant directly, the trial judge concluded that the circumstantial
    evidence suggested that the appellant must also have known that the complainant
    was underage.

[19]

The
    trial judge recognized that a criminal trial is not a credibility contest. He
    relied on the decision of Doherty J.A. in
R. v. (D) J.J.R.
(2006), 215
    C.C.C. (3d) 252 (Ont. C.A.), at para. 53, to hold that his outright rejection
    of the appellants evidence based on a considered and reasoned acceptance of the
    complainants evidence was an explanation for rejecting the appellants
    evidence and holding that it did not leave him in a state of reasonable doubt.

(2)

On the evidence accepted, the Crown had proven the elements of each
    offence beyond a reasonable doubt

[20]

The
    trial judge held that, despite some problems with the complainants evidence,
    she was credible on the central question of whether she and the appellant had
    sex. Therefore, the Crown met its burden to prove the offences beyond a
    reasonable doubt.

(a)

Credibility of the Complainant Overall

[21]

The
    trial judge found that the complainant was, overall, a credible witness. The
    trial judge rejected the defence theory that the complainant had schemed with
    the appellants ex-girlfriend, Krista, to frame the appellant.

[22]

He
    found the complainant had no motive to fabricate or to lie, pointing to the
    evidence that (1) the complainant had no interest in being a witness in a
    proceeding, let alone a complainant, (2) her anger over being contacted by
    police and charges being laid, (3) her strong animus toward Krista, (4) her
    lack of animosity toward the appellant, and (5) her lack of sophistication to
    participate in the alleged scheme.

(b)

Problems in the Evidence of the Complainant

[23]

The
    complainant was 13 years old when she met the appellant. At the time the police
    interviewed her she was 15, at the time of the preliminary inquiry she was 17,
    and at the time of trial she was 19. The trial judge referred to the decision
    of McLachlin J. in
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at p. 134, in
    which the Supreme Court held that generally, the evidence of an adult witness
    is to be assessed as an adult but inconsistencies, particularly as to
    peripheral matters such as time and location, should be considered in the
    context of the age of the witness at the time of the events to which she is
    testifying.

[24]

The
    trial judge then addressed some of the problems with the complainants evidence.
    The complainant had some difficulty in recalling details of the appellants
    physical appearance such as his hair colour and whether or not he was circumcised.
    The trial judge concluded these gaps in the complainants evidence did not
    significantly impact on her reliability given the limited opportunity the
    complainant had to observe the appellant over one brief sexual encounter at 3
    a.m. in a car.

[25]

The
    trial judge recognized that it was problematic that the complainant could not
    recall whether the appellant had ejaculated into a condom (or whether he had
    worn a condom) or into a Kleenex, however taking into account the complainants
    age and the passage of time, the complainants inability to recall this detail was
    understandable.

[26]

The
    trial judge rejected the appellants submission that the complainant contradicted
    herself significantly as to whether the alleged sexual assault took place in
    April, September or November of 2008. He found that they met online in the
    spring of 2008 and that she consistently maintained that it was warm enough to
    wear a t-shirt when they met in person. In addition to the weather/clothing
    evidence, the trial judge accepted the complainants evidence that she had a
    boyfriend in November 2008 and would not have met the appellant at that time.

[27]

The
    trial judge rejected the appellants position that they must have met in
    December because the complainant said she was wearing red snowmen pyjamas and
    there was a record of a call to the complainants home phone on December 1,
    2008. It is undisputed that the appellant and complainant communicated mostly
    by MSN and text message. The trial judge found that a record of a single call
    of less than one minute on December 1, 2008 did not support an inference that
    this is when the meeting took place.

[28]

Finally,
    the trial judge found the issue of whether the complainants relationship with
    Krista had developed through Facebook notes or messages was a trivial one. The
    evidence ultimately went to the timing of the sexual encounter and whether the
    complainant had colluded with Krista, discussed below.

[29]

In
    coming to his conclusions on some of these points, the trial judge found that
    the complainants evidence was corroborated by her friend R. In particular, the
    trial judge noted the following aspects of Rs evidence which corroborated the
    complainants evidence:

·

Rs evidence that the weather was hot, not cold, when she met the
    complainant and the appellant to discuss a threesome;

·

Rs evidence that the complainant and the appellant communicated
    by cell phone because the complainant never used her home phone.

