COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Miller Group
    Inc., 2021 ONCA 879

DATE: 20211210

DOCKET: C68878

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Miller Group Inc. and Glenn Fernandes

Respondents

Giuseppe Ferraro, for the appellant

Norm Keith and Maciej Lipinski, for the
    respondents

Heard: September 20, 2021 by video conference

On appeal from the order of Justice Chantal
    M. Brochu of the Ontario Court of Justice, dated June 25, 2019, dismissing an
    appeal from the acquittals entered by Justice of the Peace B.I. Leaman, dated
    September 18, 2017.

Trotter J.A.:

A.

Introduction

[1]

This appeal arises from a workplace accident
    that injured two individuals.

[2]

Miller Group Inc. (hereafter Miller) was contracted
    to pave a road in Northern Ontario. Mr. Fernandes, an employee of Miller,
    supervised the job. A piece of heavy equipment, a rubber tire roller, was used in
    the paving project. The roller went out of control and it ended up in a ditch.
    The operator of the roller was hospitalized for 11 days; another employee, who
    was able to jump out of the way, suffered less serious injuries.

[3]

The incident was reported to the Ministry of
    Labour (MOL).
[1]
Investigators attended at the scene and seized the roller under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 (
OHSA
). Before the
    roller was inspected, a lawyer for Miller wrote to the MOL inspectors and
    alleged that the machinery had been unlawfully seized. He further directed that
    no inspection could be performed unless his client consented.

[4]

Despite the lawyers letter, the inspection
    proceeded. This involved disassembling the roller. Before releasing the roller
    back to Miller, the inspectors offered to re-assemble it. Miller declined the
    offer and gave the roller away as scrap without conducting any testing of its
    own.

[5]

Miller (as an employer) and Mr. Fernandes (as a
    supervisor) were charged with workplace safety offences under ss. 25(1) and
    27(1)(a) of the
OSHA
, respectively. Miller brought a pre-trial
Charter
application alleging infringements of its rights under ss. 8 and 11(d) of the
Charter
.

[6]

The Justice of the Peace dismissed the s. 8
    claim, but found that the conduct of the inspectors infringed s. 11(d) because:
    (a) they should have halted their inspection in light of the lawyers letter;
    (b) they failed to keep proper notes; (c) they did not follow internal
    policy manuals; and (d) their testimony was conflicting. The Justice of the
    Peace excluded the results of the inspection under either ss. 24(1) or (2) of
    the
Charter
, the precise basis being unclear. The Crown called no further
    evidence and the charges were dismissed against Miller and Mr. Fernandes.

[7]

The Crowns appeal to a judge of the Ontario
    Court of Justice (the appeal judge) was dismissed. She found that the Justice
    of the Peace made no legal errors in excluding the evidence as a remedy for the
    breach of s. 11(d) of the
Charter
. She determined that it was
    unnecessary to address the submissions of Miller and Mr. Fernandes that there
    was also a breach s. 8 of the
Charter
.

[8]

Nordheimer J.A. granted the Crowns application
    for leave to appeal under s. 131 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P. 33.

[9]

For the reasons that follow, I would allow the
    Crowns appeal and order a new trial. The Justice of the Peace erred in finding
    that the lawyers letter required the inspectors to only conduct an examination
    of the machine in the presence of the representative(s) of Miller. Neither
    Miller nor Mr. Fernandes had any right to direct the investigation into
    offences under the
OHSA
. This made inconsistencies in the evidence of
    the inspectors irrelevant for
Charter
adjudication purposes.

[10]

Similarly, the failure of the inspectors to
    observe internal policy guidelines could not amount to a violation of s. 11(d)
    of the
Charter
. Although deviations from these normative practices may
    impact on the value of the inspectors testimony on the trial proper, these
    documents had no force of law for constitutional purposes.

[11]

The Justice of the Peace also erred in finding an
    infringement of s. 11(d) of the
Charter
. He employed the wrong
    analytical framework in adjudicating what was essentially a lost or destroyed evidence
    claim. More fundamentally, neither Miller nor Mr. Fernandes established any
    prejudice flowing from the MOLs handling or inspection of the roller. To the
    contrary, Miller gave the roller away as scrap, essentially precluding further
    testing.

[12]

The appeal judge erred in law by adopting the
    reasons of the Justice of the Peace and, without further analysis, simply
    endorsed his legal errors.

B.

factual background

(1)

The Accident

[13]

The accident occurred on August 18, 2015 on a
    roadway approximately 40 kilometers outside of Thunder Bay, Ontario. On the
    same day, MOL inspectors attended at the scene, which was considered to be a
    workplace within the meaning of the
OHSA
. Inspector Thomas Grant
    photographed the scene and interviewed some of the workers. He made notes and
    issued a Field Visit Report (FVR) in which he described the investigatory actions
    he had taken. Engineer Jeff Rivard also attended and observed a broken brake
    line on the roller which he thought had been broken before the incident.

[14]

Acting under the authority of s. 54 of the
OHSA
,
    MOL employees seized the roller and took it to an unmonitored Ministry of
    Transportation property.
[2]
On August 20, 2015, the roller was moved to a private facility where it was
    disassembled and inspected.

(2)

The Letter and the Stand Down Order

[15]

On August 21, 2015, prior to the machine being
    inspected, a lawyer for Miller wrote to Mr. Grant to complain that the roller
    had been illegally seized. The letter also purported to direct the course of
    the investigation:

Our client intends to cooperate with the
    Ministry of Labours investigation of the above-noted incident.
In the
    spirit of mutual cooperation, and to ensure no spoilage of the equipment or
    evidence to be gathered, we request that no steps be taken by a Ministry of
    Labour Engineer or other technical expert without our clients knowledge and
    consent. Further, any steps taken to test the equipment involved in the
    incident, replace parts on the equipment, or any other technical aspect of the
    investigation should only be done with our clients knowledge and consent.

Further to the above, we request that copies
    of any Field Visit Reports or Orders related to this matter be copied to me
    immediately upon issue. [Emphasis added.]

[16]

It was not until August 24, 2015 that Mr. Grant
    accessed the letter on his laptop computer. Not familiar with this type of
    request, he forwarded the letter to his acting manager, Cary Roy. In the
    meantime, he claimed to have given a stand down order to Mr. Holder and Mr.
    Rivard, who were involved in testing the roller that day. The evidence of MOL
    personnel, however, was contradictory on this point. The Justice of the Peace
    found that the note-taking of Mr. Grant was lacking in certain respects. Mr.
    Grant admitted that he did not follow MOL guidelines with respect to notetaking,
    what should be included in FVRs, and when items are seized from a work site.
    Mr. Roy also received similar criticism by the Justice of the Peace.

[17]

Mr. Roys credibility was a matter of
    considerable importance to the Justice of the Peace, especially on the stand
    down issue. Phone records did not support his version of events. The Justice
    of the Peace found Mr. Roy to be nervous, defensive and evasive when being
    questioned by Millers lawyer. But it is unnecessary to go into further detail
    on this issue because, as discussed below, it did not matter at this stage of
    the proceedings. I assume for the sake of argument on this appeal that the
    evidence was inconsistent and contradictory.

[18]

Mr. Rivard, an engineer, was questioned about a
    document prepared by the Professional Engineers of Ontario (PEO) entitled
    Forensic Engineering Investigations. Among other things, the document reads:

If destructive inspection/testing is required,
    all interested parties should be provided an opportunity to review and comment
    on the inspection/testing protocol and hold points, and witness the
    inspection/testing. The aim should be to reach consensus as to the
    inspection/testing protocol. Even when all parties are present, any disassembly
    or inspection that changes the state of the evidence should be documented in
    detail for ease of future explanation.

[19]

Despite the letter from the lawyer, the
    inspection proceeded without the consent of, and in the absence of, anyone
    representing Miller. Photographs and notes were taken during the inspection
    process.

