



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Strojny, 2019 ONCA 329

DATE: 20190425

DOCKET: C64449

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur Strojny

Appellant

Brian H. Greenspan and
    Michelle M. Biddulph, for the appellant

Philippe G. Cowle, for the
    respondent

Heard: March 5, 2019

On appeal from the conviction entered by Justice James A.
    S. Wilcox of the Superior Court of Justice on July 6, 2017.

Rouleau J.A.:

OVERVIEW

[1]

The appellant appeals his convictions for sexual assault with a weapon,
    uttering threats, and sexual interference.

[2]

He maintains that the trial judge committed several errors in his
    assessment of the evidence, thus warranting a new trial. Specifically, he
    submits that the trial judge made errors in his factual findings, drew improper
    adverse inferences from the failure to call corroborative evidence, and refused
    to permit cross-examination of the complainant with respect to demonstrably
    false criminal allegations she had made against him. The appellant also
    maintains that the trial judge erred by failing to assess the credibility and
    reliability of the complainants evidence and by placing undue weight on the
    DNA evidence.

[3]

For the
    reasons that follow, I would dismiss the appeal.

FACTS

[4]

At the time of the alleged offence, the complainant was 15 years old.
    She resided with her parents part of the time, but mostly stayed at the
    residence of J.R. and A.P., who shared an apartment.

[5]

On the morning of July 6, 2013, the appellant arranged to pick up J.R.
    and drive him to a house the appellant owned in neighbouring King Kirkland (the
    King Kirkland house). They were to carry out maintenance and repairs to the
    property. The appellant also arranged that the complainant would come along and
    that she would clean the house.

[6]

The appellant picked up the complainant and J.R. and, upon arriving at
    the house around 11:00 a.m., the three spent some time sitting at a makeshift
    table in the front room where they talked, consumed water, beer, and pop,
    shared cigarettes, and allegedly smoked crack cocaine.

[7]

In the early afternoon, while J.R. was outside mowing the lawn, the
    complainant began cleaning the bathroom. The complainant testified that, as she
    was cleaning the wall of the bathtub area, she felt something sharp against her
    throat. The appellant was behind her and told her to get down and do as he
    said. She got down and turned around. The appellant unzipped his pants, pulled
    out his penis and, while holding a knife to her throat, forced her to perform fellatio,
    and eventually ejaculated in her mouth. The appellant then threatened to kill her
    and to harm her friends and family if she told anyone what had happened. The
    appellant then left and the complainant finished cleaning the bathroom. She did
    not tell J.R. what had happened, as he was friends with the appellant.

[8]

The appellant drove the complainant and J.R. home at around 5:00 p.m.
    Shortly after her return to J.R.s house, the complainant contacted her parents
    and requested that they pick her up. Finding her in a distraught state, her parents
    drove her home and her mother pressed her to tell them what had happened. The
    complainant told them but refused to report it to police. After the complainants
    attempt to slit her wrists after they got home, her mother took her to the
    hospital, where the complainants mother disclosed the assault to police
    officers.

[9]

Swabs were taken from the complainants mouth, as well as from inside
    the cap of a Pepsi bottle from which the complainant had been drinking while
    she was at the King Kirkland house. DNA tests carried out on the samples revealed
    the presence of sperm. There was a one in 4.8 million chance that the appellant
    was not the source of the DNA found in the oral swab, and a one in 510 trillion
    chance that he was not the source of the swab of the Pepsi bottle.

[10]

When
    the police searched the King Kirkland house, they found a knife matching the
    complainants description of the knife used during the assault.

[11]

The
    appellant testified at trial and denied the allegations. He explained that he
    was diagnosed with hydrocele, a medical condition which caused his left
    testicle to swell to many times its normal size. As a result, his scrotum
    almost completely enveloped his penis. His penis was, in his words, turtled,
    as it did not extend beyond the skin of his scrotum. A photograph of the
    appellants genitals was entered as an exhibit at trial.

