COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Perkins, 2016 ONCA 588

DATE: 20160722

DOCKET: C57579

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Perkins

Appellant

Jennifer Penman, for the appellant

Brock Jones, for the respondent

Heard: February 12, 2016

On appeal from the convictions entered on August 23, 2011
    and the sentence imposed on February 3, 2012 by Justice Lisa Cameron of the Ontario
    Court of Justice.

Roberts J.A.:

Overview

[1]

The main focus of this appeal concerns the applicability of the
curative
    proviso
where exculpatory statements made by an accused are erroneously
    excluded at trial.

[2]

Police attended the appellants home after the complainant, the
    appellants former domestic partner, called 911. The first officer to arrive located
    and spoke with the appellant, who was found a short distance away from the
    apartment he then shared with the complainant and their daughter. In response
    to one of the officers questions, the appellant indicated that no threats or
    assaults had occurred. The complainant subsequently told the officers that the
    appellant had assaulted her, and he was arrested.

[3]

At trial, the Crown tendered the appellants utterances through the
    testimony of the officer to whom he had spoken, and took the position that the
    whole of the statements was before the court for consideration. The trial
    judge, however, held that the utterances were inadmissible and could not be
    considered. She convicted the appellant of assault and two counts of failure to
    comply with a probation order, and imposed a sentence of eight months in
    custody plus three years probation.

[4]

The appellant appeals his three convictions, arguing that the trial
    judge erred in excluding his exculpatory statements and by misapprehending the
    evidence in several material respects. The Crown concedes that the trial judge
    erred by failing to consider the statements, but submits that the
curative
    proviso
under s. 686(1)(b)(iii) of the
Criminal Code

of
    Canada
, R.S.C., 1985, c. C-46,
should
    apply. The appellant also appeals his sentence; however, he has now served that
    sentence and so his sentence appeal is moot.

[5]

For the reasons that follow, I am of the view that the
curative
    proviso
cannot be applied in this case. I would therefore allow the appeal
    from the convictions on that basis.

Facts

[6]

On May 10, 2011, the appellant and
    the complainant were living together in a basement apartment along with their
    daughter. At some point during the day, the two argued. The complainant advised
    the appellant that she was taking their daughter and leaving him.

[7]

The complainant testified at trial
    that the appellant then pushed her twice, causing her to fall. Police
    photographs taken later of her knee showed what appeared to the trial judge to
    be a new scrape on top of an old bruise or scrape. She moved away from the
    appellant into their daughters bedroom, putting her back against the door, and
    attempted to call 911 on the apartment telephone. The appellant, however,
    pushed his way into the room and took the telephone from her. She then
    retrieved her cell phone, went outside, and called 911.

[8]

Officers Sejrup and Boynton responded
    to the 911 call. By the time that the first officer arrived on the scene, the
    appellant had left the apartment.

[9]

Officer Sejrup arrived first at
    around 5:17 p.m. He located the appellant a short distance away from the apartment.
    He had a 30 to 40-minute conversation with the appellant. Officer Sejrup asked
    the appellant right off the bat if any threats or assaults had occurred. The
    appellant responded that none had happened, although the appellant also
    advised that the complainant and he had gotten into a verbal dispute earlier
    in that day.

[10]

Officer Boynton arrived a few
    minutes later at 5:23 p.m. and spoke with the complainant. He did not immediately
    speak with the appellant who was not present at the apartment. The complainant
    asked Officer Boynton to remain while she gathered her belongings out of the apartment.
    During their initial conversation, the complainant did not tell him that the
    appellant had assaulted her, nor make any complaint to Officer Boynton about
    the appellant.

[11]

After having spoken with the
    appellant for a while, Officer Sejrup made a call to Officer Boynton. Officer
    Boynton told Officer Sejrup that no grounds to arrest existed in relation to the
    appellant for any threats or assault against the complainant. As a result, Officer
    Sejrup determined that there was no reason to detain the appellant further. Officer
    Sejrup and the appellant then spoke briefly and the appellant left.

[12]

After the appellants departure,
    Officer Sejrup went to the apartment and spoke with the complainant about a
    safety plan. The complainant asked why the appellant had not been arrested.
    Officer Sejrup advised that the appellant had been sent on his way and would stay
    away for a while so that the complainant could gather up her belongings. The
    complainant then told the officer that the appellant had assaulted her. The
    appellant was subsequently arrested.

The Trial

[13]

The appellant did not testify, but the defence sought to rely on his
    exculpatory statements given to Officer Sejrup as tendered by the Crown. The
    trial judge concluded that there was an insufficient evidentiary basis to
    determine the admissibility of the remarks as a spontaneous exculpatory
    statement as contemplated in
R. v. Edgar
, 2010 ONCA 529, 101 O.R. (3d)
    161. She determined that the statements were inadmissible because they were
    exculpatory.

[14]

The defence also argued that the complainant was not credible. Counsel
    pointed to inconsistencies in her testimony, most notably the difference in the
    complainants description in her statement made to the police the day of the
    incident of being pushed once in the bedroom, which was contrary to her trial
    evidence that she was pushed twice. Moreover, the delayed timing of her
    disclosure about the assault to police rendered the complainants evidence
    suspect. Counsel also argued that the complainant had a motive to fabricate the
    assault in that she wanted to use the criminal proceedings to extricate herself
    and her daughter from their relationship with the appellant.