(c)

Motivation to Fabricate and Collusion - R

[30]

The
    defence alleged at trial that Rs evidence was tainted by the fact that she had
    been in the courtroom during the preliminary hearing and heard the complainants
    evidence. The trial judge found no evidence of collusion between the
    complainant and R, noting that no one, including the complainant, seemed to be
    aware that the preliminary hearing was in fact, about the complainant until
    very shortly before the preliminary hearing. Rs testimony that she did not
    know she would be a witness and came with the complainant to support her had a
    ring of truth to it. Moreover, it was R, or the complainant, who brought Rs
    possible involvement as a witness to the attention of the investigating officer
    after Rs name was mentioned during the complainants examination-in-chief.
    Finally, there was no extrinsic evidence to support the appellants submission
    that R tailored her evidence after hearing the complainants testimony at the
    preliminary inquiry from which witnesses were excluded.

(d)

Motivation to Fabricate and Collusion - Krista

[31]

The
    complainant denied that Krista wanted her to report having underage sex with
    the appellant to the police. She believed the case involved charges against the
    appellant in relation to Krista, and only learned that she was the sole
    complainant shortly before the preliminary inquiry.

[32]

The
    trial judge rejected the appellants submission that the complainant and Krista
    colluded to get the appellant charged. He also rejected the appellants
    argument that the complainant and Kristas Facebook argument was contrived, all
    to advance a fabricated allegation. Nothing in the complainants demeanour suggested
    that she was lying to advance Kristas interests or that she bore animus toward
    the appellant. As noted above, if anything, she was upset to discover that her
    past sexual encounter with the appellant had come to the attention of police
    and unaware until very near the beginning of proceedings that she was the
    complainant in the proceedings.

(e)

Conclusions on the Complainants Credibility

[33]

The
    trial judge concluded the following, at para. 65:

Overall, however, these problems are balanced by much more
    important evidence that buttresses her credibility and reliability:

·

Lack of motive to fabricate;

·

Consistency on the main points of the meeting with [the
    appellant] and the sexual encounter, despite her age;

·

Corroboration by her friend [R], rather than collusion.

D.

Standard of Review

[34]

A
    trial judges assessment of credibility should be afforded great deference.
    Credibility is a question of fact reviewable on the standard of palpable and
    overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at para. 25. However, a legal error made in the assessment of credibility
    may displace the deference usually afforded to a trial judges credibility
    assessment and require appellate intervention:
R. v. A.M.
,

2014
    ONCA 769, 123 O.R. (2d) 536, at para. 19; see also
Housen
, at paras. 8
    and 37.

E.

Issues on appeal

[35]

I
    begin with the issues relating to the trial judges eight reasons for rejecting
    the appellants evidence and for holding that it did not leave him in any
    reasonable doubt.

(1)

Did the trial judge make speculative conclusions, not grounded in
    evidence, and impermissibly use hearsay evidence of Krista to impute knowledge
    of the complainants age to the appellant?

[36]

As
    was apparent from the trial judges reasons, the question of whether the
    appellant knew the complainants age was a significant factor in assessing the
    appellants credibility. The trial judge stated in para. 20, reason 5: Given
    my finding that the complainant was telling the truth that she indicated that
    she was 13 on her profile, it is inconceivable that [the appellant] did not
    know that. That throws the entirety of [the appellants] evidence into
    question, although I hasten to add that it is not the only issue bearing on
    [the appellants] credibility.

[37]

The
    appellant submits that the trial judge, in reason 8, improperly imputed
    Kristas knowledge of the complainants age to him. The appellant argues that
    this impermissible imputation of knowledge was decisive to the trial judges
    ruling on the appellants credibility. He submits that, in reason 5, where the
    trial judge indicates his conclusion that he found the complainant to be a
    credible witness on the issue of age, he references reasons that I indicate
    below as the basis for that finding. The appellant asserts that the reasons
    below that the trial judge references are those contained in reason 8 in which
    the trial judge imputes knowledge of the complainants age to the appellant on
    the basis that Krista knew the complainant was underage.

[38]

The
    Crown concedes the trial judge could not infer from Kristas knowledge of the
    complainants age in 2011 that the appellant knew her age in 2008. The Crown
    asserts that the error was not material however, because the trial judge
    indicated well before he made the erroneous inferences in reason 8, that he
    believed the complainants evidence that she stated on her profile that she was
    13.