[12]

The
    appellant claimed that, in order to urinate, he had to move the swollen
    testicle with one hand and then reach in with his other hand to pull his penis
    out. He denied being able to obtain an erection sufficient for penetration, to
    sustain an erection, or to experience sexual desire. He argued that his medical
    condition made it impossible for him to have committed the offence.

[13]

To
    explain the presence of his semen in the complainants mouth and on the mouth
    of the Pepsi bottle, the appellant testified that, on occasion, he would
    ejaculate during his sleep. This had happened the day before the alleged
    offence. After taking an afternoon nap at the King Kirkland house, he woke up
    to find that his underwear was wet. Realizing that he had ejaculated during his
    sleep, he removed his underwear, wiped his genitals with it, and placed it on
    the makeshift table. He planned to take the soiled underwear home that evening
    but forgot to do so. According to the appellant, J.R. saw the underwear and asked
    him about it, to which he replied that he had a wet dream. The next day, he
    realized that he had not taken the underwear home. He picked it up to put it in
    a plastic bag, and noticed it was still damp in some areas and crusty in others.

[14]

The
    appellant also testified that one of the effects of his medical condition was
    frequent urination. On the day of the alleged offence, he went to the basement
    to urinate and noticed that his penis was sticky from the previous days
    ejaculation. He did not wash his hands, as there was no sink in the basement,
    and denied having a shower since the previous day. The appellant explained that,
    by handling the soiled underwear and his sticky penis, he must have transferred
    sperm to his hands and that the sperm was later transferred to the
    complainants mouth and the mouth of the Pepsi bottle. This, he surmised, could
    have occurred as he, the complainant, and J.R. sat around the makeshift table
    drinking from the same water bottle and sharing cigarettes. He also testified
    that he handled the complainants Pepsi bottle repeatedly by moving it from the
    edge of the table.

ISSUES

[15]

The
    appellant submits that the trial judges analysis and reasons for conviction
    are flawed. Specifically, he argues that the trial judge erred by:

1.

Unfairly scrutinizing the appellants evidence and drawing adverse
    inferences from his failure to call several witnesses;

2.

Failing to assess the credibility and reliability of the complainants
    evidence;

3.

Considering the DNA evidence in isolation;

4.

Misapplying the collateral fact rule; and

5.

Finding that a weapon had been used during the assault.

ANALYSIS

(1)

Did the trial judge err in his assessment of the appellants credibility?

[16]

The
    appellants evidence was central to his defence. In his testimony, the
    appellant both denied that the assault occurred and, critically, provided a
    possible explanation, other than fellatio, for the presence of his semen in the
    complainants mouth and on the mouth of the Pepsi bottle.

[17]

In
    her cross-examination, the expert from the Center for Forensic Sciences agreed
    that indirect transfer, as described by the appellant, was theoretically
    possible and could conceivably explain the DNA findings. However, she testified
    that, given the time lapse between the assault and the taking of the oral
    swabs, direct deposit was more likely than secondary transfer.

[18]

The
    trial judge found that once the appellants evidence of such an unlikely chain
    of events was rejected, the only explanation for the presence of the
    appellants sperm in the complainants mouth and on the Pepsi bottle was the
    complainants evidence. Any other explanation for the DNA findings would require
    speculation. The trial judge also noted that if the complainant had made up the
    allegations, it would be very unlikely that DNA evidence which corresponds with
    them would have been found.

[19]

The
    appellant argues that the trial judge erred in rejecting his evidence and in
    finding that it did not raise a reasonable doubt. This is because, in assessing
    and rejecting the evidence, the trial judge misapprehended several facts and
    improperly drew adverse inferences from the appellants failure to call certain
    witnesses. I disagree.

(a)

Alleged misapprehensions

[20]

The
    trial judge was well aware of the critical importance of assessing the
    appellants credibility. He carefully reviewed that evidence and listed 11
    points that eroded the appellants credibility. On appeal, the appellant
    challenges five of these 11 points. I will address each of these in turn.