[15]

The trial judge noted that the inconsistencies in the complainants
    evidence were one of many factors to be considered and was satisfied with the
    complainants explanations for them. She found that the complainants delay in
    reporting the assault to the officers on the scene did not reflect adversely on
    her credibility, as lay people would expect an arrest to occur when a crime had
    been reported. She explained that there was no evidence to support the alleged
    motive to fabricate, a motive denied by the complainant when put to her.
    Finally, she pointed to the corroboration of the complainants evidence in the
    form of the photographs of her injured knee.

[16]

On the whole of the evidence in front of her, the trial judge was
    satisfied beyond a reasonable doubt that the complainant was assaulted as she
    had described, and that this assaultive behaviour constituted a breach of the
    appellants two probation orders. The trial judge added that, even absent a
    finding of guilt on the assault count, she would have found breaches of the
    probation orders as a result of the disruption caused by the appellants
    pushing his way into the bedroom and grabbing the telephone from the
    complainant in the midst of their domestic dispute.

Issues

[17]

The appellant advances the
    following two grounds of appeal:

1.       The trial judge erred in failing to admit the
    appellants exculpatory statements to the police that nothing had happened
    between the appellant and the complainant. This error cannot be remedied by the
    application of the
curative proviso
.

2.       The trial judge misapprehended the evidence in several
    respects, including the timing of the complainants disclosure to the police
    that the appellant had assaulted her, and, as a result, erred in her assessment
    of the complainants credibility.

[18]

For the reasons that follow, I would
    allow the appeal on the first ground. It is therefore unnecessary to deal with
    the second ground of appeal.

Analysis

[19]

The trial judge concluded,
    applying this courts decision in
Edgar
, that the appellants exculpatory statements to the police that nothing
    had happened between the complainant and him were inadmissible. This was an
    error. The appellants statements, which were adduced by the Crown as part of
    its case and conceded by the appellant to be voluntary, were admissible,
    regardless of whether they were inculpatory or exculpatory:
R. v.
    Lynch
(1988), 30 O.A.C. 49 (C.A.), at para.
    7.

[20]

The respondent concedes the trial
    judges error. However, the respondent submits that the error was harmless,
    occasioned no prejudice to the appellant, and did not affect the outcome of the
    trial. The respondent argues that the trial judge would likely have given the
    statements no weight because of her findings that there was no context to the
    statements and that it was not clear whether the statements were spontaneous.

[21]

I would not accept these
    submissions.

[22]

In order to assess the impact of
    the error, it is helpful to review briefly a summary of the principles
    surrounding the application of the
curative proviso
in contexts such as this one where the case turns on
    findings of credibility and reliability of witnesses.

[23]

As the Supreme Court of Canada and
    this court have explained in numerous cases, the use of the
curative
    proviso
under s. 686(1)(b)(iii) is reserved
    for rare and exceptional cases; its use is only appropriate (1) where the error
    is harmless or trivial and could not possibly have affected the verdict, or (2)
    where the evidence is so overwhelming that, notwithstanding that the error is not
    minor, the trier of fact would inevitably convict:
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para.
53;
R. v.
    L.K.W.
(1999), 138 C.C.C.
    (3d) 449 (Ont. C.A.), at paras.
94-95.

[24]

Under the first category of cases
    where the
proviso
may be
    applied, the determination of whether an error or its effect is minor requires
    the court to consider, whether the error on its face or in its effect was so
    minor, so irrelevant to the ultimate issue in the trial, or so clearly
    non-prejudicial that the verdict would have been the same, absent the error:
R.
    v.

Van
, 2009 SCC 22,
[
2009
]
1 S.C.R. 716, at para. 35.

[25]

Errors may be characterized as
    having a minor effect if they relate to an issue that was not central to the
    overall determination of guilt or innocence, or if they benefit the defence,
    such as by imposing a more onerous burden on the Crown (
Khan
, at para. 30):
Van
, at para. 35.

[26]

As this court observed in
R.
    v. Sarrazin
, 2010 ONCA 577, 259 C.C.C. (3d)
    293, at para. 71, as tracing the effect of the error on the verdict is
    necessarily a somewhat speculative exercise, any doubt as to the impact of the
    error must be resolved against the Crown.

[27]

The question of whether an error
    or its effect is minor should be answered without reference to the strength of
    the other evidence presented at trial:
R. v. Van
, at para. 35.

[28]

In the event of a serious,
    prejudicial error, an appellate court can uphold a conviction only where the
    high standard of an invariable or inevitable conviction is met:
Van
, at para. 36. Unlike the determination of whether the
    error is minor or trivial, where no weighing of the evidence is permitted, as
    this court concluded in
L.K.W.
, at
    para. 102, in considering whether the Crowns case was so overwhelming that a
    conviction was inevitable, an appellate court may examine and weigh the
    evidence to a limited extent:

In coming to this conclusion, I have not ignored the
    appellants evidence; nor have I ignored the fact that it is not the function
    of an appellate court to make findings of credibility. That said, in deciding
    whether the evidence is so overwhelming that a properly instructed jury would
    inevitably convict, a court of appeal is surely entitled to examine and to some
    extent, weigh and consider the effect of the evidence, just as it does when
    determining whether a verdict is unreasonable. Were it otherwise, there would
    be no room to apply the
proviso
in cases of serious error where
    credibility is the central issue at trial.

