



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. G.V., 2020 ONCA 291

DATE: 20200514

DOCKET: C65682

Feldman, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.V.

Appellant

Riaz Sayani, for the appellant

Nicole Rivers, for the respondent

Heard: December 4, 2019

On appeal from the conviction entered on
    April 18, 2018 by Justice Kelly A. Gorman of the Superior Court of Justice,
    sitting without a jury.

Feldman J.A.:

Overview

[1]

The appellant and the complainant had been high
    school friends. They were not in a romantic or sexual relationship. One
    afternoon, they had a sexual encounter at the appellants home involving
    vaginal sex and cunnilingus. The complainant said she did not consent. She
    testified that the appellant hit her head against a wall before he had sex with
    her and choked her while doing so. The appellant said the sex was consensual.
    He denied hitting the complainants head against the wall or ever choking her.

[2]

The trial judge convicted the appellant of sexual
    assault, assault, and choking.

[3]

Before this court, the appellant challenges the
    credibility findings of the trial judge. With respect to his own testimony, the
    appellant argues the trial judge erred in law by finding that he structured his
    testimony to meet the allegations he was facing, and misapprehended critical
    aspects of his testimony. With respect to the complainants testimony, the
    appellant argues that the trial judge minimized inconsistencies in her evidence
    in contrast to the treatment of his evidence.

[4]

I would allow the appeal and order a new trial.
    It was an error of law for the trial judge to turn the appellants constitutional
    rights to be present at the hearing, to know the case he had to meet, and to
    make full answer and defence into an evidentiary trap, by finding that he
    structured his evidence to respond to the allegations against him. The trial
    judge also erred by misapprehending the evidence of the appellant on a key
    issue.

A.

Facts

[5]

Both parties testified. Their accounts were
    similar in several respects. They agreed there was a sexual encounter that
    included intercourse and cunnilingus. They disagreed on whether the sexual
    encounter was consensual, on whether the appellant pushed the complainants
    head into the wall and choked her during sex, and on many other details.

[6]

The complainant was having a bad day at school on
    October 26, 2015 and began a Facebook chat with the appellant, a friend who had
    graduated. He offered to pick her up. They went to his house to watch a TV show
    on Netflix.

[7]

The TV was in his bedroom in the basement. He
    lay down on the bed. She sat on the bed at his feet. When she started to feel
    hot in her sweatshirt, she borrowed a t-shirt from the appellant. She said she
    changed into the t-shirt in the hall, out of the appellants sight, while he
    said she changed in the bedroom but he turned his back. She denied that they
    were cuddling or kissing while watching the TV show. The appellant testified
    that they were. She later put the sweatshirt back on over the t-shirt and then
    removed the t-shirt from underneath. After the TV show had finished, they
    decided to watch a movie.

[8]

Her version of what happened next was that he
    asked her three or four times if she wanted to have sex with him and she said
    no each time. They continued watching the movie in an awkward silence for about
    15 minutes, when, out of the blue, he smashed her head into the wall. She was
    stunned and said ow. At the preliminary hearing, the complainant had not
    mentioned the 15-minute delay, and explained in cross-examination at trial that
    it had been a long time since the events she was describing and some parts got lost
    in memory.

[9]

The appellant denied hitting the complainants
    head against the wall. According to him, as their kissing progressed, he
    started to feel her breasts, then removed her pants, which she assisted by
    lifting her buttocks off the mattress. When he went to remove her sweatshirt,
    she did it herself, in order to avoid messing up her hair. He removed her bra
    and his own shirt.

[10]

Her version was that when he tried to remove her
    pants she said no and tried to hold them on. He took off his clothes, laughing
    a little. She told him she didnt want to do this, and he told her not to be a
    baby. He pulled her pants down to the ankles and moved himself between her legs,
    pushing them apart.

[11]

He claimed that he asked her if she wanted him
    to use a condom, to which she replied that it didnt matter. She denied that he
    asked. He denied that he made the dont be a baby comment.

