



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. A.S., 2020 ONCA 229

DATE: 20200319

DOCKET: C65565

Roberts, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.S.

Appellant

D. Lea Scardicchio and Efstathios Christos
    Stephen Balopoulos, for the appellant

Erin Nicole Elizabeth Rivers, for the respondent

Heard: January 6, 2020

On appeal from the conviction entered on
    May 11, 2018 and the sentence imposed on September 18, 2018 by Justice Peter
    Tetley of the Ontario Court of Justice, sitting without a jury.

Paciocco J.A.:

OVERVIEW

[1]

A.S. was convicted in a judge-alone trial of sexually
    assaulting his wife, the complainant. He appeals this conviction and seeks
    leave to appeal his sentence, alleging numerous errors. I need not address all
    his grounds of appeal. This is one of those uncommon cases where the trial
    judge misapprehended evidence that was critical to his decision to convict. Faced
    with testimony from a complainant with credibility problems, he looked for
    corroboration of her testimony and found it in evidence that did not exist. His
    misapprehension of evidence was crucial to his reason for convicting A.S. There
    was, therefore, a miscarriage of justice.

[2]

I would allow the appeal and order a new trial.

MATERIAL FACTS

[3]

On January 1, 2016, the date of the alleged
    offence, A.S. and the complainant were in a period of significant marital
    discord. Although their relationship had been erratic, the complainant was open
    about an intimate relationship she was having with another man. A.S. had been
    sleeping on the couch for at least a month. The parties were discussing
    separation and divorce, but discussions were also ongoing about whether they
    would remain together.

[4]

On the morning of January 1, 2016, A.S. insisted
    on resolving the uncertainty, telling his wife to commit to the marriage or
    move out and leave him with the children. A.S. audio recorded part of the
    conversation. He claimed that this was accidental, the result of his unfamiliarity
    with his new smart watch. This recording, which the trial judge admitted into
    evidence, records the complainant initially responding to the ultimatum by saying
    that she did not know what to do, but then telling A.S. that she did know what she
    had decided and would tell him when she was ready. She also told A.S. that she
    was going to get rid of him, which he indicated he interpreted as a death
    threat. The recording ends with A.S. accusing the complainant of making a death
    threat and her response that she was joking. When A.S. replied that he was not
    joking, she said, Oh my God.

[5]

That evening, after the couple returned home
    from a dinner at the complainants grandmothers home, the alleged sexual
    assault occurred. In her testimony, the complainant described a protracted,
    violent, and humiliating sexual assault. The complainant alleges that during the
    assault A.S. pried her legs apart, violently inserted his hand into her vagina,
    and after unsuccessfully attempting to have intercourse with her, ultimately masturbated
    himself to ejaculation on her shirt and stomach. During the assault, she says
    she reached for her phone in order to call 9-1-1 but was unable to dial the
    number. She did, however, manage to unlock her phone and open and activate an
    audio-recording app, which recorded approximately nine minutes of the event. The
    recording captured the sounds of an apparently distraught complainant
    repeatedly telling A.S. to get away from her, not to touch her, to stop and to
    get off her.
[1]


[6]

The next day the complainant told an
    acquaintance, J.R., about the alleged sexual assault. J.R. assisted the
    complainant in contacting the police. After the complainant was directed to the
    proper police station by the police the alleged sexual assault was reported. At
    that time the complainant also reported an earlier, common assault from
    December 5, 2015, in which she described A.S. as grabbing her arm so forcefully
    that it left bruises that lasted for months.

[7]

After reporting the alleged assaults, the
    complainant attended a health centre where she met with a sexual assault nurse
    examiner. The nurse examiner recorded small bruises to the backs of each of the
    complainants legs, above her knees, as well as redness to her labia majora and
    labia minora. No photos were taken, and the notes the nurse made were not
    extensive.

[8]

A.S. was charged and tried with two offences
    against the complainant: the January 1, 2016 sexual assault, contrary to
Criminal
    Code
, R.S.C., 1985, c. C-46,

s. 271, and the December 5, 2015 common
    assault, contrary to
Criminal Code
, s. 266. His trial began on
    November 15, 2017. It ran for six days, including closing submissions, spread out
    over close to four months. The length of time it took to complete six days of
    trial no doubt contributed to some of the difficulties described below.