[29]

The appellate court faces the
    difficult task of evaluating the strength of the Crowns case retroactively,
    without the benefit of hearing witnesses testimony and experiencing the trial
    as it unfolded:
Van
, at para.
    36. As a result, as also observed by the Supreme Court of Canada in
Van
, at para. 36: It is thus necessary to afford any
    possible measure of doubt concerning the strength of the Crowns case to the
    benefit of the accused person.

[30]

In both instances, the Crown bears
    the heavy burden of demonstrating that either the error was minor and could not
    possibly have affected the verdict, or that the more serious errors were
    committed in the face of an overwhelming case against the appellant where the
    conviction was inevitable:
Van
,
    at para. 34. The underlying question is the same: whether the verdict would
    have been the same if the error had not been committed:
Van
, at para. 36;
R. v. Bevan
,
[
1993
]
2 S.C.R. 599, at pp. 616-17.

[31]

As this court has stated, the
    court must be cautious in applying the
proviso
, particularly if the error of law is the improper
    exclusion of evidence that might be exculpatory:
R. v. Perlett
(2006), 82 O.R. (3d) 89 (C.A.), at para. 155. In
    those circumstances, the provision has been applied where the Crowns case is otherwise
    overwhelming and the trier of fact is not overwhelmed by credibility problems: see
    e.g.
R. v. Selvanayagam
, 2011
    ONCA 602, at paras. 43-44. Where exculpatory evidence is wrongly excluded, any
    reasonable effect that excluded evidence could have had on the trial judge
    should enure to the benefit of the appellant:
R. v. Wildman
, [1984] 2 S.C.R. 311, at p. 329.

[32]

Finally, while there is no rule
    excluding the
proviso
in cases
    turning upon credibility, as in the present case, the hurdle is a difficult one
    and caution should be exercised prior to its application:
R. v.
    Raghunauth
(2005), 203 O.A.C. 54 (C.A.), at
    para. 9;
L.K.W.
, at para. 97. Where
    credibility is the central issue at trial, the
curative proviso
has been applied where the Crowns case is otherwise
    staggering: see e.g.
L.K.W.
,
    at para. 101.

[33]

Having applied these principles to
    the present case, I cannot say that, without the error, the verdict in this
    case necessarily would have been the same.

[34]

First, the error was not minor or
    trivial. The appellants convictions turned on the trial judges acceptance of
    the credibility and reliability of the complainants evidence, which was left
    uncontested by other evidence because of the trial judges error in excluding
    the appellants exculpatory statements.

[35]

The appellant and the Crown both
    relied on the appellants statements.  The appellant would reasonably have had
    the expectation that his exculpatory statements formed part of the evidence at
    trial and would be considered by the trial judge. The trial judges error in
    excluding the exculpatory statements occurred after the completion of the evidence
    and the submissions of counsel. In my view, the error compromised the
    appellants right to a fair trial to the extent that he was deprived of the
    benefit of the exculpatory statements and that his reasonable assumption that
    the statements would be before the trial judge may have influenced his decision
    not to testify at trial:
R. v. Humphrey
(2003), 169 O.A.C. 49 (C.A.), at paras. 23-24.

[36]

A trial judge is required to apply
    the well-known principles set out in
R. v. W. (D.)
, [1991] 1 S.C.R. 742, not only in relation to an
    accuseds testimony but also to all potentially exculpatory evidence:
R.
    v. D. (B.)
, 2011 ONCA 51, 266 C.C.C. (3d)
    197, at para. 114. Thus, had the trial judge considered the statements, she
    would have then needed to engage in a
W. (D.)
analysis in order to consider whether the statements left
    her with a reasonable doubt.

[37]

It is not possible to speculate
    what weight the trial judge might have given to the appellants statements
    considered together with the complainants testimony and the rest of the
    Crowns case. As I have already noted, this courts determination of whether
    the error was harmless or trivial must be done
without reference to the strength of the other evidence presented at
    trial
.

[38]

The appellants exculpatory
    statements that nothing happened were clear and unequivocal and, at least
    initially, appeared to satisfy the police that there were no grounds for an
    arrest. In my view, it is not possible to say that the appellants exculpatory
    statements could not have left a reasonable trier of fact with a reasonable
    doubt as to the appellants guilt.

[39]

Second, the Crowns case against
    the appellant was not overwhelming but, as I just noted, largely depended on
    the credibility and reliability of the complainants evidence. Although the
    trial judge resolved them, there were serious issues with the complainants
    evidence, not the least of which were the numerous inconsistencies in her
    evidence, even as to how the assault occurred, the question of her motive to
    fabricate her evidence, and the delay in her complaint about the appellant to
    the police.

[40]

In my view, this is therefore not
    an appropriate case in which to apply the
curative proviso
. The trial judges error was not harmless or trivial,
    and it resulted in significant trial unfairness to the appellant. The Crowns
    case was not overwhelming. I am not satisfied that the verdict on the assault
    would necessarily have been the same if the error had not occurred.

[41]

The respondent submits that even if the
curative proviso
cannot be applied, the trial judges error in erroneously excluding the
    appellants exculpatory statements had no effect on the trial judges
    conclusion that the disruptive actions of the appellant in pushing his way into
    the bedroom and grabbing the telephone from the complainant breached the two probation
    orders by which the appellant was bound.

