



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.K., 2020 ONCA 79

DATE: 20200203

DOCKET: C66287

Watt, Huscroft and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.K.

Appellant

Paul Calarco, for the appellant

Catherine Weiler, for the respondent

Heard: November 6, 2019

On appeal from the conviction entered by Justice William
    R. Wolski on July 26, 2018 of the Ontario Court of Justice.

Trotter J.A.:


A.

introduction

[1]

D.K. was charged with sexual assault causing bodily harm, contrary to s.
    272(1)(c) of the
Criminal Code
, R.S.C. 1985, c. C-46. He had sexual
    intercourse with his common law partner, J.D., and caused a three-centimeter
    laceration to the inside of her vagina. At trial it was undisputed that sexual
    intercourse had occurred; the contentious issue was whether J.D. had consented.

[2]

The trial judge found the appellant not guilty of sexual assault causing
    bodily harm, but guilty of the included offence of sexual assault:
Criminal
    Code
, s. 271. He imposed a sentence of three years imprisonment, less
    credit for pre-sentence custody.

[3]

The appellant appeals his conviction on four grounds. First, he challenges
    the trial judges ruling under s. 276 of the
Criminal Code
, refusing
    to permit cross-examination of J.D. about her alleged sexual activity with the
    appellant after the incident in question. Second, he argues that the trial
    judge erred in dismissing his third party records application under ss. 278.1-278.9.
    Third, the appellant submits that the trial judge misused J.D.s utterance to a
    doctor that her injury was caused by forced intercourse. Finally, the
    appellant contends that the trial judge reversed the burden of proof in evaluating
    his evidence.

[4]

These reasons explain why I would allow the appeal based on the appellants
    third argument. The trial judge improperly relied upon J.D.s forced
    intercourse utterance, a prior consistent statement, to enhance her
    credibility. As discussed below, it played a dominant role in the trial judges
    analysis. I would reject all other grounds of appeal.

B.

factual backdrop

[5]

On November 16, 2013 J.D. was rushed to Mount Sinai Hospital in Toronto,
    bleeding profusely from her vagina. It was common ground that her injury was
    caused during sexual intercourse with the appellant. However, the evidence of
    J.D. and the appellant differed markedly on the surrounding circumstances. J.D.
    said she did not consent to intercourse. The appellant testified that the
    sexual intercourse was consensual and that the injury was caused accidentally.

(1)

J.D.s Version of Events

[6]

J.D., who was 47 at the time, said that she had argued with the
    appellant that evening over his crack cocaine use, and because she believed he
    had been unfaithful to her. J.D. threw the appellant out of her apartment.

[7]

The appellant returned a short while later and he was angry. He ordered
    J.D. to remove her clothes because he wanted to have sex. J.D. explained, He
    told me that either I take my clothes off or hell rip my fucking clothes off
    himself. J.D. complied out of fear. J.D. was told to lay on the bed on her
    back and the appellant penetrated her. The appellant then told J.D. to get on
    her hands and knees and penetrated her from behind. She described the
    penetration, which lasted for ten minutes, as regular hard sex and rough.

[8]

While being penetrated from behind, J.D. felt something burst inside
    of her  you could feel it and you could hear it. Then there was all kinds
    of blood, which she could feel streaming down her legs. J.D. told the
    appellant to stop, but he did not do so immediately. She told the appellant
    that she was bleeding and again told him to stop. This time he did. J.D. went
    into the shower but was unable to stop the bleeding. At her request, 911 was
    called and paramedics were dispatched.

[9]

J.D. was taken to Mount Sinai Hospital. The appellant was allowed to
    ride in the ambulance. On the way, the appellant told the paramedics that he
    did not know why J.D. was injured because they only had rough sex. J.D. said
    nothing because she was too afraid; the appellant told her to say that they just
    had rough sex.

[10]

When they arrived at the hospital, J.D. received a blood transfusion.
    The appellant remained in the room and continued telling her to say nothing.
    While she was at the hospital, J.D. could not recall telling anyone what
    actually happened, nor being asked if she wanted to call the police. As
    discussed in more detail below, J.D. eventually had surgery to repair the
    injury to her vagina.

[11]

J.D. first reported the sexual assault in January 2016, when she was
    staying at a crisis centre in Guelph. This was about a year after her
    relationship with the appellant had ended.