[9]

At trial, the complainants testimony was not
    uneventful. Evidence she gave about the nature of the relationship, both before
    and after the alleged sexual assault, was challenged effectively with
    inconsistent emails and text messages.

[10]

Aspects of her narrative were also contradicted
    by objective evidence, including her claim that she was not on the computer the
    day of the sexual assault, because it was not working. Evidence showed that she
    had, in fact, been using the computer around the time of the assault. I make
    particular mention of this contradiction only because it is material to A.S.s version
    of events. A.S.s narrative of the event was that she lured him to her while at
    the computer by asking him to give her assistance. Proof that she had, in fact,
    been using the computer was consistent with his narrative, but not hers.

[11]

The trial judge ultimately found that the
    complainant was not forthright about aspects of her relationship with A.S. However,
    the trial judge did not remark about other difficulties with her evidence, including
    the evidence confirming the contradiction about the functioning of the
    computer, post-offence messages that contradicted the complainants denial that
    after the event she was trying to reconcile with A.S., or the apparent threat
    she made on the morning of January 1, 2016.

[12]

During her testimony, the Crown began to play
    the recording of the alleged sexual assault. When the court was provided with
    an English translation of the Italian spoken on the recording, defence counsel
    agreed that the translation was an accurate reflection of what was on the recording.
    When the recording was played during the examination-in-chief of the
    complainant, she became upset. The Crown suggested that, given the concession defence
    counsel had made about the accuracy of the transcription, it might not be
    necessary to have the witness hear and adopt the recording. Defence counsel
    initially raised objection to this suggestion, since the defence position was
    that the recording was incomplete and had been edited to remove material
    helpful to A.S. After further discussion defence counsel agreed with the trial
    judges suggestion that the recording could be filed as evidence of the recording
    according to [the complainants] testimony, but that its weight could be
    challenged.

[13]

J.R. testified. She described receiving a call
    from a friend who advised her that the complainant needed help. She picked the
    complainant up in her car at a nearby public transit station. The complainant
    was upset and crying. She brought the complainant to her apartment. There the
    complainant told her about being assaulted, played a few seconds of the recording
    of the alleged event, and showed her a bruise or bruises on her arm or arms
    near the bicep area. J.R. could not recall the size or colour of the bruises.

[14]

The examining nurse also testified. She had
    little if any independent memory of meeting with the complainant, and there was
    much that she had not noted and could not recall. Using markings that she had
    made on a body map when examining the complainant, the examining nurse
    described seeing two small bruises on the back of the complainants legs, above
    her knees. She also confirmed based on her notes the redness to the
    complainants genitals but noted no other marks. She agreed with the defence
    suggestion that had she observed other marks she would have recorded them.

[15]

A.S testified in his defence. He denied the
    common assault on December 5, 2015 and gave detailed testimony about the alleged
    sexual assault. He described the complainant calling him to the computer wearing
    only a T-Shirt and underwear and seducing him. After heavy kissing she excused
    herself momentarily and went to her phone. He claims that when she returned, they
    resumed the sexual activity, but she began to say no and protest while at the
    same time manipulating his exposed penis. He said he was confused by this but
    that, as the more active participant in the sexual touching, the complainant was
    clearly consenting, including on the occasions when he did touch her. He said
    that he stopped a few times and asked her what she was doing, but these parts
    of the exchange were not reflected in the recording. He ultimately climaxed. He
    described the complainant going to the bathroom with her phone and that he
    could hear voices from the bathroom. It was his position that the recorded event
    was staged by the complainant, and that the recording had been edited by the
    complainant to support a false allegation of sexual assault.

[16]

A.S. called an expert witness who identified two
    anomalies on the audio recording that the expert witness said were consistent
    with editing. First, at approximately 8 minutes and 30 seconds into the recording,
    a handling noise can be heard, followed by a brief disturbance in the sound
    described as a bump, as though the recording device had been moved to a
    different location than before. Second, the audio was recorded at an unusual
    frequency, which could be indicative of it being re-recorded. These
    observations raised the possibility that the recording was edited, but there
    were also alternative, innocent explanations consistent with the recording
    being genuine. The expert was hampered in his analysis by the fact that the cellphone
    that had been used to make the original recording had never been disclosed.

