



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. B.L., 2021 ONCA 373

DATE: 20210602

DOCKET: C67366

Feldman, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.L.

Appellant

Michael Crystal, for the appellant

Michael Dunn, for the respondent

Heard: December 1, 2020 by video conference

On appeal from the conviction entered by Justice Sally A.
    Gomery of the Superior Court of Justice on June 13, 2019, with reasons reported
    at 2019 ONSC 3700.

Feldman J.A.:

A.

INTRODUCTION

[1]

The appellant appeals from his conviction of sexual assault, entered by a
    trial judge sitting without a jury. He was charged with sexual assault causing
    bodily harm, but was acquitted of causing bodily harm and convicted on the included
    offence.

[2]

The complainant and the appellant were college acquaintances who got
    together one evening at the appellants residence after he contacted her when two
    of his old friends had been in a car accident earlier that day. Following a few
    hours of conversation, they moved from his living room to his bedroom. He began
    massaging her, which led to mutual consensual oral sex. That was followed by
    vaginal intercourse. The complainant said the appellant then penetrated her
    anally, which he denied.

[3]

The issue before the trial judge was consent to the intercourse or
    honest but mistaken belief in consent. The complainant testified that she denied
    consent to sexual intercourse. The appellant said that there was consent to any
    and all sexual activity. The case turned on the credibility of both parties. Applying
    the analysis from
R. v. W.(D.)
, [1991] 1 S.C.R. 742, the trial judge accepted
    the evidence of the complainant that she did not consent to intercourse, rejected
    the evidence of the appellant, and found that the evidence did not leave her
    with a reasonable doubt about the elements of the charge. The trial judge
    considered the complainants evidence that she was in terrible pain and
    experienced bleeding after the assault. However, the trial judge was not
    satisfied beyond a reasonable doubt that the complainant suffered any tangible
    physical or psychological injury, and therefore acquitted the appellant of
    causing bodily harm.

[4]

The appellant appeals his conviction on the basis that the trial judge
    made a number of errors in her credibility analyses of both parties. While I
    would not give effect to the specific errors as framed by the appellant, it was
    an error of law for the trial judge to impugn the appellants credibility on
    the basis that his evidence was tailored to the complainants evidence that he
    heard as part of the Crowns case at trial. For that reason, I would allow the
    appeal.

B.

Factual
    Background

[5]

The trial judge succinctly set out, in summary form, the factual
    background of the case, at paras. 2-6, of her decision:

In 2016, the defendant and the complainant were both students
    in the same program at A[] College in [a city in Ontario]. They did not know
    each other well, but exchanged texts on November 30 after the defendant
    messaged the complainant on Facebook. Two friends of the defendant had been
    involved in a car accident earlier that day and he wanted some company. At
    about 10:30 p.m., he met up with the complainant on campus and they walked to the
    house he shared with other students. They talked in the living room for several
    hours. They both drank gin and tonic from the same glass, which the defendant
    topped up a few times.

At about 2:00 or 2:30 a.m., they
    moved to his bedroom. The complainant lay face down on the bed. The defendant
    straddled her hips and gave her a massage, starting at her shoulders and moving
    down her back. He then began lowering her pants and underwear. The complainant
    asked the defendant: What are you doing?

Their accounts of what happened next diverge significantly.

According to the defendant, the complainant communicated,
    through her words and actions, that she was fully consenting to any and all
    sexual activity. He says that she specifically asked whether they would have
    sexual intercourse and ultimately said: If you want to do it, lets just do
    it. After they performed oral sex on each other, he says that the complainant
    climbed on top of him and initiated vaginal intercourse. The intercourse ended
    when he accidentally thrust against the complainants perineum, which was
    painful for both of them. She then told him she did not want to resume any
    sexual activity, he walked her home, and they left on good terms after hugging
    one another.

The complainants account of what occurred after she asked
    What are you doing? is very different. She says that the defendant pressured
    her, through words and gestures, to participate in further massaging, kissing
    and oral sex. She never clearly consented to any activity but did not object
    either. When however the defendant lay on top of her and began to rub his penis
    near her vagina, she said: No, Im not doing this, especially without a
    condom. He replied: I swear on my nephews head that I am clean and
    penetrated her forcefully. A few minutes later, according to the complainant,
    the defendant flipped her over onto her front and penetrated her anally. She
    screamed: No, get off of me and he did. He walked her home. The following
    day, she reported the alleged sexual assault to police.