[12]

In cross-examination, defence counsel suggested to J.D. that there was
    no argument with the appellant; she consumed crack cocaine that evening; the
    sexual intercourse was consensual; and it occurred when she was laying on her
    back (not while she was on her hands and knees). She denied each of these propositions.

(2)

The Appellants Version of Events

[13]

The appellant was 56 years old at the time of the incident. He met J.D. on
    the street in the summer of 2013 when they were both doing crack cocaine. The
    appellant was living at a shelter and J.D. asked him to move in with her.

[14]

On November 16, 2013 the appellant worked during the day and returned to
    J.D.s apartment, where he had a beer or two. After dinner, the appellant went
    out and bought some crack cocaine and returned to the apartment. Both he and
    J.D. consumed the drugs. The appellant and J.D. watched two movies on the VCR
    and then decided to get intimate. He described consensual sex during which he
    was on top of J.D. He denied penetrating her from behind. The appellant heard
    something burst inside of J.D., followed by a lot of blood. He stopped two
    seconds after the bursting sound when he saw all of the blood. He called 911. The
    appellant denied that J.D. had asked him to stop, but later admitted that it
    was possible.

[15]

The appellant denied instructing J.D. to minimize the circumstances in
    which her injury was caused. He also denied that, on the night of the incident,
    they argued about his crack use, or that J.D. alleged that he was unfaithful. While
    the appellant acknowledged that they argued from time to time, they did not
    argue that night.

(3)

J.D.s Injury

[16]

J.D. was treated by Dr. Michael Sved, a gynaecologist and obstetrician
    at Mount Sinai Hospital. He testified that J.D. lost two litres of blood (i.e.,
    approximately 40% of her blood volume). This triggered a Code Omega  a procedure
    similar to a Code Blue, called when a patient goes into cardiac arrest.

[17]

Dr. Sved performed surgery on J.D. He discovered a three-centimeter
    laceration to her left fornix, located next to her cervix. In 19 years of
    practice, Dr. Sved had seen this type of injury among post-menopausal women only
    3 times. Dr. Sved repaired the tear and J.D. was able to go home later that
    day.

[18]

Dr. Sved also testified about J.D.s utterance that she was injured
    during forced intercourse. I return to this issue below in my discussion of
    the prior consistent statement ground of appeal.

C.

the trial judges Rulings and reasons

[19]

The trial judge provided written reasons on the defence applications made
    under ss. 276 and 278 of the
Code
. I will describe these reasons in
    more detail during the discussion of those grounds of appeal.

[20]

The trial judge gave written reasons for judgment at the end of the
    trial. Ultimately, he accepted J.D.s evidence. The trial judge found that her
    forced intercourse utterance to Dr. Sved, greatly assists the Court in
    assessing her credibility and reliability. He rejected the appellants
    evidence, and was satisfied of his guilt beyond a reasonable doubt. The trial
    judge found the appellant not guilty of sexual assault causing bodily harm, but
    guilty of sexual assault.

D.

Analysis

(1)

Introduction

[21]

As set out in para. 3, above, the appellant raises four grounds of
    appeal. I would allow the appeal on the basis that the trial judge misused
    J.D.s forced intercourse utterance. This error requires that the conviction
    be set aside and a new trial be ordered. In the event that there is a re-trial,
    I address the appellants other grounds of appeal.

[22]

Before turning to these grounds, I wish to comment briefly on the appellants
    acquittal on the charge of sexual assault causing bodily harm. The trial judge
    found that J.D.s serious injury occurred when she was penetrated from behind, during
    what he accepted was rough sex. However, before addressing the issue of
    consent, the trial judge said:

I have a reasonable doubt as to whether, despite the orders of
    [D.K.] to [J.D.] during and preceding this sexual activity that he intended
    to cause her bodily harm. Based on the evidence of Dr. Sved, relating to the
    number of times in his career he had seen this type of injury, I believe that
    the intercourse, even if I find it was forced and doggy style without her
    consent, upon [J.D.], was one of inadvertence and not one of willful intent to
    cause bodily harm.

[23]

Respectfully, this finding was based on the mistaken assumption that the
    Crown was required to prove that the appellant intended to cause bodily harm in
    the circumstances of this case. The trial judge blurred the distinction between
    (1) cases where bodily harm is caused during non-consensual sexual activity,
    and (2) cases where consent is vitiated through the intentional infliction of
    bodily harm. In the first category of cases, all the Crown is required to prove
    is objective foreseeability of bodily harm; in the second category, in order to
    vitiate consent, the Crown must prove the bodily harm was both caused and
    intentional: see
R. v. Graham
, 2019 ONCA 347, 377 C.C.C. (3d) 205, at
    paras. 23-27.