[17]

In its submissions on March 6, 2018, the Crown
    asked the trial judge to enter not guilty findings with respect to the common
    assault allegation, based on a lack of evidence. The trial judge agreed and did
    so. Argument was made on the sexual assault charge, and the trial judge
    reserved judgment.

[18]

On May 11, 2018, the trial judge released the
    decision. Rather than read the 16-page written decision in its entirety, he
    summarized the decision orally, and handed out copies of the written decision.

[19]

On May 11, 2018, the trial judge purported to
    convict A.S. of both the sexual assault and the common assault charges. He was
    subsequently reminded that he had already found A.S. not guilty of the common assault
    charge. The trial judge issued an addendum on May 30, 2018, acquitting A.S. of
    that offence.

[20]

On September 18, 2018, A.S. was sentenced to 20
    months in prison followed by two years of probation.

ISSUES

[21]

A.S. appeals his conviction. He raises
    numerous, often overlapping grounds of appeal. Since I would allow the appeal,
    I need not address all the grounds advanced. I will discuss only three of those
    grounds, even though I would allow the appeal on only one of them. Discussion
    of the remaining two grounds of appeal assists in explaining the ground of
    appeal I would allow, namely ground of appeal B. The three grounds of appeal I
    will consider are:

A.

Did the trial judge err in admitting the audio
    recording evidence?

B.

Did the trial judge cause a miscarriage of
    justice by misapprehending material evidence?

C.

Did the trial judge give adequate reasons for
    conviction?

A.

Did the trial judge err in admitting the AUDIO
    RECORDING evidence?

[22]

I am persuaded that the trial judge did not
    admit the audio recording as original evidence of what transpired while the
    audio recording was being made. Instead, he admitted it on the more restricted
    basis that the recording was an authentic record of what it records, however
    complete or continuous that recording may be. On that basis, and that basis
    alone, I would find that the trial judge did not err in admitting the audio recording
    evidence.

[23]

The complainant testified that she managed to
    make the recording by turning on her cellphone after the alleged assault was
    underway. The recording was, therefore, presented by the Crown as an incomplete
    but accurate reproduction of what occurred while the cellphone was recording.

[24]

When the recording was being played in the
    presence of the complainant in court in order to authenticate it, she became
    emotional. The Crown sought an admission from A.S. that would spare the
    complainant from having to listen to the entire recording. Defence counsel acknowledged
    that what was recorded was from the event, and accurate so far as it went, but objected
    to the admission of the recording, claiming that it had been edited by removing
    exculpatory things that were said while the recorder was activated. In other
    words, the recording was not a fair and accurate representation of what
    happened because it was not complete and continuous. Defence counsels
    objection and the trial judges response is reflected in the exchange that
    ensued, reproduced in part below:

THE COURT:  I appreciate that I had been
    alerted to the fact but theres some suggestion that it may  the recording  that
    it was submitted to the police, may not represent the entirety of what
    transpired. But if its acknowledged that there is this recording, that this is
    an accurate transcription of the recording such as it is, it might alleviate
    the necessity of the Crown having the witness adopt it, not going to preclude
    the defence from playing the recording. But it might allow for its reception
    into evidence without the complainant having to hear the entirety of the
    recording. So,

MR. SAHULKA:  It will become more evident as
    we go along is that the complainant has manufactured these events  The
    position of the defence is that for an individual who we suggest [h]as
    manufactured this evidence, it should not be upsetting for them to hear it at
    this stage. I understand my friends concerns



THE COURT: Im just making a suggestion that
    you can cross-examine at will. Were talking about the admissibility of this
    evidence. Youre talking about weight. So, -

MR. SAHULKA: Yes.

THE COURT:  and whether its reliable. The
    witness has asserted that she recorded at least in part the assault that shes
    described.

MR. SAHULKA: Yes.

