



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. N.H., 2020 ONCA 694

DATE: 20201104

DOCKET: C63612

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.H.

Appellant

Margaret Bojanowska, for the appellant

Philippe Cowle, for the respondent

Heard: September 29, 2020 by
    video conference

On appeal
    from the convictions entered on September 23, 2016 by Justice Beth A. Allen of
    the Superior Court of Justice, sitting with a jury and from the sentence
    imposed on April 21, 2017.

REASONS FOR DECISION

A.

Introduction

[1]

Following a jury trial, the appellant was
    convicted of three counts of sexual assault and one count of assault. He was
    sentenced to a total of four years imprisonment. He appeals his convictions
    and seeks leave to appeal sentence.

[2]

The complainant is the appellants former wife. She
    is from a Sikh family; the appellants mother is Muslim. The two were married in
    a Muslim ceremony on June 30, 2013. The complainants parents did not approve
    of the marriage and did not attend the ceremony. The couple separated on March
    22, 2014 when the appellant asked the complainant to leave their home following
    a confrontation with the complainants brother. Shortly thereafter, the
    complainant went to the police and alleged that the appellant sexually
    assaulted her by forcing her to participate in oral sex and intercourse on
    three occasions: December 20, 2013; December 28, 2013; and February 18, 2014.
    In addition, the complainant said the appellant had assaulted her by punching a
    wall and threatening her in January 2014.

[3]

According to the complainant, the couples
    relationship deteriorated quickly following their marriage. The appellant was
    abusive and controlling. By September 2013, the complainant suspected he
    was having an affair. When the December sexual assaults occurred, their
    relationship was very bad: she was sleeping on a couch that was not in the
    couples bedroom. At the time of the February sexual assault, the complainant
    had returned to the bedroom, but the relationship was tense. The appellant came
    home drunk and she did not agree to have sex with him on that occasion. During
    cross-examination, the complainant acknowledged that prior to the February 2014
    incident, she told the appellant she thought she was pregnant and that both were
    happy at the prospect of having a child. However, she testified that the
    appellant became angry a few days later after she told him she realized that
    she was not in fact pregnant.

[4]

The appellant testified at trial and denied the
    offences. Although he acknowledged having sexual relations with the complainant
    on the dates in question, he maintained that the complainant consented and that
    the couple was attempting to conceive a child. Much of the tension in the
    marriage was due to the complainant nagging him about infidelity, an accusation
    he denied. The defence theory at trial was that, after the appellant asked her
    to leave the home, the complainant fabricated her allegations out of spite and to
    save face because the marriage had failed.

[5]

During the trial, the trial judge dismissed an
    application by the appellant under s. 276 of the
Criminal Code
to lead
    evidence that the couple was attempting to have a baby between December 2013
    and February 2014. In a further ruling, the trial judge permitted the Crown to
    lead evidence of other discreditable conduct by the appellant.

[6]

The appellant raised five issues on his
    conviction appeal and, in addition, sought to lead fresh evidence in relation
    to his sentence appeal.
[1]
For
    the reasons that follow, we dismiss the conviction appeal, grant leave to
    appeal sentence but dismiss the fresh evidence application and the sentence
    appeal.

B.

discussion

(1)

Admission of other discreditable conduct evidence and jury
    instruction concerning other discreditable conduct

[7]

As his first ground of appeal, the appellant
    argued that the trial judge erred in allowing the Crown to call extensive
    evidence of other discreditable conduct and further erred in failing to
    properly caution the jury concerning the use to be made of that evidence.

[8]

In her ruling on this issue, the trial judge
    permitted the Crown to call evidence relating to the following conduct on the
    part of the appellant:

·

shouting and derogatory names directed at the
    complainant;

·

taking $2,500 of wedding gift money and telling
    the complainant she was living off of him for free;

·

disputes over the quality of the complainants
    cooking and cleaning and payment of rent;

·

the complainants belief that as of September
    2013 the appellant was cheating on her and the conflicts that arose because of
    this;

·

kicking the complainant out the bedroom at the
    end of February 2014, moving her belongings to the furnace room and installing
    a lock on the bedroom door; and

·

threatening to call immigration authorities if the
    complainant did not leave the home on March 22, 2014.