C.

THE Trial
    Judges decision

(1)

Overview

[6]

The trial judge applied the
W.(D.)
analysis by asking: (1)
    whether she believed the evidence of the appellant; (2) if she did not accept
    his evidence, whether his evidence raised a reasonable doubt; and (3) if the
    appellants evidence did not raise a reasonable doubt, whether, based on the
    evidence she accepted, the Crown had proven that the appellant intentionally
    had intercourse with the complainant without her consent and without an honest
    but mistaken belief in her consent.

[7]

The trial judge did not believe the appellants version of how he
    obtained consent. She set out, at paras. 11-13, his version as follows:

According to the defendant, when he began to roll the
    complainants pants down during the back massage and she asked What are you
    doing?, she did so in a very flirty way. He told her that her pants were in
    the way and she replied: Oh, okay. He then removed her pants but not her
    underwear and continued his massage, starting at her ankles and moving up to
    her thighs.

The defendant testified that the complainant then asked him
    whether they were going to have sexual intercourse, and he said he would like
    to. She asked whether he had a condom, and he replied: I swear on my nephews
    head I am clean. According to the defendant, the complainant then said: If
    you want to do it, lets just do it.

The defendant said that they then each performed oral sex on
    each other, after which the complainant climbed on top of the defendant and
    inserted his penis in her vagina. The sex ended about twenty to thirty minutes
    later when, after they had moved into a different position where he was
    thrusting into her vagina from behind, he accidentally hit her perineum. This
    was painful for both of them and he disengaged from her. The defendant
    apologized and, after a few minutes, suggested that they try again or that they
    have a shower together. The complainant said she wanted to go home as she had
    commitments later that day. The defendant showered on his own, then walked her
    home.

[8]

The trial judge listed three main reasons for rejecting the appellants
    account and expressed general concerns about his veracity. The three main
    reasons were: (1) his account was internally inconsistent; (2) his account of
    the conversation during the massage, prior to any sexual activity, did not ring
    true; and (3) his evidence about what the complainant said was not plausible. In
    addition, the trial judge did not find the appellant to be a credible witness
    because of the way he answered questions put to him by the Crown in
    cross-examination.

[9]

After finding that she did not believe the appellant and that his
    evidence did not raise a reasonable doubt, the trial judge turned to a full
    consideration of the complainants evidence.

(2)

The Appellants Evidence


(a)

The appellants account was internally inconsistent

[10]

The
    trial judge concluded from the appellants evidence that his position was that
    the complainant initiated all the sex, that he was not trying to convince her to
    engage in sexual activity, and that sex was not even on his mind when he asked
    her if she wanted to resume intercourse after they had stopped. The trial judge
    found that this position was not consistent with the appellants active pursuit
    of sex once they went into his bedroom, both before and after they had
    intercourse. The trial judge listed five examples of how he actively attempted
    to persuade the complainant, or just went ahead without any discussion or
    consent: (1) he pulled down her pants during the massage, without first asking
    if she agreed to have him touch her buttocks; (2) when he told her that her
    pants were in the way, and she replied with [o]h, okay, he took this as a
    green light to take her pants off completely; (3) he then began to massage her
    bare legs and thighs, without asking her if that was agreeable; (4) in response
    to the complainants question about whether he had a condom, he swore on his
    nephews head that he was clean; and (5) after they halted intercourse because
    of the complainants pain, he continued to press her for more sex or other
    intimate activity. The trial judge concluded that the contradiction between
    what he says he was doing and what he actually admits to having done
    fundamentally undermines his credibility.


(b)

The appellants account of the conversation during
    the massage, prior to any sexual activity, did not ring true

[11]

In
    his examination-in-chief, the appellant described the sequence of events from
    when he removed the complainants pants and continued the massage of her legs
    and thighs. At that point, the complainant asked him if he thought they were
    going to have intercourse, he said he would like to, and she said, [i[f you
    want to do it, lets just do it, which he took to mean she was agreeing to all
    sexual activity up to and including intercourse. He initially repeated this
    account in cross-examination, but then agreed with Crown counsel that the
    complainant asked about a condom, and that he responded by swearing on his
    nephews head that he was clean. In his version, the complainant did not say to
    him she would not have sex without a condom. Rather, the complainant simply
    asked the appellant whether he had a condom, he confirmed to her that he was
    clean, and then she said, [i]f you want to do it, lets just do it.