THE COURT: And that the defence is prepared to
    acknowledge that this is that recording according to her testimony. She could
    confirm presumably that she gave the recording to the police and that you could
    acknowledge that this is the recording. Im just proposing that might alleviate
    her having to listen to the whole recording now. Youre at liberty certainly to
    cross-examine. I appreciate your position may be that this is contrived, may
    not be difficult for her to listen to but it certainly appears to be. So, Im
    just talking about the filing of the recording. Thats all.

MR. SAHULKA: Im, Im fine with that. Im
    prepared to, to do that, Your Honour.

[25]

As is shown in the passage reproduced above, the
    trial judge suggested to defence counsel that his concerns about editing were
    really matters of weight. The trial judge then suggested that the audio
    recording could be filed as the recording according to [the complainants]
    testimony, or as at least in part the assault that shes described. On that
    basis, defence counsel agreed.

[26]

I recognize that the way in which the
    admissibility of the recording was handled represented a commendable attempt by
    all parties to be solicitous of the complainants welfare. Unfortunately, the
    basis for admission was left somewhat unclear. The record and the Reasons for Judgment
    require interpretation to understand the trial judges admissibility ruling.

[27]

The outcome of that interpretation matters, for
    as the Alberta Court of Appeal pointed out in
R. v. Bulldog
, 2015 ABCA
    251, 22 Alta. L.R. (6th) 27, what authentication requires for the purposes of
    admissibility depends upon the claim(s) which the tendering party is making
    about the evidence: at para. 32. In this context, the correctness of the trial
    judges admission of the recording turns upon his basis for admitting it.

[28]

If the trial judge admitted the recording for
    the purpose the Crown intended, as an accurate continuous reproduction of what
    occurred while the cellphone was recording, then the trial judge would have erred
    by treating the editing issue as a matter of weight. Given the use the Crown
    wished to make of the recording, the trial judge would have been obliged to
    conduct an inquiry into whether the Crown had shown, to the appropriate
    standard of proof, that the recording was a substantially accurate and fair
    representation of those events:
R. v. Bulldog
, at para. 33.
[2]
Yet the trial judge did not
    conduct any such inquiry before admitting the recording.

[29]

But if the trial judge admitted the recording
    solely for the more restricted purpose expressed, namely, as a recording
    according to [the complainants] testimony, or as at least in part the
    assault that shes described, then the trial judge did not err in admitting
    the recording. If the trial judge was not going to rely upon the recording as
    proof of all that happened while the event was being recorded, there would be no
    need for him to require authentication of the recording as a substantially
    accurate and fair recording of actual events.

[30]

Of course, having admitted the recording for
    this restricted purpose, it would then be unfair for the trial judge to use it
    as more than illustrative of the complainants version of events. It could not,
    for example, be used to corroborate the complainants evidence that the tape
    recorded the entire event, and that no words indicative of consent had been spoken.

[31]

In my view, when the transcripts and judgment
    are read as a whole the only reasonable conclusion is that the trial judge
    admitted the recording solely for this latter, illustrative purpose, and not as
    original evidence. I am also persuaded that the trial judge confined his use of
    the recording to this limited purpose. He therefore avoided the error claimed
    in this ground of appeal. I come to this conclusion on four bases.

[32]

First, the trial judge is presumed to know the
    law, and had he admitted the recording for the former purpose as original
    evidence, he would have erred.

[33]

Second, I do not know what else to make of the
    language recording according to [the complainants] testimony, or as at
    least in part the assault that shes described. Those words draw a fast link
    between the use that would be made of the recording, and the complainants
    testimony. That language cannot accurately describe a decision by the trial
    judge to admit the recording as authenticated, original evidence of what, in
    fact, transpired while the events were being recorded.

[34]

Third, if the trial judge intended to admit the recording
    as original evidence of what transpired, that ruling would have been unfair to
    the defence. The recording was admitted on consent, and there is no basis for
    concluding that A.S. was consenting to the admission of the recording as an
    authenticated, complete record of events while the recording was operating.

[35]

Fourth, the trial judge never relied upon the recording
    as original evidence corroborating the sexual assault in his Reasons for
    Judgment. This is consistent with his having admitted it solely as illustrative
    of the complainants testimony.