(3)

The Return of the Roller

[20]

Following the inspection, the roller was
    returned to Miller. As noted, the MOL offered to reassemble the machine. The
    offer was refused. The roller was taken out of service and given to Gary
    Steele Haulage & Grading Limited. At the time of the motion before the
    Justice of the Peace, the roller was still at this location; however, the
    engine, transmission, and wheels had been removed. There was no evidence that
    it was further inspected at the direction of Miller or Mr. Fernandes.

C.

findings in the courts below

(1)

The Justice of the Peace

[21]

The Justice of the Peace found no infringement
    of s. 8 of the
Charter
because the MOL acted within its statutory
    power under s. 54(1)(e) of the
OHSA
.

[22]

The basis for the Justice of the Peaces finding
    that there was a breach of s. 11(d) is less clear. He expressed concern
    about the failure of MOL employees to follow its own procedural manual. He was
    critical of their failure to take proper notes of the steps they took in
    furtherance of the investigation.

[23]

The Justice of the Peace also found the
    inconsistencies in the evidence relating to the stand down order to be
    troubling. He explained:

Based on the inconsistent evidence among Mr.
    Grant, Mr. Roy and Mr. Rivard, when added to that of Mr. Holder, this
    Court is left in great doubt as to the credibility and reliability of each of
    the MOL employees who testified on this motion.
This doubt goes directly to
    the heart of the s. 11(d) motion made by Miller
. [Emphasis added.]

[24]

The Justice of the Peace acknowledged that the
OHSA
did not require a representative of the employer to be present for the
    inspection of the roller. He nonetheless concluded that fairness dictated that
    should have been so, especially in light of the lawyers letter. He further
    found that Mr. Rivards failure to follow the PEO guidelines:

contributed to the defendants being deprived
    of the opportunity to participate in the inspection of the seized machine to
    the extent that spoilation occurred. The machine, once inspected on August 24
    by disassembly of some of its components, was no longer in the state it was on
    August 18 when it was seized.

[25]

The Justice of the Peace also addressed the
    absence of any evidence of prejudice to Miller and Mr. Fernandes:

This Court acknowledges that it
seems odd
that Miller, through Mr. Fernandes, when given the opportunity to have the
    machine put back together chose not to do so, nor did they have the machine
    tested or examined, especially the transmission since that component was a
    potential problem with it according to some of Millers employees at the work
    site.
However, in this Courts view, those actions or inactions do not
    undermine the defendants rights under s. 11(d) of the
Charter
.
    [Emphasis added.]

[26]

On the issue of remedy, the Justice of the Peace
    refused to stay the proceedings. He said, Again, the onus rests on the moving
    party to show on a balance of probabilities that the admission of the evidence
    would bring the administration of justice into disrepute, as noted in s. 24(2)
    of the
Charter
. He relied on
Ontario (Ministry of Labour) v. JR
    Contracting Property Services et al
.
, 2011 ONCJ 316, in which
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 was applied. He concluded that,
    [f]ollowing the
Grant
analysis, the impact of the breach denied
    Miller and Mr. Fernandes the opportunity to make full answer and defence. He
    ultimately concluded that the admission of the evidence would bring the
    administration of justice into disrepute.

(2)

The appeal judge

[27]

The appeal judge took a different approach to
    the s. 11(d) claim. She placed great reliance on the Supreme Court of Canadas
    decision in
R. v. Harrer
, [1995] 3 S.C.R. 562 and this courts
    decision in
R. v. Spackman
, 2012 ONCA 905, 300 O.A.C. 14, which hold
    that a judge may exclude evidence, not because it was
obtained
in a
    manner that infringed the
Charter
, but because its
admission
into evidence would render the trial unfair.

[28]

After discussing this line of authority, the
    totality of the appeal judges analysis of the issue is found in paras. 64 and
    65 of her reasons:

The foregoing illustrates that Justice of the
    Peace Leaman considered the actions or inactions for which he found amounted to
    an infringement of the Respondents
Charter
right resulted in actual
    prejudice to the Respondents. A review of the Reasons certainly does not
    translate to a matter in which the Court found that the actions or inactions
    amounted to an automatic breach.

This is a matter in which the credibility and
    reliability of each of the MOL employees was factored and played a substantial
    role in the Courts decision; Justice of the Peace Leaman in his analysis and
    findings indicated that this doubt goes directly to the heart of the s. 11(d)
    motion.
It was open to the trial judge to conclude that the MOL employees
    actions and inactions amounted to a breach and therefore there is no basis for
    interfering with his decision
. [Emphasis added.]

[29]

On the issue of remedy, despite the language of
    the Justice of the Peace reproduced in para. 26, above, the appeal judge found
    that the evidence of the inspection had been excluded under s. 24(1) of the
Charter
,
    not s. 24(2). However, in view of how I would dispose of the appeal, this
    finding is inconsequential.

D.

analysis

(1)

Introduction

[30]

The Justice of the Peace erred in finding that
    the
Charter
rights of Miller and Mr. Fernandes were infringed by the
    manner in which the investigation was conducted. The appeal judge erred in law in
    upholding this decision.

[31]

The root of the problem stemmed from the
    lawyers letter and the effect given to it by the Justice of the Peace. This
    erroneous treatment of the letter spawned a cascade of further errors. For
    instance, testimonial inconsistencies associated with sharing the stand down
    order and the adequacy of the inspectors note-taking, while potentially
    relevant at trial, were not capable of supporting a
Charter

violation.
    Nor could a failure to follow internal protocols sustain such an infringement.

[32]

Most importantly, the courts below erred in
    granting (the Justice of the Peace) and upholding (the appeal judge) a
Charter

remedy in the absence of evidence that Miller or Mr. Fernandes suffered any
    prejudice.

(2)

No Right to Direct the Investigation

[33]

As noted above, the lawyers letter insisted on
    the rights of knowledge and consent in the investigative process. Presumably
    based on the evidence of Mr. Rivards failure to follow PEO guidelines, this
    assertion morphed into an insistence on the right to be present during the
    inspection. The lawyers letter never made such an extravagant claim.

[34]

In the criminal law context, the right to make
    full answer and defence in s. 11(d) of the
Charter
does not
    extend so far:
R. v. Darwish
, 2010 ONCA 124, 100 O.R. (3d) 579, at
    paras. 29-31. An accused person does not have a constitutional right to direct
    the conduct of a police investigation of which she or he is the target:
Spackman
,
    at para. 108. The police are not required to obtain the consent of the accused
    person before taking investigative steps. An accused person has no right to
    insist that further or other investigative steps be taken. Nor are the police
    required to permit the target of investigation to be present during the
    inspection or testing of physical evidence.

[35]

I use as an example a case of dangerous operation
    of a conveyance (i.e., a motor vehicle) causing bodily harm (
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 320.13(2)). The driver loses control of a vehicle and
    ends up in a ditch. The driver is seriously injured, but their passenger
    escapes with less serious injuries. Once the vehicle is lawfully seized, the
    police do not require the consent of the driver and/or owner of the vehicle to conduct
    a mechanical inspection of the vehicle. There is no entitlement to be present
    during the inspection of the vehicle. Instead, the obligation of the police is
    to preserve items so that they may be tested or examined by the accused:
R.
    v. La
, [1997] 2 S.C.R. 680, at paras. 17 and 20. It should be no different
    with
OHSA
investigations.

[36]

There are strong policy reasons for this
    conclusion. Criminal investigations carry the potential for much more
    significant consequences than
OHSA
investigations. If the former does
    not attract such a right, no such right should exist in the latter context. It
    would be unreasonable to conclude that the subjects of
OHSA
investigations have
Charter
rights above and beyond those afforded to
    subjects of true criminal investigations.