[24]

This error may have been avoided had the trial judge first made a
    finding on the issue of consent. Defence counsel took the position that the
    sexual intercourse was consensual and that J.D.s consent was not vitiated
    because her injury was caused accidentally. However, once the trial judge
    concluded that J.D. had not consented to any sexual activity with the appellant
    that night, an intent to cause bodily harm was not required for a conviction
    under s. 272(1)(c). Instead, the trial judge should have considered whether the
    harm caused to J.D. was reasonably foreseeable: see Hamish C. Stewart,
Sexual
    Offences in Canadian Law
(Toronto: Thomson Reuters, 2004) (loose-leaf
    updated 2019, release 36), at p. 3-74.

[25]

It is unclear whether the result would have been different had the trial
    judge applied the proper test. Regardless, the Crown did not appeal the
    acquittal on s. 272(1)(c).

[26]

I now turn to the appellants grounds of appeal.

(2)

J.D.s Utterance  A Prior Consistent Statement

[27]

In my respectful view, the trial judge erred in the manner in which he
    used J.D.s forced intercourse utterance to Dr. Sved. This error must result
    in a new trial.

[28]

The appellant submits that the trial judge erred by using J.D.s
    utterance to bolster the credibility of her in-court testimony. The relevant
    utterance was made shortly before J.D.s surgery. When Dr. Sved asked her how
    she sustained her injury, J.D. replied: [F]orced intercourse. No one else was
    present during this discussion. Dr. Sved asked J.D. if she wished to report the
    incident to the police, but she declined. J.D. did not wish to engage with Dr.
    Sved. She was upset, and looked away. Dr. Sved did not make a note of this
    conversation, but he remembered his dealings with J.D. very well because of the
    rarity of her injury.

[29]

At trial, J.D. was not asked about this conversation with Dr. Sved.
    However, as noted in para. 10 above, she testified that she did not remember
    anyone at the hospital asking her if she wished to call the police.

[30]

For scheduling reasons, Dr. Sved was called as the first witness,
    testifying before J.D. gave her evidence. As the trial Crown explained to the
    trial judge: [I]ts anticipated that there may be an allegation of recent
    fabrication. So I intend to elicit from the doctor what [J.D.] said to Dr.
    Sved. Of course, if thats not  a relevant issue, then Your Honour can
    disabuse your mind of that. Defence counsel agreed to this manner of
    proceeding.

[31]

During cross-examination, defence counsel suggested to J.D. that her
    allegation against the appellant was a fabrication and related to an
    (ultimately unsuccessful) application she had made to the Criminal Injuries
    Compensation Board. Moreover, a dominant theme in the cross-examination was
    that J.D. had interacted with police officers and other criminal justice
    officials on various occasions after November 16, 2013, but before making the
    allegations in this case. During these encounters she made criminal allegations
    against the appellant, but never mentioned the sexual assault giving rise to
    this case.

[32]

At the end of the trial, it appears that defence counsel believed that
    recent fabrication was a live issue. In written submissions he stated:

After the alleged sexual assault, the Complainant made several
    allegations of criminal conduct against the appellant without alleging sexual
    misconduct on November 16, 2013.
The evidence of Dr. Sved may serve the
    limited purpose of showing that the allegation was not fabricated for the first
    time years later when the Complainant finally had a charge laid
.

The only possible probative value the statement had is to
    show that this allegation was not entirely invented at a later date. It is
    neither admissible for its truth nor as corroboration of the Complainants
    account
. [Emphasis added.]

[33]

However, Crown counsels position had changed. She made no mention of
    recent fabrication. In her written submissions, the Crown suggested that J.Ds
    forced intercourse statement was a spontaneous utterance made in
    circumstances of reliability. Relying on
R. v. Khan
, 2017 ONCA 114,
    136 O.R. (3d) 520, leave to appeal refused [2017] S.C.C.A. No. 139, the Crown
    argued that the utterance was admissible as part of the narrative of
    disclosure and can be used to assess the credibility of [J.D.s] in court
    testimony.

