



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Kuzmich, 2020 ONCA 359

DATE: 20200609

DOCKET: C65800

Lauwers,
    Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Kuzmich

Appellant

Erin Dann, for the appellant

Mabel Lai, for the respondent

Heard: February 11, 2020

On appeal from the conviction entered on
    May 23, 2018 by Regional Senior Justice Bonnie R. Warkentin of the Superior
    Court of Justice, sitting without a jury, with reasons reported at 2018 ONSC
    3215.

Trotter
    J.A.:


A.

introduction

[1]

The appellant was charged with a single count of
    sexual assault under s. 271 of the
Criminal Code
, R.S.C. 1985, c. C-46. It was alleged that, during consensual
    sexual intercourse, the complainant told him to stop. He did so briefly, but
    then continued without her consent.

[2]

At the preliminary inquiry, and in the absence
    of an application under s. 276 of the
Criminal Code
, defence counsel asked the complainant, E.S., whether she
    previously had sex with the appellant. She said that she had not. The Crown did
    not object to this line of questioning. Ultimately, the appellant was committed
    to stand trial.

[3]

The trial judge heard two interrelated pre-trial
    applications. First, the defence applied under s. 276 of the
Criminal Code
to adduce evidence of other
    sexual activity between the appellant and E.S. The proposed evidence included
    the appellants claim that he had sexual intercourse with E.S. numerous times,
    and also that E.S. had performed fellatio on him. He produced a video recording
    of one episode of fellatio. The appellant wished to cross-examine E.S. on her
    preliminary inquiry testimony in which she denied previous sexual activity with
    the appellant.

[4]

However, E.S. passed away before the trial. The
    Crown applied under s. 715 of the
Criminal Code
to admit E.S.s preliminary inquiry testimony at trial. The
    appellant resisted this application, claiming that he did not have a full
    opportunity to cross-examine E.S. at the preliminary inquiry, particularly on
    the other sexual activity that he alleged.

[5]

The trial judge dismissed the s. 276 application
    but admitted E.S.s prior testimony under s. 715. The appellant testified at
    trial. He was found guilty and sentenced to imprisonment for 15 months.

[6]

The appellant appeals his conviction. He submits
    that the trial judge erred in how she decided both pre-trial applications, and in
    how she assessed the evidence.

[7]

I would dismiss the appeal. The trial judge did
    not err in concluding that the evidence of prior sexual history was
    inadmissible. In addition to the reasons given by the trial judge, the
    application could also have failed because it was based on an improper
    foundation  E.S.s answers to impermissible questions at the preliminary
    inquiry. The trial judge properly admitted E.S.s preliminary inquiry testimony
    under s. 715 of the
Criminal Code
and made no errors in her assessment of the evidence as a whole.

B.

general background

[8]

E.S. was 53 years old when she testified at the
    preliminary inquiry. She had known the appellant for a couple years. She bought
    marijuana from him a couple of times or many times.

[9]

On May 11, 2016, around 11 p.m., she went to the
    appellants rooming house to buy marijuana. She had recently broken her right
    wrist and had a cast. She took some cans of beer with her. E.S. intended to get
    the marijuana then visit with her friend, Seppo, who lived next door to the
    appellant.

[10]

When E.S. arrived at the appellants room, he
    told her to sit on his bed. He left the room to get the marijuana. The
    appellant returned to the apartment and gave E.S. the marijuana. She gave him
    $20. When E.S. got up to leave, the appellant blocked her way. He said
    something to her, but she could not hear what he said because loud music was
    playing. Nonetheless, she knew that he wanted sex. E.S. remembered that the
    appellant lifted her onto the bed and penetrated her vagina, but she could not
    recall how her pants were removed. E.S. experienced pain and asked him to stop.
    He did so for a few minutes, but then resumed penetration, even though she tried
    to push him off. After the appellant finished, he helped E.S. off the bed. She
    got dressed and went to Seppos room. The entire incident lasted for about 15
    minutes.

[11]

E.S. told Seppo what had just happened. Seppo
    suggested she call the police. E.S. was initially scared because the appellant was
    a drug dealer and she was concerned he would get somebody else after me. Seppo
    ended up calling the police. The police arrived and E.S. was taken to the
    hospital in an ambulance. She was accompanied by a police officer, Constable
    Brayden Beck.

[12]

As already noted, E.S.s preliminary inquiry
    testimony was admitted at trial under s. 715 of the
Criminal Code
. The Crown also led the evidence
    of Constable Beck, who recounted aspects of E.S.s statements from that night,
    some of which were inconsistent with her preliminary inquiry testimony. For
    instance, she told the officer that she had a beer and smoked a joint with the
    appellant before the sexual assault. She also told the officer that the
    appellant told her to remove her pants, and when she asked why, he said he was
    going to fuck [her]. E.S. said the appellant then pulled her pants down.

[13]

During his testimony, the appellant said that he
    had known E.S. since 2005. She often visited the rooming house to see her
    relatives and Seppo. He denied ever selling marijuana to E.S.

[14]

On the night of the incident, he saw E.S. in the
    hallway. She was carrying cans of beer. She offered him one and they drank in
    his room. The appellant left the room to use the washroom down the hallway.
    When he returned, E.S. had removed her pants. She then removed her underwear,
    got onto the bed, spread her legs, and patted her vagina. The appellant got on
    the bed and penetrated her. About five seconds later, E.S. asked him to stop. He
    did so right away. E.S. got up, put her underwear on, and draped her pants over
    her casted arm. As she was leaving with her beer, the appellant asked her if he
    could have one. She said no.

[15]

The trial judge observed that the evidence of
    E.S. and the appellant was consistent on the point that the sexual intercourse
    was painful for E.S. and she asked the appellant to stop. The Crown and the
    defence agreed that E.S. had withdrawn her consent to sexual intercourse after
    first consenting. The trial judge framed the central issue in the trial as
    follows, at para. 8: If I find that the accused stopped when asked, then he
    would be found not guilty of sexual assault. If I find that he did not stop
    when he was asked to stop, then he will be found guilty of sexual assault.

[16]

The trial judge accepted E.S.s account given at
    the preliminary inquiry. She rejected the appellants evidence and ultimately
    concluded that the Crown had proved the charge beyond a reasonable doubt.

C.

prior Sexual history

(1)

Introduction

[17]

I agree with the trial judge that evidence of previous
    sexual activity between the appellant and E.S. was inadmissible under s. 276 of
    the
Criminal Code
. In view
    of the narrow contentious issue  continued penetration in the face of
    withdrawn consent  the proposed evidence had, at best, minimal probative value.
    However, it impacted significantly on E.S.s equality, privacy, and security interests.