[36]

More specifically, the only use the trial judge described
    making of the recording in his Reasons for Judgment was his observation that
    the recording accurately reflects the complainants active verbalization of an
    absence of consent. This is consistent with his use of the recording as a
    recording according to [the complainants] testimony, since the recording
    does reflect the complainants testimony that she was saying no and protesting
    during the alleged assault. At no point in the Reasons for Judgment does the
    trial judge purport to rely on the recording as evidence capable of resolving
    the point in contest, which was whether the complainant was herself engaged in
    consensual sexual activity with A.S. while actively verbalizing an absence of
    consent.

[37]

In coming to this conclusion, I have considered
    two factors that may appear, on their face, to support an intention by the
    trial judge to admit the recording as original evidence of the event while the recording
    was recording.

[38]

First, the trial judges ruling that the editing
    of the recording is a matter of weight may indicate that the trial judge was
    reserving the right to rely on the recording as an unedited recording of the
    event, if the editing claim proved to have no weight. On the other hand, he may
    simply have been intending to give the recording the weight he was going to assign
    to the complainants testimony about what occurred. Only this latter option is
    consistent with what else the trial judge said when admitting the recording,
    and with his ultimate, restricted use of the recording.

[39]

Second, the trial judge did ultimately find that
    the recording had not been edited, but this, too, is equivocal. The trial judge
    had to evaluate whether the recording was edited in order to determine whether
    A.S.s testimony raised a reasonable doubt.

[40]

On balance, I am persuaded that the trial judge
    admitted the recording for the limited purpose, namely, as illustrative of the
    complainants testimony, and not as original evidence.

[41]

On this premise  that the recording was
    admitted solely as illustrative of the complainants testimony  the trial
    judge did not err in admitting the recording without assessing its accuracy and
    fairness. If I had found that he admitted the recording as original evidence of
    the event, I would have found him to have erred by admitting the recording
    without inquiring into whether it was a fair and accurate representation of
    what happened.

B.

Did the trial judge cause a miscarriage of
    justice by misappreheNding material evidence?

[42]

A.S. contends that the trial judge
    misapprehended the evidence, including:

·

The examining nurses evidence about the
    location of bruises on the complainants leg; and

·

J.R.s evidence about the bruises she observed.

[43]

I will begin by setting out the material law. I
    will then approach these alleged misapprehensions of evidence in turn,
    explaining why I would not find that the trial judge misapprehended the
    examining nurses evidence about the location of bruises on the complainants
    leg. I will then explain why I would find that the trial judge misapprehended
    J.R.s evidence relating to leg bruises and why this constitutes reversible
    error.

(1)

The Material Law

[44]

A misapprehension of evidence will be a
    reversible error only if it causes a miscarriage of justice. Such a miscarriage
    of justice will occur where the misapprehension of the evidence is material and
    not merely peripheral, and where the misapprehension plays an essential part
    not just in the narrative of the judgment but in
the
    reasoning process resulting in the conviction
:
R. v. Lohrer
, 2004
    SCC 80, [2004] 3 S.C.R. 732, at para. 2 (emphasis added), citing
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. As these
    emphasized words make clear, the focus in applying this stringent standard is
    on the trial judges reasoning, not on whether the verdict can be supported by
    other evidence:
Lohrer
, at para. 2. As Doherty J.A. noted in
R. v.
    Morrissey
, at p. 221:

If an appellant can demonstrate that the
    conviction depends on a misapprehension of the evidence then, in my view, it
    must follow that the appellant has not received a fair trial, and was the
    victim of a miscarriage of justice. This is so even if the evidence, as
    actually adduced at trial, was capable of supporting a conviction.

[45]

In effect, where the trial judges conviction
    depends on information not in evidence, the trial is rendered unfair since
    appropriate convictions are based solely on the evidence.

(2)

The trial judge did not misapprehend the nurses
    evidence

[46]

The complainant testified that, during the
    sexual assault, A.S. pried her legs apart against her resistance. She testified
    that he left two bruises with his thumbs on the inside of her calves, where it's
    more fleshy.