[34]

Prior consistent statements are presumptively inadmissible.
    There are several rationales for this rule, including that prior consistent
    statements (1) lack probative value; (2) are often self-serving; and (3) are
    hearsay: see
S. Casey Hill, David M. Tanovich and Louis P. Strezos,
    eds.,
McWilliams Canadian Criminal Evidence
, 5th ed.
    (Toronto: Thompson Reuters, 2019) (loose-leaf updated 2019), at p. 11-2;
R.
    v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272,
at para.
    5; and
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788
, at para. 36.

[35]

The overwhelming danger is that a trier of fact
    may improperly use the mere repetition of a statement as a badge of testimonial
    trustworthiness. As
Hourigan J.A. said for the majority in
Khan
:
    [S]uch evidence cannot be used for the prohibited inference that consistency
    enhances credibility, or the incorrect conclusion that the simple making of a
    prior consistent statement corroborates in-court testimony: at para. 41; see
    also
Stirling
, at para. 7;
R. v. Divitaris
(2004), 188 C.C.C.
    (3d) 390 (Ont. C.A.), at para. 28;
R. v. D.C
.
, 2019 ONCA 442,
    at para. 19; and
R. v. S.K
.
, 2019 ONCA 776, 148 O.R. (3d) 1, at
    para. 90.

[36]

The rule against prior consistent statements is
    subject to a number of exceptions. For example, a prior consistent statement
    may be admitted for the limited purpose of rebutting an allegation of recent
    fabrication:
Stirling
, at paras. 5-7.

[37]

Prior statements may also be admitted where they
    are necessary to the unfolding of the events or narrative of the prosecution:
    see
Dinardo
, at para. 37. On this basis, a
    prior consistent statement may be admitted to assist with understanding how the
    case came before the court or to appreciate the chronological cohesion of the
    case:
R. v. Fair
(1993), 16 O.R. (3d) 1
    (C.A.), at p. 18;
Khan
, per Hourigan J.A., at
    para. 30. To be admissible under this exception, the statement must be truly
    essential to the unfolding of the narrative:
R. v. M.C
.
, 2014 ONCA 611, 314 C.C.C. (3d) 336,
    at para. 91.

[38]

Further, prior statements may be admissible
    under the narrative as circumstantial evidence exception. Admissibility on this
    basis of such does not hinge on the mere repetition of the same information. As
    explained by Hourigan J.A. in
Khan
: A prior
    consistent statement can be used not to corroborate the evidence of the
    witness, but to provide the surrounding circumstances and context to evaluate
    the credibility and reliability of the witnesss in-court testimony: at para.
    39; see
Dinardo
, at para. 31.

[39]

J.D.s forced intercourse utterance was not
    admissible under any of these exceptions. Although her words had the potential
    to rebut an allegation of recent fabrication, as originally contemplated by
    counsel, the trial judge did not rely upon this exception. In his reasons the
    trial judge stated:
There has been no suggestion in cross-examination
    that [J.D.] has recently fabricated the events as she described them in her
    evidence. Thus to the extent he relied on J.D.s utterance, it was not to
    rebut an allegation of recent fabrication.

[40]

Nor was the statement admissible under the pure narrative exception. The
    admission of J.D.s forced intercourse utterance was not necessary to explain
    the narrative of the case and how it came before the court.
The
    basic sequence of events, as harrowing as they were, was undisputed and
    relatively straightforward. The trial judges reasons offer no indication he
    used the utterance in this way.

[41]

At the Crowns request, the trial judge applied the narrative
    as circumstantial evidence exception.
He acknowledged the Crowns
    submission that the utterance was admissible for the sole purpose of being of
    assistance in the Courts ability to determine the reliability and credibility
    of  [J.D.s] testimony. His reasons then veered in the direction of the
    principled approach to hearsay, suggesting that he considered whether the
    statement was admissible for its truth. The trial judge examined the
    circumstances in which the utterance was made, noting that it occurred in the
    context of a doctor-patient relationship. The trial judge found that although
    not spontaneous, the statement has an air of truthfulness. It is consistent
    with her statement to the police in 2016 and I can find no reason to believe
    she would be motivated to tell Dr. Sved something false. The trial judge said:

There is of course a limited use the Court can make of the
    prior consistent statement of [J.D.] but I accept the Crowns position based on
    these unique circumstances that there is probative value in the prior
    consistent statement beyond the mere repetition. The Crown also points to the
    fact that in her testimony [J.D.] did not recall making the statement to Dr.
    Sved.
That circumstance gives the utterance made by her and recorded by the
    doctor an additional reliability factor
.
[1]

I agree with the Crown and find that the prior consistent
    statement can be admitted for its limited use in assisting the Court in
    assessing [J.D.s] in-court testimony
. [Emphasis added.]