[42]

The appellant does not directly
    address this issue in his submissions but counsel argued orally that the trial
    judges failure to properly assess the credibility issues at trial because of
    the error in excluding his exculpatory statements affected the verdicts on all
    convictions.
[1]

[43]

I would agree with the appellants
    submissions. The trial judges findings that the appellant disruptively pushed
    his way into the bedroom and grabbed the telephone from the complainant were
    not divorced from her findings about the appellants assaultive behaviour. Rather,
    the trial judge expressly linked them to everything that had preceded these
    actions, including the assaultive behaviour that she found had occurred, by
    stating that they happened in the midst of their domestic dispute.

[44]

As a result, I cannot say that the
    trial judges assessment of the appellants credibility and her verdicts on the
    breach of probation convictions would have been the same but for her error in
    excluding the appellants exculpatory statements.

Conclusion

[45]

For these reasons, I would allow the
    appeal from the convictions. As the appellant has already served his sentence, it
    is not in the public interest to order a new trial. Accordingly, I would quash
    the convictions.

L.B. Roberts J.A.

I agree R.G. Juriansz J.A.

Cronk J.A. (Dissenting):

I.        Introduction

[46]

The appellant was convicted of one count of assault and two counts of
    breach of probation arising from an altercation with his girlfriend that
    occurred on May 10, 2011. He was sentenced to six months in jail on the assault
    conviction and two months imprisonment on each of the breach of probation
    charges, concurrent to each other but consecutive to the sentence on the
    assault charge.  After credit for pre-sentence custody, the appellants net
    custodial sentence was 18 days.  A three-year probation order was also imposed.

[47]

The appellant appeals from his convictions and sentence. As he has
    served his sentence, his sentence appeal is moot.

[48]

The appellant raises two main issues on his conviction appeal.  He
    argues that the trial judge erred: i) by ruling that evidence of an
    out-of-court statement made by him to a police officer at the scene was
    inadmissible; and ii) by misapprehending evidence relevant to the assessment of
    the complainants credibility.

[49]

My colleague, Roberts J.A., concludes that the trial judge erred by
    excluding the appellants out-of-court statement and that this is not an
    appropriate case for application of the
curative proviso
set out under
    s. 686(1)(
b
)(iii) of the
Criminal Code
, R.S.C. 1985, c.
    C-46.  On this basis alone, she would allow the appeal.

[50]

I agree that the trial judge erred by ruling that the appellants
    statement was inadmissible. However, unlike my colleague, I conclude that it is
    appropriate to use the s. 686(1)(
b
)(iii)
curative proviso
in
    this case. With respect to the appellants second ground of appeal  the trial
    judges alleged misapprehension of the evidence  I see no reversible error in
    the trial judges appreciation of the evidence. I would apply the
proviso
and dismiss the conviction appeal.

II.       Factual Background in Brief

[51]

Before turning to the issues on appeal, I find it useful to briefly set
    out the relevant background facts.

(1)

Complainants Account of Events

[52]

The core features of the complainants version of events may be
    summarized as follows.

[53]

During an argument with the appellant at their apartment on May 10,
    2011, the complainant told the appellant that she was moving out and taking
    their five-year-old daughter with her. At the time, the complainant was
    standing at the foot of the couples bed, while the appellant was positioned on
    the bed. The appellant responded to the complainants announcement by pushing
    her with his foot, causing her to fall. When she got up and reached for a
    cordless telephone in the bedroom, the appellant again pushed her. She fell a
    second time, injuring her knee in the process.

[54]

The complainant got up again, retrieved the phone, and went to her daughters
    bedroom to call the police. She said that she stood inside the bedroom with her
    back to the door, in an effort to prevent the appellant from entering. However,
    the appellant pushed his way inside the room and took the phone from her as she
    was trying to call 911. The complainant then retrieved her cell phone, went
    outdoors and succeeded in calling 911. The

appellant,
    in the meantime, had left the apartment.

(2)

Police Involvement

[55]

Constable P. Sejrup testified that, at 5:15 p.m. on May 10th, he
    received a police dispatch requesting that he attend at the address of the
    appellants apartment for a domestic. He arrived at the scene, alone, two
    minutes later. He had been given a brief description of the male person he was
    to look for and located the man in a church parking lot, a short distance away
    from the apartment. He spoke with the man, who identified himself as the
    appellant.  Constable Sejrup provided the following brief description of his
    ensuing conversation with the appellant:

I started speaking to [the appellant] and determined right
    off the bat by asking if any threats or assault had occurred and he indicated
    that none had happened
. I asked him about who his common-law was and who
    his daughter was and received that specific information and learned that he was
    on probation  he informed me of who his probation officer was  I had a very
    brief  well, I got a history of what his relationship was to the other person
    in this matter, which is [the complainant], and he gave me the date of birth
    and the same address, and
advised that they had gotten into a verbal
    dispute earlier in that day.  That he had left the residence for a while
and we had talked for a little bit while my partner, Constable Boynton,
    attended to the residence to speak with [the complainant].  [Emphasis added.]

[56]

Constable B. Boynton testified that he arrived at the scene at
    approximately 5:23 p.m.  He went directly to the apartment, and spoke with the
    complainant. She asked him to remain at the residence while she gathered up her
    property, in order to leave. She made no allegation of any assault by the
    appellant during this initial conversation with Constable Boynton.

[57]

Constable Sejrup, meanwhile, was still engaged in discussion with the
    appellant in the church parking lot. He said that, after speaking with the
    appellant for a while, he telephoned Constable Boynton to determine whether the
    appellant was to be further detained, arrested or released. Constable Boynton
    told Constable Sejrup that no grounds of arrest for assault or threats existed.