(i)

The accused testified that he believed that he had cancer.

[21]

The
    trial judge found that the appellants testimony that he believed he had
    testicular cancer, even though no such diagnosis had ever been made and that he
    had never asked his doctor about it, eroded his credibility. The appellant had
    also told the police that he had cancer when he was first arrested. The
    appellant argues that the trial judge misapprehended the evidence when he made
    this credibility finding because the appellant genuinely believed that he had
    cancer. Moreover, the presence or absence of cancer was not probative of the
    fact the appellants genital area was deformed.

[22]

Based
    on the record, I consider this credibility finding to have been reasonably
    available to the trial judge. The evidence at trial disclosed that, despite the
    appellants many visits with doctors, no doctor had diagnosed, or even
    suggested, that he had cancer. In fact, despite these numerous visits, the
    appellant, who testified that he assumed he had cancer, never even asked his
    doctors whether he had cancer. On the basis of this evidence, it was open to
    the trial judge to draw the inference that the appellants statement to police
    was a convenient exaggeration of his medical condition in order to convince the
    police that he could not have committed the offence.

(ii)

The appellant testified that he urinated with extreme frequency.

[23]

The
    appellant testified that he needed to urinate frequently. This evidence lent
    support to his theory that semen was transferred from his penis to his hands,
    and thereafter to the complainants mouth and Pepsi bottle. The more often he
    touched his penis, which he said was sticky from the previous days
    ejaculation, the greater the transfer of sperm to his hands.

[24]

In
    cross-examination, the Crown presented the appellant with a report from his
    urologist, which stated that he [did] not have any frequency. The report
    contained no mention of the appellants suggestion that, because of his
    condition, he had to urinate frequently. The appellant ultimately acknowledged,
    in cross-examination, that he did not tell his urologist about his alleged need
    to urinate frequently.

[25]

In
    light of the appellants concession, it was open to the trial judge to consider
    the failure to report this concern to his treating physician as eroding the
    appellants credibility.

[26]

The
    appellant argues that there may have been an explanation for his failure to
    tell his doctor about his need to urinate frequently but that he was cut off by
    the trial Crown. In support of this suggestion, he points to an ellipsis appearing
    in the transcript after the appellant acknowledged not telling his physician
    about his need to urinate frequently. This ellipsis, he submits, suggests that
    he was prevented from explaining this inconsistency.

[27]

In
    my view, this suggestion is purely speculative. The appellants counsel made no
    objection to signal that the appellants answer had been cut short, nor did the
    appellant revisit the issue in re-examination.

(iii)

The appellant exaggerated the difficulty of extricating his penis from
    his pants.

[28]

The
    appellant argues that the trial judges finding that the appellant had
    exaggerated the difficulty of extricating his penis from its turtled position
    was unreasonable. I disagree. The trial judge had the benefit of Cst. Ormsbys
    testimony, who had witnessed the appellant retrieving his penis when he was
    asked to provide a penile swab to the police. His evidence was that the
    appellant had no difficulty in removing his penis for the swab.

[29]

The
    appellant suggests that his testimony nonetheless confirmed that he needed two
    hands to extricate his penis, which made the complainants version of events
    untenable. Constable Ormsby, however, observed that the appellant was holding
    his penis with one hand and used his other hand to take the swab. His testimony
    was thus inconsistent with the difficulty described by the appellant and
    supports the trial judges finding on this point.

(iv)

The appellant admitted in cross-examination that he showered after he
    had ejaculated during his nap the day before the offence.

[30]

The
    appellant initially testified that he had not showered between the time he
    ejaculated during his nap the day preceding the assault and his attendance at
    the King Kirkland house with the complainant and J.R. the next day. In
    cross-examination, however, he conceded that he had showered in the evening
    after he ejaculated. He also said in his police statement that he had showered.
    This version of events cast doubt on his claim that his penis would have been
    sticky on the day of the offence.