[42]

The trial judge referred to the statement again later in his reasons:

The defendant claims that the failure of [J.D.] to disclose the
    events of November 16, 2013 until 2016 casts doubt on her reliability and
    credibility as to the events of November 16, 2013.

In the circumstances of [J.D.s] reporting while sheltered in
    Guelph,
the probative value of the prior consistent statement of Dr. Sved on
    November 16, 2013 greatly assists the Court in assessing her credibility and
    reliability
. [Emphasis added.]

[43]

It is difficult to discern the precise use that the trial judge made of
    J.D.s utterance. Parts of his analysis suggest that he considered the
    statement for the truth of its contents  an impermissible use of the
    utterance: see
Dinardo
, at para. 36;
R. v. J.A.T
.
,
    2012 ONCA 177, 290 O.A.C. 130, at paras. 97-100; and
R. v. A.V
.
,
    2020 ONCA 58, at para. 20. On the other hand, the trial judge purports to
    engage the narrative as circumstantial evidence exception discussed in
Khan
.
    The trial judge was also impressed with the fact that J.D.s utterance was
    consistent with her in-court testimony and her statement to the police. This further
    compounded the problem.

[44]

Distinguishing between the permissible and impermissible uses of prior
    consistent statements is difficult: see
Dinardo
, at
para. 37. This may be particularly the case when
    applying the narrative as circumstantial evidence exception: see Sidney N.
    Lederman, Alan W. Bryant, and Michelle K. Fuerst,
The Law of
    Evidence in Canada
, 5th ed. (Markham,
    Ontario: LexisNexis, 2018), at p. 448. The changing positions of counsel in
    this case did not help.

[45]

The party seeking admission of a prior
    consistent statement should identify the precise basis upon which it should be
    received: see David M. Paciocco, 
The Perils and Potential of Prior Consistent Statements: Let's Get
    It Right (2013),
17 Can. Crim. L. Rev.
    181,
at 215. When addressing the narrative as
    circumstantial evidence exception, general statements are unhelpful; counsel
    should articulate exactly how the statement might assist the trier of fact in
    evaluating testimonial trustworthiness. As Doherty J.A. observed in
Khan
, at paras. 62 and 64:

Once the purpose for offering the evidence is identified, the
    party tendering the evidence must show that it has some probative value in
    respect of the purpose for which it is offered. For example, if it is said that
    the evidence of the prior consistent statement is relevant to the complainants
    credibility, the party offering the evidence must show
how
it is relevant
    to the complainants credibility.



It is not enough, however, for the Crown to show that the
    complainants credibility is a material fact. The Crown must also demonstrate
how
the prior consistent statement can impact positively on the complainants credibility.
    If the Crowns argument comes down to the suggestion that the consistency
    between the prior statement and the complainants evidence at trial justifies
    admissibility, the argument fails because consistency on its own provides no
    insight into credibility. [Emphasis added.]

Similarly, trial judges should also articulate
how
a prior consistent statement assists in assessing the trustworthiness of a
    witnesss in-court testimony.

[46]

The trial judge failed to properly
    explain how J.D.s utterance to Dr. Sved greatly assists the Court in
    assessing her credibility and reliability. Considering the trial judges
    reasons as a whole, it appears that the real value derived from her utterance
    was the repetition of the same allegation made at trial (and to the police).
    The utterance was not admissible on this basis. This improper use of the
    utterance permeated the trial judges reasons.

[47]

In conclusion, I note that this case demonstrates the hazards of calling
    witnesses out of order. Had Dr. Sved given his evidence after J.D. testified,
    as originally planned, counsel and the trial judge may have been in a better
    position to determine whether there was a proper basis for receiving evidence
    of J.D.s utterance.

[48]

I would allow the appeal and order a new trial on this basis.

(3)

Other Sexual Activity Involving J.D.