[39]

I
    do not agree the trial judge qualified his finding in his second sentence in
    reason 5 as suggested by the appellant. Reading the reasons in their entirety,
    the trial judges use of the word below appears to be a shorthand way of
    saying at a later point in these reasons. For example, the trial judge uses
    the same word below at para. 51 of his reasons, wherein he stated, As I note
    below, there was no collusion between [the complainant] and Krista.
    Immediately below, at paras. 52-56, the trial judge does not deal with
    collusion between the complainant and Krista; he deals with collusion between
    the complainant and R. Collusion between the complainant and Krista is dealt
    with at a later part of the reasons under the heading Motive to Fabricate and
    Collusion  Krista, at paras, 57-63. Similarly, I read the second sentence of
    reason 5 as referring to the credibility of the complainant as a whole (not
    only on the issue of age) and the reference to below to refer to the later
    portion of the trial judges reasons entitled, Credibility of [the complainant]
    Overall.

[40]

The
    trial judges acceptance of the complainants evidence that her profile
    indicated she was 13 was independent of any inferences drawn in relation to
    Krista.

(2)

Did the trial judge impermissibly use the evidence of R to corroborate
    the testimony of the complainant?

[41]

The
    appellant makes three submissions in relation to the use of Rs evidence to
    corroborate the complainants evidence. I will address each in turn.

(a)

The Statements

[42]

The
    complainant testified that she messaged the appellant a few days after they had
    sex. She felt used. The appellant replied and asked her what she was doing. She
    told him that she was with her friend. The appellant responded that he was in
    the area and asked if she and her friend were interested in a threesome. The
    complainant told him that her friend wont do it.

[43]

R
    testified that she and the complainant met with the appellant on one occasion. According
    to R, the complainant wanted her to meet someone. She told R she had sex with
    this person once, even though she wasnt expecting to have sex that night. He
    was interested in a threesome. R explained she didnt take the suggestion of a
    threesome, which she understood to come from the appellant, seriously. She was
    not interested and thought her friend was kidding.

[44]

R
    testified that she was with the complainant when she was texting the appellant
    about meeting him in the park. R was not asked whether she read any of the text
    messages. The transcript is silent on this point. R could not remember when
    exactly this happened but described the weather as being decent, neither hot or
    cold.

(b)

Positions of the Parties

[45]

The
    appellant submits that the trial judge improperly used the evidence of R regarding
    the complainants statements, to corroborate the evidence of the complainant that
    she had sex with the appellant and that it was the appellants idea to have a
    threesome. As part of the narrative, Rs evidence was seemingly relevant to
    the fact and timing of the statements, and could be used in the assessment of the
    complainants reliability and credibility. The appellant acknowledges that the
    defence theory and its line of questioning opened the door for the Crown to
    lead evidence to rebut an allegation of recent fabrication.

[46]

The
    Crowns position is that the trial judge was alive to the limited purpose for
    which prior consistent statements can be used. For example, the trial judge
    expressly stated that he was not relying on the complainants prior statement
    to police or testimony except where put to the complainant and adopted at trial.
    He indicated that it was incumbent on [him] as trier of fact to analyze [the
    earlier statements] to determine whether there were contradictions.

[47]

The
    trial judge used Rs evidence to rebut the allegation of collusion between the
    complainant and Krista, which he was entitled to do. Evidence of what the
    complainant said to R was also admissible as part of the narrative to explain
    why the three were meeting.

[48]

Rs
    evidence corroborated the complainants testimony with respect to the timing of
    events and her mode of communication with the appellant, namely, that she used
    her cell phone, not her home phone.

[49]

Finally,
    in closing submissions, defence counsel relied on the complainants prior
    statements to R as prior inconsistent statements that undermined the
    complainants credibility. The trial judges reasons were responsive to the appellants
    position at trial.

(c)

Analysis

Admissibility of Prior Consistent Statements

[50]

Prior
    consistent statements made by a witness out of court are generally inadmissible
    because they are a form of hearsay, they lack probative value, they are
    self-serving, the repetition of a statement by the same person does not make it
    more likely to be true, and they are not corroborative because they lack
    independence:
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    36;
R. v. Stirling,
2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5 and
    7.

[51]

Two
    exceptions to the inadmissibility of prior consistent statements are applicable
    on this appeal  narrative of how the complainants story was initially
    disclosed and rebuttal of an allegation of recent fabrication or collusion.

Permissible use of the Complainants Prior Consistent
    Statements

a.