[12]

They both agreed that he then penetrated her
    with his penis. She said she did not consent and said ow, which prompted him
    to chuckle. He testified that she only said ow after about two minutes, and that
    she said it hurt because youre big. He replied, Oh, you havent had it this
    big? She denied the exchange. She said she pushed on his chest to try to get
    him off. She also testified that he was propping himself up on one hand with
    the other hand on her neck, choking her, and he asked her if she was enjoying it.
    She said no and he moved his hand after a little while. He denied choking her.
    He testified that throughout the encounter he was kissing her and her body and
    that she was kissing him back, which she denied.

[13]

She testified that he pulled out and began
    performing cunnilingus on her but stopped when she pushed his head away. He put
    his penis close to her face and asked for oral sex, which she refused. He said
    she refused because his penis had already been inside her vagina. She denied
    saying that. He then had sexual intercourse with her again. She testified that
    she again said ow, he again told her to stop being a baby, and kept asking
    her if she liked it. She kept answering no. He claimed that they changed
    positions, which she denied. He said that he asked her where she would like him
    to ejaculate and she answered that it didnt matter. He also asked her if she
    would swallow it, which she refused. She eventually agreed that he would
    ejaculate on her stomach, which he did. She denied this entire conversation,
    but agreed that he did ejaculate on her stomach.

[14]

At the end they wiped themselves off with
    Kleenex and he drove her home. He described the drive as awkward, and she said
    they did not speak and she could not wait to get out of the car. He said she gave
    him a kiss goodbye. She denied it. Later, he texted her but she did not
    respond.

[15]

When the complainant got home, she began to cry
    and throw up, and she told her stepmother about the incident involving the
    appellant. Her father called the police that evening. She was taken to the
    hospital for a sexual assault examination. A nurse at the hospital testified
    that the complainant was very scared and upset.

[16]

For the appellants part, after dropping the
    complainant at her home, he bought some oven-ready pizzas at Foodland and went
    to his friends house to watch a hockey game.

[17]

Within the next couple of days, a detective
    called the appellant asking if he would turn himself in. In a police statement,
    the appellant reported that he then called his friend to tell him that the
    complainant had said he raped her. He told his friend, Im fucked dude.

[18]

The appellant confirmed in his testimony that he
    thought the entire encounter was consensual. He said the complainant did not tell
    him to stop except in relation to the oral sex, she helped him remove her
    clothing, and she did not resist or push him away. The complainant said the
    opposite. She did push him away, she was assaulted, choked and constrained by
    his larger body on top of her. She did not consent.

B.

Reasons of the Trial Judge

[19]

The trial judge found the complainant to be
    entirely credible, honest, and open. She found the complainants testimony internally
    consistent and that she responded carefully to discrepancies between her evidence-in-chief
    and her testimony at the preliminary inquiry. The trial judge found the tone of
    the Facebook messaging beforehand was not sexual and there was nothing to suggest
    that a sexual encounter was going to take place. The trial judge observed that
    the way the complainant changed her clothes showed modesty, and found that the
    awkwardness on the drive home was more consistent with non-consensual sex. The
    trial judge also placed weight on the fact that the complainant disclosed the
    event immediately to her stepmother, who testified that the complainant was shaking
    and crying hysterically, and on the fact that that the nurse at the hospital
    said she was very upset and scared.

[20]

The trial judge rejected the testimony of the
    appellant for two reasons. The trial judges first reason was that she agreed
    with the Crowns submission, that his testimony was structured to meet the
    allegations he was facing. Second, she rejected his evidence because he
    remembered details of collateral issues but had no recollection of choking [the
    complainant] or placing his hands on her neck, which the trial judge found
    simply defies credibility. However, the trial judge rejected the Crowns submission
    that the appellants comment to his friend  Im fucked  was an admission of
    guilt. The trial judge viewed that comment as equally consistent with surprise
    or fear.