[18]

Although not specifically addressed by the trial
    judge, I would also reject this ground of appeal because the s. 276 application
    was fundamentally flawed. It was based on answers to improper questions posed
    to E.S. at the preliminary inquiry  questions asked in violation of s. 276.
    The use of E.S.s preliminary inquiry evidence on the s. 276 application effectively
    made E.S. a compellable witness in that proceeding, which was explicitly
    prohibited by what was then s. 276.2(2).
[1]

[19]

Nor am I persuaded by the appellants
    alternative submission that, even without the evidence of E.S.s denial of
    previous sexual activity with the appellant, the evidence was admissible. The
    contention is that E.S. placed her credibility in issue by mispresenting the
    true nature of her relationship with the appellant (i.e., that he was her drug
    dealer, and nothing more). The only way that the appellant could dispel this
    misconception, and preserve his own credibility at trial, was through evidence
    of their prior sexual history. This submission, which is really just a
    variation on the same theme pursued at trial, was not made to the trial judge.
    Moreover, the misrepresentation that the appellant seeks to attribute to E.S. was
    not borne out by the evidence.

(2)

Evidence at The Preliminary Inquiry

[20]

The preliminary inquiry was held on March 27,
    2017, roughly 10 ½ months after the incident. At the beginning of E.S.s testimony,
    the Crown asked her the following questions:

Q.:     [E.S.] do you know Kevin Kuzmich?

A.:     Yes.

Q.:     How do you know him?

A.:     I buy, I buy weed from him.

Q.:
        Have you ever had a romantic relationship with him?

A.:     No.

[21]

In cross-examination, the following exchange occurred:

Q.:     So
    you told the Crown that you've never had sex with Kevin before?

A.:     I never had sex with him.

Q.:     Before?

A.:     No.

Q.:     Is that correct?

A.:     Yeah.

Q.:     That was the first time that you had
    sex with him?

A.:     As far as I remember.

The Crown did not object; the
    preliminary inquiry judge did not intervene.

(3)

The s. 276 Application at Trial

[22]

The appellant filed an application under s. 276.
    In his affidavit in support of the application, he said that he engaged in consensual
    sexual activity with E.S. five times before the events giving rise to the
    sexual assault charge. Three incidents involved sexual intercourse; others
    involved fellatio. The appellant tendered a video recording of E.S. performing
    fellatio on him in March 2016, before the offence date of May 11, 2016. During
    cross-examination on his affidavit, the appellant acknowledged making the video
    recording. The Crown advised the trial judge that she had reviewed the
    recording with E.S., who confirmed that it was authentic.

[23]

In his submissions, defence counsel stressed
    that the Crown was responsible for raising the issue of prior sexual history at
    the preliminary inquiry. Counsel submitted that he asked his questions of E.S.
    (set out in para. 21, above) to have E.S. confirm what she meant by a romantic
    relationship, was a sexual relationship, which was first asked by the Crown.
    Defence counsel continued:

And its important to note that the issue of
    prior romantic or sexual activity is prohibited by either counsel from asking
    questions about that activity without first going through a section 276
    application.
It should be noted that the defence did not open the door, and
    this door was opened by the crown attorney
. [Emphasis added.]

[24]

He reinforced this point later in his
    submissions:

Be reminded, Your Honour, that the issue
    was introduced by the Crown in examination in-chief
.
    If the crown had not asked those questions, I would never have been able to ask
    those questions, even to clarify what she meant by a romantic relationship at a
    hearing, whether its a preliminary hearing or a trial, without going through a
    276 application. [Emphasis added.]

[25]

Defence counsel submitted that he did not seek
    to admit the evidence for either of the twin myth purposes prohibited by s.
    276(1) (i.e., that E.S. was more likely to have consented to the sexual
    activity that forms the subject matter of the charge, or that she was less
    worthy of belief). He sought to challenge E.S.s credibility by contradicting
    her answers to questions he asked at the preliminary inquiry. He said, it does
    show that the complainant may have lied under oath to the Crown at a preliminary
    inquiry.

[26]

The Crown submitted that her romantic
    relationship question did not engage considerations of sexual activity, nor was
    it intended to do so. In relation to the impugned cross-examination, the Crown
    submitted:

Theres no indication of what Ms. S.
    understood the word sex to mean and in a colloquial sense the word sex
    means sexual intercourse. She wasnt specifically asked about fellatio.

In my submission there is no inconsistency
    insofar as she says she didnt have sex with him and then theres this video.
    The video was never put to her.

[27]

The Crown further submitted that, given the
    narrow issue in the case  whether the appellant recommenced penetration after E.S.
    withdrew her consent  the evidence was irrelevant. The Crown argued that, even
    if the evidence impacted on E.S.s credibility, standing alone, this was an
    insufficient basis for admission under s. 276, and that the issue was otherwise
    collateral.

(4)

The Trial Judges Reasons

[28]

The trial judge ruled on the ss. 276 and 715
    applications in the same judgment:
R. v. Kuzmich
,

2017 ONSC 7430. She recognized that, if she allowed the s.
    276 application, the Crowns case would be at an end because E.S. was not
    available for cross-examination on her prior sexual history. Similarly, if the
    s. 715 application were denied, the Crown would be unable to proceed.

[29]

After setting out the applicable framework under
    s. 276, including the factors to be weighed under s. 276(3), the trial judge
    provided the following analysis of this issue, at paras. 19-24:

While it was not part of the hearing before
    me,
I question whether the Crown did "open the door" to cross-examination
    of prior sexual activity when she asked the complainant if she and the
    Applicant had a romantic relationship.
The denial of a romantic
    relationship on the facts of this case, where the Applicant was the supplier of
    drugs to the complainant, is not sufficient to entitle the defence to introduce
    evidence of prior sexual activity between the Applicant and the complainant.

Similarly the questions posed in
    cross-examination to the complainant at the preliminary inquiry do not rise to
    the level of inconsistency regarding evidence of a prior sexual encounter that
    would make evidence of a prior sexual encounter under s. 276 admissible in
    order to enable the Applicant to make full answer and defence
.

In the hearing before me, the Crown conceded
    that there had been at least one instance of a prior sexual encounter in the
    form of one act of fellatio.
The Crown disputed that the complainant's
    testimony at the preliminary inquiry was inconsistent with this evidence
    because she was asked about whether she had had sex with the Applicant. She was
    not asked about fellatio.

I agree with the Crown.
The evidence from the preliminary inquiry is not sufficiently
    contradictory to engage the very limited ways in which prior sexual encounters
    of a complainant may be admissible.
To permit the defence to cross-examine
    the complainant on a prior sexual encounter with the Applicant and to permit
    the video of that prior encounter into evidence would prejudice the
    complainant's personal dignity and right of privacy
.