[49]

Defence counsel at trial made an application to adduce evidence that J.D.
    engaged in sexual activity other than the sexual activity that forms the
    subject-matter of the charge:
Criminal Code
, s. 276(2). As originally
    framed, the application was alarmingly broad, seeking leave to adduce evidence
    that:

·

The appellant and J.D. had been involved in an ongoing consensual
    sexual relationship before and after the date of the alleged offence, November
    16, 2013 (the relationship evidence);

·

The J.D. reported on January 19, 2015 that the appellant sexually
    assaulted her on January 2, 2015 while holding her hostage (the second sexual
    assault allegation);

·

J.D. had engaged in sex work to support the appellants drug
    habit; and that

·

J.D. had been the victim of a lot of sexual abuse when  younger.

When the application was argued, counsel limited the
    scope of his request to the relationship evidence. The trial judge declined to
    permit cross-examination on this subject.

[50]

On appeal, the appellant submits that he should have been permitted to
    adduce evidence that, after November 16, 2013, J.D. and the appellant continued
    to have consensual sex. He submits that questioning in this area may have
    generated evidence capable of showing that the sexual intercourse on November
    16, 2013 was consensual.

[51]

I disagree. This evidence would have encouraged the very reasoning
    prohibited by s. 276  that consent on other occasions suggests the complainant
    consented to the sexual activity in question.

[52]

The reach of s. 276 is broad. It applies to consensual and
    non-consensual activity by a complainant, including conduct occurring before, at
    the time of, and after the alleged sexual assault: see
R. v. L.S
.
,
    2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 77-81;
R. v. Goldfinch
,
    2019 SCC 38,
per
Moldaver J., at para. 111; and Stewart, at pp. 8-7 to
    8-8. The purpose of s. 276 is to prohibit all discriminatory generalizations
    about a complainants credibility and disposition to consent:
R. v. Darrach
,
    2000 SCC 46, [2000] 2 S.C.R. 443, at para. 34.

[53]

In this case, trial counsel sought to use the evidence of subsequent
    sexual activity to demonstrate that it was more likely that J.D. consented to
    intercourse with the appellant on November 16, 2013. This is clear from the
    following exchange between defence counsel and the trial judge:

The Court: So
    youre saying that  the fact that there was sexual activity between your
    client and the complainant after the events of November 2013 would permit a
    trier of fact to draw an inference that there must have been consent, or could
    have been consent, on that particular day when the offence is alleged to have
    been committed.

Defence Counsel:            Correct.

The Court:                        All
    right. Isnt that one of the myths that 276 was designed to prevent?

[54]

Most cases under s. 276 involve evidence of sexual activity that
    precedes the alleged offence. In this case, the relevant sexual activity is
    alleged to have occurred afterwards. In my view, it makes no difference. The
    same prohibited reasoning is involved  i.e., because a person consented to sex
    at some other point in time, it is more likely that he or she consented on the occasion
    in question:
Goldfinch
,
per
Karakatsanis J., at para. 33.

[55]

The appellant relies on

L.S
.
, in which this court held
    that the trial judge erred in ruling inadmissible evidence of subsequent
    consensual sexual activity between L.S. and the complainant. The trial judge
    correctly ruled that
L.S
.
has no application in cases where the
    disputed issue is consent.

[56]

The inference that the trial judge was asked to draw in this case was very
    different from
L.S
.
; it directly engaged the language of s.
    276(1)(b) (i.e., consent) and the mischief it seeks to avoid (i.e., reasoning
    based on stereotypes). While holding that the evidence ought to have been
    admitted in the circumstances of that case,
L.S
.
reaffirmed that
    reliance on subsequent sexual activity will violate s. 276 when it bears on
    consent. This is evident from Doherty J.A.s discussion of appropriate jury
    instructions, at para. 97:

I am confident that the trial judge could have effectively
    explained to the jury that evidence that there was no change in the
    relationship between E.K. and the appellant, including the sexual component of
    that relationship, after the alleged assault, was evidence to be considered, along
    with the other relevant evidence, in deciding whether the Crown had proved
    beyond a reasonable doubt that the incident described by E.K. had in fact
    occurred. I am equally confident that the trial judge could have made it
    clear to the jury that if, after considering all of the relevant evidence, the
    jury was satisfied beyond a reasonable doubt that the incident described by
    E.K. had occurred,
evidence that E.K. and the appellant had engaged in
    consensual sexual intercourse on other occasions had no relevance to, and was
    of no assistance in, determining whether E.K. had consented to sexual
    intercourse on the occasion in issue
. [Emphasis added.]