[58]

Constable Sejrup continued his conversation with the appellant a little
    bit further, until the appellant left on foot. Constable Sejrup said that, in
    total, he spoke to the appellant at the scene for approximately 30 to 40
    minutes.

[59]

Constable Sejrup then walked to the apartment and stood by the area
    while the complainant continued to gather her belongings. After some time, he
    walked to the residence to ask the complainant how long it would be before her
    friend, who was to pick her up at the apartment, would arrive. Constable Sejrup
    said that, at this point, the complainant asked him whether the appellant had
    been arrested. When he told her that the appellant had not been arrested, she
    informed him that the appellant had assaulted her that day and on an earlier
    occasion.

[60]

Later that day, the complainant attended at the police station and
    provided a videotaped statement detailing the assault of May 10th. Shortly
    thereafter, the appellant was contacted by police and informed that he was to
    be arrested. A day or so later, he surrendered into custody.

(3)

Trial Judges Decision

[61]

At trial, the complainant and Constables Sejrup and Boynton testified
    for the Crown.  The appellant did not testify or call any evidence in his
    defence.

[62]

During his examination-in-chief, Constable Sejrup described his
    conversation with the appellant, quoted above. The defence conceded the
    voluntariness of the appellants statement to Constable Sejrup and took the
    position that it was admissible. For her part, Crown counsel at trial maintained
    that the whole of the statement was properly before the court for
    consideration.

[63]

Notwithstanding counsels positions to the contrary, the trial judge
    ruled in her reasons that the appellants statement was inadmissible. She
    stated:

At trial the evidence gives me only the gist of the remarks
    made by [the appellant] as understood by the officer.There is very little
    evidence about the circumstances under which the remarks were made.  For
    example, were they in response to questions? In response to being told
    something by the officer?  Were they blurted out or comments in casual
    conversation?

In my view there is simply an insufficient evidentiary basis to
    determine the possibility of the admissibility of those remarks as a
    spontaneous exculpatory statement as contemplated in [
R. v. Edgar
,
    2010 ONCA 529, 101 O.R. (3d) 161]. The accused has not testified at trial.  In
    my view, therefore, there is no reason to depart from the Supreme Court of
    Canadas position stated as recently as
R. v. Rojas
, [2008] 3 S.C.R.
    111.

Those utterances by [the appellant] to Constable Sejrup are not
    admissible evidence and cannot be considered by me in determining the outcome
    of this case.

[64]

The trial judge went on to assess the complainants credibility and the
    reliability of her testimony. For detailed reasons (five pages), she accepted
    the complainants version of events and concluded that the assault alleged by
    her had occurred in the manner she described.

[65]

The trial judge also held that the appellants assaultive behaviour
    constituted a breach of the peace and, hence, a failure by him to obey the
    terms of the two probation orders to which he was bound on May 10, 2011.  In
    the trial judges view, the appellants disruptive behaviour in pushing his way
    into his daughters bedroom and grabbing the phone from the complainant during
    their dispute constituted a breach of the appellants probation orders even
    absent a finding of guilt on the assault charge.

III.       Discussion

(1)

Admissibility of Appellants Statement

[66]

As I have said, I agree with my colleagues conclusion that the trial
    judge erred by excluding the evidence of the appellants out-of-court statement
    to Constable Sejrup. The statement contained both inculpatory and exculpatory
    parts and was tendered by the Crown as part of its case-in-chief, not by the
    defence. Accordingly, the entire statement was admissible and the exculpatory
    parts were substantively admissible in favour of the appellant. See
R. v.
    Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37;
R. v.
    Selvanayagam
, 2011 ONCA 602, 281 C.C.C. (3d) 3, at para. 38;
R. v.
    Humphrey
(2003), 169 O.A.C. 49 (C.A.), at paras. 18-19.

(2)

Alleged Misapprehension of the Evidence

[67]

The appellants second ground of appeal concerns the trial judges
    appreciation of the evidence. The appellant argues that the trial judge
    misapprehended the evidence in several respects and, as a result, erred in her
    assessment of the complainants credibility. Since credibility was the key
    issue at trial, the appellant asserts that these errors, both individually and
    cumulatively, necessarily impacted the result and therefore require a new
    trial.

[68]

Specifically, the appellant argues that the trial judge misapprehended
    the evidence concerning: i) the timing of the complainants assault complaint;
    ii) the manner in which the assault was carried out; and iii) family law issues
    between the complainant and the appellant that allegedly supported the defence
    theory at trial that the complainant fabricated her assault allegation against
    the appellant in order to gain advantage in a custody dispute.

[69]

As held by this court in
R. v. Morrissey
(1995), 22 O.R. (3d)
    514, at p. 541, a misapprehension of evidence will render a trial unfair and
    occasion a miscarriage of justice where the trial judge is mistaken as to the
    substance of material parts of the evidence and those errors play an essential
    part in the reasoning process resulting in a conviction.  For the reasons that
    follow, I am not persuaded that this high threshold is met in this case on any
    of the bases asserted by the appellant.

(a)

Timing of the Assault Complaint

[70]

The appellant maintains that the timing of the complainants disclosure
    of the assault to the police supported the defence theory that the complainant
    had fabricated her assault allegation in order to gain advantage in a custody
    dispute regarding the couples daughter or to otherwise prevent the appellant
    from seeing their daughter.