[12]

The
    trial judge found it odd that the appellant gave the same account twice without
    mentioning the complainants question about the condom, but then suddenly
    remembered it later in cross-examination. She had a doubt about whether [the
    appellants] evidence [was] genuine or whether he [was] reconstructing or
    fabricating the additional exchange about a condom, having heard the
    complainant testify earlier in the trial that she had raised this issue.


(c)

The appellants evidence about what the complainant
    said was not plausible

[13]

In
    the text messages that the parties exchanged before they met up, the
    complainant made the point that she had just met the appellant and that he told
    her he was not looking for anything but Netflix and Chill. The appellant assured
    her that he was a respectful and hard working guy, but included that he loved
    cuddling and was great at massages. Following that exchange, where the complainant
    expressed her uncertainty about spending time with the appellant, the trial
    judge found it implausible that the complainant would ask right away about
    sexual intercourse during a massage, even if she was being flirty as the
    appellant claimed.

[14]

The
    trial judge also did not find it plausible that the complainant would say just
    do it after being concerned enough to ask about protection, and receiving the
    appellants simple answer that he was clean. As the trial judge noted, the
    appellant admitted in cross-examination that there was more than one reason why
    a woman may want a man to use a condom.

[15]

Finally,
    the trial judge found that the level of pain felt by the complainant was not
    consistent with one thrust that hit the perineum, but rather forceful vaginal
    or anal intercourse, which the appellant denied. The appellant acknowledged
    that the complainant experienced great pain and that he apologized to her
    several times.


(d)

The appellant was not a credible witness

[16]

The
    trial judge found the appellant incredible as a witness. He denied all the suggestions
    the Crown made to him, even when they were consistent with his earlier
    evidence. The primary example was his insistence that he did not try to
    convince the complainant to have sex, although this was contradicted by his
    actions and the words he admitted to. Another example was his denial that they
    went to the bedroom in part because they were concerned about the noise
    disturbing his roommates. He said the living room was the farthest away from
    the bedrooms, while his roommate said the living room was next to the bedrooms
    they respectively occupied. The trial judge also rejected as illogical, the
    appellants testimony that he did not try to convince the complainant to stay
    over at his place after they stopped having sex in the early hours of the
    morning, which she said he did.

[17]

In
    summary, the trial judge rejected the appellants evidence about what occurred
    in the bedroom and the discussion he subsequently had with the complainant. She
    also found that it did not give rise to a reasonable doubt, because it was
    neither credible nor plausible.

(3)

The Complainants Evidence

[18]

The
    trial judge then turned to the complainants evidence. By the time of trial, the
    complainant had memorialized her story four times. The first was in a document
    referred to as the Timeline, which came into existence immediately after the
    event, when the complainant called a friend who then contacted the
    complainants brother who came over right away. Based on his experience working
    at a bank where he had learned to make contemporaneous reports of events, the
    brother asked the complainant to describe what had occurred, and he wrote down the
    story on her computer using his own language. The complainant did not read the notes
    over, and after about an hour of working on the Timeline, they left for the
    hospital.

[19]

The
    second time the complainant made a record of her story was in a written
    statement she gave to the police. The third was a video statement to the police,
    and the fourth was her preliminary inquiry testimony.

[20]

The
    result was that there were a number of inconsistencies in the accounts, where,
    for example, a detail was left out of one account but included in others. The
    complainants credibility was challenged through an extensive cross-examination
    based on her alleged inconsistencies, including between her testimony at trial or
    in the police statements, and the Timeline. The appellant argued, on one hand,
    that no weight should be given to the Timeline because it had been altered
    before it was disclosed, and on the other hand, that it could be used by the
    appellant to impeach the complainant. The Crown argued that much of the
    Timeline was consistent with the complainants trial account and should be used
    by the court as context to assess the complainants reliability and
    credibility. The trial judge ruled that she would not use it for either the
    appellants or the Crowns purposes. She found that it had limited value for
    accuracy, because of the way it was created with the brother.

[21]

The
    trial judge discounted most of the alleged inconsistencies in the complainants
    rendition of the event as minor and found that they did not affect the complainant's
    credibility. She addressed what she viewed as four more significant
    inconsistencies, and gave effect to one of them by rejecting the complainants
    evidence that she saw blood on her bathroom floor after she got home from the
    incident.