[31]

The
    trial judge found that this shift in his evidence eroded the appellants
    credibility. He also noted that the shower decreased the likelihood that, if
    the appellant had in fact ejaculated the day before the alleged assault, his
    semen could have found its way into the complainants mouth by way of secondary
    transfer. This was because, according to the expert evidence, washing is one of
    the processes that can remove sperm.

[32]

The
    appellant does not suggest that the trial judge erred in his finding. Rather, he
    argues that the possibility of secondary transfer still existed, as the
    appellant testified that he had shared a crack pipe with the complainant on the
    evening preceding the assault. He submits that this possibility of secondary
    transfer had not been considered by the trial judge.

[33]

I
    see no error in the trial judges treatment of the evidence. He used the
    inconsistency in his assessment of the appellants credibility and the fact
    that he may have showered as evidence decreasing the likelihood that a
    secondary transfer of semen occurred. Both of these uses were proper.

(v)

The appellant claimed that he had no sexual desire.

[34]

The
    trial judge found that the appellants claim that he had no sexual desire was
    inconsistent with his evidence that he tried once a week to see if he could
    sustain an erection and the fact that he consulted doctors and obtained
    medication for the same reason.

[35]

The
    appellant argues that, even if the evidence could be seen as contradicting his
    claim to have no sexual desire, it did not prove that he could voluntarily
    ejaculate.

[36]

Again,
    the trial judges finding was available on the evidence and was properly used
    to assess the appellants credibility. It was not misused by the trial judge in
    the manner suggested by the appellant.

(b)

The drawing of adverse inferences

[37]

After
    listing the 11 points that he found eroded the appellants credibility, the
    trial judge made additional general observations regarding the appellants
    evidence. He found that the appellant tended to obfuscate his answers and that
    his evidence sometimes shifted under cross-examination. The transcript reveals
    that several of the answers given by the appellant were inconsistent and were contradicted
    by the testimony of others.

[38]

It
    was only after this extensive review of the flaws in the appellants evidence
    that, in a brief paragraph, the trial judge referenced the appellants failure
    to call corroborative evidence. The appellant argues that this reference
    constitutes an error because an accused is under no obligation to call such
    evidence. It shows that the trial judge improperly reversed the burden of proof:
    see
R. v. Lapensee
, 2009 ONCA 646, 99 O.R. (3d) 501, at para. 45;
R.
    v. Degraw
, 2018 ONCA 51, 358 C.C.C. (3d) 458, at para. 31.

[39]

I
    reject this submission. The trial judges observations were not improper.

[40]

In
    his testimony, the appellant raised for the first time the suggestion that he
    had left his soiled underwear at the King Kirkland house and that it was his
    handling of these that might account, through secondary transfer, for the
    presence of semen in the complainants mouth. As part of this explanation, the appellant
    alleged that, on the day before the assault, he had mentioned to J.R. that he
    had ejaculated during his nap, thus soiling his underwear, to explain the
    presence of his underwear on the makeshift table. They had allegedly joked
    about it. According to the appellant, he had put the underwear on the table to
    take it home but had forgotten about it. The appellant also testified that he
    had found the soiled underwear on the floor when both J.R. and the complainant were
    with him at the King Kirkland house, on the day of the assault. He said that he
    handled the underwear approximately one hour and a half after he saw it.

[41]

Neither
    J.R. nor the complainant, both of whom had been cross-examined by the appellant
    earlier in the trial, were asked about the presence of the underwear on or
    around the makeshift table. The existence of the soiled underwear and the
    appellants handling of the underwear was a critical component of the
    appellants defence.

[42]

In
    my view, it was open to the trial judge to use the fact that the appellant
    failed to question J.R. about his comment that he ejaculated during his nap, as
    well as the fact that he asked neither J.R. nor the complainant about the
    presence of the soiled underwear, for the limited purpose of assessing the
    appellants credibility: see
R. v. N.L.P.
, 2013 ONCA 773, 305 C.C.C.
    (3d) 105, at paras. 75-77. Indeed, while the Crown cannot use the adverse
    inference as positive evidence to meet its burden of proof, an adverse
    inference can be used to undermine the defence evidence to which it relates:
N.L.P.
,
    at para. 74.