[37]

Moreover, as the Crown submits, a requirement of
    knowledge and consent, let alone presence, could thwart or stall timely
    investigations, potentially endangering the very people the
OHSA
is
    meant to protect (i.e. workers) and the public in general.

[38]

The reach of the
OHSA

is broad.
    Section 1 of the Act defines a workplace as any land, premises, location or
    thing at, upon, in or near which a worker works. Investigators must be permitted
    to respond to workplace incidents swiftly and efficiently. As Nordheimer J.A.
    said in granting leave to appeal in this case, at para. 16: One can
    think, for example, of accidents involving collapsed cranes, collapsed
    scaffolding, elevator failures, and a host of other accidents that involved the
    operation of all sorts of pieces of equipment. Serious disruption to the
OHSA
mandate could result if investigators were constitutionally required to
    accommodate the type of request made in this case.

[39]

Consequently, the Justice of the Peace and the
    appeal judge erred in finding a constitutional right to participate in the
    examination of the roller. It did not amount to an infringement of s. 11(d) of
    the
Charter
.

[40]

Relatedly, the Justice of the Peace also
    identified his concerns with the credibility of MOL inspectors, related to
    their divergent evidence on whether a stand down order was made, and whether
    it was in fact communicated to those involved in the inspection of the roller. In
    the criminal context, the credibility of police officers is often relevant to
    the adjudication of
Charter
claims. The who did what and why or why not
    are essential to
Charter

claims. In determining whether rights
    have been infringed, trial judges are often called upon to resolve credibility
    issues as between police officers, and between the police and the accused
    person. Failing to do so may amount to a fatal error. In
R. v. McCarthy
(1996), 91 O.A.C. 348 (C.A.), revd [1996] 2 S.C.R. 460, a new trial was
    ordered because the trial judge failed to resolve credibility issues on a s. 8
Charter
    voir dire
on the issue of whether the search was conducted in a reasonable
    manner.

[41]

This is not such a case. As discussed above, the
    question of whether the inspectors should have bowed to the lawyers letter was
    not a legitimate
Charter
claim. Accordingly, the credibility of the
    inspectors on this issue was immaterial at this stage of proceedings. It should
    not have factored into the decision on whether s. 11(d) of the
Charter
had been infringed.

[42]

Similarly, the Justice of the Peace and the
    appeal judge were troubled by the failure of the MOL to follow its own manual
    or guidelines, as well as Mr. Rivards failure to follow PEO guidelines. Although
    these failings may be relevant to the credibility of these witnesses and their
    competence in conducting the inspection, these are issues to be considered by
    the trier of fact. The underlying manuals/documents that were seemingly ignored
    by the inspectors do not attain the status of legal authority upon which a
Charter
breach may be founded: see
R. v. Jageshur

(2002), 169
    C.C.C. (3d) 225 (Ont. C.A.), at paras. 50-53;
R. v. Dallas
,
    2002 BCSC 760, at paras. 104-5.

(3)

The Correct Analytical Framework

[43]

Both courts below erred in their methodological
    approach to the claim that the disassembly of the roller amounted to a breach
    of s. 11(d) of the
Charter
. Ultimately, this was a case of lost or
    destroyed evidence. The procedure for adjudicating these types of claims has
    long been established. Lost or destroyed evidence claims are governed by ss. 7
    and 11(d) of the
Charter
, tied to an individuals right to a fair
    trial and right to make full answer and defence. In this case, both courts
    below erred in finding a breach of s. 11(d) in the absence of a finding of
    prejudice. Moreover, the appeal judge further erred in relying on
R. v. Harrer
as a route to exclude the evidence.

(a)

The Appropriate Legal Principles: the Lost
    Evidence Regime

[44]

As part of its disclosure obligations under s. 7
    of the
Charter
, the Crown has a duty to preserve relevant evidence:
R.
    v. Egger
, [1993] 2 S.C.R. 451, at p. 472;
La
, at para. 17. When
    relevant evidence is lost or destroyed, the Crown must satisfy the court that
    it was not lost or destroyed as a result of unacceptable negligence:
La
,
    at para. 20;
R. v. Abreha
, 2019 ONCA 392, at para. 11;
R. v. Hersi
,
    2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 26;
R. v. Stinchcombe
,
    1994 ABCA 113, 88 C.C.C. (3d) 557, affd [1995] 1 S.C.R. 754. If the Crown satisfies
    this threshold, s. 7 has not been breached; conversely, a failure to establish
    that the destruction was not due to unacceptable negligence will amount to an
    infringement of s. 7. Depending on the circumstances, it may also amount to an
    abuse of process:
La
, at para. 23.

[45]

In order to obtain a stay of proceedings, it
    must be established that the loss or destruction of evidence compromises the
    ability of the accused to make full answer and defence, or that irreparable
    harm would be caused to the integrity of the justice system if the prosecution
    were allowed to continue:
La,
at para. 24;
R. v. Bero
(2000), 137 O.A.C. 336, 151 C.C.C. (3d) 545, at para. 42. However, [a] stay of
    criminal proceedings is the appropriate remedy only in extraordinary
    circumstances:
Hersi
, at para. 25.

(b)

The Timing of the Application and the Need for
    Actual Prejudice

[46]

The timing of the application is critical.
    Generally speaking, a motion for a stay based on lost or destroyed evidence
    should not be brought at the outset of the trial. It should be brought at the
    end of trial. This was addressed in
Bero
, where the police
    relinquished control of a vehicle that was subsequently sold to and destroyed
    by an auto wrecker. The trial judge entertained a motion to stay proceedings as
    a pre-trial motion. As Doherty J.A. said, at para. 18:

The trial judge should not have ruled on the
    motion at the outset of the trial. This Court has repeatedly indicated that
except
    where the appropriateness of a stay is manifest at the outset of proceedings
,
    a trial judge should reserve on motions such as the motion brought in this case
    until after the evidence has been heard.
The trial judge can more
    effectively assess issues such as the degree of prejudice caused to an accused
    by the destruction of evidence at the end of the trial
. [Emphasis added.]

See also
R. v. Knox
(2006),
    80 O.R. (3d) 515 (C.A.), at para. 26.

[47]

In this case, the appropriateness of a stay was
    not manifest at the outset of the proceedings for the simple reason that
    there was no evidence that the right to make full answer and defence had been
    impaired by the conduct of the investigators. Miller and Mr. Fernandes failed
    establish any prejudice at all. Miller refused the offer to reassemble the
    roller and gave it away for scrap without further inspection.

[48]

Without evidence of prejudice, there can be no
    remedy: see
Knox
, at para. 32 (where one vehicle was destroyed and
    another repaired before they could be inspected by the defence); and
R. v.
    Murray
(1994), 75 O.A.C. 10, at p. 3 (the defence failed to make a timely
    request to inspect the vehicle and no prejudice was established in any event).
    This same approach has been applied in cases prosecuted under the
OHSA
.
    In
Ontario (Ministry of Labour) v. Lee Valley Tools Ltd.
, 2009 ONCA
    387, 264 O.A.C. 213, Lang J.A. said, at para. 32: Actual prejudice cannot be
    presumed or inferred from the mere fact of lost evidence without more.

[49]

In both
Bero
, at para. 29 and
Knox
,
    at para. 29, this court recognized that failure to pursue disclosure with
    reasonable diligence may weigh against a claim that the Crowns failure to
    preserve evidence resulted in a breach of s. 7
Charter
rights. In this
    case, the lawyers letter, albeit misguided, was a timely attempt to exert some
    control over the integrity of the roller. However, this was all undone by the manner
    in which the roller was disposed of  something entirely of Millers own doing.

[50]

Both the Justice of the Peace and the appeal
    judge erred in not following this approach dictated in
Bero
and
    subsequent decisions. The motion should not have been addressed at the
    beginning of the trial. Moreover, even though the Justice of the Peace refused
    to stay the proceedings, there was no basis to grant any remedy without
    evidence that the right to full answer and defence had been compromised by the
    MOLs handling of the roller. At best, the Justice of the Peace speculated on
    the issue.