[22]

Taking
    into account the one rejection of evidence together with the other minor
    inconsistencies, the trial judge found the complainant to be credible:

In my view, the inconsistencies in the complainants evidence
    about the assault itself are minor. They do not make her overall account less
    believable or reliable. The main points of her evidence have not changed over
    time. She has provided reasonable explanations for why she did not mention
    certain details in all of her previous accounts. I have no reason to think that
    she deliberately misrepresented what occurred. Although I have rejected her
    evidence about seeing blood after she got home, it does not put in doubt her
    testimony about the alleged assault.

(4)

Conclusion

[23]

The
    trial judge ultimately accepted the complainants evidence that when the
    appellant began to rub his penis near her vagina, she said no to intercourse
    without a condom, and rejected the appellants evidence that after he swore he
    was clean, she said lets just do it. The trial judge found there was no
    consent to the digital penetration or to the vaginal or anal intercourse.

[24]

The
    trial judge also found there was no basis for a defence based on honest but
    mistaken belief in consent in the following passages:

There is furthermore no basis for a defence based on honest but
    mistaken belief in the communication of consent. According to the complainant,
    before the defendant inserted two fingers into her vagina, they had a brief
    conversation about what was going to happen. She asked him if he thought they were
    going to have sex, he asked her if she wanted to, and the complainant said: I
    dont know, maybe. On the basis of this evidence, which I accept, she did not
    consent to any sexual activity with the defendant. A maybe is not a yes. As
    the defendant admitted in cross-examination, the complainants answer indicates
    she was uncertain. Prior to touching the complainants vagina, the defendant
    took no further steps to ascertain if she was agreeing to sex and, if so, what
    specifically she was agreeing to. He did nothing to obtain her consent.

Although she subsequently participated in oral sex, the
    complainant did not communicate, simply by doing so, that she also consented to
    vaginal or anal intercourse. The complainant in fact actively refused consent
    to intercourse. I accept her evidence that, when she realized that the
    defendant was getting ready to penetrate her vaginally, she said No, Im not
    doing this, especially without a condom. This was a clear denial of consent.

Based on this evidence, I cannot find that the defendant had an
    honest but mistaken belief that the complainant communicated consent to vaginal
    touching or vaginal and anal intercourse.

[25]

Because
    there was no hospital record of injury, despite the severe pain the complainant
    suffered, the trial judge was not satisfied that the charge of bodily harm had
    been made out. However, she was satisfied beyond a reasonable doubt that the
    appellant was guilty of sexual assault.

D.

Issues on
    the appeal

[26]

The
    appellant raises the following issues on appeal:

1)

Did the
    trial judge err by failing to give proper effect to the Timeline and by failing
    to account for the inconsistencies in the complainants evidence, as revealed by
    a comparison with the Timeline?

2)

Did the
    trial judge err in her credibility assessment of the complainant by failing to
    give proper effect to the numerous inconsistencies in her various accounts of
    the event, other than in the Timeline?

3)

Did the
    trial judge apply different standards to the assessment of the credibility of
    the appellant and of the complainant?

E.

Analysis

(1)

Overview

[27]

As
    is apparent from the three broad issues for appeal, the entire basis for this
    appeal is an attack on the credibility findings of the trial judge. Under each
    heading, the appellant has identified a number of alleged inconsistencies in
    the complainants accounts of the event, which he submits should have been
    given more weight by the trial judge, and should have led her to reject the
    evidence of the complainant or to have had a reasonable doubt about the guilt
    of the appellant.

[28]

This
    is not a case where the complaint is that the trial judge failed to address the
    alleged inconsistencies or misapprehended the evidence. Rather, the appellant
    is challenging the trial judges assessment of the evidence and her decision
    whether to accept or reject it.

[29]

It is trite law that an appellate court is required to give considerable
    deference to the factual findings of a trial judge and particularly to the trial
    judges credibility findings: see
R. v. Lacombe
, 2019 ONCA 938, 383
    C.C.C. (3d) 114, at para. 32;
R. v. DaCosta
, 2017 ONCA 588, at para.
    19;
R. v. Chhina
, 2016 ONCA 663, 340 C.C.C. (3d) 496, at para. 21;
R.
    v. Luceno
, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34;
R. v.
    Benson
, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 21; and
R. v.
    Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. Unless the trial
    judge has arrived at an unreasonable verdict based on the evidence, it is not
    the role of an appellate court to reassess the evidence or to substitute its
    view of the credibility of the parties for the view of the trial judge.

