



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.
    C.T., 2022 ONCA 163

DATE: 20220225

DOCKET: C67631

Miller, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.T.

Appellant

C.T., acting in person

Andrew Furgiuele, appearing as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: February 7, 2022 by video conference

On appeal from the convictions entered on April 21, 2017
    and the sentence imposed on October 30, 2019 by Justice Sean F. Dunphy of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

It is an error of law for a trial judge to discount the
    credibility of an accuseds evidence on the basis that it was tailored to fit
    Crown disclosure, or evidence or argument heard in court prior to the accused
    testifying. Drawing the inference that advance notice of the case against the
    accused has allowed the tailoring of evidence and thus made it suspect, though
    a natural temptation, is impermissible. It would create a constitutional trap,
    turning the right to be present at trial under s. 650(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
    and the rights to full answer and defence under ss. 7 and 11(d) of the
Canadian
    Charter of Rights and Freedoms
against
    the accused
:
R. v. White
(1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20;
R.
    v. Schell
(2000), 148 C.C.C. (3d) 219 (Ont. C.A.);
R.
    v. Thain
, 2009 ONCA 223, 243 C.C.C. (3d) 230;
R. v. Jorgge
, 2013 ONCA
    485, 4 C.R. (7th) 170, at para. 12;
R. v. M.D.
,
    2020 ONCA 290,392 C.C.C. (3d) 29;
R.
    v. G.V
., 2020 ONCA 291, 392 C.C.C.
    (3d) 14;
R. v. B.L.
, 2021 ONCA 373, at paras. 44-47.
[2]

The trial judge committed exactly that error in this case.
[3]

The trial judge convicted the appellant of one count of sexual assault
    under s. 271 of the
Code
relating to events in December of 2013. He
    convicted the appellant of a second count of sexual assault and one count of
    assault under s. 266 relating to events in March of 2014. Finally, he convicted
    the appellant of one count of criminal harassment under s. 264(1) relating to
    events in April of 2014.
[4]

The complainant on each of the charges was J.S., with whom the appellant
    had been in a romantic and sexually intimate relationship.
[5]

J.S. and her mother were the only Crown witnesses. The appellant
    testified in his own defence. The trial judge noted, at the outset of his
    reasons: There were stark contrasts between the evidence of these events
    related by the two Crown witnesses and the accused. Accordingly, credibility
    required very careful examination. He also observed that the appellants
    evidence was exculpatory and accepting it, or finding it raised a reasonable
    doubt, would require acquittal on all charges.
[6]

The trial judges analysis of the credibility of the appellants
    evidence, his rejection of it and his finding it raised no reasonable doubt, leaned
    heavily and repeatedly on the trial judges inference that his evidence had
    been tailored to fit disclosure or prior evidence.
[7]

In the introductory portion of his reasons, the trial judge stated:
I found the evidence of the accused was fundamentally
    unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity,
    once detected, becomes like the thirteenth chime of a clock. It cast doubt upon
    the twelve that preceded it. There were aspects of his evidence that I did
    accept but only if adequately corroborated by other sources.
On the whole, I concluded that he told the truth only where it
    suited his purpose while the remainder of his evidence was carefully tailored
    to fit, however awkwardly, the evidence of which he was aware
. [Emphasis
    added.]
[8]

In the section of his reasons entitled General Comments on
    Credibility, the trial judge returned to the same impermissible reasoning. He
    stated:
While smoothly recounted and never lacking in complete
    confidence as to the smallest of details recalled in the most vivid terms three
    years after the fact, the tale that [the appellant] spun became increasingly
    implausible as layer upon layer of detail was added.
At
    length, I reached the conclusion that [the appellant] could not be relied upon
    to tell the truth at all. He appeared to be looking to fit his evidence to the
    disclosure he had received rather than to be recalling things from his own
    lived experience
. [Emphasis added.]
[9]

In addition to these general comments, applicable to the credibility assessment
    in relation to all of the charges, the trial judge used this reasoning when
    dealing with specific events. In rejecting the appellants version of what
    occurred in relation to the December 2013 offences, the trial judge stated: 
This was one instance and not the only one where I formed the
    view that [the appellant] sought to tailor his evidence to suit

    (emphasis added). When dealing with the offences in March 2014, the trial judge
    took the same approach: 
Once again I found [the appellants]
    version of these events to be a product of fantasy or a deliberate fabrication
    to fit disclosed evidence. I am unable to afford any credence at all
 (emphasis
    added).
[10]

The Crown argues that the trial judges error was harmless, as his reasons
    make it clear that he had numerous grounds for rejecting the credibility of the
    appellants evidence. The comments about the appellant tailoring his evidence should,
    in the Crowns submission, be viewed as a mere afterthought and the curative proviso
    in s. 686(1)(b)(iii) of the
Code
should be applied.
[11]

We are not persuaded by this argument. The trial judge made his
    inference of tailoring to fit disclosure a feature of his credibility
    assessment at the outset of his reasons. He returned to it as an important
    consideration in his general findings on credibility, and then repeated its
    importance in his more granular analysis of important events. The proviso will
    not be applied where the impermissible tailoring inference appears to have
    played a large role in the trial judges rejection of the appellants version
    of what occurred, even if there were other reasons for that rejection:
B.L.
,
at para. 50.
[12]

[13]

Jorgge
,
The context for these three cases [
White
,
Schell
and
Thain
] differs from the case before us, but the underlying
    principle is the same. In those other cases, either the Crown or the trial
    judge improperly used an accuseds right to disclosure to discredit the
    accuseds testimony. In the present case, the trial judge improperly used the
    appellants right to be present at his trial to discredit his testimony. She
    erred in doing so.
This error figured prominently in the trial judges adverse
    assessment of the appellants credibility. Credibility was the significant
    issue at trial, in the light of the differing versions of events given by the
    appellant and the complainant. In
Thain
, at para. 38, Sharpe J.A. said
    [t]he appellant was entitled to have his credibility fairly assessed without
    being trapped by the exercise of his constitutional rights. Similarly, Mr.
    Jorgge was entitled to have his credibility fairly assessed without being
    trapped by the exercise of his statutory right to be present at his trial. Thus,
    his convictions cannot stand.
[14]

The same approach is required here. The appeal is allowed, and a new trial
    is ordered. Accordingly, we do not reach the sentence appeal.
B.W. Miller J.A.
Gary Trotter J.A.

B. Zarnett J.A.