(c)

The Reliance on
Harrer
was Misplaced

[51]

By the time the case was argued in the Ontario
    Court of Justice, Miller and Mr. Fernandes had recalibrated their approach.
    They persuaded the appeal judge to analyze their claims through the lens of
R.
    v. Harrer
.
[3]
But nor was this a viable route to exclusion of the evidence in this case.

[52]

Harrer
involved
    an application to exclude evidence that was obtained in the United States by
    local police officers. Because they were not acting as agents of Canadian law
    enforcement officials, the actions of the foreign officers could not amount to
    a
Charter
infringement. As noted above,
Harrer
recognized
    that trial judge may exclude evidence, not because it was obtained in a manner
    that infringed the
Charter
, but because its admission would render the
    trial unfair. The
Harrer
Court was divided on whether it is necessary
    to resort to s. 24(1) of the
Charter
in these circumstances; however,
    it is now understood that s. 24(1) is now the preferred route to exclusion: see
R. v. White
, [1999] 2 S.C.R. 417, at paras. 86-89,
per
Iacobucci J.;
Spackman
, at paras. 101-2.

[53]

Purporting to apply this line of cases, the
    appeal judge noted that the Justice of the Peace found that the evidence was
    not obtained in an unconstitutional manner; specifically, although there were
    no direct breaches of
Charter

rights in testing the machine,
    [t]he unfairness would result in allowing the evidence to be introduced at
    trial given the manner in which it was obtained and not affording the
    Respondents the ability to participate in the inspection.

[54]

Resort to the
Harrer
line of cases was inappropriate
    in this case. It amounted to a circumvention of the principles in
Darwish
and
Spackman
. As noted above, those cases held that there is no right
    of an accused person to direct an investigation. Purporting to apply
Harrer
,
    the appeal judge achieved the opposite result by justifying a
Charter

remedy for this very reason.

[55]

Even if the
Harrer
line of cases was
    applicable, Miller and Mr. Fernandes run into the same problem  there was no
    evidence of prejudice to their right to make full answer and defence. In
Spackman
,
    Watt J.A. held that, at para. 103: The remedy of evidentiary exclusion under
    s. 24(1) is not for the asking. An accused who seeks this remedy must establish
    a breach of his or her
Charter
rights: the right to a fair trial in
    accordance with ss. 7 and 11(d) of the
Charter
. Miller and Mr.
    Fernandes failed to do so. Any prejudice they suffered was self-inflicted
    they declined the offer to have the roller reassembled and then they got rid of
    it. The Justice of the Peace found that this conduct seemed odd. In fact, it
    was fatal to any claim to
Charter
relief.

E.

the appropriate remedy

[56]

In the event that it is successful, the Crown
    requests an order for a new trial, pursuant to sections 121(b)(i), 126(1), and
    134 of the
Provincial Offences Act
.

[57]

Counsel for Miller and Mr. Fernandes submit
    that, if the Crown is successful, the case should be remitted to the appeal
    court so that its argument under s. 8 of the
Charter
may be
    determined. As noted in para. 7 above, the appeal judge found that it was
    unnecessary to address this issue.

[58]

In my view, it is not
    appropriate to remit this case back to the appeal court for further
    consideration. It was open to Miller and Mr. Fernandes to raise the s. 8
Charter

issue before us in an effort to uphold the
    order made by the appeal judge.

[59]

A similar issue arose in
R. v. Flis
(2006), 205 C.C.C. (3d) 384 (Ont. C.A.). In that case, this court heard a
    summary conviction appeal brought by the Crown under the
Criminal Code
.
    The respondents had been convicted at trial. The summary conviction appeal
    court set aside the convictions, but then entered a stay of proceedings based
    on delays in the appeal process. The Crown sought leave to appeal to this
    court.

[60]

This court granted leave to appeal, allowed the
    appeal, and restored the convictions. The respondents requested that the case
    be remitted to the summary conviction appeal court to deal with a host of
    issues the summary conviction appeal court did not address. This request was
    denied. As Moldaver J.A. (as he then was) said at para. 55:

It is common ground that in the context of
    this Crown appeal, the respondents may raise additional alleged errors by the
    trial judge in an effort to sustain the order of the summary conviction appeal
    judge. It is further acknowledged that this court may consider and decide the
    alleged additional errors insofar as they relate to conviction: see

R.
    v. Devitt
(1999), 139 C.C.C. (3d) 187 (Ont. C.A.).

[61]

The court decided that it was in as good a
    position to address the additional issues. Proper materials were before this
    court. Moreover, remitting the case to the summary conviction appeal court
    would have contributed to an appalling delay in the pace of the proceedings.

[62]

As already noted, Miller and Mr. Fernandes could
    have litigated the s. 8
Charter

claim in this court. They chose
    not to do so. The issue was not addressed in their factum. It was only at the
    conclusion of his oral submissions that counsel for the respondents made this
    request.

[63]

I would decline to
    remit the case back to the appeal judge. Instead, I would order a new trial.
    Like
Flis
, this case has moved at a very slow pace, dating back
    to August of 2015, when the accident occurred. By allowing the appeal, the
    orders of both the Justice of the Peace and the appeal judge would be set aside
    in their entirety. If the Crown determines that it is still in public interest
    to re-prosecute this case more than six years after the fact, Miller and Mr.
    Fernandes may renew their s. 8
Charter
claim at the new trial, if so advised.

F.

DISPOSITION

[64]

I would allow the appeal and order a new trial.

Released: December 10, 2021 D.W.

G.T. Trotter
    J.A.

I agree. David
    Watt J.A.

I agree. M.L.
    Benotto J.A.

[1]
In
    2019, the Ministry of Labour became known as the Ministry of Labour, Training
    and Skills Development. Given that the incident in question extends back to
    2015, and because the courts below made repeated references to the Ministry of
    Labour, it is convenient to maintain the same terminology.

[2]
The
    fact that the yard was unmonitored was a point that was emphasized by Miller
    and Mr. Fernandes in this litigation. It was also mentioned by the Justice of
    the Peace and the appeal judge. However, the significance of this feature of
    the evidence is unclear. There was no evidence adduced that the machine was
    tampered with after it was seized.

[3]
In their Factum, Miller and Mr. Fernandes submit that the Justice
    of the Peace relied upon
Harrer
and
Spackman
in reaching his decision.
    However, there is no reference to these authorities in his reasons.


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. E.B., 2021 ONCA 875

DATE: 20211210

DOCKET: C67093

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.B.

Appellant

David Midanik, for the appellant

Rebecca Schwartz, for the respondent

Heard: November 24, 2021

On appeal from the conviction entered on
    February 26, 2019 by Justice John McInnes of the Ontario Court of Justice.

By the Court:

[1]

The appellant appeals his conviction for sexual
    assault under s. 271 of the
Criminal Code
, R.S.C., 1985, c. C-46.
    There were two issues in the judge-alone trial: whether the complainant
    consented to the act of fellatio  the trial judge found she did not; and
    whether the alleged act of intercourse, which the appellant denied, had
    actually occurred  the trial judge found it had.

[2]

For the reasons that follow, we do not accept
    the grounds of appeal raised by the appellant and we dismiss the appeal.

A.

Background

[3]

The following brief summary will provide context
    for the analysis of the issues and the submissions.

[4]

The appellant, a 36-year-old general contractor
    and occasional drug dealer, sold the complainant small quantities of cocaine
    from time to time. The complainant was an 18-year-old university student. The
    appellant was charged with sexually assaulting her in the early hours of September
    23, 2016.