In this case, given that the evidence of subsequent
    sexual activity was only relied upon to prove consent, it was clearly caught by
    s. 276(1)(b). It was inadmissible.

[57]

There may be many reasons why a person who is subjected to sexual
    violence might later have consensual sexual relations with her abuser. As
    Doherty J.A. observed in
L.S
.
, at para. 89: Different people
    will react differently to the same event. It will depend on the people
    involved, their experiences, life circumstances, and the nature of the
    relationship. Allowing a trial to proceed down this path may well place a
    complainant in the situation of having to explain not only what happened on the
    occasion in question, but why she continued in a sexual relationship with her
    alleged abuser. As Doherty J.A. warned in
L.S
.
: Far-ranging
    cross-examination of complainants about other sexual activity runs the very real
    risk of intimidating, humiliating and distracting the complainant in the course
    of his or her testimony: at para. 66; see also
Goldfinch
,
per
Karakatsanis J., at para. 33.

[58]

Allowing J.D. to be cross-examined on any subsequent consensual sexual
    activity she may have had with the appellant would have opened the trial up to
    consideration of stereotypical assumptions about how sexual assault victims should
    behave after the fact. As Professor Dufraimont recently observed, victims do
    not follow a standard script, and courts cannot reason as if they do: see Lisa
    Dufraimont, Myth, Inference and Evidence in Sexual Assault Trials (2019) 44
    Queens L.J. 316, at p. 352. The trial judge was correct to foreclose this line
    of questioning.

[59]

I would not give effect to this ground of appeal.

(4)

Third Party Records Application

[60]

As part of its trial strategy, the defence attempted to demonstrate a
    pattern of J.D. making false accusations against the appellant. Defence counsel
    sought to show this pattern by using videotaped statements made by J.D. in two
    unrelated proceedings.

[61]

With respect to the first proceeding, in December 2013, J.D. gave two
    videotaped statements in which she alleged that the appellant committed a break
    and enter. J.D. later recanted and the charges against the appellant were
    withdrawn. J.D. entered a plea of guilty to theft.

[62]

J.D. also gave two videotaped statements in January 2015 in which she
    alleged that the appellant forcibly confined her over the course of months, and
    sexually assaulted her. At the end of the preliminary inquiry, the Crown withdrew
    all charges except one count of assault, to which the appellant pled guilty.

[63]

The appellants counsel retained copies of the videotapes made in these
    cases. When the videotapes were originally disclosed, defence counsel signed
    written undertakings acknowledging that the videotapes could only be used to defend
    the case to which they pertained, and agreeing to return the tapes to the Crown
    at the end of the proceedings.

[64]

The Crown took the position that counsel could not use the videotaped
    statements in this case absent an order under s. 278.2 of the
Criminal Code
.
    The trial judge agreed.

[65]

The trial judge ultimately dismissed the s. 278.2 application on its
    merits. He found that there was negligible probative value in the use of the
    complainants statements in the trial before me. More specifically, applying
    this courts decision in
R. v. Riley
(1992), 11 O.R. (3d) 151 (C.A.),
    as he was asked to do by defence counsel, the trial judge concluded that J.D.s
    statements did not form a pattern of behaviour, and that a complainant should
    only be cross-examined on past allegations if they are proven to be
    demonstrably false. He concluded that the withdrawal of the charges against
    the appellant was not capable of showing that the allegations made by J.D. were
    demonstrably false, noting that there are many reasons why charges may be
    withdrawn.

[66]

The appellant submits that the trial judge erred in refusing to permit
    the use of these videotaped statements. He takes the position that the
    statements were relevant to J.D.s credibility at large and, as such, were not
    collateral. Since they were relevant to J.D.s overall credibility, the trial
    judge proceeded on the wrong premise by requiring the defence to show the
    evidence was capable of proving that J.D. made allegations that were
    demonstrably false. Moreover, relying on
R. v. R. (D.)
, [1996] 2
    S.C.R. 291, the appellant contends that, because credibility was the central
    issue in this case, the collateral facts rule ought not to stand in the way of
    introducing these statements into evidence. Finally, the appellant contends
    that as they were prior inconsistent statements, he was entitled to
    cross-examine J.D. on them under s. 11 of the
Canada Evidence Act
,
    R.S.C. 1985, c. C-5.