[71]

The trial judge considered and rejected this argument, as she was
    entitled to do. She noted:

In considering the evidence about the timing of [the
    complainants] disclosure of the assault to the police I note that there is an
    incomplete picture on this point.  We only know that having called 911 [the
    complainant] spoke to the police when they arrived at her house, that she was
    told that [the appellant] had not been arrested and that she told the police
    or clarified to the police that she had been assaulted.

Constable Sejrups evidence on this point is helpful, he said
    that it was in response to [the complainant] asking if [the appellant] had been
    arrested that she was told that he had not been arrested and then she mentioned
    about being assaulted to question why there had been no arrest.

It is fair to say, I think, that a lay person expects an arrest
    when a crime has been reported, her comment would reflect that expectation.  It
    makes sense to me that [the complainant], having called 911, would have that
    expectation thus the excerpt of the crime reporting process that took place at
    the scene with the officers is not something that I find reflects adversely on
    [the complainants] credibility.

[72]

The appellant attacks these findings. Contrary to the trial judges
    holding that there was an incomplete picture on the timing of the
    complainants disclosure of the assault, he argues that the evidence at trial
    clearly indicated that the complainant delayed in reporting the assault and
    only did so once she discovered that the appellant had not been arrested. He
    further says that the trial judge erred by finding, in the absence of any
    supporting evidence, that the complainant had already disclosed the assault
    during her earlier 911 call.

[73]

I would reject this argument. I see no material misapprehension of the
    evidence by the trial judge on this issue.

[74]

First, there was some variance between the two police officers accounts
    of how long they were in attendance before the complainant disclosed the
    assault.  The complainant also testified that she did not recall certain
    details about this exchange with the officers. It was therefore open to the
    trial judge, on this record, to find that the evidence of the precise timing of
    the disclosure was incomplete or not entirely clear.

[75]

What was clear was that the complainant did not disclose the assault in
    her initial discussion with Constable Boynton, but that she did so later, when
    speaking with Constable Sejrup and after learning that the appellant had not
    been arrested. The trial judge expressly recognized this and provided reasons
    for finding that the timing of the complaint did not reflect adversely on the
    complainants credibility.

[76]

Second, with respect to the 911 call, it is undisputed that there was no
    direct evidence at trial as to the contents of the call. However, there was
    ample circumstantial evidence to allow the trial judge to logically infer that
    the complainant had disclosed some form of assaultive behaviour by the
    appellant to the 911 dispatcher.

[77]

In particular, the following evidence supports such an inference: (i)
    Constable Sejrup testified that he was asked to attend at the appellants apartment
    for a domestic in response to the complainants 911 call, suggesting that he
    was dispatched because of a report of a domestic disturbance or alleged
    unlawful activity; (ii) Constable Sejrup was provided with the description of a
    male who was allegedly involved in the domestic; (iii) Constable Sejrup said
    that, upon locating the appellant, he asked right off the bat whether any
    threats or assault had occurred; and (iv) the complainant testified that,
    after she called 911, the appellant asked her why she was doing this and she
    informed him that he was going to be arrested, suggesting that she assumed an
    arrest would occur as a result of her 911 call.  These factors, in combination,
    afforded a basis for the reasonable inference that the complainant reported an
    assault or assaultive behaviour during the 911 call.

[78]

Third, in assessing the complainants credibility, the trial judge
    addressed directly the defence assertion that the complainant had fabricated
    her assault allegation in order to obtain leverage or support for her position
    in a custody dispute regarding the couples daughter, or to otherwise prevent
    the appellants future involvement in the childs life. For cogent reasons she
    explained, the trial judge rejected this assertion of a motive to fabricate.
    She was entitled to do so.

(b)

Circumstances Surrounding the Assault

[79]

In discussing the complainants evidence about how the assault unfolded,
    the trial judge indicated: [the complainant] said that [the appellant]
    pushed her with his foot causing her to fall, she got up and went to get the
    cordless phone
[The appellant] pushed her with his foot again causing her
    to fall again
 (emphasis added).

[80]

The appellant argues, in effect, that this finding is tainted by
    palpable and overriding error because the complainant testified that she did
    not recall certain details about the second pushing incident, including which
    body part the appellant used to push her. The appellant submits that this error
    indicates that the trial judge failed to properly consider frailties in the
    complainants evidence, including that the complainant did not initially
    disclose the second push in her videotaped statement to police and that she
    admittedly did not recall the details of the second push, instead relying on
    erroneous factual findings to erect a credible foundation for the complainants
    version of events.

[81]

I disagree. The trial judges reasons confirm that she did not ignore or
    attempt to minimize the inconsistencies or frailties in the complainants
    evidence with respect to her memory of the appellants conduct. On the
    contrary, the trial judge expressly considered and resolved these
    inconsistencies, before ultimately accepting the complainants evidence.

[82]

In particular, the trial judge addressed head-on the inconsistency
    between the complainants statement to the police  in which she described only
    one push by the appellant in the bedroom  and her testimony at trial, during
    which she described two pushes. The trial judge concluded that the totality of
    [the complainants] evidence  [provided] a clear picture of what happened and
    accepted her explanation for forgetting the second push at the time of her
    police statement.  She also considered this inconsistency in light of any
    possible motive by the complainant to fabricate her assault allegation in order
    to gain advantage in getting herself and her daughter away from [the
    appellant], concluding that it was contrary to common sense to suggest that
    asserting two pushes, instead of one, would assist the complainant in achieving
    this objective. I agree.