I find that the interests of justice would not
    be served in this case by admitting this evidence. I also find that this
    evidence is not of significant probative value and admitting it would prejudice
    the proper administration of justice.
Evidence of a prior act of fellatio is
    irrelevant to whether or not the complainant consented to the incident giving
    rise to these charges and is not sufficiently probative of the complainant's
    credibility so as to interfere with the Applicant's ability to make full answer
    and defence
.

The defence application under s. 276 is
    therefore dismissed. [Emphasis added.]

(5)

Analysis

(a)

Introduction

[30]

I am not persuaded that the trial judge erred in
    the exercise of her discretion under s. 276 of the
Criminal
    Code
. She understood the basis of the appellants
    submission that he was not seeking to invoke twin myth reasoning, and that he
    only wished to use the evidence to contradict E.S.s assertion at the
    preliminary inquiry that she had never previously had sex with the appellant.
    She disagreed that a significant inconsistency had been established on the
    evidence at the preliminary inquiry. Moreover, the trial judge [questioned]
    whether the Crown did open the door to cross-examination of prior sexual
    history. It was open to the trial judge to reach these conclusions on the
    record before her. I address these issues in the discussion below. I also
    consider the significance of non-compliance with s. 276 at the preliminary
    inquiry, as well the appellants alternative basis for admissibility, raised
    for the first time on appeal.

(b)

An Improper Foundation

[31]

The s. 276 application rested squarely on E.S.s
    answers to the questions posed to her in cross-examination about whether she
    had previously had sex with the appellant. As noted above (see paras. 23-24), during
    his submissions on the application, defence counsel acknowledged that he had
    not complied with s. 276, but argued that he was not required to do so because
    the Crown introduced the issue through her questions of E.S. in-chief. The
    Crown did not respond to this issue in her submissions; the trial judge did not
    address the issue in her reasons.

[32]

Ms. Dann for the appellant submits that this
    issue need not be addressed because the trial judge did not decide the application
    on this basis. However, she submitted that, given the Crowns failure to object
    when the questions were asked, the defence was entitled to rely on E.S.s
    answers. Ms. Lai for the Crown relies heavily on what she asserts was an
    improper foundation for the s. 276 application.

[33]

In my view, the propriety of the preliminary
    inquiry questions must be addressed. It goes to the heart of what happened in
    this case. The court had the benefit of full argument and the record is
    complete for the purpose of deciding this issue.

[34]

Defence counsel was correct in acknowledging
    that s. 276 applies at a preliminary inquiry. The opening words of s. 276(1) of
    the
Criminal Code
signal its broad reach. The section applies to proceedings in respect of an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 170, 171, 172, 173, 271, 272 or 273. In my view, the plain
    wording of the section  proceedings in respect of  is not restricted to trial
    proceedings alone. The expression is more expansive and may include other proceedings,
    such as preliminary inquiries, or bail proceedings under Part XVI of the
Criminal Code
: see Daniel Brown and
    Jill Witkin,
Prosecuting and Defending Sexual
    Offence Cases: A Practitioners Handbook
(Toronto:
    Emond Montgomery Publications Limited, 2018), at p. 272.

[35]

It is likely that tactical considerations
    dissuade counsel from bringing s. 276 applications at preliminary inquiries or
    during bail proceedings. Even if successful, evidence of the complainants
    prior sexual history will be of no value at a preliminary inquiry in terms of
    committal; nor will it have much, if any, impact on the apparent strength of the
    Crowns case in the context of bail proceedings. Nonetheless, the interests
    protected by s. 276  the equality, privacy and security rights of
    complainants (
R. v. Goldfinch
, 2019 SCC 38, 380 C.C.C. (3d) 1, at para. 1)  are no less
    important in these earlier stages of the criminal trial process.

[36]

The broad reach of s. 276, at least in relation
    to preliminary inquiries, is supported by the jurisprudence of this province. In
R. v. Alibhai
(1998),
    123 C.C.C. (3d) 556 (Ont. Ct. J. (Gen. Div.)), McCombs J. held that s. 276 applied
    to preliminary inquiries. At the textual level, he found that the broad expression
    in proceedings in respect of included the preliminary inquiry:
Alibhai
, at p. 559. McCombs J.
    acknowledged the undesirability of s. 276 applications being brought at preliminary
    inquiries and its attendant impact on the privacy rights of complainants,
    citing
R. v. T. (W.S.)
,
    [1996] B.C.J. No. 2609 (Sup. Ct. J.); however, he concluded that, there is no
    principled reason to deny jurisdiction to hear applications under [s. 276] at a
    preliminary inquiry.

[37]

This holding was endorsed by Feldman J.A., in
    dissent on another issue, in
R. v. D. (V.)
(1999), 141 C.C.C. (3d) 541 (Ont. C.A.), at para. 23. The
    proposition was undisputed by the majority.

[38]

I also refer to
R.
    v. Derksen
, 2013 CarswellMan 267 (Q.B.), in which
    it was argued on a s. 276 application at trial that the complainant had
    triggered the issue of her prior sexual history with the accused by her
    testimony at the preliminary inquiry. The trial judge, Joyal C.J.Q.B.
    disagreed, and wrote, at para. 22: [T]he complainant has not, in this case, opened
    any such door. And to the extent that the cross-examination at the preliminary
    inquiry may have done so, counsel for the defence has properly conceded that it
    was done inappropriately and without the rigour of the necessary Section 276
    application.

[39]

Conversely, in
R. v.
    S. (M.P.)
, 2014 BCCA 338, (2014), 338 C.C.C. (3d)
    200, the British Columbia Court of Appeal held that s. 276 has no application
    at a preliminary inquiry. Relying on
T. (W.S.)
, Groberman J.A. held, at para. 68, that [n]othing in the current
    s. 276 and ancillary provisions compels an interpretation that would apply the
    exception in s. 276(2) at a preliminary inquiry. He concluded that
Alibhai
was wrongly decided. Referring
    to the split in
D. (V.)
, he said, at para. 71: In my view, the majority reasons in that
    case are not of assistance to the accused, and I am not persuaded to the view
    espoused by the dissenting judge.

[40]

Respectfully, the reasoning in
Alibhai
, in
Derksen
, and the views of Feldman J.A. in
D. (V.)
, are persuasive, supported by the language and the purpose of s.
    276. Had Parliament intended to limit the reach of this section, it could have
    done so, including in its substantial amendments to this procedure in 2018
    (S.C. 2018, c. 29, s. 25), and in its more sweeping amendments to the
Criminal Code
in 2019, which contained
    a minor amendment to s. 276(1): S.C. 2019, c. 25, s. 100.