[5]

According to both the appellant and complainant,
    the appellant had texted the complainant on the previous evening and asked
    whether she wanted to meet for a drink. She replied affirmatively and asked him
    to bring some of his product. Prior to that occasion, they had met a few
    times, solely for brief drug transactions.

[6]

The appellant picked her up at her house and
    they drove to a local bar where they had a beer and a shot. After about 20 or
    30 minutes, they left the bar and the appellant drove to the parking lot of a
    school near the complainants house. She did a line of cocaine in the car.
    They got out of the car and smoked and chatted for a while. At this point,
    their stories diverged dramatically.

[7]

According to the complainant, after they got
    back into the car, the appellant grabbed her face and chin and began to kiss
    her aggressively. She tried to pull away and told him to stop. He told her not
    to worry, that they were just having fun. She continued to tell him to stop and
    tried to pull away. He started to undo his pants and she again asked him to
    stop. He placed his hand on the back of her head and pulled her down towards
    his penis and told her to suck it, or words to that effect. She resisted, but
    ultimately did what he asked. During the act, the appellant repeatedly said, I
    dont know what youre doing but it feels good.

[8]

At some point, she said, the appellant put his
    hand into her pants and touched her vagina. She said no, I dont want to and
    that she was on her period. He replied that it would feel amazing. She
    continued to protest, and he told her he would be gentle. He reclined the
    passenger seat, put the full weight of his body on top of her and forced his
    penis into her vagina. She attempted to close her legs, but he continued. He
    stopped, without ejaculating, after several minutes. He smoked a cigarette
    while she put on her pants and he told her that he would take her home.

[9]

On the appellants evidence, the fellatio was
    consensual and there was no intercourse. After they got back into the car, they
    talked for a while and then began to make out. They stopped and discussed
    where this was going and what [they] were expecting. They agreed that they
    were not looking for a relationship and would just see what happened. They
    continued to kiss and fondle one another. She rubbed his penis and he fondled
    her breasts. He took his penis out and she began to stroke it while he rubbed
    her vagina outside her jeans. She told him that she was on her period and did
    not usually give it up on the first date. He said that she should not worry,
    he was not trying to have sex with her and was not trying to force anything on
    her. The fondling resumed and he asked her to kiss his penis. She began to
    fellate him, while he began to grab her breasts harder and firmer. After
    about 10 minutes, the complainant indicated she did not want to continue and
    stopped. He expressed his disappointment and pulled up his pants while she sat
    back in her seat. There was an awkward silence, and the complainant said that
    the second or third date would be a little different, but for now she did not
    want to go further. He lit a cigarette and said okay, lets just call it a
    night.

[10]

Both parties agreed that the appellant then
    drove her home and kissed her when she got out of his car.

[11]

The complainant said that when she got home, she
    threw up in the bathroom. She did not awaken her parents because she was
    ashamed and did not want them to know about her drug use. She called a friend,
    K.M., who she knew worked night shifts, and told him she had been raped by [her]
    drug dealer. He offered to leave work and come to see her, but she told him
    she would call someone else. She called another friend, S.F., who she knew from
    university and he came to see her. They went to the school near her house and
    talked until early morning, consuming some cocaine and alcohol. After returning
    home, the complainant went to her room, removed her clothing, put it in the
    laundry bin, showered, slept briefly, and went to work at her morning lifeguard
    shift.

[12]

S.F. and K.M. confirmed the complainants
    disclosure of the sexual assault to them.

[13]

The following day, the appellant sent the
    complainant a text message. It stated: Hey, hows it going? I hope I wasnt
    too rough with you last night. I apologize, but its just youre too cutie.
    The complainant did not reply. There was no further communication from the
    appellant, and he threw away his cell phone after he found out the police were
    investigating him.

[14]

Within a day or two, the complainants mother
    observed that she had been behaving oddly and spoke to her. The complainant told
    her mother that she had been sexually assaulted by her drug dealer but asked
    her not to tell anyone about it. A few days later, the complainant disclosed to
    her father what had happened. He urged her to report it to the police and she
    did so later that day.

[15]

There were some significant omissions,
    inconsistencies, and falsehoods in the complainants description of the
    material events in her reports to the police and in her testimony at the
    preliminary hearing. In her initial report to the police, she was asked whether
    the appellant had put his penis in her mouth. She responded no. She also
    failed to mention it in her second police interview the next day. It was not
    until the preliminary hearing that she testified that the appellant had forced
    her to engage in fellatio. When asked at trial why she had not disclosed it
    earlier, she identified several reasons: she was ashamed about it and did not
    want to think about it; her memory was foggy; and she thought she could have
    prevented it because she could have kept her mouth closed, but she was just
    scared to.

[16]

The complainant also lied to her parents, to the
    police and at the preliminary hearing concerning her use of cocaine. When she
    reported the events to the police, she did not tell them that she was using
    cocaine that evening and instead told them that she was buying marijuana from
    the appellant. It was only at trial that she admitted she had used cocaine in
    the appellants car. She also lied at the preliminary hearing when she said
    that she did not use drugs with her friend S.F. when they went to the school
    near her home in the early morning hours following the incident.

B.

Trial Judges Reasons

[17]

At the conclusion of the trial, the trial judge
    ordered a transcript of the evidence. In lengthy oral reasons delivered
    approximately four months later, he found the appellant guilty of sexual
    assault beyond a reasonable doubt.

[18]

He found the complainant to be a very credible
    witness and believed her evidence concerning the incidents she described. Her
    account was internally consistent, clearly articulated, filled with small
    details that lacked the air of contrivance, inherently plausible, and quite
    simply it rang true. He found her reasons for not informing the police about
    the fellatio to be palpably authentic. The complainants lies about her
    cocaine use did not significantly impact his assessment of her credibility.
    Her omission had to be understood in context: she was clearly ashamed to reveal
    to her parents or the police that she used cocaine.

[19]

In contrast, the trial judge neither believed
    the appellants testimony that the complainant consented to sexual activity nor
    accepted his denial that the sexual activity included intercourse. The
    appellants evidence did not raise a reasonable doubt and the evidence that he
    did accept served to prove him guilty beyond a reasonable doubt.

[20]

We will address other aspects of the evidence
    and of the trial judges reasons in the course of our analysis of the grounds
    of appeal.

C.

Grounds of appeal

[21]

The appellant raises some ten individual grounds
    of appeal. Most of these grounds take issue with the trial judges acceptance
    of the essential features of the complainants evidence and with his conclusion
    that the appellants evidence did not raise a reasonable doubt.

[22]

For ease of reference, we group the appellants
    submissions under the following headings:

a.

the trial judge erred in the assessment of the
    evidence of the complainant and the appellant;

b.

the trial judge erred by failing to give himself
    a
Vetrovec
warning;

c.

the trial judge erred by failing to address the
    defence of honest but mistaken belief in consent;

d.

the trial judge erred in his application of the
    principles of
R. v. W.D.
, 2019 ONCA 120, 372 C.C.C. (3d) 293;

e.

there was a reasonable apprehension of bias; and

f.

as a result of the foregoing, the verdict was
    unreasonable.

D.

Analysis

(a)

Alleged errors in the assessment of the evidence

[23]

The appellants submissions under this heading
    essentially urge us to re-try him in this court, assess the credibility of the
    witnesses and make findings of fact based on our assessment of the evidence,
    draw our own inferences from the evidence, re-weigh the evidence, ignore the
    facts found by the trial judge and come to our own conclusions, all without the
    appellant having identified a palpable and overriding error in the trial
    judges assessment of the evidence.

[24]

As has been said many times, that is not our
    function.

[25]

Moreover, as Karakatsanis J., writing for the
    majority, recently observed in
R. v. G.F.
, 2021 SCC 20, 459 D.L.R.
    (4th) 375, at para. 81, a trial judges findings of credibility deserve
    particular deference. She added, at para. 82, that credibility findings must be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    What matters is not whether the judge used the words credibility and
    reliability, but whether the judge turned their mind to the relevant factors
    that go to the believability of the evidence. We are satisfied that the trial
    judge did so.