[9]

In addition to asserting that the trial judge
    erred in admitting much of the foregoing evidence, the appellant contends that
    the trial judge erred in permitting additional evidence of other discreditable
    conduct to seep into the trial.  Among the most egregious examples were the
    following:

·

evidence given by the complainants brother that
    he had been told the appellant threatened to kill the complainant in these
    words: I will kill you and nobody will ever know;

·

evidence of yelling and aggressive behaviour
    directed at the complainants brother and his two companions on March 22, 2014
    including a threat to bury the complainants brother six feet underground; and

·

evidence of advice to the complainant that he
    and his sister paid the rent and that he could kick the complainant out at any
    time.

[10]

The appellant submits that the evidence of
    events that post-dated the allegations that was permitted by the trial judge
    was irrelevant to any issue at trial and the trial judge erred in admitting it.
    Further, the unvetted evidence was highly prejudicial as it painted a picture
    of the appellant as aggressive and violent and a horrible person. Moreover,
    the sheer volume of discreditable conduct evidence may have overwhelmed the jury,
    distracted them from the central issue and generated impermissible reasoning
    supporting findings of guilt.

[11]

While acknowledging that the trial judge
    instructed the jury on the permissible and impermissible uses of this type of
    evidence, the appellant submits the caution given was inadequate in the
    circumstances. The caution failed to identify all the discreditable conduct
    evidence that was adduced at trial. It failed to explain to the jury their
    first task was to determine if the evidence was true. It failed to instruct the
    jury the appellant was not on trial for the conduct identified in the
    discreditable conduct evidence. Most importantly the caution failed to make it
    clear that the jury could not infer guilt from the other discreditable conduct
    evidence.

[12]

We did not call on the Crown to respond to these
    submissions. We see no error in the trial judges ruling concerning the
    evidence she admitted. She found the evidence admissible to help the jury
    understand the nature of the parties relationship and the context in which the
    alleged abuse occurred. Further, it was capable of demonstrating animus or
    motive on the part of the appellant and a history of controlling behaviour,
    which could help explain why the complainant did not go to the police sooner.
    In rejecting the appellants submission that the evidence was more prejudicial
    than probative, the trial judge noted the offences charged were far more
    serious than the conduct described in the proposed evidence.

[13]

The appellant cited no authority for the
    proposition that evidence of discreditable conduct occurring after the date of
    the alleged offences is inadmissible. In our view, such evidence was equally
    relevant to the issues of motive, animus, assisting in understanding the
    parties relationship and why the complainant did not go to the police sooner
    as the evidence of conduct that pre-dated the offences. We note as well that
    some of the impugned evidence (in particular the evidence concerning the March
    22, 2014 events) formed part of the Crowns original application and that
    defence counsel at trial withdrew any objection to it being heard.

[14]

Although it would have been preferable had the
    Crown applied in its pre-trial motion to introduce all the discreditable
    conduct evidence eventually adduced at trial, we note there was no objection at
    trial to the additional evidence. Further, we are satisfied that to the extent
    the impugned evidence constituted other discreditable conduct evidence
[2]
it was admissible on the same
    basis as the evidence on which the trial judge ruled. It was relevant to the
    issues of animus and motive and/or could assist the jury in understanding the
    nature of the parties relationship and why the complainant did not leave the
    relationship sooner. Like the trial judge, we observe that the additional evidence
    of conduct that did not form part of the Crowns original application was far
    less serious than the conduct charged. The likelihood of it giving rise to
    prejudice was therefore reduced.

[15]

Turning to the caution given by the trial judge,
    we are satisfied it was adequate. The trial judge cited some examples of the
    discreditable conduct led at trial and said she was required to caution the
    jury about the use it could make of this
type
of evidence. The jury
    would have understood that the trial judge had not recited all the evidence to
    which the instruction applied. After explaining to the jury the use they could
    make of such evidence, the trial judge said the following:

I must caution you that you may not use this
    evidence of [the appellants] behaviour toward [the complainant, her brother or
    his companions] to draw the conclusion that [the appellant] is generally a bad
    person or the sort of person who is likely to have committed the offences
    against [the complainant].