[47]

The examining nurse did not note any bruises on
    the complainants calves but did record a small bruise on the back of each leg,
    above the complainants knees. A.S. argued that the nurses evidence contradicted
    the complainant, since there was no bruising where the complainant claimed.
    Instead, the trial judge said:

Corroboration for the complainants accounts
    of events is concluded to be manifest in the bruising to her legs. I am not
    persuaded that the evidence of the examining nurse is determinative of that
    issue or serves to undermine the reliability of the complainants account. The
    previously referenced lack of detail in that examination, the absence of any
    related photographic or digital imagery and the profound absence of any
    independent recollection by the reviewing nurse, serves to largely undermine
    the reliability of the evidence offered by that witness.

I accept that bruising occurred to the calves
    of the complainant as she described. That circumstance was verified by the
    testimony of J.R. and is reflected in the subsequent account of events offered
    during the complainants police interview of January 4, 2016.

[48]

A.S. apparently interprets this passage as a
    finding by the trial judge that the examining nurses observations corroborate
    the bruising to the complainants calves. I do not read the trial judges
    decision this way. In the above passage, which contains the relevant reasoning,
    the trial judge sets aside the examining nurses evidence because her
    reliability was undermined. I see no basis for concluding that the trial judge
    misapprehended the examining nurses evidence and relied upon it as
    corroborating the complainant.

(3)

The trial judge committed reversible error by
    finding that J.R. observed leg bruises

[49]

A.S. is correct, however, in pointing out that
    the trial judge misapprehended the evidence of J.R. The complainant testified
    that she had bruises on her calves. The trial judges finding to that effect is
    recorded in the passage quoted above. However, J.R. offered no evidence
    corroborating the bruises on the complainants legs. J.R. testified only about
    arm bruises.
[3]
J.R.s testimony was, therefore, incapable of verifying the complainants
    testimony about calf bruises, yet the trial judge found that it did. In doing
    so, he misapprehended her evidence.

[50]

I would find that this misapprehension caused a
    miscarriage of justice. The trial judges corroboration finding, recounted in
    the passage quoted above, was central to his reasoning. In turn, the
    misapprehension was essential to his corroboration finding. I will begin with
    this latter point.

[51]

The trial judge identified two sources of
    corroboration for the calf bruises the complainant claimed: the evidence of
    J.R., and the subsequent account of events offered during the complainants
    the police interview on January 4, 2016.

[52]

As a matter of law, a corroboration finding
    cannot properly be sustained based on the second of these sources, the
    subsequent account of events offered during the complainants police interview
    of January 4, 2016. This is because the complainants account of events during
    the police interview is a prior statement by the complainant that is consistent
    with her testimony, and it is a legal error for a trial judge to rely on a
    witnesss prior consistent statement as corroborating that witnesss testimony:
    see
R. v. D.K.
, 2020 ONCA 79, at paras. 34-35;
R. v. Dinardo
,
    2008 SCC 24, [2004] S.C.R. 788 at paras. 36-40. A prior consistent statement
    comes from the same source that supplies the testimony and therefore lacks the
    independence that corroboration requires. To treat a prior consistent statement
    as corroborative therefore involves circular reasoning: at bottom the flawed
    reasoning is that we can trust what the complainant is saying about her calf bruising
    because the complainant has said before that she had calf bruising.

[53]

As A.S. points out, the circular reasoning was
    aggravated in this case because no police officers testified to confirm the
    complainants prior consistent statement, nor were any exhibits entered into
    evidence at trial that could do so. The trial judge relied on the complainants
    testimony that she made a prior consistent statement to the police to prove her
    own prior consistent statement, and then used this self-verified prior
    consistent statement as confirmation of the truth of the complainants own
    testimony about the location of her bruises. There was double
    self-verification. Since the trial judges corroboration finding cannot
    properly be upheld on this basis, the corroboration finding is left dependent
    on the misapprehension of J.R.s testimony regarding the calf bruises.

[54]

Given that the corroboration finding depends on
    the misapprehension of evidence, the remaining question is whether the corroboration
    finding itself was essential to the trial judges reasoning? In my view, it had
    to have been. As I have discussed above, the trial judge did not rely on the recording
    as proof of non-consent. For the trial judge, whether the Crown had proved non-consent
    beyond a reasonable doubt depended ultimately on the testimony of the
    complainant.