[43]

Additionally,
    as discussed by counsel during submissions at trial, the failure to put these
    facts to J.R. and to the complainant could be viewed as a breach of the rule in
Browne v. Dunn
(1893), 6 R. 67
    (H.L.):
see
R. v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81,
    leave to appeal refused, [2016] S.C.C.A. No. 203. Indeed, the appellants
    counsel at trial discussed the rule during submissions and admitted that it was
    a flaw that he had not asked J.R. about the underwear. There is nothing
    within the trial judges reasons to suggest that he shifted the burden of proof
    or used the failure to call these witnesses for the improper purpose of
    inferring guilt. Rather, he saw it as an additional factor that discredited the
    appellants testimony.

[44]

Similarly,
    the appellants failure to call any of his treating physicians to corroborate
    his alleged inability to function sexually could, in the particular
    circumstances of this case, give rise to the limited negative inference drawn
    by the trial judge as to the appellants credibility: see
N.L.P.
, at
    para. 75. The appellant offered a medical explanation for his alleged impotence
    that was both convoluted and unusual. It started with a statement to police
    that he believed that he had cancer and, at trial, was described more generally
    as an inability to obtain an erection and masturbate but to be nonetheless able
    to ejaculate during his sleep.

[45]

In
    final submissions, the appellants counsel suggested that a doctors report
    that had been produced and put to the appellant in cross-examination indicated
    that medical evidence supportive of the appellants claim existed and could
    have been tendered. The medical report, however, only included a physical
    description of the appellants genitals and his medical complaints. It did not offer
    any medical support for the appellants alleged inability to function sexually.
    Moreover, no explanation was tendered to explain why the medical evidence available
    to support the claim was not called. The limited negative inference drawn by
    the trial judge was available, as it was not used to infer guilt but only in
    regard to the appellants credibility.

[46]

The
    trial judge also mentioned the appellants failure to call his wife in support
    of his alleged inability to function sexually. I accept that the appellants
    failure to call his wife ought not to have led to any negative inference, as her
    failure to testify might reasonably have been explained by the appellants
    evidence that she suffered from health issues: see
R. v. Jolivet
, 2000
    SCC 29, [2000] 1 S.C.R. 751, at para. 26.

[47]

The
    trial judges reference to the failure to call the wife, however, was in my
    view inconsequential and played no significant part in the trial judges
    credibility assessment of the appellant. In order to be reversed on appeal, it
    would have to bear on an essential part in the reasoning process of the trial
    judge leading to the convictions:
R. v. Lohrer
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at para. 6. It was clearly not the case here.

[48]

In
    summary, the trial judge did not shift the burden of proof, err in his
    assessment of the evidence, or draw improper adverse inferences. His reasons
    for rejecting the appellants testimony and for finding that it did not raise a
    reasonable doubt are extensive, well-founded, and unassailable. I now turn to
    the other grounds of appeal.

(2)

Did the trial judge fail to assess the credibility and reliability of
    the complainant?

[49]

The
    appellant argues that the trial judge did virtually no analysis of the
    complainants evidence before accepting it and finding that the Crown had
    proven beyond a reasonable doubt that the offences took place.

[50]

Central
    to the trial judges acceptance of the complainants evidence is his finding
    that [i]f the complainant had made the allegations up, it is unlikely in the
    extreme that there would be, as there is, DNA evidence which corresponds with
    those allegations: at para. 64. In other words, finding the appellants semen
    in the complainants mouth, eight to eleven hours after the assault, could not
    have been anticipated by the complainant had she made up the assault. It was
    corroborative of the complainants testimony. Once the appellants evidence was
    rejected, there was no explanation other than the complainants for the DNA found
    in her mouth and on the Pepsi bottle.