[83]

In the trial judges view, the one push/two push inconsistency was
    only one of many factors to be considered in the overall assessment of the
    complainants credibility. As she put it, this inconsistency was not a determinative
    indicator that [the complainants] evidence, as a whole, cannot be trusted.
    Again, I agree.

[84]

Moreover, even if the trial judge erred in finding that the appellant
    twice pushed the complainant with his foot, as opposed to only once or
    utilizing some other body part, I am not persuaded that this error played any
    significant part in her reasoning process regarding the key issue in this case
     whether an assault by the appellant had actually occurred.

[85]

I therefore see no basis on which to fault the trial judge for her
    consideration of this issue. Far from ignoring the inconsistency between the
    complainants trial evidence and her police statement, the trial judge
    explicitly identified and addressed it, in the context of the complainants
    evidence as a whole.  She did not err in doing so.

(c)

Pending Family Law Issues

[86]

At trial, defence counsel cross-examined the complainant about the
    paternity of her child. The complainant testified that she became aware that
    the appellant was the father of her child in 2010 after taking a paternity
    test. She acknowledged that, to that point, she had been receiving child
    support payments from another man whom she believed might be the father. She
    continued receiving these payments until sometime in 2011, when she withdrew her
    claim for child support. She testified that she did not withdraw her claim
    earlier, as she believed she needed a lawyer to do so and could not afford one
    at the time.

[87]

The defence relied on the fact that the complainant continued to accept
    child support payments for several months after learning that the payor was not
    the father as a negative reflection on her credibility.

[88]

The trial judge found that the issue of the child support payments was
    something of a red herring. She noted that there was not enough information
    before the court to assess the significance of this evidence. For example, the
    complainant was never asked directly whether she had informed the payor that
    there had been a mistake, after she learned that the payor was not the father
    of her child. Further, [the appellant], who was proven to be the father and
    presumably the one who ought to have been paying support, appears to have been
    aware of and involved in the delay in setting the matter right with the Family
    Court and the Family Responsibility Office.

[89]

The appellant argues that the trial judge misapprehended the evidence
    about the support payments. He submits that the trial judge erred by failing to
    consider this evidence as potentially undermining the complainants credibility
    and, essentially, by making an adverse credibility finding against the
    appellant without the benefit of his testimony.

[90]

I disagree. In my view, the trial judge did not err in her treatment of
    the evidence on this issue. She considered it expressly and fully. On the
    record before her, it was open to the trial judge to find that there was
    insufficient evidence to establish any motive on the part of the complainant to
    fabricate her assault allegation in order to gain an advantage in any dispute
    with the appellant about the custody of their daughter.

[91]

Moreover, the trial judge found that the appellant, who, as a matter of
    law, would have been responsible for paying support for his child, was aware of
    the delay in setting the matter right. This finding was open to the trial
    judge on the evidentiary record. In any event, the trial judge explicitly set
    [the support payment] issue aside. It therefore played no part in her
    evaluation of the evidence on the offences charged.

[92]

I would not give effect to this ground of appeal.

(3)

Availability of the Section 686(1)(
b
)(iii)
Proviso

[93]

I now turn to the impact of the trial judges failure to admit the
    evidence of the appellants out-of-court statement to Constable Sejrup. In
    light of this error, the critical question is whether the
proviso
may
    be applied to sustain the appellants assault conviction. It is here that I
    part company with my colleagues proposed disposition of this appeal.

[94]

The general principles governing the appropriate use of the
proviso
under s. 686(1)(
b
)(iii) of the
Criminal

Code
are
    well-established. As my colleague notes, the Supreme Court has repeatedly
    instructed that use of the
proviso
is appropriate in two situations:
    i) where the error is harmless or trivial; or ii) where the Crowns case
    against an accused is so overwhelming that, notwithstanding that the error is
    not minor, the trier of fact would inevitably convict: see, for example,
R.
    v. Sekhon
, 2014 SCC 15, [2014] 1 SCR 272, at para. 53;
R. v. Van
,
    2009 SCC 22, [2009] 1 SCR 716, at para. 34;
R. v. Khan
, 2001 SCC 86,
    [2001] 3 S.C.R. 823, at paras. 28-31.

[95]

I do not suggest, nor did I understand Crown counsel to argue at the
    appeal hearing, that the evidence of the appellants guilt on the assault
    charge was so overwhelming that a trier of fact would inevitably convict. I do
    not think that this threshold is met in this case.

[96]

However, for reasons I will explain, I agree with the Crowns submission
    that, on the facts of this case, the exculpatory part of the appellants
    out-of-court statement was so lacking in probative value that, properly
    considered, it would have attracted minimal weight even if it had been
    considered by the trial judge as part

of

the

requisite
    analysis under
R.

v.

W.(D.)
, [1991] 1 S.C.R. 742.
    Accordingly, this is an appropriate case for use of the
proviso
.

[97]

First, while the use of the
proviso
must be approached with
    caution in cases that turn solely on credibility, this court has confirmed that
    there is no rule excluding the
proviso
in such cases. Rather, in
    every case, the applicability of the
proviso
must depend upon careful
    consideration of the particular facts and circumstances:
R. v. Raghunauth
(2005), 203 O.A.C. 54 (C.A.), at para. 9;
R. v. George
, 2016 ONCA 464,
    at paras. 65-67. The critical question is whether the verdict would have been
    the same if the error had not been committed:
R. v. Bevan
, [1993] 2
    S.C.R. 599, at pp. 616-17;
George
, at para. 67.