[16]

Defence counsel at trial did not object to the
    instruction. Although not determinative, the failure to object is some
    indication of the overall impact of the evidence, the trial judges
    instructions and whether it was desirable for the trial judge to identify each
    item of discreditable conduct evidence. In our view, itemization of all the
    discreditable conduct evidence would not have enured to the appellants benefit
    and the language used by the trial judge was adequate to convey to the jury
    that they could not use any evidence they accepted to jump to a conclusion of
    guilt based on bad personhood.

(2)

Was the Crown's cross-examination of the appellant unfair?

[17]

As his second ground of appeal, the appellant
    argued that the trial Crowns cross-examination of him was improper in several
    respects to the point that it rendered the trial unfair. The appellant says the
    most significant problem was the trial Crowns repeated suggestions that the
    appellant was lying or attempting to mislead the jury. The appellant maintains
    that many of these suggestions were not a fair reflection of his evidence.
    Further, as much of the cross-examination focused on the other discreditable
    conduct evidence with extensive questioning devoted to, for example, the
    appellants alleged infidelity and the threatening comment to the complainants
    brother, these suggestions that the appellant was lying to the jury fed into
    that evidence and heightened the prejudice occasioned by it. In oral
    submissions, the appellant identified several occasions on which he submits the
    trial Crown made unfair suggestions that he was lying or attempting to mislead
    the jury.

[18]

In addition, the appellant submitted that, on more
    than one occasion, the Crown made suggestions that were either not founded in
    the evidence or constituted a misstatement of the evidence and that this
    contributed to the overall unfairness of the cross-examination.

[19]

We do not accept these submissions. While we
    agree that the trial Crown misstated the evidence on occasion when putting
    suggestions to the appellant and that it might have been preferable had he
    refrained from use of the word lying, overall we are not persuaded that the
    appellants cross-examination was such as to prejudice the appellant in his defence
    or bring the administration of justice into disrepute.

[20]

Defence counsel at trial was alert to the issue
    of misstatements of the evidence and objected appropriately on several
    occasions when this occurred. Apart from that objection, defence counsel made no
    objection to the tenor of the cross-examination  appropriately so in our view,
    as he had suggested to the complainant on several occasions that she was lying.
    In closing submissions, defence counsel submitted to the jury that the
    complainant was a liar. Particularly in the context of a hard fought trial
    where the credibility of both the complainant and the appellant were central
    issues, the Crown was entitled to mount a vigorous challenge to the appellants
    evidence. Ultimately, it was for the jury to assess whether the suggestions
    made by defence counsel and the trial Crown were accurate.

[21]

That said, in our view, counsel would do well to
    consider whether more judicious language and a more measured approach would
    better serve the overall administration of justice. Credibility problems can
    often be better illustrated through a more subtle approach than the explicit
    suggestion that a witness is lying. Moreover, the latter approach can easily
    backfire if perceived by the trier of fact as inaccurate, unfair or frivolous. Here,
    the trial Crowns cross-examination of the appellant about the patently
    incorrect dates
[3]
in the appellants affidavit filed on the s. 276 application is but one example
    of an ill-conceived line of cross-examination.

(3)

The trial judges dismissal of the appellants s. 276 application

[22]

As his third ground of appeal, the appellant
    argued that the trial judge erred in dismissing his application under s. 276 of
    the
Criminal Code
.

[23]

In his s. 276 application, the appellant sought
    to adduce evidence that the couple was attempting to conceive a child during
    the time frame of the allegations. He relied on statements to that effect in
    his affidavit
[4]
as
    well on statements in undated text messages
[5]
exchanged between the couple relating to the best time to conceive.
    The appellant argued that the evidence of the couples desire and attempts to
    have a baby was relevant and admissible to provide a context in which to
    evaluate the complainants overall credibility.

[24]

The trial judge accepted the Crown's submission
    that the application lacked the specificity and particulars necessary to meet
    the requirements of s. 276.1(2) of the
Criminal Code
.
[6]
Apart from the dates of the alleged sexual assaults, the appellant
    provided no specifics of other occasions on which the couple attempted or
    discussed getting pregnant.