[41]

The predominant purpose of the preliminary
    inquiry is to screen out meritless allegations:
R.
    v. R.S
.
, 2019 ONCA
    906, at para. 50; see also
R. v. Hynes
, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30. As noted above, it
    will rarely (if ever) be productive to pursue a s. 276 application at that
    stage. However, this is no reason to interpret s. 276 in a manner that lifts
    the shield of protection for sexual assault complainants at a critical juncture
    of the criminal trial process: see S. Casey Hill, David M. Tanovich, and Louis
    P. Strezos,
McWilliams Canadian Criminal Evidence
, 5th ed. (Toronto: Canada Law Book, 2017) (loose-leaf updated 2018,
    release 5), at pp. 16-40 to 16-41.

[42]

The appellant obtained evidence in violation of
    the requirements of the
Criminal Code
; the question becomes whether he was entitled to rely on the fruits
    of this improper inquiry on his s. 276 application at trial. There is little
    authority that is directly on point. Nonetheless, there are two persuasive
    reasons that prevent the use of evidence obtained in violation of s. 276.

[43]

First, at a general level, counsel should not be
    permitted to benefit by ignoring provisions designed to protect complainants in
    sexual offence prosecutions. This was essentially the holding of Joyal C.J.Q.B.
    in
Derksen
.

[44]

He took the same approach when he was an
    appellate judge. In
R. v. A.J.B
.
, 2007 MBCA 95, 225 C.C.C. (3d) 171,
    the appellant was convicted of sexual assault. On appeal, the appellant asserted
    that the trial judge ought to have considered the defence of honest but
    mistaken belief in consent, even though this was not raised at trial. The court
    rejected this ground of appeal, partly on the basis that the appellants claim
    was based on testimony that was inadmissible  it touched on past sexual
    activity with the complainant, in the absence of a s. 276 application. Joyal
    J.A. (as he then was) said, at para. 49, that the appellant was grounding his
    position in inadmissible evidence. He elaborated further, at para. 51:

Without prior judicial consideration of the issue
    and a determination under s. 276.1, no evidence of the complainant's past
    sexual activity should have been adduced.
The fact that it was adduced by
    the accused without objection from the Crown or comment by the trial judge does
    not render it admissible. The evidentiary foundation for finding an air of
    reality to a defence like honest but mistaken belief cannot be based upon the
    inadmissible parts of a witness's testimony
. [Emphasis added.]

I would apply the same approach in
    this case.

[45]

Second, the procedural framework created by s.
    276 renders reliance on the preliminary inquiry evidence improper in this case.
    When E.S. was asked questions at the preliminary inquiry about her prior sexual
    history, she effectively became a compellable witness on the s. 276 application
    brought at trial. This is prohibited. As s. 276.2(2) provided at the time:
[2]
The complainant is not a
    compellable witness at the hearing.

[46]

The protection in s. 276.2(2) is a fundamental
    feature of this process. Its importance was considered in
R. v. Darrach
, 2000 SCC 46, [2000] 2
    S.C.R. 443. Writing for a unanimous court, Gonthier J. said, at para. 68:

To compel the complainant to be examined on
    her sexual history before the subject has been found to be relevant to the
    trial would defeat two of the three purposes of the law, as articulated and
    upheld in
Seaboyer
. It is an invasion of the complainants privacy and
    discourages the reporting of crimes of sexual violence. [Citations omitted.]

[47]

When E.S. was asked about sexual activity with
    the appellant on previous occasions, the issue of admissibility had yet to be
    determined. Presumably unaware of the protection to which she was entitled
    under s. 276 of the
Criminal Code
, E.S. answered defence counsels questions. After all, the Crown failed
    to object and the preliminary inquiry judge did not say anything. When E.S.
    answered, her equality, privacy, and security rights were impacted immediately.
    The subsequent use of this testimony would turn E.S. into a compellable witness
    on the s. 276 application at trial.

[48]

Defence counsel believed that, given the Crowns
    romantic relationship question at the preliminary inquiry, he was at liberty
    to ask E.S. the questions that he did, and then to rely upon the answers in his
    subsequent s. 276 application. In his view, because the Crown had opened the
    door, all bets were off and s. 276 no longer applied. I turn to this issue
    now.

(c)

Opening the Door?

[49]

Although the trial judge did not resolve the
    issue definitively, she expressed some doubt that the Crown had opened the door
    to sexual history questioning (see para. 29, above). In oral argument, Ms. Dann
    approached the issue from a slightly different perspective. Instead of
    emphasizing the Crowns romantic relationship question, she submits that the
    Crowns failure to object to defence counsels questions in cross-examination,
    coupled with the absence of an intervention by the preliminary inquiry judge,
    entitled defence counsel to use E.S.s testimony on the s. 276 application. I
    disagree.

[50]

Viewed in its proper context, the Crowns romantic
    relationship question was not a request for information about sexual activity.
    It was nothing more than an attempt to provide some context to the nature of
    their relationship. Based on her submissions on the application, the Crown
    never intended to open the door. Why would she? The Crown would gain no advantage
    whatsoever, whether tactical or otherwise, in triggering this issue at the
    preliminary inquiry (or at any stage, for that matter). Whether intentional or
    not, it did not matter. It did not have the effect of suspending the operation
    of s. 276 throughout the preliminary inquiry. The subsequent inaction of the
    Crown and the preliminary inquiry judge during cross-examination did not
    deprive E.S. of the protections to which she was entitled, both at the time the
    questions were asked, and when defence counsel sought to use these answers on
    the s. 276 application.

[51]

Since the trial concluded, Supreme Court of
    Canada jurisprudence has clarified the issue. In
R.
    v. Barton
, 2019 SCC 33, 376 C.C.C. (3d) 1, the
    Crown alleged that the victim was murdered in the course of a sexual assault.
    In its opening address, the Crown told the jury that the victim was a sex-trade
    worker and that she had been killed by Barton in the course of her work. Barton
    later testified about his prior sexual interactions with the victim, without any
    objection by the Crown.

[52]

Writing for the majority, Moldaver J. held, at
    para. 80, that while s. 276(2) only applies to defence-led evidence, the common
    law principles articulated in
R. v. Seaboyer
, [1991] 2 S.C.R. 577 apply when the Crown attempts to lead such
    evidence. The justices who dissented in part, Wagner C.J.C., Abella and
    Karakatsanis JJ., did not disagree with this foundational statement.