[26]

We turn to the errors asserted under this
    heading to explain our reasoning.

(i)

Misapprehension of the evidence

[27]

Under this ground, the appellant asks us to
    reject inferences the trial judge drew from the evidence or to draw our own
    inferences from the evidence in order to set aside the trial judges acceptance
    of the complainants evidence and his finding that the complainant did not
    consent to the act of fellatio.

[28]

The appellant refers, for example, to the
    alleged failure of the complainant to scream or try to escape when she
    believed that there was a person in the car [in the school parking lot] 50
    metres away while she said she was being raped. He also cites her failure to
    preserve any physical evidence of the assault.

[29]

He also submits that the trial judge should have
    inferred that she was not sexually assaulted because she did not wash when she
    got home, did not change out of the clothes she had been wearing and, instead,
    returned to the place of the assault and partied with S.F. The inference counsel
    wishes us to make, it seems, is that a sexual assault victim would immediately
    wash and change her clothes and would not voluntarily return to the place where
    she was assaulted.

[30]

These assertions invite the court to engage in
    stereotypical reasoning about how sexual assault complainants act or should act
    and ignore the complainants evidence of why she acted the way she did and the
    trial judges acceptance of her evidence.

[31]

As regards her conduct during the assault, the
    trial judge noted the complainants evidence that she was afraid: [M]y initial
    reaction was just to freeze. My initial reaction wasnt to run, it was just to
    stay where I was. I was frozen and I was scared of what to do next. I wasnt
    thinking straight. The trial judge accepted this evidence, finding that it was
    consistent with [his] understanding of the experience of many persons who have
    been sexually assaulted, experience which has come into common understanding in
    our legal system through acquired judicial experience.

[32]

As regards the complainants conduct after the
    assault, the trial judge accepted the complainants evidence that she did not
    want to report the incident to the police. She did not want her parents to know
    that she had been using cocaine and associating with a drug dealer, and she was
    afraid of the potential criminal consequences of her own cocaine use.

[33]

The trial judge was entitled to accept the
    complainants evidence on these matters. Having accepted that evidence, he was
    not bound to draw the inferences advanced by the appellant, some of which rely
    on stereotypical and discredited assumptions about the behaviour of victims of
    sexual assault. We would dismiss this ground of appeal.

(ii)

Uneven scrutiny of the evidence

[34]

The appellant raises a number of complaints
    under the ground of differential treatment of the evidence of the appellant
    and the complainant. Some of these are addressed under other grounds as well.
    The alleged errors in the trial judges reasoning include: a failure to address
    the reliability of the complainants evidence; rejecting the appellants
    explanations as implausible and illogical; and using stereotypes, common sense
    and demeanour evidence to accept the complainants evidence and reject the
    appellants.

[35]

Our response is brief. What matters in the trial
    judges assessment of the evidence is not whether the trial judge used the word
    reliability in their reasons, but whether the trial judge turned their mind
    to the relevant factors that go to the believability of the evidence in the
    factual context of the case, including truthfulness and accuracy concerns:
G.F.
,
    at para. 82. Here, the trial judge plainly did so.

[36]

Trial judges are entitled to draw inferences
    about the credibility of a witnesss account based on the witnesss demeanour,
    but must not place undue reliance on demeanour or use demeanour as a substitute
    for a reasoned consideration of the evidence. Here, the trial judge
    specifically stated that he was conscious of the potential pitfalls of
    over-reliance on demeanour evidence and, while he commented that the
    complainants testimony was palpably authentic, he gave numerous other
    reasons for his acceptance of her evidence.

[37]

We would dismiss this ground of appeal.

(iii)

Omissions and falsehoods in the complainants
    evolving disclosure

[38]

As noted earlier, the appellant asserts that the
    trial judge erred in his assessment of the complainants evidence by failing to
    consider that she lied to the police by not disclosing the fellatio and by
    lying about her cocaine use in her statement to the police and at the
    preliminary hearing.

[39]

As to the former, the trial judge identified the
    reasons the complainant gave for her delayed disclosure of the fellatio as
    opposed to the forced intercourse: she was embarrassed and felt she could have
    avoided it. As to the latter, the trial judge also identified the complainants
    explanation that she did not initially disclose her purchase and use of cocaine
    because she was ashamed about it, did not want her parents to find out about it
    and was afraid about the criminal law consequences. The trial judge addressed
    this issue at length in his reasons, noting that the complainant had lied at
    the preliminary hearing. He accepted the complainants evidence about why she
    did not disclose her drug use. While the trial judge was obviously aware of the
    significance of lying under oath, and might have found that the falsehoods
    impacted her credibility and reliability, he did not do so. Instead, he found that
    these falsehoods were explained persuasively by the complainant and therefore did
    not impact the complainants credibility or reliability on the central issues.
    He was entitled to accept her evidence and her explanation.

[40]

We would dismiss this ground of appeal.

(iv)

Motive to fabricate

[41]

The appellant submits that the complainant had a
    motive to fabricate her allegations. This theory was not advanced at trial and
    when the trial judge raised the issue during closing submissions, defence
    counsel said he was not asserting a motive to fabricate.

[42]

The trial judge found that there was nothing in
    the evidence to suggest any reason why the complainant would have falsely
    alleged sexual assault. He considered the evidence of her disclosure of the
    sexual assault to her two friends on the day of the events to refute a
    suggestion of recent fabrication, but he did not make a finding that the
    complainant had no motive to lie.

[43]

In this context, the appellant suggests that the
    complainant had two motives to fabricate: first, because she was concerned that
    the appellant would tell her friend, S.N. (who was not called as a witness),
    and she did not want word to get around that she had engaged in sexual
    activity with the appellant; and second, because she was afraid that her
    parents would find out that she was associating with the appellant, buying
    drugs from him and engaging in sexual activity with him.

[44]

In our view, these motives are speculative and
    illogical. The first was not raised at trial, was not put to the complainant in
    cross-examination and has no evidentiary foundation. The second is inconsistent
    with the evidence of the complainant, which the trial judge accepted. Moreover,
    it is illogical that the complainant would fabricate a complaint that her drug
    dealer sexually assaulted her if she did not want her parents to know about her
    drug use. The evidence of her gradual, reluctant disclosure  first to her
    friends, then to her mother, then to her father and finally to the police  is
    consistent with judicial experience. It is inconsistent with the motive
    advanced by the appellant.

[45]

We do not accept this ground of appeal.

(b)

Failure to give a
Vetrovec
caution

[46]

The appellant submits that the complainant lied
    to police, lied at the preliminary hearing, and lied at the trial itself. She
    was the key Crown witness and the trial judge should have instructed himself in
    accordance with
R. v. Vetrovec
, [1982] 1 S.C.R. 811 that her evidence
    should be approached with extreme caution.

[47]

We do not accept this submission. Judges are not
    required to import a
Vetrovec
caution into their reasons for judgment
     to do so would be pure formalism:
R. v. Snyder
, 2011 ONCA 445, 273
    C.C.C. (3d) 211, at para. 24. Here, the trial judge was plainly aware of the
    omissions, inconsistencies and falsehoods in the complainants prior statements
    and testimony. As detailed above, he gave cogent reasons for accepting her
    evidence in spite of these shortcomings. We would dismiss this ground of
    appeal.

(c)

Failure to consider honest but mistaken belief in consent

[48]

The appellant submits that there was an air of
    reality to the defence of honest but mistaken belief in consent in relation to
    the sexual activities other than intercourse. He acknowledges that the defence
    was not raised at trial. In closing submissions, the trial judge asked defence
    counsel to confirm that there was no suggestion here of reasonable steps or
    mistaken belief or anything like that, its just the defence is that she
    consented. Defence counsel replied, Yes. The trial judge adverted to this in
    his reasons and noted that, in any event, the defence would not have had any
    air of reality on the evidence before him.