[67]

The Crown responds that while it was open to defence counsel to
    cross-examine J.D. in relation to the other charges, he was not entitled to use
    the videotaped statements to do so. Pointing out that defence counsel sought to
    play all of the videos during his cross-examination of J.D., the Crown argues
    that the proposed use of the statements would have been barred by the
    collateral facts rule.

[68]

The trial judge did not err in dismissing the s. 278.2 application. His
    finding that the videotapes were not likely relevant to an issue at trial is
    well-grounded:
Criminal Code
, s. 278.5(1)(b). Further, the interests
    of justice did not require their production: s. 278.5(1)(c).

[69]

The trial judge found that the circumstances pertaining to the two
    previous proceedings were not capable of demonstrating a pattern of J.D. making
    false allegations against the appellant. This conclusion was amply supported by
    the evidence  particularly given that in the second case, the appellant
    entered a plea of guilty at the end of the preliminary inquiry. In
R. v.
    C.F
.
, 2017 ONCA 480, 349 C.C.C. (3d) 521, Huscroft J.A. explained:
    If the defence is unable to establish that a complainant has recanted a prior
    allegation or that it is demonstrably false, the fact the allegation was made
    loses its relevance: at para. 70; see also
R. v. M.T
.
, 2012
    ONCA
511,
289 C.C.C.
    (3d) 115,
at
paras. 45-50.

Accordingly, the videotaped
    statements had no probative value on the basis advanced by the appellant at
    trial.

[70]

I acknowledge that the four statements may well have been relevant to
    J.D.s credibility. However, s. 278.3(4) of the
Criminal Code

provides:

Any one or more of the following assertions by the accused are
    not sufficient on their own to establish that the record is likely relevant to
    an issue at trial or to the competence of a witness to testify:



(d) that the record may disclose a prior inconsistent statement
    of the complainant or witness;

(e) that the record may relate to the credibility of the
    complainant or witness

This may well have been the reason that trial counsel
    attempted to characterize these statements within the framework of
Riley
.

[71]

Nevertheless, and despite the trial judges ruling, defence counsel was
    afforded ample opportunity to challenge J.D.s credibility through
    cross-examination. He was permitted to cross-examine J.D. on the other two
    incidents, and he did so  extensively. However, I agree with the Crown that
    the use of the videotaped statements themselves was barred by the collateral
    facts rule.

[72]

Because the collateral facts rule is intertwined with trial management
    considerations, trial judges exercise considerable discretion in its
    application, which is entitled to deference:
R. v. Strojny
, 2019 ONCA
    329, at para. 67. Permitting defence counsel to cross-examine J.D. on statements
    made during completely unrelated proceedings would have been an unwarranted
    distraction and would have resulted in time-consuming sub-litigation of
    non-essential issues:
R. v. A.C
.
, 2018 ONCA 333, 360 C.C.C.
    (3d) 540, at para. 46. The trial judges refusal to allow counsel to engage in
    the lengthy process of dragging J.D. through her four videotaped statements was
    a proper exercise of his discretion.

[73]

I would not accede to this ground of appeal.

(5)

Burden of Proof

[74]

Finally, the appellant submits that the trial judge reversed the burden
    of proof when considering his evidence. I disagree.

[75]

The trial judge observed that the appellants evidence consisted of
    multiple denials and many conclusory statements. Moreover, the trial judge
    found that the appellants rendition of the events of November 16, 2013 sounded
    rehearsed.

[76]

At one point in his reasons, the trial judge said: I am not persuaded
    that [the appellants] denials of the actions between he and [J.D.] that
    preceded the sexual activity [are] to be accepted. While the use of the words
    not persuaded is less than ideal in this context, when considered as a whole,
    the trial judges reasons demonstrate that he found the appellant to be a poor
    witness and that he did not accept his evidence. It was open to the trial judge
    to make these findings, and this aspect of his decision is also entitled to
    deference:
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para.
    10.

[77]

I would reject this ground of appeal.

E.

conclusion

[78]

I would allow the appeal against conviction and order a new trial on a
    charge of sexual assault, under s. 271 of the
Code
. This renders the
    sentence appeal, which was abandoned during the hearing of the appeal in any
    event, moot.

Released: (DW) February 3, 2020

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. Grant Huscroft J.A.





[1]

As noted in para. 28, above, Dr. Sved did not make a note of
    this conversation.