[53]

In terms of the respective roles and
    responsibilities of the trial judge and the Crown, Moldaver J. said, at para.
    68:

While the Crown did not object to Mr. Barton's
    testimony about Ms. Gladue's prior sexual activity, in my view, its failure to
    do so was not fatal.
The ultimate responsibility for enforcing compliance
    with the mandatory s. 276 regime lies squarely with the trial judge, not with
    the Crown. After all, it is the trial judge, not the Crown, who is the
    gatekeeper in a criminal trial. Moreover, I simply cannot accept that a
    complainant's dignity, equality, and privacy rights, which the s. 276 regime is
    meant to protect, may be waived by mere Crown inadvertence
. There is
    nothing in the record suggesting that the Crown made a deliberate attempt to
    avoid the application of the s. 276 regime, and indeed it had no reason to.
It
    certainly gained no tactical advantage as a result of non-compliance  quite
    the opposite. And in any event, given the important objectives underlying s.
    276, the Crown should refrain from commenting on a complainant's prior sexual
    history unless necessary.
[Emphasis added.]

[54]

These related themes  the restraints on the
    Crown and the responsibilities of the presiding judge  were echoed in
Goldfinch
. Writing for the majority, Karakatsanis
    J. held, at para. 75:

Much of the evidence that ultimately came out
    in this case was adduced during the Crown's examination of the complainant and,
    to a lesser degree, its cross-examination of Goldfinch. This requires two
    observations. First, I note that Crown counsel would not have adduced this
    evidence but for the s. 276 application, which I have concluded should not have
    been granted.
While the parties did not have the benefit of this Court's
    recent holding in
Barton
, I would reiterate that Crown-led evidence of
    prior sexual activity must be governed by the principles set out in s. 276(1)
    and
Seaboyer
. Second, proper management of evidence which falls within
    the scope of the s. 276 regime requires vigilance from all trial participants,
    but especially trial judges  the ultimate evidentiary gatekeepers
.
    [Emphasis added. Citations omitted.]

See also
R.
    v. R.V
.
, 2019 SCC
    41, 378 C.C.C. (3d) 193, per Karakatsanis J., for the majority, at paras.
    71-82.

[55]

Applying these principles to this case, it did
    not matter whether the Crown opened the door with her romantic relationship
    question. Although the preliminary inquiry judge may have missed possible
    warning signs triggered by the Crowns opening question, it became abundantly
    clear in cross-examination that prior sexual history was squarely in issue. The
    Crown should have objected to this line of questioning. The preliminary inquiry
    judge should have intervened to inquire into the propriety of these questions
    and, perhaps, the possibility of an application under s. 276. It is now clear
    from
Barton
,
Goldfinch
, and
R.V.
that this inaction did not
    transform the improper into the proper, nor did it have the effect of
    confiscating E.S.s equality, privacy, and security rights.

[56]

Moreover, defence counsels submission on the application
     that he was merely attempting to clarify E.S.s answer  is unconvincing. He
    did not ask E.S. to clarify what she understood by the expression romantic
    relationship. Instead, he went straight to the leading question, So you told
    the Crown that youve never had sex with Kevin before? This was not what E.S.
    said in-chief. Defence counsel followed up with, That was the first time that
    you had sex with him? His belief that he could ask these questions because the
    Crown had opened the door was mistaken.

[57]

There was much debate at trial, and to a lesser
    extent on appeal, on the issue of whether E.S. understood defence counsels
    questions about sex to include fellatio. In the excerpt from the trial
    judges reasons reproduced at para. 29, above, the trial judge accepted the
    Crowns position that there was no inconsistency.

[58]

In my view, this was more of a side issue. The
    trial judge and counsel were no doubt focused on this issue because of the
    prominence the video recording had assumed on the application. It was
    undisputed evidence that an act of fellatio had taken place. However, the s.
    276 application was brought on a broader basis. The appellant alleged five
    previous sexual episodes, some of which involved sexual intercourse. If these
    acts had occurred, the contradiction would have been apparent. But even if the
    trial judge approached this aspect of the case too narrowly, it does not
    undermine her ultimate conclusion because defence counsel was not entitled to set
    up this contradiction in the first place.

(d)

The Remedy

[59]

Given my conclusion that E.S. was effectively
    compelled to provide evidence relating to her prior sexual history, contrary to
    s. 276.2(2), it was unavailable for consideration on a s. 276 application at
    trial. In reaching this conclusion, I rely on the reasons given in
Derksen
and
A.J.B.
discussed above.

[60]

Grounded more firmly in the statutory provision,
    s. 276 requires judges to determine the admissibility of evidence of other
    sexual activity in accordance with the procedures in this sections 276.1 and
    276.2. Permitting the defence to rely upon evidence that was improperly
    obtained, effectively in violation of s. 276.2(2), runs afoul of this prescription.

(e)

Was the evidence otherwise admissible?

[61]

In the alternative, Ms. Dann submits that the s.
    276 application could have succeeded without reference to questions posed in
    cross-examination at the preliminary inquiry about sexual activity. She contends
    that E.S.s evidence about how she knew the appellant  as her drug dealer  misrepresented
    the true nature of their relationship, one that involved sex. Relying on
R. v. Harris
(1997), 118 C.C.C. (3d)
    498 (Ont. C.A.), she submits that, in order to dispel this mischaracterization,
    the appellant was entitled to contradict this evidence by establishing that
    their relationship was sexual in nature. Being prevented from doing so, the
    appellants claim in his trial testimony that he never sold drugs to E.S. was destined
    to fail.

[62]

In
Harris
, the complainant testified that she was shocked at the appellants
    sexual advances on the night of the alleged sexual assault because their
    relationship was strictly platonic, there having been nothing of a sexual
    nature between them. The appellant wished to dispute this claim by adducing
    evidence of a sexual encounter the week before. When he made his application
    under s. 276, it was predicated on an assertion of mistaken belief in consent.
    It was dismissed, largely because the trial judge found that there was no air
    of reality in the mistaken belief contention.

[63]

In allowing the appeal, Moldaver J.A. (as he
    then was) held, at para. 42: By testifying as she did, the complainant placed
    the nature of her relationship with the appellant in issue. Accordingly, in
    order to be able to make full answer and defence, the appellant was entitled to
    lead evidence designed to rebut the complainants testimony. He further held
    that, once the complainant testified, evidence of the previous event became
    highly probative of the issue of credibility and that to exclude the evidence
    would be potentially devastating to the appellants position:
Harris
, at paras. 49-50.

[64]

This issue was also addressed in
Goldfinch
. Karakatsanis J. referred to
Harris

and
R. v. Temertzoglou
(2002), 11 C.R. (6th) 179 (Ont. Sup. Ct. J.) and said, at para. 63:

Evidence of a sexual relationship may also be
    relevant when complainants have offered inconsistent statements regarding the
    very existence of a sexual relationship with the accused.
There were no such
    contradictory statements from the complainant in the record at the time of the
voir
    dire
and Goldfinch did not proceed on this basis
. [Emphasis added. Citations
    omitted.]