[49]

Although this defence would not apply to the act
    of intercourse, which the appellant denied having occurred, he submits that the
    acceptance of the defence could have impacted the credibility and reliability
    of the complainants evidence concerning the intercourse.

[50]

In advancing this ground, the appellant relies,
    among other things, on: the appreciative comments made by the appellant to the
    complainant during the act of fellatio; the complainants failure to resist,
    scream, try to leave the car, during or after the incident [] even though her
    residence was nearby; and the finding that the appellant kissed the
    complainant when he dropped her off at her home.

[51]

We begin with the observations in
R. v.
    Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579 that "a belief that silence,
    passivity or ambiguous conduct constitutes consent is a mistake of law, and
    provides no defence and that it is an error of law  not fact  to assume
    that unless and until a woman says "no", she has implicitly given her
    consent to any and all sexual activity: at para. 98, citing
R. v. Ewanchuk
,
    1999 SCC 711, [1999] 1 S.C.R. 330, at para. 51.

[52]

Again, some of the appellants submissions rely
    on discredited myths about how a sexual assault victim should behave. As we
    have noted earlier, the complainant explained that she did not try to escape
    the sexual assault because she was afraid, and she froze in the moment. The
    trial judge accepted this evidence, noting that it was consistent with acquired
    judicial experience concerning the reactions of persons who have been sexually
    assaulted.

[53]

Also referred to in
Barton
is s. 273.2
    of the
Code
, which places important limits on the defence of honest
    but mistaken belief in consent by providing that the accuseds belief that the
    complainant consented to the activity is not a defence where the accused did
    not take reasonable steps, in the circumstances known to him at the time, to
    ascertain that the complainant was consenting. The appellant gave no evidence
    that addressed this issue. Nor were questions put to the complainant on the
    issue.

[54]

Finally, there was no independent evidence to
    support an air of reality to honest but mistaken belief in consent. In the face
    of the conflicting accounts of the appellant and the complainant, this is not a
    case where the trial judge could cobble together some of the complainants
    evidence and some of the accuseds evidence to provide a sufficient basis for
    the defence: see
R. v. Park
, [1995] 2 S.C.R. 836, at para. 25. Trial
    counsel did not suggest this could be done and we heard no submissions from
    counsel for the appellant to suggest how it might be done. We see no basis for
    it and would dismiss this ground of appeal.

(d)

Error in
W.D.
Analysis

[55]

The appellant submits that the trial judge erred
    in failing to effectively apply the third part of
W.D.
and
    improperly using
R. v. D. (J.J.R.)
(2006), 215 C.C.C. (3d) 252 (Ont.
    C.A.), a sufficiency of reasons case, to bolster his conclusion.

[56]

We do not accept this submission. In his
    reasons, the trial judge accurately set out the applicable principles,
    including the presumption of innocence, the concept of reasonable doubt and the
    burden of proof. He accurately set out the test in
W.D
. In applying
    those principles, he stated that: (a) he did not believe the appellants
    evidence; (b) the appellants evidence did not leave him with a reasonable
    doubt; and (c) on all the evidence which he did accept, the Crown had proven
    the appellants guilt beyond a reasonable doubt.

[57]

We would dismiss this ground of appeal.

(e)

Reasonable apprehension of bias

[58]

The appellant submits that the trial judge
    displayed bias towards him by quoting directly from his evidence and by placing
    quotation marks around the crude descriptions of the sexual activity that the
    appellant provided in his testimony. He also complains that the trial judge
    demonstrated bias when he said that the defendants evolving explanation for
    sending [the text message the next day] lurched from one implausible
    explanation to another. Counsel for the appellant suggested that the use of
    the word lurched may have been a disparaging comment on the appellants stature
    or physique.

[59]

We do not accept these submissions. Quoting
    directly from the language of the witness is sometimes the best way of
    describing their evidence and the meaning conveyed by their words, instead of
    substituting less vulgar language. The trial judges use of the appellants own
    language, in this case, does not demonstrate bias.

[60]

We see no basis at all to the submission that
    the use of the word lurched demonstrates bias or some personal insult to the
    appellant. The trial judge used this expression, after quoting directly from
    the appellants evidence in chief and in cross-examination, to describe the
    appellants evolving explanation for saying I hope I wasnt too rough with
    you last night in his text to the complainant the following day. In his
    evidence in chief, the appellant said he sent the text because he felt badly
    for having used her a little bit: Like, she gave me a blow job and then I
    just kind of brushed her off and I sent her home. So I messaged her and I told
    her, Im sorry, I hope I wasnt too rough with you.

[61]

In cross-examination, the appellant was asked
    why he felt badly for using the complainant when he had testified in chief
    that he and the complainant had discussed what they were expecting out of the
    encounter, agreed that they were not looking for a relationship and decided to
    see what happened. The appellant acknowledged that had been the discussion and
    that they were going to have some fun and see where it went. The following
    questioning ensued:

Q. So in the morning you felt bad because she
    essentially gave you a blow job, you didnt do anything, and you didnt want to
    see her again? Thats why you felt bad?

A. Well, that and grabbing her breasts really
    firmly and hard. I kind of felt a little bit bad about that.

Q. But why? You were having fun, she was
    giggling. Why would you feel bad?

A. Maybe I was rough with her, I dont know.

As the cross-examination continued,
    the appellant acknowledged that the complainant never objected that he was
    touching her too hard, she never complained about it afterwards and everything
    seemed fine. His evidence shifted from sending the text because he was sorry
    that he had used her, to being concerned that he had squeezed her breasts too
    hard.

[62]

Lurched refers to an awkward or unsteady
    movement, a stagger, or a stumble. That was an apt description of the
    appellants attempts to explain his text message. After making this
    observation, the trial judge said:

I find that the text was sent because the
    defendant was aware of what he had done and was feeling out [the complainant]
    to gauge his jeopardy. In my view, the fact that he sent the message and the
    way in which it is worded is evidence that tends to confirm [the complainants]
    account and also undermines the defendants evidence denying that he sexually
    assaulted the complainant.

[63]

These were inferences the trial judge could
    reasonably have drawn from the evidence and in no way does his use of the word lurched
    demonstrate bias.

[64]

We do not give effect to this ground of appeal.

(f)

Unreasonable verdict

[65]

As we conclude that all the above grounds of
    appeal fail, the assertion that the verdict was unreasonable, which is
    predicated on these grounds, necessarily fails as well.

E.

disposition

[66]

For these reasons, the appeal is dismissed.

Released: December 10, 2021  G.R.S.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.


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. Hird, 2021 ONCA 881

DATE: 20211210

DOCKET: C65063

Hoy, Benotto and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dylan Hird

Appellant

Janani Shanmuganathan and Owen Goddard,
    for the appellant

Jeremy D. Tatum, for the respondent

Heard: November 17, 2021

On appeal from the conviction entered on
    September 28, 2017, and the sentence imposed on February 20, 2018, with reasons
    reported at 2018 ONSC 1152, by Justice Ian F. Leach of the Superior Court of
    Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

After an 11-day trial, the appellant, along with
    two other co-accused, was convicted of various offences related to the
    trafficking and sexual assault of a 15-year-old complainant. The appellant was
    sentenced to nine years in custody, along with a DNA order under ss. 487.04 and
    487.051(1) of the
Criminal Code
, an order under s. 490.013(2.1) of the
Code
to comply with the
Sex Offender Information Registration Act
for life, restrictions on his internet use pursuant to s. 161 of the
Code
,

as well as prohibitions against possessing weapons and contacting the
    complainant.

[2]

The complainant testified that
one
of the people involved in her trafficking and who
    assaulted and sexually assaulted her was an individual with the street name Taffa.
    The complainant eventually identified the appellant as Taffa.