[25]

Further, the trial judge concluded that the
    claimed relevance of the evidence as providing the background of events gave
    rise to the potential for the prohibited reasoning that because the complainant
    consented to sexual activity on other occasions it was more likely that she
    consented in relation to the alleged offences. The trial judge noted that under
    s. 276(2)(c) of the
Criminal Code
, she was required to consider a
    number of factors and engage in a balancing exercise to determine whether the
    proposed evidence had significant probative value not substantially outweighed
    by the danger of prejudice to the proper administration of justice.  Although
    she found the proposed evidence could have some relevance to evaluating the
    complainants evidence, she concluded that even with an instruction to the
    jury, the danger of biased and discriminatory reasoning could mark the jurys
    deliberations and derail the interests of justice.

[26]

Accordingly, apart from permitting
    cross-examination of the complainant concerning whether she was attempting to
    get pregnant at the time of the alleged sexual assaults, the trial judge
    dismissed the appellant's application.

[27]

Relying on
R. v. L.S.
, 2017 ONCA 685, 354
    C.C.C. (3d) 71, the appellant submits that trial judge erred in finding his
    application lacked the specificity and particulars necessary to meet the
    requirements of s. 276. Further, he argues that the trial judge erred in
    failing to recognize the value of the proposed evidence to credibility issues
    in that it would have supported the appellant's version of events and
    demonstrated that, as late as February 2014, the complainant was happy to
    become pregnant with the appellant. Finally, the appellant submits that given
    the trial judge's ruling allowing discreditable conduct evidence to be
    presented, the s. 276 ruling permitted a skewed picture of events to go
    before the jury.

[28]

We did not call on the Crown to respond to these
    submissions. Even assuming the trial judge erred in holding that the
    appellants proposed evidence lacked the specificity necessary to support its
    admission, we see no error in the trial judges ruling. Apart from giving rise
    to the prohibited inference that because she consented to sexual relations on
    other occasions, the complainant was more likely to have consented on the dates
    of the alleged offences, the proposed evidence had limited value to assessing
    the complainants overall credibility.

[29]

The complainant gave specific evidence about the
    state of the parties relationship at the time of the alleged offences and of
    the manner in which she alleged the offences occurred. Evidence that the
    complainant consented to having sexual relations on other unspecified dates because
    she wanted to try to conceive a child with the appellant was of minimal value
    in assessing the complainants evidence about the state of the relationship at
    particular times or whether she consented to sexual relations on the dates of
    the alleged offences. We note that, in any event, defence counsel at trial was
    permitted to ask the complainant about her emotional state, and the
    appellants, during the period when she thought she was pregnant. She agreed
    they were happy. However, as we will explain the predicted problem arose: in
    his closing address to the jury, defence counsel at trial attempted to use this
    evidence to invite prohibited twin myths reasoning.

[30]

Further, we reject the submission that in light
    of the trial judges ruling permitting the Crown to lead other discreditable
    conduct evidence, this ruling permitted the Crown to present a skewed picture
    of the events. As we have said, defence counsel was permitted to elicit
    evidence that the complainant was happy when she believed she was pregnant and
    the appellant testified that the couple was attempting to conceive at the time
    of the alleged offences. In any event, in the absence of evidence of specific
    discussions or attempts to get pregnant with specific probative value in
    relation to a particular allegation, general evidence that the complainant was
    prepared, and even happy, to conceive a child with the appellant had little
    probative value in relation to either the alleged offences or as a response to
    the discreditable conduct evidence.

(4)

The trial judges instructions correcting defence counsels closing

[31]

As his fourth ground of appeal, the appellant
    argued that the trial judge erred in the manner in which she corrected certain
    alleged legal and factual errors made by defence counsel in his closing
    submissions. Although the appellant submitted that defence counsel did not make
    some of the factual errors to which the trial judge referred, his primary
    submission is that the trial judge erred in instructing the jury defence
    counsel made a legal error.

[32]

We did not call on the Crown to respond to this
    submission.

[33]

As we have said, during cross-examination of the
    complainant, defence counsel was permitted to ask questions in response to
    which the complainant confirmed that both she and the appellant were happy in
    February 2014 when they believed the complainant was pregnant. In his closing
    address, defence counsel said the following about that evidence:

Remember  [the complainant] places this
    conversation about  February 14
th
? Well thats just a few days
    before February 18
th
. Shes happy to be pregnant with [the
    appellant]. Right? Remember, I took her to that point in the preliminary
    hearing, We were happy. We were happy to be pregnant.  So you see how the
    evidence in terms of them trying to be pregnant, its  which includes December
    20
th
and 28
th
dates  those are included in that because
    when you look at the context of the February discussion, clearly the only
    conclusion is that they were trying to get pregnant on December 20
th
and 28
th
.
Because even logically, why are you
    happy to have a child with this person when youve just been assaulted twice by
    him  sexually assaulted twice. It doesnt make sense. Or, at the very least,
    it raises a reasonable doubt.
[Emphasis added.]