[30]

Even where the trial judge fails to consider a prior inconsistent
    statement by the complainant, the Supreme Court of Canada recently stated in
R.
    v. Smith
, 2021 SCC 16, that when assessing a complainants credibility and
    reliability, the error must have affected the outcome and caused a miscarriage
    of justice to warrant a new trial.

[31]

At trial, both parties agreed that the massaging and oral sex were
    consensual. They also agreed that vaginal intercourse occurred. What they did
    not agree on was whether the complainant consented to have vaginal sex and anal
    sex, and whether the anal sex occurred. The trial judge did not believe the
    appellants version, which was that when the complainant asked about a condom,
    he answered that he was clean, and she then said: If you want to do it, lets
    just do it. Instead, the trial judge accepted the complainants evidence that she
    said no to sexual intercourse without a condom and that after his response
    about being clean, the appellant immediately thrust his penis into her vagina.
    The trial judge also accepted the complainants evidence that the appellant
    penetrated her anally.

[32]

The appellants position on appeal is that the trial judge should have
    doubted the credibility and reliability of the complainant generally.

[33]

The appellant also submits that the trial judge applied a stricter standard
    when assessing the appellants credibility than when assessing the
    complainants credibility. As I have found that the trial judge made an error
    of law in her assessment of the appellants credibility requiring a new trial,
    I will turn directly to the third ground of appeal.

(2)

The trial judges relative scrutiny of the parties evidence

[34]

The appellant submits that the trial judge subjected the evidence of the
    two parties to different standards of scrutiny, minimizing the impact of the
    inconsistencies in the complainants evidence, while misapprehending or
    exaggerating the impact of the inconsistencies in the appellants testimony.

[35]

It is important to set this submission within the current legal
    framework for this type of error. Following the oral argument in this case, the
    Supreme Court of Canada released its decision in
R. v. Mehari
, 2020
    SCC 40, 452 D.L.R. (4th) 410, an appeal from the Court of Appeal for
    Saskatchewan in which the appellant argued uneven scrutiny of the evidence. In
    brief reasons, the court stated:

This Court has not decided whether
    uneven scrutiny, if it exists, can amount to an independent ground of appeal or
    a separate and distinct error of law. In any event, we see no error in respect
    of this argument that would have warranted intervention on appeal.

[36]

In this case, the trial judge gave a number of reasons for why she
    rejected the appellants evidence, outlined at paras. 8-16 above.

[37]

One of the appellants challenges is to the trial judges treatment of the
    condom discussion. He objects that contrary to the trial judges finding, he
    was forthright about the condom discussion when he was asked about it in
    cross-examination. When asked why he had not mentioned the condom discussion in
    his examination-in-chief, he said he was just answering his lawyers questions,
    and denied that the reason he left it out was because he thought it would make
    him look horrible.

[38]

I do not accept the submission that the trial judge should have found
    that the appellant was forthright about the condom discussion. It was a key
    part of the interchange between him and the complainant, and was the point
    where she said she did not want to have intercourse, at least without a condom.
    The complainant testified that the appellant did not have a condom but went
    ahead with intercourse anyway after swearing on his nephews head that he was
    clean. The appellant agreed that the complainant asked about a condom and that
    he responded the way she said, but on his account, the complainant did not state
    that she would not have intercourse without a condom and was the one who
    initiated the vaginal sex after that.

[39]

The trial judge rejected the appellants evidence and found that, based
    on the condom discussion as described by the complainant, that she had not
    consented to intercourse. The trial judge was entitled to find that the
    appellants failure to mention the condom discussion in his initial description
    of their interchange could well undermine his credibility.

[40]

However, as mentioned above, there is another problem with the finding
    and approach of the trial judge to the appellants evidence on this issue. The
    trial judge found that the fact that the appellant suddenly remembered this
    critical detail only later in the cross-examination raises a doubt in my mind
    about whether his evidence is genuine or whether he is reconstructing or
    fabricating the additional exchange about a condom, having heard the
    complainant testify earlier in the trial that she had raised this issue.