Narrative

[52]

The
    narrative may assist in determining the fact and timing of the statements which
    may in turn assist the trier of fact in the assessment of the credibility of the
    complainant or with respect to a fact in issue:
Dinardo,
at para. 37;
R.
    v. F. (J.E.)
(1993), 16. O.R. (3d) 1, at pp. 20-21.

[53]

It
    is important to distinguish between using a prior consistent statement to
    establish the context of a complaint to assist in the assessment of the
    credibility of the complainant, and the impermissible use  to confirm the
    truthfulness of the complainants testimony. In this case, the appellant
    rightly conceded that Rs evidence of statements made by the complainant were
    relevant to the fact that the statements were made and when they were made, as
    it goes to the credibility and reliability of the complainant.

b.

Rebutting
    Allegation of Recent Fabrication

[54]

Where
    there is an allegation of recent fabrication, or collusion, by a witness, a
    prior consistent statement is admissible to rebut the alleged recent fabrication
    or collusion. The prior consistent statements have probative value to the
    extent that they show a witnesss story has not changed as a result of a new
    motive to fabricate:
R. v. OConnor
(1995), 25 O.R. (3d) 19 (C.A.). It
    is not admissible for the truth of its contents. Only statements made prior to
    the time when the motivation for the alleged collusion arose are admissible:
Stirling
,
    at paras. 5 and 7;
F. (J.E.)
, at p. 14.

[55]

In
    this case, the complainants statements to R, that she had sex with the
    appellant and that it was his idea to have a threesome, were made prior to the complainant
    becoming aware of Kristas existence, which on the evidence, is the factual
    event which the appellant alleges, gave rise to the motive to fabricate. The
    fact and timing of the statements could be used to assist the trial judge in assessing
    the complainants credibility regarding the two facts in issue to which they
    related.

The Trial Judges use of the Complainants Prior Consistent
    Statements

[56]

The
    appellant submits that the trial judges conclusion, at para. 65, that Rs
    evidence was corroboration not collusion shows he relied on the complainants
    prior consistent statements for the truth of their contents. I do not accept
    that the trial judge used Rs evidence in this manner. The trial judges
    reference to Rs evidence as corroboration not collusion comes at the end of
    an exhaustive analysis of all the evidence. Put in context, it is clear that
    the trial judge meant to convey that Rs evidence corroborated the
    complainants testimony that she made the statements and that those statements
    were made at a time before the motive to fabricate arose, as well as prior to
    any possible collusion with Krista because the complainant did not know of
    Kristas existence then.

[57]

Specifically,
    in para. 65, the trial judge states his conclusion about the complainants
    credibility, having previously fleshed out and reconciled points of alleged
    inconsistency. Among those points were areas where Rs evidence corroborated
    that of the complainants (the weather at the time of the meeting and the
    complainants preferred mode of communication with the appellant). He also reviewed
    the various reasons why he rejected the argument of collusion between R and the
    complainant.

[58]

Similarly,
    the trial judges comment, at para. 20, that [the complainant] was consistent
    throughout that the threesome was [the appellant]s idea. [R] corroborated that
    evidence, cannot be read in isolation and divorced from its context. In
    isolation, the statement can be read as the appellant suggests, namely, that
    the trial judge used the complainants prior consistent statements to her
    friend R, for their truth, an impermissible purpose. However, the trial judges
    reasons must be read bearing in mind that the appellant relied on
    inconsistencies in the complainants prior statements to undermine her
    credibility. The trial judges comment that the complainant was consistent on
    the issue of whose idea it was to have a threesome can be read as rejecting the
    defence position that, because her prior statements were inconsistent in some
    respects with her evidence at trial, she ought not to be believed on that point.
    Properly understood, his comment was that he found Rs evidence corroborative
    because the statement as to who initiated the idea of a threesome was made
    prior to the time that the suggestion of collusion between the complainant and
    Krista ever arose.

[59]

The
    appellants submission is partly based on the trial judges failure to discuss
    the proper use of this evidence. However, a trial judge is presumed to know the
    law:
R. v. B. (R.H)
, [1994] 1 S.C.R. 656, at p. 664. If a phrase in a
    trial judges reasons is open to two interpretations, the one consistent with
    the trial judges knowledge of the applicable law must be preferred over the
    one erroneously applying the law:
R. v. Smith
, 1989 ABCA 187, 95 A.R.
    304, affd [1990] 1 S.C.R. 991.