[98]

Second, while the determination of this question does not permit a
    weighing of the strengths or weaknesses of the other evidence adduced at trial
    (
Van
, at para. 35), this does not mean that an assessment of the
    probative value of the excluded evidence is precluded. To the contrary,
    examination of the probative value of the excluded statement is crucial.

[99]

In this connection, it is essential to focus on the exact nature of the
    excluded statement. The remark relied upon by the defence consisted of the
    appellants assertion to Constable Sejrup that no threats or assault had
    occurred.  At its highest, this was a simple denial of the
actus reus
of the offence of assault.  It was not an assertion of an affirmative defence
    that was inconsistent with the complainants account, in the sense of advancing
    a different explanation for the events she described.  For example, nothing in
    the appellants exculpatory denial of an assault was inconsistent with the
    trial evidence of the bruising to the complainants knee, which included 15
    police photographs of the complainants injury and Constable Boyntons
    testimony of his own observations of her injury.

[100]

Third, as the
    trial judge observed, the evidence at trial did not disclose the full
    circumstances surrounding the making of the appellants statement, further
    undermining its probative value. The record is silent, for example, on whether
    the appellant was confronted with an accusation of an assault, or whether
    Constable Sejrup provided any information to the appellant of what he was
    investigating or what had been said in the 911 call. There is simply no context
    on this record for what preceded Constable Sejrups inquiry of the appellant
    whether any threats or assault had occurred, or what he said to the appellant
    in that regard.

[101]

Recall, in
    particular, that at the time of his conversation with the appellant, Constable
    Sejrup had not yet spoken to the complainant. Further, Constable Sejrup was not
    asked to detail, from his notes or independent recollection, the specifics of
    what he and the appellant said during their 30-40 minute discussion.  He
    described the subject-matter of their conversation only in general terms.
    Finally, as the appellant did not testify, he was not cross-examined on the
    statement.  It was, therefore, entirely untested.

[102]

Fourth, and
    importantly, parts of the appellants statement confirm aspects of the
    complainants testimony (for example, that there was  at least  a verbal
    argument between the couple, following which the appellant left the apartment)
    and the observations of the police officers. Thus, had the trial judge
    considered the entirety of the appellants statement, the inculpatory parts of
    it would have actually bolstered the strength of the Crowns case, rather than
    that of the defence.

[103]

Fifth, the
    appellant does not contend that his decision not to testify was influenced in
    any way by the issue of the admission of his out-of-court statement to
    Constable Sejrup, or that he would have conducted his defence any differently
    had he known that the statement would be excluded. Nor has the appellant sought
    to tender any fresh evidence on appeal to support such contentions.  Further, I
    see nothing in the record before this court to ground any suggestion that trial
    fairness was compromised by the trial judges error in excluding the
    out-of-court statement. I again emphasize that parts of the appellants
    statement supported, rather than undermined, the Crowns case against the
    appellant.

[104]

Sixth, I
    acknowledge that because credibility was the central issue at trial, the
    principles set out in
W.(D.)
were engaged. However, they were of
    limited application in this case.  The appellant neither testified nor called
    any evidence in his defence. See
R. v. Didone
, 2015 ONCA 636, at para.
    9. I also note that the trial judge was alert to the presumption of innocence
    and the Crowns burden to establish the appellants guilt beyond a reasonable
    doubt. She explicitly adverted to both in her reasons and directed herself that
    she must be satisfied beyond a reasonable doubt by the Crowns case before I
    can make a finding of guilt.  She then noted, In this particular case that
    means being satisfied on [the complainants] evidence. There is some
    corroboration of her evidence by the injuries that have been put into evidence
    before this Court.

[105]

Finally, the
    trial judge undertook a detailed evaluation of the complainants testimony,
    including of the inconsistencies in her evidence and the defence theory of her
    alleged motive to fabricate. Having done so, she accepted the complainants
    version of events on its own merits. She found the complainant to be credible
    and her testimony to be reliable. She was convinced, beyond a reasonable doubt,
    that there was an argument [between the complainant and the appellant] and
    that [the complainant] was pushed by [the appellant] using his foot causing her
    to fall.

[106]

Accordingly, I
    am not persuaded that the excluded evidence  a bare denial of any assault
    reasonably would have affected the trial judges ultimate conclusion. To the
    contrary, given the nature and scope of the credibility analysis undertaken by
    the trial judge, it is apparent in my view that she would have assigned little
    weight to the appellants simple denial of any assault, had his out-of-court
    statement been admitted and considered.

[107]

In all these
    circumstances, I conclude that no substantial wrong or miscarriage of justice
    occurred in this case. On the facts here, the trial judges error in excluding
    the statement was inconsequential.

[108]

I would
    therefore apply the
proviso
in respect of the appellants assault conviction.
    As I have indicated, the trial judge held that the breach of probation charges
    were made out regardless of the outcome of the prosecution on the assault
    charge, based on other conduct by the appellant that breached the peace. I
    agree. As a result, I would also uphold the appellants convictions on these
    charges.

IV.      Disposition

[109]

For the reasons
    given, I would dismiss the appeal.

Released
: July 22, 2016

E.A. Cronk J.A.

[1]
The appellant did not argue that the second ground of appeal that the trial
    judge misapprehended the complainants evidence affected the verdicts on the
    breach of probation counts.