[34]

Immediately following completion of the defence
    closing and again in her closing instructions, the trial judge instructed the
    jury in strong terms that defence counsel erred in law in inviting the jury to
    infer that the complainant likely consented to sexual relations with the
    appellant on two occasions in December 2013, (and by inference on February 18,
    2014), because she acknowledged she was happy to be pregnant with the appellant
    on February 14, 2014. Among other things, the trial judge said:

Following the defence
    closing
:

The defences submission is not in accordance
    with the law on sexual assault in Canada.

In the closing
    instructions
:

Defence counsels submission is not in
    accordance with Canadian law on sexual assault.

Defence counsel made a further submission
    about another instance of consensual sex prior to the alleged assaults that is
    also not permissible.

[35]

The appellant submits that the trial judge's
    corrections were not only wrong in law  because defence counsels closing did
    not invoke prohibited twin myths reasoning  but they were also derogatory and
    constituted an unfair personal attack on defence counsel. In addition to being
    an error in law, the appellant submits the nature of the trial judges comments
    rendered the trial unfair.

[36]

We did not call on the Crown to respond to these
    submissions. As a starting point, we agree with the trial judge that the
    defence closing invoked impermissible twin myths reasoning. The clear
    implication of defence counsels submission was that because the complainant
    was happy to have a child with the appellant, and thus must have consented to
    having sexual relations with him on some occasion, she must have consented to
    sexual relations on the dates of the alleged offences. Given the submission by
    defence counsel, the trial judge was required to give the jury a strong caution
    making it clear to them that they could not engage in prohibited reasoning.

[37]

We acknowledge that the caution could have been
    framed differently to downplay the role of counsel and avoid any possibility
    the jury might infer impropriety on his part. In our view, however, contrary to
    the appellants submission, the caution was objective and did not imply
    impropriety. In this regard, we note that defence counsel did not raise the
    objection concerning the derogatory nature of the instruction at trial that has
    now been raised on appeal. We can only assume he did not perceive it as such.

(5)

Defence of honest but mistaken belief in communicated consent
[7]


[38]

As his fifth ground of appeal against
    conviction, the appellant argued that the trial judge misdirected the jury with
    respect to the defence of honest but mistaken belief in consent. Although the
    trial judge initially told the jury correctly that it was for the Crown to
    prove the appellant held no such belief, the appellant submits she subsequently
    shifted the onus to the appellant by saying he was required to show he took
    reasonable steps to ascertain whether the complainant's participation
    represented actual consent to each sexual act.

[39]

We did not call on the Crown to respond to this
    argument. In our view, there was no air of reality to the defence, it should
    not have been left with the jury and any error the trial judge may have made in
    her instructions gave rise to no substantial wrong or miscarriage of justice.

[40]

On the complainants evidence concerning the
    sexual assaults, her relationship with the complainant was poor at the time of
    all of the alleged offences to the point she was sleeping on the couch as of
    December 20 and 28, 2013. The complainant testified that: she did not verbally
    agree to engage in sexual activity at the time of any of the alleged offences;
    she expressly said no on both December 28, 2013 and February 18, 2013; the
    appellant physically manoeuvered her body to force her to engage in sexual
    activity on all three occasions and she tried to resist on both December 20,
    2013 and February 18, 2013.

[41]

The appellant acknowledged the complainant was
    sleeping on the couch as of December 20 and 28, 2014. According to the
    appellant, he and the complainant were attempting to have a child on each of
    the three dates; they had specific discussions to that effect sometime before
    engaging in sexual activity on December 20, 2013 and immediately prior on
    February 18, 2014. Further, he claimed that although the complainant initially
    declined his invitation to come upstairs to their bedroom on December 28, 2013,
    she later came upstairs, which led to the couple engaging in sexual activity.
    The appellant asserted that the complainant never gave any physical or verbal
    indication that she was not consenting to sexual activity on any of the three
    occasions.