[51]

The
    complainants evidence was, with the exception of the assault itself, largely
    unchallenged. In the circumstances, an extensive analysis of the complainants
    credibility was unnecessary.

[52]

On
    appeal, the appellant raises three specific concerns. First, the appellant
    claims that the trial judge should have addressed conflicting testimonies
    related to the complainants demeanour following the assault. Second, he
    maintains that the trial judge ought to have addressed inconsistencies in the
    complainants description of the use made of the knife during the assault and
    in her description of the penis length and how erect it was. Finally, he
    argues that the trial judge ought to have addressed the complainants failure
    to note anything unusual about the appellants penis, given the obvious
    abnormality of his testicles.

[53]

The
    trial judges failure to specifically address these points must be put in
    context. Given the wholesale rejection of the appellants evidence, there was
    no realistic basis in the evidence for the appellants theory of innocent
    secondary transfer of his semen to the complainants mouth. As noted earlier, when
    the complainant made her statement to police that she had been forced to
    perform fellatio, she could not have anticipated  if she had been lying  that
    evidence from the Centre for Forensic Sciences would confirm the presence of
    semen in her throat. Her testimony thus stood as the only explanation for the
    DNA finding. Further, as noted earlier, other than the assault itself, the
    complainants evidence was largely unchallenged.

[54]

As
    for the specific concerns raised by the appellant, the trial judge did, to a
    certain extent, address the evidence on the complainants demeanour. He
    reviewed the evidence of J.R. and the appellant that the complainant showed no
    sign of distress following the assault. He concluded that no inference should
    be drawn from this failure to show distress both in the period immediately
    following the assault and during the drive back to J.R.s. The complainant
    testified that she had been threatened by the appellant and was scared. This is
    why she said nothing until she spoke to her mother. Her mother testified to her
    obvious distress when she picked up her daughter. Her distress is further
    supported by her later attempt to slit her wrists. The trial judges treatment
    of that evidence was careful and balanced and his conclusion that the
    complainants explanation was reasonable is entitled to deference.

[55]

Moreover,
    the inconsistencies

between the
    complainants statement to police and her testimony at trial regarding the use
    of the knife during the assault were minor and understandable. The failure to
    provide certain details to police in the immediate aftermath of the assault, and
    a more extensive description at trial, does little to undermine the
    complainants credibility. Similarly, the fact that she was able to estimate
    the length of the appellants penis and how erect it was during trial, even
    though she did not provide these details in her statement to the police, did
    not require extensive analysis.

[56]

The
    final concern is the complainants failure to describe the appellants
    testicles. This is, however, easily explained by the complainants description
    of the assault. She testified that she only saw the appellants penis and that
    she could not see any other part of the appellants genital area. In her
    description of events, the appellant pulled his penis from his pants and she
    was never in a position to see his testicles. The trial judges failure to
    specifically address this point in his reasons does not undermine his
    acceptance of the complainants evidence.

[57]

The appellant points to no misapprehension of the evidence of the
    complainant that played a central role in the trial judges reasoning process
    or that could have affected the outcome: see
Lohrer
, at para. 8.

(3)

Did the trial judge err in his treatment of the DNA evidence?

[58]

The
    appellant argues that the DNA evidence, which is circumstantial evidence, was
    not sufficient to ground the appellants conviction. He submits that the trial
    judge considered the evidence in isolation, that he did not explain his
    conclusion that the appellants guilt was the only explanation for the evidence,
    and that he equated the probability of a random match with the probability of
    the appellants innocence.

[59]

As
    explained above, once the appellants evidence was rejected, no evidentiary
    basis remained for the appellants theory of innocent secondary transfer. The
    complainants explanation for the presence of the appellants semen in her
    throat was compelling. The conviction was due to the combination of the complainants
    testimony and the DNA evidence, not the DNA evidence alone.

[60]

There
    is also no indication that the trial judge equated the random match probability
    with the appellants innocence. When he stated that it would be unlikely that
    the DNA would correspond to the complainants allegations had she made them up,
    the trial judge was referring to the fact that the evidence corroborated her
    version of events.