[65]

Karakatsanis J. expressed caution in approaching
    this type of evidence. She said, at para. 51: Bare assertions that such
    evidence will be relevant to context, narrative or credibility cannot satisfy
    s. 276(2). Moreover, noting that credibility is an issue that pervades most
    trials, she said that generic references to the credibility of the accused or
    the complainant will not suffice for the purposes of s. 276(2):
Goldfinch
, at para. 56.

[66]

In applying
Harris
and
Goldfinch
, I start with the observation that this precise basis of
    admissibility was not advanced at trial. However, in some ways it is very
    similar to what was advanced before the trial judge. Instead of specifically
    relying upon instances of sexual activity, the appellant now emphasizes more
    general notions of his relationship with E.S.  whether he was her drug
    dealer and nothing more. Despite reframing the issue in this way, the
    appellants submission faces the same obstacles involved in his reliance on
    prior sexual activity with E.S.

[67]

Moreover, the purported contradiction that the
    appellant seeks to rely upon had not materialized at the time of the
voir dire
. In her evidence at the
    preliminary inquiry, E.S. was not categorical in her description of her
    relationship with the appellant. As noted above (at para. 20), when asked how
    she knew the appellant, E.S. said, I buy weed from him. This topic was
    explored with E.S. in cross-examination in two places. First, E.S. was asked
    why she went to the rooming house, and she said it was to get marijuana. She
    was asked a second time immediately after the questions and answers about
    whether this was the first time she had sex with the appellant:

Q.:     But
    you said you, youve gone to his place many times.

A.:     Yeah.

Q.:     to buy marijuana?

A.:     To go get dope yeah.

Q.:     And how have you paid for it?

A.:     My
    common law keeps givin me money to go get my weed for me, to get my weed.

[68]

Considering E.S.s evidence as whole, it did not
    amount to a categorical assertion that the
only
interactions that she ever had with the appellant was when she bought
    drugs from him. Moreover, her evidence that their sexual encounter that night
    was initially consensual undermined the relevance of appellants claim on appeal
    that E.S. gave misleading evidence about her relationship with the appellant. E.S.s
    evidence did not amount to the type of inconsistent statements regarding the
    existence of a sexual relationship as contemplated in
Goldfinch
.

[69]

Nor is this case like
Harris
. On the evidence that was before
    the trial judge at the time of the s. 276 application, the positions of the
    appellant and E.S. regarding the nature of their relationship did not differ
    greatly. They were in agreement that they had engaged in consensual sexual
    intercourse. The nature of their relationship that night was sexual. Whether
    they had sex on other occasions was not probative on the issue of whether the
    appellant resumed penetration after he stopped at the appellants request. It
    was not so fundamental to E.S.s credibility that the exclusion of this
    evidence was, in the words of
Harris
, potentially devastating to the appellants credibility. Without
    this foundation, the evidence could only have been used in a manner that was
    contrary to one of the twin myths prohibited by s. 276(1).

[70]

Ms. Dann submits that, even if it could be said
    that E.S.s answers were equivocal on the nature of the relationship, the trial
    judge treated them differently. She points to the following passage in
Kuzmich

(trial),
    at paras. 32-33:

In addition,
she was not shaken on her
    evidence of what her plans had been the night in question or that she only ever
    visited the accused to purchase marijuana from him
.
She admitted to
    having smoked marijuana and shared a beer with the accused in the past,
    however, it was clear from her evidence that the accused was her supplier and
    not a friend with whom she partied
.

Conversely, I did not find the evidence of the
    accused to be believable.
In particular, the fact that he claimed not to be
    a supplier of marijuana to E.S. His testimony on this point does not make sense
    because there was no other reason for E.S. to be in his apartment.
The
    accused confirmed in his evidence that he and E.S. were only acquaintances who
    saw each other in the hallway on occasion when E.S. visited his neighbour,
    Seppo. [Emphasis added.]

[71]

Standing alone, the trial judges reference that
    E.S. only ever visited the accused to purchase marijuana from him is more
    categorical than the evidence suggests. However, taken as a whole, the first
    paragraph in this passage presents an accurate rendition of E.S.s evidence
    about the nature of her relationship with the appellant.

[72]

Moreover, the manner in which the trial judge
    resolved the competing claims in the evidence about the nature of the
    relationship does not reveal any unfairness in the s. 276 ruling. The appellant
    submits that his assertion of not being E.S.s drug dealer was unfairly
    undermined in the above-quoted passage. However, this takes us back to the
    manner in which the issue was litigated at trial. On his s. 276 application,
    the appellant did not explicitly deny selling drugs to E.S. It was not until he
    gave evidence at trial that he made this claim. Although it was undoubtedly the
    appellants right to proceed in this fashion, he cannot now claim that it
    rendered the s. 276 ruling unfair. Moreover, the appellant did not seek to
    reopen or readdress the issue after he testified: see
R.V
.
, at
    para. 74, concerning the ability of a trial judge to reconsider a s. 276 ruling
    based on a material change of circumstances.

[73]

On a more general level, Ms. Dann further
    submits that the trial judges findings were unfair to the appellant because she
    was aware of the evidence from the
voir dire
concerning the prior sexual relationship, particularly the video
    recording, which was indisputable evidence of prior sexual activity. I disagree
    that there was anything improper in the trial judges approach. Having made her
    decision on the s. 276 application, the trial judge demonstrated discipline in
    deciding the case solely on the admissible evidence at trial. Had the case been
    tried by a judge and a jury, the jury would not have known about the video
    recording or the appellants affidavit evidence suggesting other sexual
    activity. The trial judge placed herself in the same position in deciding the
    ultimate issue in this case, disabusing her mind of what she had learned on the
voir dire
, as she was
    required to do.

[74]

I would dismiss this ground of appeal.

D.

Section 715 issue

(1)

Introduction

[75]

Had the trial judge allowed the appellants s.
    276 application, it would have ended the trial because E.S. could not be
    cross-examined on the alleged instances of prior sexual history. However,
    because the s. 276 application was dismissed, the trial judge was required to
    determine whether E.S.s preliminary inquiry testimony was admissible under s.
    715 of the
Criminal Code
.

[76]

The trial judge gave very brief reasons for
    allowing the application. As she said, at para. 28: Because I have denied the
    s. 276 application, the defence argument that they did not have a full
    opportunity to cross-examine the complainant fails. Therefore the evidence of
    the complainant from the preliminary inquiry may be admitted under s. 715 of
    the
Code
, with the
    exception of the questions and answers regarding a prior sexual relationship
    with applicant.

[77]

The appellant argues that the trial judge erred
    by approaching the question from a perspective that was too narrow. Moreover, although
    the trial judge addressed certain aspects of s. 715, she failed to consider the
    residual discretion afforded under this section to address fair trial
    considerations.