[42]

In our view, neither the complainants nor the
    appellants evidence creates an air of reality for a defence of honest but
    mistaken belief in communicated consent.

[43]

The complainants evidence was that she did not
    consent to sexual activity on the dates of the alleged offences and further
    that, on all three occasions, she either said no or tried to resist. The
    essence of the appellants evidence was that the appellant consented to sexual
    activity on all three occasions. However, in general, an accuseds evidence
    that the complainant verbally expressed consent to engage in sexual activity
    and never withdrew that consent  as the appellant asserts here in relation to
    the December 20, 2013 and February 18, 2013 incidents  does not give rise to a
    defence of honest but mistaken belief in consent. Rather it goes to the issue
    of consent.

[44]

In this case, apart from his evidence that he
    and the complainant specifically discussed attempting to conceive on December
    20, 2013 and February 2014 (which goes to the issue of consent), the appellant
    gave no evidence of reasonable steps to ascertain if she was consenting on
    those occasions or on December 28, 2013. Concerning the December 28, 2013
    incident, the complainant testified that after declining the appellants
    invitation to join him upstairs, she went upstairs to go to the bathroom. She
    also said she resisted. The appellants testimony that the complainant never
    gave any verbal or physical indication of lack of consent, standing alone,
    could not give rise to a defence of honest but mistaken belief in communicated
    consent, as that claim would be based on a mistake of law:
R. v. Barton
,
    2019 SCC 33, 435 DLR (4th) 191, at para. 107.

[45]

Although we acknowledge there is no indication on
    the record before us that the trial Crown objected to the defence being left,
    lack of objection cannot create an air of reality for a defence that is not
    otherwise available on the evidence.

(6)

The Sentence Appeal and the Application to Introduce Fresh Evidence

[46]

Turning to the sentence appeal, the appellant
    submits that the trial judge erred in finding he was in a position of trust and
    authority over the complainant and in treating that as an aggravating factor.
    In addition, he submits that the trial judge erred in identifying the following
    matters as aggravating factors:

·

the complainant gave up her relationship with
    her family to marry the appellant;

·

the appellant threatened to have the complainant
    deported if she did not comply with his directions;

·

the appellant threatened the complainant's
    brother; and

·

the appellant forced the complainant to leave
    the home after nine months of marriage.

[47]

Further, the appellant submits that although the
    trial judge recognized the appellant had no prior criminal record, she erred in
    failing to take account of the fact that this would be not only his first
    custodial sentence but also his first penitentiary sentence.

[48]

Finally, the appellant seeks to introduce fresh
    evidence on appeal to demonstrate that the complainant made false claims in her
    victim impact statement that the trial judge relied upon in sentencing: in
    particular, the complainants assertions that she could no longer trust anyone
    or have a relationship with anyone and that she suffers back problems because
    of prolonged sleeping on the couch.

[49]

We do not accept these submissions. As a
    starting point, we conclude the fresh evidence is inadmissible. Further, even
    assuming the trial judge made any of the errors relied on by the appellant, in
    our view, the sentence of four years imprisonment was entirely fit.

[50]

The fresh evidence consisted of an affidavit
    sworn by a legal assistant to appellants counsel based on information received
    from appellants counsel. Attached as exhibits to the affidavit were what the
    affiant described as screenshots from the complainants Facebook page, her
    Instagram page and the Facebook page of the complainants new spouse. These
    screenshots purported to disclose, among other things, that the complainant and
    her new spouse became engaged prior to the date of the complainants victim
    impact statement, that they were married prior to the appellants sentence
    hearing and that the complainant was able to go horseback riding soon after her
    marriage.

[51]

The affiant deposed that counsel had been
    advised of the complainants Facebook profile name as of a date prior to the
    appellants sentence hearing. The screenshots at issue purported to be dated
    after the appellants sentencing. The appellant submits the affidavit is
    admissible under s. 723(5) of the
Criminal Code
, which provides that
    hearsay is admissible on a sentence hearing.

[52]

In our view, the latter submission falls far
    short of establishing the admissibility of the fresh evidence. Significantly,
    the affiant did not disclose any of the following information: i) from whom
    counsel received advice about the complainants Facebook profile name; ii) any
    basis on which the affiant or counsel confirmed the profile photographs were in
    fact photographs of the complainant; iii) who took the screenshots; iv)
    when and on what device the screenshots were taken; iv) whether the screenshots
    had been altered since being taken; v) when and how, the appellant or anyone
    associated with him, learned of the complainants alleged new relationship, her
    engagement and her marriage.