[3]

The appellant appeals on the ground that the
    trial judge erred in his charge to the jury with respect to identification
    evidence and how he dealt with the evidence regarding the polices failure to
    conduct a photo line-up.

[4]

For the reasons that follow, we dismiss the appeal.

BACKGROUND

[5]

The facts of the crimes are not in dispute.

[6]

The appellant does not challenge that the
    complainant was 15 at the material time, or the jury findings about how she was
    deceptively recruited, exploited, and then abused for days before escaping from
    the hotel room where the offences occurred.

[7]

The appellant, in particular, does not dispute
    the role played by the person referred to by the complainant as Taffa in the
    ordeal. The complainant alleged that Taffa physically blocked the door when the
    complainant sought to leave the hotel room, threatened her, assaulted her, and
    sexually assaulted her on several occasions. The complainant eventually managed
    to escape the hotel and contact police.

[8]

She identified the profile picture of a person
    named Stay Humble as Taffa in a printed list of a co-accuseds Facebook
    friends. Eventually, with the assistance of further identification evidence
    from the complainant, the police linked Taffa to the appellant.

[9]

Almost six months after the offence, the
    appellant was arrested and charged with various offences relating to the
    complainants confinement, assault, sexual assault and trafficking.

ANALYSIS

[10]

While the appellants Notice of Appeal raises
    issues with respect to both the conviction and sentence, counsel for the
    appellant clarified that the appellant now limits his appeal to the trial
    judges charge to the jury on identification evidence and the trial judges
    treatment of the evidence of the polices failure to conduct a photo line-up.

Did the Trial Judges err in his charge to
    the jury on the identification evidence?

[11]

The review of a trial judges charge is a
    functional exercise. As this court stated in
R. v. Badgerow
, 2019 ONCA
    374, 146 O.R. (3d) 35, at para. 17:

Appellate review of the adequacy of a jury
    instruction requires a functional assessment. The court asks whether the
    charge, read as a whole in the context of the specific case, properly equipped
    the jury to decide the case based on the application of the applicable legal
    principles to the evidence. [Citations omitted.]

[12]

In his charge, the trial judge described the
    threshold for identification as follows:

For any particular accused to be found guilty
    of an offence, Crown Counsel must prove beyond a reasonable doubt that the
    someone in question  that is, the person who engaged in certain conduct said
    to constitute an offence charged against that particular accused  was, in
    fact, the particular accused who is charged with the offence.

[13]

The appellant argues that the trial judge erred
    in instructing the jury by conflating the two steps required in the
    identification process: first, it had to be established that Taffa was indeed
    the person involved in the alleged crimes, and second, that the appellant was
    Taffa. The appellant takes no issue with the jurys finding with respect to the
    first step. However, the appellant argues that the trial judge failed to
    clarify for the jury what had to be proven beyond a reasonable doubt at the
    second step.

[14]

According to the Crown, the jury drew inferences
    that were available to it from the record, including that the appellants phone
    number was the same as Taffas, and that the appellant conceded that an image
    of Taffa, captured in a still-shot from a music video, appeared to be an image
    of him.

[15]

We do not accept the submission that the trial
    judge failed to instruct the jury on the importance of considering not simply
    the identification of Taffa as the alleged assailant but also that the
    appellant was Taffa. The trial judge made it clear that the identification of
    the appellant as Taffa had to be established beyond a reasonable doubt.

[16]

The jury was repeatedly cautioned about general
    and specific frailties related to the identification evidence. For example, the
    trial judge explained:

You must be very cautious about relying on
    eyewitness testimony to find a particular accused guilty of any criminal
    offence charged. In the past, there have been miscarriages of justice, and
    innocent persons have been wrongfully convicted, because eyewitnesses have made
    honest mistakes in identifying the person or persons whom they saw committing a
    crime or crimes. Eyewitness identification may seem more reliable than it
    actually is because it is given by a credible and convincing witness who
    honestly, but perhaps mistakenly, believes that the accused is the person whom
    he or she saw committing an offence in question.

[17]

In his charge, the trial judge reviewed the
    identification evidence in relation to all the accused, but focused on the
    appellant. He stated, [c]learly, I think, the most significant identity issues
    in this case relate to whether the perpetrator known and described principally
    as Taffa was, in fact, the accused Mr. Hird.

[18]

This identification evidence consisted primarily
    of the complainants testimony. In his charge, the trial judge reviewed her
    testimony in detail, including her inconsistencies and memory lapses. He also
    reviewed the frailties with her evidence raised by the appellant at trial, namely
    that the complainant consumed drugs, including methamphetamine, during the
    period of the alleged crimes.

[19]

The complainants identification evidence was
    corroborated by other evidence. For example, the appellants phone number and the
    image of him in the music video.

[20]

Additionally, the draft jury charge was shared
    with defence counsel. Defence counsel did not object to the charge in relation
    to the identification evidence, aside from the issue of the police line-up,
    addressed below. While not determinative, the failure of the defence to object
    to the charge when they had an opportunity is relevant in assessing the
    adequacy of the jury charge:
R. v. Bailey
, 2016 ONCA 516, 339 C.C.C.
    (3d) 643, at para. 56.

[21]

Finally, the appellant argues that the trial
    judge should have raised the difficulties of cross-racial identification in his
    charge to the jury. There was no suggestion in this case that the complainant
    had any difficulty identifying the appellant as a result of race. Further,
    there is nothing in the record on the demographic make-up of the jury that
    would raise this as an issue. Absent specific evidence of cross-racial
    identification concerns, there is no basis as a general matter to conclude the
    jury would need to be instructed on the issue of cross-racial identification.

[22]

We find no error with respect to the trial
    judges charge on identification.

Did the trial judge err in how he dealt with
    the evidence regarding the polices failure to conduct a photo line-up?

[23]

Defence counsel wished to cross examine a police
    witness on the polices failure to conduct a photo line-up containing a known
    image of the appellant.

[24]

The police witness stated that a photo line-up
    was not used because the police had no doubt that the appellant was the
    individual identified by the complainant as Taffa.

[25]

The basis for the police witness confidence in
    the identification of the appellant was a statement made to the police by the
    appellant after his arrest. This statement was subsequently ruled inadmissible by
    the trial judge after a
voir dire
on voluntariness.

[26]

As the Crown could not rely on the appellants
    statement, the trial judge accepted the Crowns submission that it would be
    unfair to permit defence counsel to cross-examine the police witness on this
    point. Allowing the line of questioning could have undermined the integrity of
    the investigation even though police had grounds to conclude the investigation at
    that time.

[27]

There was significant discussion of this point
    between counsel and the trial judge. In the end, the trial judge permitted
    defence counsel to cross-examine the police witness on why the police had not
    conducted a photo line-up prior to the appellants arrest, but not with respect
    to the period after the statement by the appellant.

[28]

The trial judge provided a mid-trial jury
    instruction on this issue. He instructed the jury:

[T]o proceed on the basis that the police had
    reasons at the time for not employing the police photo lineup procedure, but
    you are not permitted to hear those reasons, speculate as to what those reasons
    were, or in turn, speculate as to whether those unknown reasons for not using
    that procedure after Mr. Hirds arrest were sufficient or not.

[29]

In the end, defence counsel did not continue to
    cross-examine the police witness on this point.

[30]

In our view, the trial judge committed no error
    in relation to the photo line-up. He addressed this issue with fairness to the
    Crown and the defence in mind.

DISPOSITION

[31]

There was no error by the trial judge in his
    charge to the jury with respect to the identification evidence or in how he
    dealt with the evidence regarding the photo line-up. Accordingly, the appeal is
    dismissed.

Alexandra
    Hoy J.A.

M.L.
    Benotto J.A.

L. Sossin
    J.A.