[21]

The trial judge concluded that the appellants
    evidence did not leave her with a reasonable doubt and found him guilty on all
    counts.

C.

Issues on Appeal

[22]

The appellant submits that the trial judge made three
    errors in her credibility assessments, two regarding the appellants credibility
    and one regarding the complainants credibility:

1)

The trial judge erred in law by finding that the
    appellant structured his evidence to meet the allegations he was facing,
    thereby turning against him his rights to know the case he had to meet and to make
    full answer and defence.

2)

The trial judge erred in law by misapprehending the
    appellants evidence on the issue of his denial that he choked the complainant.

3)

The trial judge erred in law by minimizing major
    discrepancies in the complainants evidence, resulting in uneven scrutiny of
    the appellants and the complainants evidence.

[23]

I would allow the appeal on the basis of the
    first two grounds of appeal. As I would order a new trial, it is unnecessary to
    rule on the appellants arguments concerning uneven scrutiny of the evidence.

D.

Analysis

(1)

The Evidence Structuring Error

The Legal Principles

[24]

An accused person is constitutionally entitled
    and statutorily required to be present at his or her trial:
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 650(1);
R. v. Laws
(1998), 128 C.C.C. (3d)
    516 (Ont. C.A.), at para. 79. The accused is also entitled to make full answer
    and defence:
Charter
, ss. 7 and 11(d);
Criminal Code
, s.
    650(3).

[25]

In order to give full effect to these
    entitlements and obligations, as well as an accuseds
Charter
right under
    s. 7 to a fair trial, this court has held in a number of cases that it is an
    error of law for the Crown or the trial judge to impugn the credibility of the
    accused on the basis that he tailored his evidence to the disclosure or the testimony
    heard in court. To do so has the effect of turning those entitlements into a
    trap for the accused who testifies:
R. v. Peavoy
(1997), 34 O.R. (3d)
    620 (C.A.);
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.);
R.
    v. Schell

(2000), 148 C.C.C. (3d) 219 (Ont. C.A.);
R. v. Thain
,
    2009 ONCA 223, 243 C.C.C. (3d) 230; and
R. v. Jorgge
, 2013 ONCA 485, 4
    C.R. (7th) 170. This court has most recently affirmed these principles in
R.
    v. M.D.
, 2020 ONCA 290, released concurrently with this decision.

[26]

In
White
, Doherty J.A. acknowledged that
    it seems a logical inference to draw, that where a witness appears to have
    crafted his evidence to respond to information provided to him about the case,
    that tends to make his evidence suspect. However, even though it may seem
    logical, it is an illegal inference when drawn against an accused, who is
    entitled to hear the case he or she has to meet and to respond to it, as
    Doherty J.A. held at para. 20:

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

[27]

The jurisprudence has recognized a limited range
    of circumstances in which the Crown may cross-examine an accused on his right
    to be present at trial or on his right to receive disclosure. One such
    situation arose in
White
, where the accused used telephone records
    produced prior to trial to assist with times and dates of meetings with the
    complainant, and the Crown was entitled to bring out that he had had access to
    the records before testifying: see
White
, at para.
22;
R. v. Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.), at
    para.
45, leave to appeal refused, [1999] S.C.C.A. No.
    600;
R. v. Kokotailo
, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58.

[28]

Similarly, the Crown may cross-examine the
    accused on disclosure to substantiate a claim of recent fabrication or
    concoction of an alibi by the accused: see
R. v. Khan
(1998), 126
    C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001]
    S.C.C.A. No. 126;
R. v. Marshall
(2005), 77 O.R. (3d) 81, at paras.
    69-75, leave to appeal refused, [2006] S.C.C.A. No. 105. However, the Crown
    cannot make the allegation of concoction to the jury without first putting it
    to the accused and giving him an opportunity to respond. That was the Crowns
    error in
Peavoy
.