[78]

The respondent acknowledges that the trial judge
    failed to consider the residual discretion as a reason for refusing the
    application. However, Ms. Lai submits that, once the s. 276 application had
    been dismissed, there was nothing about this case that was remarkable in terms
    of trial fairness considerations.

(2)

Discussion

[79]

Section 715(1) of the
Criminal Code
provides:

715(1)
Where,
    at the trial of an accused, a person whose evidence was given at a previous
    trial on the same charge, or whose evidence was taken in the investigation of
    the charge against the accused or on the preliminary inquiry into the charge,
    refuses to be sworn or to give evidence, or if facts are proved on oath from
    which it can be inferred reasonably that the person

(a)

is dead,



and
where it is proved that the evidence
    was taken in the presence of the accused, it may be admitted as evidence in the
    proceedings without further proof, unless the accused proves that the accused
    did not have full opportunity to cross-examine the witness
. [Emphasis
    added.]

[80]

An earlier version of this section survived a
Charter
challenge in
R. v. Potvin
, [1989] 1 S.C.R. 525. As Wilson
    J. stated, at p. 553, the purpose of the section is to ensure that evidence,
    even important and highly probative evidence, is not lost because of the unavailability
    of a witness at trial.

[81]

The Court outlined a two-step process, one based
    on the textual pre-conditions for admissibility under the section, as well as a
    broad residual discretion to refuse admission of the prior testimony.

[82]

At the first stage, the disputed issue is
    typically whether there was full opportunity to cross-examine the witness.
    This was the main frame of reference before the trial judge in this case. In
R. v. Lewis
, 2009 ONCA 874, 249 C.C.C.
    (3d) 265, this court discussed the scope of the full opportunity requirement
    in s. 276. As Moldaver J.A. (as he then was) said, at para. 68:

The better approach, in my view, is to limit
    consideration of the "full opportunity" requirement to cases where,
    for example, a witness refuses to answer questions in cross-examination, a
    witness dies or disappears in the midst of cross-examination, or where the
    presiding judge curtails cross-examination by imposing improper limitations or
    restrictions. It should
not
apply where the failure to
    cross-examine stems from an accused person's ignorance of potentially useful
    information, no matter the cause or reason. Those situations, in my view, are
    best dealt with under trial fairness, where, as I have indicated, the reason
    for the missing information can properly be taken into account as a factor.
    [Emphasis in original.]

[83]

In terms of the opportunity to cross-examine
    factor, the situation in this case did not fall within any of the scenarios
    contemplated by Moldaver J.A. in
Lewis
. In his affidavit sworn in response to the Crowns s. 715
    application, defence counsel identified the areas in which he would have sought
    to cross-examine E.S. had she not passed away before the trial. In addition to prior
    sexual history, counsel would have explored, her credibility and her
    relationship with the rest of the tenants in the building and her relationship
    with the tenants with respect to the buying and selling of drugs. Crucially,
    defence counsel admitted that, [a]ll of these questions in cross-examination
    were not put to the witness for tactical reasons in order to test her
    credibility and reliability at a trial stage and not at the preliminary hearing
    stage. Defence counsel did have an opportunity to cross-examine on these issues.
    He chose not to.

[84]

The appellants claims are better suited to
    consideration under the residual discretion discussed in
Potvin
and
Lewis
. In describing this discretion, Wilson J. prescribed a cautious
    approach. She said, at p. 548: I hasten to add, however, that such circumstances
    will be relatively rare and that the discretion to prevent unfairness is not a
    blanket authority to undermine the object of [s. 715(1)] by excluding evidence
    of previous testimony as a matter of course. Subsequent decisions of this
    court continue to endorse this approach: see
R. v. Saleh
, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 78;
R. v. Jones-Solomon
, 2015 ONCA 654, 329
    C.C.C. (3d) 191, at para. 43; and
R. v. Headley
, 2018 ONCA 915, 368 C.C.C. (3d) 308, at para. 10.

[85]

Wilson J. had in mind two main types of
    mischief at which the discretion might be aimed: (1) where unfairness arises
    from the manner in which evidence is obtained; and (2) where admission of the
    prior testimony impacts on the fairness of the trial. Only the latter is engaged
    in this case.

[86]

As noted above, defence counsel at trial decided
    against pursuing certain lines of cross-examination based on tactical
    considerations. Wilson J. addressed this issue in
Potvin
, at p. 546:

As for the detriment an accused might suffer
    from the tactical decision of his or her counsel not to press certain issues at
    the preliminary inquiry with a witness who may subsequently become unavailable
    at trial, I am in complete agreement of the observation of Martin J.A. in
R.
    v. Davidson
[(1988), 42 C.C.C. (3d) 289 (Ont. C.A.)], at p. 298:

In my view, an accused is not deprived of
    "full opportunity" to cross-examine a witness at the preliminary
    hearing merely because his counsel, for tactical reasons, has conducted the
    cross-examination of a witness differently than he would have conducted the
    cross-examination at the trial, provided that there has been no improper
    restriction of the cross-examination by the provincial judge holding the
    preliminary hearing.

[87]

See also
R. v.
    Ingraham
(1991), 66 C.C.C. (3d) 27 (Ont. C.A.), at
    p. 30.

[88]

Wilson J., as Martin J.A. did, addressed tactical
    considerations under the rubric of a full opportunity to cross-examine. After
Lewis
, this is more
    appropriately considered under the residual discretion. But even when
    transplanted into this less rigid framework, the same result should obtain. A
    trier of fact should not be deprived of important evidence merely because
    defence counsel decided to keep his powder dry at the preliminary inquiry.
    Section 715 attempts to preserve valuable evidence that would otherwise be
    lost; it is not designed to permit counsel to second-guess tactical decisions
    made earlier in the proceedings.

[89]

In conclusion, although the trial judge decided
    the s. 715 application on a narrow basis, the record does not support the
    conclusion that the admission of E.S.s preliminary inquiry testimony impacted
    adversely on the fairness of the trial. My conclusion is fortified by the fact
    that the appellants complaint is largely concerned with being deprived of the
    opportunity to cross-examine on evidence that was improperly obtained at the
    preliminary inquiry, as discussed above.

[90]

I would reject this ground of appeal.

E.

assessment of credibility

[91]

The appellant submits that the trial judge made
    several errors in making her credibility findings, including: (1) she
    misapprehended the evidence; (2) she relied upon stereotypical reasoning in
    making her credibility findings; and (3) she relied on a distorted view of the
    appellants relationship with E.S. I would reject these arguments.

[92]

The trial judge was keenly aware of the
    challenges posed in assessing the weight of E.S.s preliminary inquiry
    testimony. This theme is evident throughout her reasons at trial. As she said, In
    this trial, there is the added issue of whether or not the evidence of E.S.
    should be provided the weight it would have had she been present and testified
    at trial and had been subject to cross-examination at trial:
Kuzmich
(trial), at para. 13.