(4)

Did the trial judge err in his application of the collateral fact rule?

[61]

Approximately
    three years after the assault, the complainant went to the police alleging that
    the appellant had driven by her repeatedly, made a throat-slitting gesture, and
    threatened her. Following these allegations, the appellant was arrested and
    charged with breach of recognizance and uttering threats. The charges were
    later withdrawn.

[62]

Following
    the complainants initial trial testimony, the appellant applied to recall the
    complainant for further cross-examination on this incident. He sought to
    establish that the complainant made a false allegation against him and to challenge
    her credibility on this basis. The appellant claimed he had proof that he was
    not in town on the day of the alleged incident, as he had been involved in a
    car accident in Toronto on that day.

[63]

The
    trial judge determined that the collateral fact rule applied to this proposed
    evidence. He was not persuaded that this was a situation in which the
    contradiction could be simply and conclusively proved and where the
    contradiction would have a striking effect on the complainants credibility.
    Exercising his gatekeeper function, he concluded that, on balance, the
    potential probative value of the evidence sought to be adduced exceeds the
    prejudice to the policy considerations that the collateral fact rule is based
    on. He also noted that the application had been brought without notice even
    though the appellant knew about the alleged false complaint for months, and
    that no explanation was offered about the lack of notice.

[64]

After
    the trial judge refused to allow the appellant to recall the complainant for
    further cross-examination, the appellant chose to recall the complainant as a
    defence witness.

[65]

In
    her testimony, the complainant confirmed that she made the complaint to police.
    The appellant was however prevented from calling any other evidence which [had]
    the effect of challenging the complainants credibility about her answers.

[66]

The
    appellant argues that the trial judge erred in ruling that he could not
    cross-examine the complainant on her complaint to the police and in refusing to
    allow challenges to the complainants credibility.

[67]

I
    reject this submission. The trial judge did not err in refusing to allow the
    appellant to lead evidence that would prove the complainant made a false
    complaint. In order to have any relevance whatsoever, the appellant would have
    had to prove that the complainant was lying rather than being simply mistaken. Mistake
    was, in this case, a very real possibility. The complainant had testified that
    she saw the appellant from a distance of two or three car lengths away, through
    a fence and through the passengers side window of the car he was driving. The
    trial judge has the discretion to to exclude evidence where its probative
    value is outweighed by its prejudicial effect, including prejudice to the
    trial process
: R. v. B. (A.R.)
(1998), 41 O.R. (3d) 361 (C.A.), at p.
    367, affd 2000 SCC 30, [2000] 1 S.C.R. 781. Accordingly, I would defer to the
    trial judges conclusion that this issue would have led to an unnecessary
    prolongation of the already long trial and would have significantly distracted
    from the main issues.

(5)

Did the trial judge err in finding a weapon had been used?

[68]

In
    oral submissions, the appellant suggested that the record and reasons did not support
    the finding that a weapon had been used during the assault.

[69]

I
    disagree. It is apparent from the defense advanced at trial that the focus was
    on whether the assault ever occurred, rather than on whether a knife was used. The
    defences position explains why the trial judge devoted little time to that
    aspect of the charge.

[70]

In
    cross-examination, the appellant challenged the complainants description of
    how the knife was used. However, this challenge was directed at the
    complainants credibility, as the appellant was attempting to raise a
    reasonable doubt as to the assault having occurred. There was little attempt to
    show that, if the assault occurred, no knife had been used. Once the
    complainants evidence that an assault occurred was accepted, the fact that a
    knife was used during the assault necessarily followed. This conclusion was
    supported by the discovery, on the premises, of a knife that matched the
    complainants description of the knife used during the assault.

CONCLUSION

[71]

The
    reasons of the trial judge fully support the conviction and I would, therefore,
    dismiss the appeal.

Released: April 25, 2019

GRS

Paul Rouleau J.A.

I agree G.R. Strathy C.J.O.

I agree B.W. Miller J.A.