[29]

In
Peavoy
, the Crown argued in its
    closing address to the jury that the accused had concocted his evidence after
    receiving disclosure, but never put that proposition to the accused. The court
    found the Crowns conduct unfair and prejudicial both because of the misuse of
    disclosure against the accused and the failure to give the accused the
    opportunity to respond to the charge of recent fabrication:
Peavoy
, at
    p. 625.

[30]

R. v. Jorgge

was a judge-alone trial where the trial judge erred
    in her reasons by discounting the appellants evidence regarding the meaning of
    consent because she found that he tailored his evidence to the arguments he had
    heard his counsel make on a
voir dire
: at paras. 8-11.
White
and
Schell

were jury trials

where the Crown erred in the
    cross-examination of the accused by suggesting that his evidence was suspect
    because he had received disclosure before testifying. While a limiting
    instruction to the jury was sufficient to cure the error in
White
, the
    trial judge gave no such instruction in
Schell
, and this court ordered
    a new trial:
White
, at para. 21;
Schell
, at para. 66.

[31]

In
Thain
, a judge-alone trial, the
    trial judge made the same error by taking into account, when assessing the
    accuseds credibility, the fact that he had received disclosure before
    testifying, as quoted at para. 15: The accuseds credibility must be assessed
    bearing in mind that his explanation comes long after disclosure was available
    to him and having regard to the totality of the evidence.

The Crowns Position at Trial

[32]

It was the Crowns submission at trial, adopted
    by the trial judge, that the accused should not be believed because he
    structured his evidence to meet the allegations he was facing.

[33]

In her written closing submissions, the trial
    Crown summarized her arguments why the trial judge should reject the
    appellants evidence by stating: In essence, it is the respectful submission
    of the Crown that [the appellants] evidence was structured to meet the
    allegations he was facing, citing
R. v. Quartey
, 2018 ABCA 12, 430
    D.L.R. (4th) 381. Under the heading Memory Better Today, the Crown advanced
    the following argument:

[The appellant] testified that his memory is
    better today when asked in cross-examination about the inconsistency between
    his trial evidence and his statement with respect to why [the complainant]
    changed into a t-shirt. Two days after the incident he told Detective Watson
    that he doesnt remember why she needed a t-shirt and in examination in chief
    he testified she said she was hot. That his memory is better today, does not
    have the ring of truth.

[34]

In her oral closing submissions, the trial Crown
    elaborated on this argument, stating:

With respect to his memory being better today
    or him not structuring his evidence, I mean, he testifies in his statement 
    and this is just one detail, but not knowing why she changed her shirt and
then
    hears her testify and lo and behold now his evidence has changed
and I
    think thats important to note, that hes changed his evidence from the
    original statement. [Emphasis added.]

[35]

In rejecting the appellants evidence, the trial
    judge stated: I agree with the Crowns submission that [the appellants]
    testimony was structured to meet the allegations he was facing.

Analysis on Appeal

[36]

On appeal, the Crown makes two arguments to
    justify the trial judges structuring finding.

[37]

First, in its factum, the Crown cites five areas
    in the appellants evidence that it argues made it reasonable for the trial
    judge to conclude that the appellants testimony was structured to meet the
    allegations he was facing. However, that argument misses the point. It is the
    duty of the trial judge to resist such reasoning, no matter how seductive, and
    to look for other bases on which to assess the accuseds credibility without
    undermining his constitutional rights.

[38]

Second, the Crown argues that the trial judge
    was entitled to disbelieve the appellant on the basis of his claim that his
    memory had improved over time regarding the t-shirt incident.

[39]

Noting the inconsistency in the appellants
    evidence discussed above, the trial Crown argued that the appellant hear[d]
    [the complainant] testify and lo and behold now his evidence has changed.
    Unfortunately, this is the very type of structuring accusation that is not
    permitted for a Crown or a trial judge. By accepting the trial Crowns
    submission that the appellants testimony was structured to meet the
    allegations he was facing, the trial judge fell into precisely the type of
    legal error that Laskin J.A. described in
Jorgge
, at para. 13:

The trial judge was entitled to consider the
    inconsistencies between the appellants statement to the police and his
    testimony at trial. She was not, however, entitled to attribute those
    inconsistencies to his presence at the
voir dire
.