[93]

The trial judge accepted the defence position
    that there were tactical reasons why defence counsel did not cross-examine E.S.
    on the inconsistencies between her statement to Constable Beck and her
    preliminary inquiry evidence. Even though she rejected this as a basis for
    dismissing the s. 715 application, the trial judge agreed that it was relevant
    to the weight to be accorded E.S.s evidence: see
R.
    v. Li,
2012 ONCA 291, 110 O.R. (3d) 321, at paras.
    68-69, 71. The trial judge relied upon David Watt,
Watts
    Manual of Criminal Jury Instructions
, 2
nd
ed. (Toronto: Thomson Reuters, 2015), Mid-Trial 8-A, which provides guidance to
    the trier of fact in dealing with evidence admitted under s. 715. The key part
    of this instruction provides: When you consider this evidence, however,
    remember that you did not see or hear this witness testify. Consider as well
    whether there is any dispute about what [the witness] said in his/her
    evidence.

[94]

After reviewing the transcript of E.S.s
    evidence and listening to the audio recording of her testimony, the trial judge
    said, E.S. appeared to be having some difficulty understanding some of the
    questions posed to her about who drank her beer and when. This is interspersed
    throughout her evidence:
Kuzmich

(trial), at para. 22. She did not
    identify any other points of confusion in E.S.s evidence, nor did counsel on
    appeal. The trial judge viewed the discrepancies identified by defence counsel
    as relatively minor and insignificant and not sufficient to undermine the
    reliability or credibility of E.S. as to the alleged behaviour of the accused and
    stated, I find these inconsistencies as well as the others identified by the
    defence to be minor in light of the evidence I do accept:
Kuzmich

(trial),
    at paras. 28, 31.

[95]

In evaluating the discrepancies between E.S.s
    testimony and her statement to Constable Beck, the trial judge focused on
    E.S.s core allegation  that the appellant did not stop when she asked him to
    do so. The trial judge said, The defence did not point to any discrepancy in
    her testimony on this point as it pertained to the statement she provided to
    Constable Beck:
Kuzmich

(trial), at para. 35. She rejected the
    appellants evidence in light of the evidence that I do accept:
Kuzmich

(trial),
    at para. 36.

[96]

The appellant submits that the trial judge
    misapprehended the evidence when she made the following statement: In summary,
    I do not accept the evidence of the accused that he stopped engaging in sexual
    intercourse when asked to do so. I did not find his evidence on this point to
    be credible or reliable in light of the evidence that I do accept:
Kuzmich

(trial),
    at para. 36. The appellant submits that even E.S. testified that the appellant
    did stop for a while before penetrating her again.

[97]

The trial judge did not misapprehend this
    evidence. She was aware that E.S. alleged that the appellant stopped when
    asked, but then continued despite her resistance. Two paragraphs earlier, in
    para. 34, the trial judge said just that: I accept the evidence of E.S. that
    she attempted to have the accused stop, that he did briefly, but then resumed
    the sexual contact.

[98]

The appellant also objects to the trial judges
    finding, also in para. 34, that the appellants testimony that he stopped when
    asked does not ring true. Ms. Dann submits that this finding reflects that
    the trial judge presumed the appellants guilt. In his factum, the appellant
    submits that, Given that society expects reasonable individuals to respect the
    wishes of others when they withdraw their consent during sex, the trial judges
    criticism of the Appellant for testifying that he did exactly that was
    unreasonable.

[99]

The trial judges finding was not made in the
    abstract; nor is it undermined by resort to normative claims about good
    citizenship. The trial judge considered the appellants claim in light of all
    of the evidence, particularly that which she did accept, which was E.S.s
    version of events on the critical issue of what occurred after she had
    withdrawn her consent. This was a finding that was available on the evidence:
    see
R. v. J.J.R.D
.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.

[100]

The remaining submissions about the trial judges reasons focus on
    para. 33 of the trial judges reasons (which is reproduced, in part, in para. 70,
    above), in which the trial judge says the following:

Conversely, I did not find the evidence of the
    accused to be believable. In particular, the fact that he claimed not to be a
    supplier of marijuana to E.S.
His testimony on this point does not make
    sense because there was no other reason for E.S. to be in his apartment
.
    The accused confirmed in his evidence that he and E.S. were only acquaintances
    who saw each other in the hallway on occasion when E.S. visited his neighbour,
    Seppo.
That E.S. would stop at the accused's apartment on this occasion and
    without encouragement, undress, climb on the bed with a broken wrist and then
    invite the accused to have sex with her is equally not believable.
[Emphasis added.]

[101]

The appellant submits that the last underscored part of this passage
    reflects stereotypical reasoning by the trial judge  i.e., that it is unlikely
    that a woman would initiate sex with a man in the manner described. As I read
    this passage, the trial judge was assessing the likelihood of this having
    happened in light of the trial evidence that touched on the relationship
    between the appellant and E.S. It was in this context that the trial judge
    rejected the appellants evidence, not because of stereotypical assumptions
    about gender roles in sexual situations.

[102]

The appellants real complaint with this paragraph is that it
    ignores what he claims was the true nature of the relationship between E.S. and
    the appellant, one that involved previous sexual contact. This is just another
    attack on the trial judges s. 276 ruling, which I have already addressed
    above.

[103]

I return to the critical issue at trial and on appeal  whether the
    appellant continued to penetrate E.S. without her consent, after he initially stopped
    at her request. There was no doubt that E.S. consented to sexual intercourse
    with the appellant. It is common ground that he stopped when asked. The only
    issue is whether he continued after that. Whether they had sex on previous
    occasions, or whether the appellant was more than just her supplier of
    marijuana was not helpful one way or the other in resolving this issue. The
    trial judges reasons are faithful to this reality of the case.

[104]

I would dismiss this ground of appeal.

F.

disposition

[105]

I would dismiss the appeal.

Released: PL June 9, 2020

Gary Trotter J.A.

I
    agree. P. Lauwers J.A.

I
    agree. Fairburn J.A.





[1]

The
Criminal

Code
was amended (S.C. 2018, c.
    29, s. 25) such that the procedural framework for applications that was set out
    in ss. 276.2 through 276.5 has now been relocated to ss. 278.93 through 278.97.
    These provisions were not in force until December 13, 2018, which was after the
    trial. The successor to s. 276.2(2) is s. 278.94(2). Unless otherwise
    specified, further references in this judgment are to the pre-amendment
    version.



[2]

Section 278.94(2) now provides: The complainant is not a
    compellable witness at the hearing but may appear and make submissions.