[60]

As
    this was a judge alone trial, the trial judge was not obliged to charge himself
    as he would have charged a jury. The appellant relies on
R. v. R. (A.E.)
(2001),
    156 C.C.C. (3d) 335 (Ont. C.A.), a

decision about a trial judges
    obligation to give a limiting instruction to the jury as to the proper use of a
    prior consistent statement. In that case, the trial judge not only failed to
    provide a limiting instruction, but he also suggested that the jury could use
    the evidence as corroboration of the complainants testimony generally. That is
    not this case.

[61]

Moreover,
    it is apparent from the trial judges reasons that he was alive to the limited
    use to be made of prior statements. He specifically addressed the limited use
    of prior statements in the context of reviewing excerpts of the complainants
    statement to the police and preliminary hearing evidence, both of which were
    being used by the defence to impeach the witness.

[62]

At
    no time in his reasons does the trial judge suggest that Rs evidence corroborated
    the complainants evidence that she had sex with the appellant, or that the
    threesome was the appellants idea. The trial judges conclusory bullet point
    (among two other generalized points which were also fully fleshed out in the
    reasons) that Rs evidence was corroboration not collusion, in light of the
    discussion which preceded it, cannot be said to reflect impermissible use of
    the complainants prior consistent statements for a hearsay purpose.

(3)

Did the trial judge err in admitting the evidence of R because the Crown
    failed to announce it was relying on recent fabrication?

[63]

The
    appellant submits that the prior consistent statements were not properly
    admitted under the exception for rebutting an allegation of recent collusion since
    the Crown did not indicate this was the basis on which it was asking the
    questions. In support of his position, the appellant relies on
R. (A.E.)
,

at para.13, and
F. (J.E
.), at pp.14-15, in which Finlayson J.A.
    stated:

[I]f the Crown is relying upon recent fabrication as the basis
    for the admissibility of prior consistent statements, it must wait until the
    defence has clearly opened this door by making an opening statement, or through
    cross-examination of the complainant or other Crown witnesses orby the
    allegation of fabrication becoming implicit from the defences conduct of the
    caseWhen the justification for the evidence is to rebut an allegation of
    recent fabrication, the Crown should announce to the court that that is the
    reason it is being led so that the trial judge is aware of this problem from
    the outset and defence counsel is firmly on notice.

[64]

Unlike
    in
F. (J.E.)
,

there was no objection by experienced defence
    counsel to the Crown leading evidence in-chief about the complainants
    statements to R that she had sex with the appellant and that he suggested a
    threesome. Defence counsel cross-examined R on the complainants prior
    statements to establish an inconsistency with her testimony at trial; namely,
    that the sexual intercourse was not rape or forced as she had told R, but simply
    unexpected sexual intercourse. That inconsistency was relied on in closing
    submissions.

[65]

Admission
    of a prior consistent statement on the basis of an allegation of recent
    fabrication does not require the allegation be expressly made:
Stirling
,
    at para. 5. Moreover, I do not read the words of Finlayson J.A. as requiring the
    Crown to announce its reason for leading the evidence as a prerequisite for
    admissibility, but as advising an approach that ensures the appellant will not
    be surprised unfairly and will be able to object in a timely manner, if desired.
    Significantly, the appellant does not suggest that he was caught unfairly by
    surprise by the Crown leading this evidence.

(4)

Did the trial judge err in failing to assess the reliability of Rs
    evidence?

[66]

The
    appellant submits that the reliability of Rs evidence was indelibly tainted
    because she gave her statement to the police only after hearing the testimony
    of the complainant. Although the trial judge addressed the issue of fabrication
    and collusion between the complainant and R, he submits that the trial judge
    failed to address the reliability of Rs evidence in a meaningful way.

[67]

The
    Crown submits that defence counsel appears to have discounted the possibility that
    Rs evidence was tainted inadvertently, by arguing at trial that the
    complainant and R couldnt get their story straight. The Crown also submits
    that the trial judge was entitled to rely on Rs testimony as being reliable since
    the appellant confirmed a central aspect of her evidence, the meeting to
    discuss a threesome with the appellant.

[68]

The
    trial judge accepted Rs evidence and found that she had no motive to collude
    or to fabricate, despite R remaining in court during the complainants
    examination-in-chief at the preliminary inquiry. It is apparent from his
    reasons that he believed Rs violation of the court order excluding witnesses
    was not deliberate; she did not appreciate that she was going to be a witness
    at the time.