[40]

Accordingly, the trial judge erred in law and
    improperly turned the appellants right to be present at his own trial into an
    evidentiary trap.

[41]

While Crown counsel agreed in oral argument that
    it would be an error for a trial judge to use the accuseds presence in court
    against him by suggesting that he tailored his evidence, the Crown relied on
    three cases in support of its position that the trial judge was entitled to
    refer to a different type of structuring:
R. v. Gilbert
, 2015 ONCA
    927, 343 O.A.C. 199;
Quartey
; and
R. v. Roble
, 2004 CanLII
    23106 (Ont. C.A.).

[42]

First, the Crown submitted that it is not an
    error for a trial judge to assess an accuseds credibility by observing that
    the accused tailored his evidence to put himself in a more favourable light. In
Gilbert
, the trial judge impugned the accuseds credibility in part
    because he tailored his denials of the allegations against him in a way that
    made him appear respectful of boundaries between teachers and students. That
    reasoning was not improper because, unlike in this case, it did not turn on the
    accused using disclosure or responding to the evidence heard at trial.

[43]

Second, the Crown referred to
Quartey
,
    in which the trial judge found the accuseds evidence to be insincere,
    concocted, and unbelievable and added that it was structured clearly to meet
    the allegations he was facing: at para. 19. The challenge to the credibility
    assessment in
Quartey
on appeal was that the trial judge believed he
    was choosing between the two versions of the events, he applied stereotypical
    myths in rejecting aspects of the accuseds evidence, he shifted the burden of
    proof, and he applied uneven scrutiny. There was no challenge to the trial
    judges reference to structuring. The majority of the court dismissed the
    appeal; it did not consider the structuring comment on the basis that it
    undermined the accuseds right to be present at his trial, nor did the court affirm
    the reasons on that basis. The Supreme Court later approved the analysis of the
    majority of the Court of Appeal in brief oral reasons: 2018 SCC 59, [2018] 3
    S.C.R. 687.

[44]

The third case relied on by the Crown is a brief,
    six-paragraph endorsement of this court in 2004 in
R. v. Roble
. The
    issues on appeal in that case were uneven scrutiny of the evidence and undue
    reliance on demeanour. The trial judge found that the accuseds evidence was
    well thought out; scripted or had the aura of it being tailored to fit the
    circumstances: 2002 CarswellOnt 5994 (S.C.), at paras. 41, 45. This court was
    not asked to consider whether those statements undermined the appellants right
    to be present at the trial and to make full answer and defence.

[45]

I am satisfied that these cases are all
    distinguishable from this appeal. The court was not asked in any of these cases
    to address the structuring or tailoring error on the basis discussed in
Peavoy
,
White
,
Schell
,
Thain
, and
Jorgge
, binding
    decisions of this court that address the issue directly. While a trial judge is
    entitled to treat with concern an accuseds evidence that appears rehearsed, scripted,
    or implausible, it will be an error for a trial judge to find or for a Crown to
    submit that an accuseds evidence should be rejected because it appeared
    tailored or structured to meet the case against him.

Conclusion

[46]

In this case, the trial judge accepted the
    submission of the trial Crown, amplified by an example from the evidence, that the
    appellants evidence was structured to respond to the allegations against him. She
    erred in law in so doing. By assessing the appellants evidence in that way,
    the trial judge made a trap of his right to be present at the trial and to make
    full answer and defence.

(2)

Misapprehension of the Choking Evidence

[47]

The appellant also submits that the trial judge
    misapprehended his evidence on a key issue that clearly affected her overall
    conclusion on credibility and the outcome of the case.

[48]

The trial judge advanced only two reasons for
    disbelieving the appellant. The first was because his evidence was structured
    to meet the allegations he was facing. I have already found that to be an error
    of law.