[55]

Yet the trial judge began by noting that the
    complainant had credibility problems. He found that there were a number of
    circumstances where the complainant has been demonstrated to be less than
    forthcoming in recounting various aspects of her relationship with the
    defendant. After addressing issues in A.S.s testimony,
[4]
he then made three points
    relating to the complainants credibility: the first relating to the recording;
    the second to whether A.S. had established that the complainant had a motive to
    mislead, and the third relating to the corroboration of the bruising on the
    complainants legs. Only one of these points  the misapprehended corroboration
    of the bruising on her legs  is capable of supporting the complainants
    otherwise troubled testimony relating to the contested issue at trial  whether
    the Crown had proved the absence of consent. I will elaborate by examining each
    credibility consideration, in turn.

a)

The Recording

[56]

First, as already explained, the trial judge
    concluded that the recording
accurately reflects the
    complainants active verbalization of an absence of consent
in relation
    to any form of sexual contact with the defendant that evening (emphasis
    added). Notably, the trial judge did not say that he was using the recording as
    independent proof of consent, or to corroborate the complainants claim that
    she did not consent. Using the recording solely as reflecting the complainants
    active verbalization of the absence of consent is consistent with the
    restricted basis upon which the recording was admitted. On a fair reading of
    the decision, including the trial judges admissibility ruling relating to the recording,
    the trial judge cannot be taken as having used the recording as proof
    independent from the complainants own testimony that she had not consented.

b)

The Motive to Mislead

[57]

Second, the trial judge rejected the motive to
    mislead that A.S. had ascribed to the complainant, namely, that the complainant
    set up A.S. in order to achieve custody and access in their marital dispute. To
    understand the significance of this finding, it is necessary to understand the
    distinction between an unproved motive to mislead, and a proved absence of
    motive to mislead.

[58]

Where, as here, a suggested motive to mislead is
    disproved, the testimony is preserved from being impugned by such motive. When
    that suggested motive is disproved, it is as though the suggested motive is
    knocked off of the scales.

[59]

However, affirmative weight cannot properly be
    added to the scales in favour of the testimony of a witness unless there is a
    proved absence of motive on the part of that witness: see, generally,
R. v.
    Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23;
R.
    v. M.B
.
,
2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 30-32;
R.
    v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 16, 44. Disproving a
    single suggested motive to mislead  such as a desire to win custody and access
     does not prove the absence of
any and all
motives
    to mislead.

[60]

Accordingly, the trial judges rejection of the
    sole motive considered for the complainants testimony cannot add affirmative
    weight supporting the complainants claim that she was not consenting. It is
    not capable in law of being a makeweight affirmatively supporting her
    testimony.

c)

The Leg Bruising

[61]

Third, the trial judge relied on his mistaken
    conclusion that the complainants account was corroborated by the bruising to
    the complainants calves. If such corroboration existed this would be
    compelling evidence since it would provide physical confirmation of the sexual
    assault complaint. It would confirm the specific force the complainant had described
    that is entirely consistent with a sexual assault while contradicting A.S.s
    denial that force was used. Such corroboration, if it existed, could be
    decisive, notwithstanding the other difficulties noted with the complainants
    evidence.

[62]

Hence, on a fair reading of his decision, only
    one of the three reasons identified by the trial judge relating to the
    complainants credibility can be taken as affirmative, material support for the
    trial judges acceptance of the complainants denial of consent, namely, his
    mistaken corroboration finding regarding the bruises on her calves. This alone
    shows how central that misapprehension must have been to the trial judges
    reasoning. So, too, does the weight that a proper corroboration finding
    relating to the calf bruises would carry. And so, too, does the manner in which
    the trial judge addressed this corroboration in his reasoning. In a case
    where he began by noting credibility problems with the complainant, he
    described the corroboration as manifest. This was the last point the trial
    judge made before moving on to the portion of his decision dealing with the physical
    assault charge.

[63]

To be clear, I am not suggesting that, as a
    matter of law, the trial judge required corroboration to accept the
    complainants evidence. Of course, corroboration is not required to sustain a
    conviction in a sexual assault case. I am simply saying that the heart of the
    trial judges own decision to believe the complainant, who he noted had
    credibility issues, was the corroboration he mistakenly found.