[69]

When
    a witness has remained in court in violation of a court order, the witness is
    not necessarily disqualified. Depending on the circumstances, the trial judge
    may exclude the witnesss evidence. The effect that remaining in a courtroom in
    contravention of an order has on the weight given to a witnesss evidence is
    for the trier of fact to decide:
R. v. Dobberthien
,

[1974] 2
    S.C.R. 560.

[70]

In
    my opinion, even if R had not remained in the courtroom during the complainants
    examination-in-chief, she would have been familiar with the complainants story
    because she was her best friend. More importantly, the trial judges reasons
    assess whether R colluded with the complainant to fabricate her evidence. In
    doing so, the trial judge was conducting an assessment of the overall reliability
    of Rs evidence. I would not give effect to this ground of appeal.

(5)

Did the trial judge improperly rely on the complainants willingness to
    go through the criminal process to bolster her credibility and to find she had
    no motive to fabricate the allegations against the appellant? Did the trial
    judge reverse the burden of proof?

[71]

The
    appellant submits that the trial judge improperly used the fact that the
    complainant went through the criminal process as lending truth or veracity to
    her complaint and bolstering her overall credibility.

[72]

I
    would not give effect to the appellants argument.

[73]

In
    assessing whether the Crown had proven its case beyond a reasonable doubt, the
    trial judge rejected the appellants contention that the complainant colluded
    with Krista to frame the appellant. He found she had no motive to fabricate or
    lie, reasoning as follows:

[22] [I]t was obvious [the complainant] had no interest in
    being a witness, let alone a complainant in a sexual assault criminal trial. The
    weight of the evidence shows that she was angry that charges were even brought.
    She could have ended the process at any time. She could have told the police
    that she and [the appellant] never had sex at the initial police interview. She
    could have refused to attend the police interview. She could have testified at
    the preliminary inquiry that she and [the appellant] never had sex. At this
    trial she found the cross-examination long, repetitive, bullying and painful, which
    occasionally resulted in flashes of anger and frustration on her part.She
    could easily have changed her story and ended the whole thingShe could have
    also simply failed to attend court, despite the subpoena although in fairness
    she likely thought she had no choice (she said as much)



[62] Furthermore there was nothing in the complainants
    demeanor that would lead me to believe that she wanted to be testifying
    subjecting herself to endless days of repetitive cross-examination as well as
    to the allegation that she was a liar advancing the interest of a different
    scorned woman

[74]

While
    the trial judge noted the complainant was prepared to testify, he also observed
    that she was a reluctant witness who perhaps did not appreciate that she had a
    choice whether to go through the process or not.

[75]

He
    did not find the complainant had no motive to fabricate because she went
    through the criminal process. Rather, he considered the complainants demeanour,
    her lack of animus towards the appellant and her strong animus towards Krista,
    including their angry Facebook exchange.

[76]

The
    appellant submits that if the trial judge improperly relied on this evidence to
    bolster the complainants credibility, he reversed the burden on the Crown to
    prove that the complainant had no motive to fabricate her evidence and shifted
    the onus onto the appellant to explain why the complainant would lie.

[77]

Having
    regard to the trial judges reasons as a whole, and considering them in the context
    of the entire proceedings, the trial judge did not err by reversing the burden
    of proof.

[78]

He
    expressly instructed himself on the principles of
W.(D.)
, and the
    burden of proof as it related to credibility, at paras. 13 and 15 of his
    reasons. He recognized that a criminal trial is not a credibility contest and during
    the trial proceedings, he reminded defence counsel that the appellant did not
    bear the burden of proving the complainant was lying.

(6)

Other Alleged Errors in Rejecting the Appellants Evidence

[79]

The
    appellant submits that the trial judges reasons provide little basis for
    rejecting the appellants evidence on the main issue whether he had sex with the
    complainant. In reasons 1 and 2, the trial judge engaged in speculation and took
    judicial notice of facts beyond what was reasonable. Moreover, the appellants
    admission that he sometimes passed himself off as 17 through messages is not
    contrary to his testimony that his profile never indicated that he was younger
    than 18.

[80]

Reasons
    are to be read as a whole, not dissected in isolation:
R. c. C. R.
(1993),
    81 C.C.C. (3d) 417 (Que. C.A.), per Rothman J.A. dissenting, at p. 419,
    dissenting reasons adopted by the S.C.C., [1993] 2 S.C.R. 226. Taken together,
    the trial judges reasons are a considered rejection of the appellants
    evidence. It was open to the trial judge to infer that the appellant was
    interested in meeting women under the age of 18 from the fact that he posted
    his age as 18 or 19 and that he sent messages stating he was 17.