[53]

Leaving aside the propriety of appellants
    counsel appearing as counsel
and
proffering an affidavit based on
    information received from her, the proposed fresh evidence does not meet the
    admissibility requirements as set out in
Palmer v. The Queen
, [1980] 1
    S.C.R. 759, at p. 775 and consolidated in
Truscott (Re)
, 2007 ONCA
    575, 225 C.C.C. (3d) 321, at para. 92.

[54]

First, the proposed evidence fails to meet the
    due diligence requirement because it does not establish when the appellant or
    anyone associated with him learned of the complainants alleged new
    relationship. Second, the evidence fails to meet the cogency requirement
    because it does not address, let alone establish, the authenticity of the
    screenshots.
[8]
We
    therefore decline to admit the fresh evidence on the sentence appeal.

[55]

Further, even assuming the trial judge made the
    errors alleged and those errors affected her decision on sentencing, we would
    not impose a sentence different from that imposed by the trial judge.

[56]

We acknowledge that the appellant was relatively
    young (28 years old at trial); that he had no prior criminal record and thus
    had never previously served a custodial sentence let alone a penitentiary
    sentence. We further acknowledge that up until the time of these offences, the
    appellant was a productive member of society and had a supportive family.
    However, the offences for which he was sentenced were extremely serious. They
    consisted of three serious sexual assaults, all involving oral sex and
    intercourse, committed in the context of a domestic relationship. Such offences
    demand a significant penitentiary sentence to properly reflect proportionality
    as well as the principles of denunciation and both general and specific
    deterrence. A four-year penitentiary sentence was entirely fit in the
    circumstances:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 SCR 1089, at para. 12.

C.

disposition

[57]

Based on the foregoing reasons, the conviction appeal
    is dismissed. Leave to appeal sentence is granted but the fresh evidence
    application and the sentence appeal are dismissed.

Janet
    Simmons J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.





[1]
During oral argument at the appeal hearing, the appellant abandoned
    his request to have the fresh evidence admitted in relation to his conviction
    appeal.



[2]
For example, the appellant complains about the evidence that he
    lived in a home that was part of an Ontario Housing complex and submits
    societal bias exists about individuals who live in such accommodation. Even
    assuming that may be correct, such evidence was given by the appellant in-chief
    and hardly qualifies as evidence of other discreditable conduct.



[3]
The dates mentioned were long after the parties had separated. See
    footnote 4.



[4]
In his affidavit the appellant stated, From the beginning of
    December 14
th
through to the end of February 15, we were trying to
    have a baby. On New Years Eve of 2015, she told everyone she was pregnant,
    however she soon after told me and my family she was wasnt. For the purpose
    of the s. 276 application, the trial judge accepted the appellant made an error
    in setting out the dates and had intended to say the couple were trying to have
    a baby from December 2013 to February 2014.



[5]
The appellant was unable to produce the actual text messages on the
    application. Instead, he produced an e-mail dated April 21, 2014 in which he
    had reproduced the text messages. In his evidence he was unable to confirm
    exactly when the text messages were sent. At the preliminary inquiry, the
    complainant confirmed sending some text messages about pregnancy but did not
    confirm the date they were sent.



[6]

The s. 276 application in this case was decided in 2016,
    prior to amendments made to s. 276 and related sections of the
Criminal Code

in 2018:
Criminal Code
, as amended by S.C. 2018, c. 29, ss.
    21(1)-22.  For consistency with the reasons below, we have cited to the provisions
    that were in force at the time of the application.



[7]
Although framed as honest but mistaken belief in consent at trial
    and in the parties factums, as discussed in
R. v. Barton
, 2019 SCC 33, 435 DLR (4th)
    191, at paras. 91-93, the defence is now properly referred to as honest belief
    in communicated consent.



[8]
Sections 31.1, 31.2, and 31.3 of the
Canada Evidence Act
prescribe the manner
    in which electronic documents can meet the common law authenticity and best
    evidence rules, which impose threshold requirements for the admissibility of
    documents at a trial.