[64]

Nor am I suggesting that the evidence presented
    at trial was incapable of supporting a finding of guilt, even allowing for the
    credibility problems with the complainants testimony. But that is not
    determinative. What is determinative is that the trial judges reasoning turned
    on a misapprehension of the evidence. The misapprehension of evidence thereby
    amounted to a miscarriage of justice requiring the conviction to be reversed.

C.

DID the trial judge give adequate reasons for
    conviction?

[65]

A.S. argued that the trial judge failed to give
    adequate reasons for conviction. The sufficiency of reasons is tested
    functionally. The question is whether the reasons explain or offer a pathway to
    the courts disposition such that those reasons facilitate appellate review:
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-25.

[66]

As I have just described, the trial judge did
    offer the pathway to conviction, albeit a pathway that on appellate review
    proves to have been undertaken in error. Specifically, he reasoned that despite
    its other difficulties, the complainants account was corroborated by the leg
    bruising evidence warranting a finding of guilt. On this basis, the trial judge
    did not err by providing inadequate reasons for decision.

[67]

I do agree with A.S. that there is no other
    pathway to conviction that is supported or apparent in his reasons. I have
    already explained that the conviction cannot be explained based on the
    recording, given the restricted basis for its admission. Moreover, the trial
    judge failed to address a number of the difficulties with the complainants
    evidence, and said little about why he disbelieved the testimony of A.S.
    Therefore this is not a case where the conviction can be explained through the
    conventional application of the principles of
R. v. W.(D.)
.

[68]

Ultimately, the trial judges finding of guilt
    can only be explained on the footing that he considered the misapprehended
    corroboration to be powerful enough to demonstrate A.S.s guilt beyond a
    reasonable doubt, without the need to offer further explanation about the
    credibility of the complainant and the accused.

[69]

To be sure, this explanation gives rise to its
    own error, but the fact it exists requires that the ground of appeal based on
    the insufficiency of reasons must be dismissed.

CONCLUSION

[70]

I would allow the appeal based on the
    misapprehension of evidence relating to corroboration, and the accompanying
    legal error in using a prior consistent statement as corroboration. I would set
    aside the verdict of guilt and order a new trial. In the circumstances, it is
    unnecessary to address A.S.s request for leave to appeal sentence.

Released: L.B.R.
    March 19, 2020

David M. Paciocco J.A.

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

I
    agree. Harvison Young J.A.





[1]

All references to the audio recording that follow are to
    this recording and not to the recording made by A.S. earlier in the day.



[2]

Bulldog
dealt with a video recording, but the principles expressed apply to all
    reproductions  audio recordings, video recordings and, in my view,
    photographs:
Bulldog
, at para. 32.
Bulldog
did not settle the
    question of whether the accuracy and fairness of the representation had to be
    established on the balance of probabilities, or on the lesser authentication
    standard, requiring only evidence upon which a reasonable trier of fact could
    conclude that the item is that which it is purported to be. The audiotape in
    this case was an electronic document within the meaning of the
Canada
    Evidence Act
, R.S., c. E-10, s. 31.8, and therefore arguably subject to the
    lesser authentication standard, as expressed in s. 31.1. This standard has the
    virtue of leaving the ultimate decision about authenticity to the trier of
    fact. Since the trial judge did not examine the accuracy and fairness of the
    audiotape as part of the admissibility inquiry, we need not resolve this
    question. Nor were the best evidence pre-requisites to admissibility
    contained in ss. 31.2 -31.7 brought into issue before us.



[3]
The trial judge also found that J.R.s testimony corroborated
    bruising on the complainants wrist or forearm. J.R. did not testify about
    bruises on the complainants writs or forearm. Both the complainant and J.R.
    testified that the complainant had showed J.R. bruising on her upper arm, near
    the bicep. The trial judges finding on this point related only to the common assault
    charge, for which an acquittal was subsequently entered, not the sexual assault
    charge. It is, therefore, unnecessary to address this further.



[4]
The trial judge offered a reason for not believing the accuseds
    competing version  that his account was implausible given the state of the
    relationship between him and the complainant  but this can be of no use in
    explaining why the trial judge affirmatively believed the complainant. As
    counselled in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, rejection of defence
    evidence cannot be treated as affirmative proof of Crown evidence.