[81]

The
    appellant submits that the trial judge engaged in speculation when he rejected
    the appellants evidence that the complainant looked the same as she did when
    she was 13. There was no contradiction of the appellants evidence.

[82]

The
    trier of fact is not bound to accept the evidence of a witness simply because
    there is no contradiction of it. It was open to the trial judge to apply his human
    experience that a person who is 19 will not look the same as she did when she
    was 13 and to reject the appellants evidence. In any event, the trial judge
    indicated this was not a major consideration in his assessment of the
    appellants credibility as looks can be deceiving and subjective and it was
    only one consideration among several reasons he gave.

[83]

In
    relation to reason 4, the appellant submits that the lack of evidence of his inquiry
    into the complainants age is of little import since he believed she was 18 and
    the age of consent was 14 at the time. He points out that contrary to the trial
    judges finding that he knew that he might well have been meeting someone
    underage, the appellant only admitted to communicating with persons under 18. He
    denied he would meet with anyone he knew was under the age of 18.

[84]

The
    appellant testified that he assumed that R was about the same age as the
    complainant, whom he believed was 18. He agreed in cross-examination that there
    was a chance that she could have been younger. Therefore, there was a chance
    the complainant was younger than 18 yet the appellant was prepared to meet with
    her and not ask her age. It was open to the trial judge to find that the
    appellant, an adult of 25, was interested in dating women who were not adults
    and, as he did not make any inquiries to ascertain whether those he met were
    able to consent to a sexual relationship, he might have been meeting someone
    incapable of giving consent.

[85]

I
    have already discussed reason 5 in which the trial judge accepted the evidence
    of the complainant that she stated on her profile that she was 13.

[86]

Reason
    6 refers to the trial judges rejection of the appellants evidence that he
    found the complainant unattractive. The appellant testified that the
    complainant instigated the communications and that his responses were curt. He
    submits that his evidence should have accepted since it was not contradicted.

[87]

This
    aspect of the appellants evidence was contradicted, at least indirectly, by the
    complainants evidence. She explained that she flirted with the appellant and
    he told her he wanted her but that they did not explicitly discuss having
    sexual intercourse before meeting in person. According to the complainant, she
    lifted her top exposing her bra when the appellant asked her to expose her
    breasts on camera. She was also asked to engage in masturbation on camera but
    she refused. The appellant denied using a camera on MSN.

[88]

Although
    the trial judge did not specifically refer to this evidence in rejecting the
    appellants assertion that he found the complainant unattractive, it is part of
    the context for his finding that the appellant would not have continued to
    communicate with the complainant if he found her unattractive.

[89]

In
    reason 7, the trial judge rejected the appellants evidence that it was the
    complainants idea to have a threesome and that it did not happen because he
    did not find the girls attractive. The trial judge misapprehended the
    appellants evidence in making this finding. The appellants evidence was that
    when he met the girls in the park, he knew or had a sense that the threesome
    was not going to happen. Other people were present. He felt he was wasting his
    time so he left.

[90]

The
    trial judge also rejected the appellants evidence since his testimony that he
    was interested in a threesome because the complainant told him her friend was
    hot, gorgeous, and would be into it was incredible. He did not believe the
    appellant would rely on the complainants assessment of her friend despite
    finding the complainant unclassy, foul-mouthed, overweight and unattractive.

[91]

He
    also rejected the appellants evidence on this point because of the timing of
    the complainants prior consistent statement to R, which I have already
    discussed.

[92]

It
    was open to the trial judge to reject the appellants evidence as to whose idea
    it was to have a threesome for the reasons given. His misapprehension of the
    appellants evidence as to why the threesome did not happen did not affect his
    assessment of the evidence as to whose idea it was to have a threesome.

[93]

Accordingly,
    I would dismiss the appellants submission that a new trial is required based
    on these other alleged errors in the trial judges reasons for rejecting the
    appellants evidence.

F.

Disposition

[94]

For
    these reasons the appeal was dismissed.

Released: (K.M.W.) November 6, 2015

Karen
    M. Weiler J.A.

I agree Alexandra Hoy A.C.J.O.

I agree G. Pardu J.A.





[1]
The age of consent was changed from 14 to 16 on May 1, 2008: R.S. 2008, c. 6,
    ss. 13, 54.