[41]

First, it is unclear on what basis the trial judge would view the appellants
    delayed reference to the condom discussion as a fabrication by him. To the
    contrary, he initially failed to acknowledge this important part of their
    interaction even though it was described by the complainant, then eventually acknowledged
    that it occurred but denied its significance.

[42]

When Crown counsel asked the appellant in cross-examination why he had
    not brought up the condom discussion earlier, the appellant stated that he was
    just responding to his lawyers broad question, what happened after that? The
    Crown suggested to the appellant that he omitted the condom discussion because it
    would reflect badly on him, making it look like he was trying to convince the
    complainant to have sex. The appellant denied this.

[43]

The credibility issue for the trial judge to resolve therefore was whether
    the appellants failure to mention the condom discussion in his initial recitation
    of what happened between him and the complainant undermined his credibility,
    not whether he had fabricated a conversation that both parties agreed occurred.

[44]

Second, the effect of the trial judges comment was that she disbelieved
    the appellant, not for the reasons suggested by the Crown, but because she used
    his right to be present at his trial against him, by suggesting that he may
    have fabricated or reconstructed the condom discussion after he heard the complainant
    say it earlier.

[45]

This court has recently reiterated that such an error by a trial judge, accusing
    an appellant of effectively tailoring his evidence to the evidence heard in
    court, undermines the appellants right to be present at his trial and to make
    full answer and defence: see
R. v. M.D.
, 2020 ONCA 290, 392 C.C.C.
    (3d) 29;
R. v. G.V.
, 2020 ONCA 291, 392 C.C.C. (3d) 14.

[46]

The issue first arose in
R. v. White
(1999), 42 O.R. (3d) 760
    (C.A.), a jury trial where the Crown suggested to the accused in
    cross-examination that his answers were crafted around the disclosure he had
    received. Doherty J.A. acknowledged that if a witness appears to have tailored
    his evidence to respond to information provided to him, there is a tendency to infer
    that the evidence is suspect. However, it is an illegal inference when drawn
    against an accused, who is entitled to hear about and defend against the
    Crowns case. As Doherty J.A. explained, at pp. 767-68:

[T]here may be considerable force to the suggestion that a
    person who gets full advance notice of the other sides evidence and testifies
    last is in a position to tailor his or her evidence to fit the disclosure. That
    inference, no matter how logical, cannot be drawn without turning fundamental
    constitutional rights into a trap for accused persons.

[47]

This court has applied similar reasoning in the context of judge-alone
    trials:
R. v. Thain
, 2009 ONCA 223, 243 C.C.C. (3d) 230. In
R. v.
    Jorgge
, 2013 ONCA 485, 4 C.R. (7th) 170, the trial judge discounted the
    accuseds evidence in her assessment of his credibility because he had the
    benefit of listening to the legal arguments presented by his counsel and by the
    Crown on the
voir dire
. On appeal, this court again confirmed that even
    though there may be a natural temptation to reason the way the trial judge
    did, that temptation must be resisted. It subverted the accuseds right to be
    present at his trial under s. 650(1) of the
Criminal Code
, as well as
    his s. 7 right to a fair trial and his s. 11(d) right to full answer and
    defence under the
Canadian Charter of Rights and Freedoms
: at para.
    12.

[48]

The jurisprudence on tailoring evidence applies to the case at hand. The
    trial judge committed a legal error when she discounted the appellants
    credibility on the basis that he had reconstructed or fabricated the condom
    discussion after attending his trial and hearing the complainants evidence. The
    trial judges reasoning turned the appellants constitutional rights into an evidentiary
    trap.

[49]

As the error was not raised by the appellant except as part of the
    uneven scrutiny issue, the court sought submissions at the hearing on whether
    the error occurred. Although the Crown did not ask this court to apply the
    proviso, as the error was raised by the court, it is appropriate for the court
    to also consider whether the proviso should be applied.

[50]

I would not apply the proviso in this case. The parties credibility was
    the significant issue at trial. The trial judge gave three main reasons for rejecting
    the appellants evidence and finding that it did not raise a reasonable doubt, and
    his testimony about the condom discussion was one of them. The error therefore appears
    to have played a large role in the trial judges rejection of the appellants
    version of what occurred.

F.

Conclusion

[51]

In the result, I would allow the appeal and order a new trial.

Released: June
    2, 2021 K.F.

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. C.W. Hourigan J.A