[49]

The second was with respect to the appellants denial
    that he remembered choking the complainant. The trial judge explained her
    conclusions regarding the appellants credibility in the following statement in
    her reasons:

This court deals with many allegations of
    historic sexual assault, incidents that have occurred years in the past. Often
    accused persons in those cases are required to recall incidents that have
    occurred decades ago. This is not such a case. [The appellant] met with police
    officers the day after the incident, yet he testified that he had no
    recollection of choking [the complainant] or placing his hands on her neck.
    This simply defies credibility. This is in distinct contrast to his testimony
    that had remarkable specificity in regard to collateral matters.

[50]

She then listed four details that the appellant
    remembered regarding where he purchased his TV, the brand of t-shirt he lent to
    the complainant, the fact that he used to go to church near the complainants
    home, and that he purchased oven-ready pizzas because he knew Foodland had a
    deal.

[51]

However, a review of the appellants evidence on
    the choking issue reveals that he maintained throughout his testimony that he
    did not choke the appellant. At the very beginning of his testimony, the
    appellants trial counsel asked him if he choked the complainant and he said, No,
    I did not. Counsel later asked if the appellant had any recollection of his
    hand being on her neck and he said he had absolutely no recollection of that.
    Then, in cross-examination, Crown counsel followed up on the recollection
    language in the following exchange:

Q.      Okay. So
    when your lawyer was asking you questions about choking your response was you
    have no recollection of choking her. So its possible you did choke her, but
    you just dont remember?

A.       No, I must
    have worded that wrong because there was no choking.

Q.      You must
    have worded that wrong?

A.      Yeah

Q.      Okay.

A.        I must
    have worded that wrong then, because I did not choke her.

Q.      Well,
    youre trying to be, I take it, as honest as you can right now, right?

A.      Yes.

Q.      And youre
    under oath and you know that its your trial right now?

A.      Yes.

Q.      Okay. So
    its very important the words that you choose when youre speaking, correct?

A.      Yes,
    correct.

Q.      Okay. So
    you didnt mean you have no recollection of it when you said that?

A.      No, I
    meant I do not remember that.

[52]

It is clear from the trial judges reasons that
    her understanding of the appellants evidence was that in fact he might have
    choked her, but he just did not remember. It was the inability to remember that
    the trial judge found defied credibility. But from the beginning of his
    testimony through his cross-examination, it is clear that he denied that he
    choked the complainant. It was not a matter of memory.

[53]

In
R. v. Doodnaught
, 2017 ONCA 781, 358
    C.C.C. (3d) 250, at para. 40, Watt J.A. explained what constitutes a
    misapprehension of evidence: A misapprehension of evidence may involve a
    failure to consider relevant evidence; a mistake about the substance of
    evidence; a failure to give proper effect to evidence or some combination of
    these failings.

[54]

Here, the trial judge mistook the substance of
    the appellants evidence on this critical point and failed to give proper
    effect to that evidence.

[55]

In this case, as both reasons the trial judge
    gave for rejecting the appellants evidence were tainted by error, no
    foundation remains for sustaining that finding.

(3)

Conclusion

[56]

As the first two grounds are determinative of
    the result, there is no need to address the third ground of appeal.

[57]

I would also add this comment. In this appeal,
    and in
M.D.
, another sexual assault decision released concurrently
    with this one, the structuring or tailoring error has required this court
    to order a new trial, with all that entails for the parties, especially in a
    sexual assault case. The two appeal decisions are being released together to
    draw attention to the error that has been identified by this court in a number
    of cases over the last two decades, in order to highlight its significance.

E.

Disposition

[58]

I would allow the appeal, set aside the conviction,
    and order a new trial.

[59]

Because of the COVID-19 emergency, the panel
    relieved the appellant from the term of his bail that requires him to surrender
    into custody prior to this decision being released.

Released: K.F. May 14, 2020

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. M. Jamal J.A.


