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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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

(2)     In proceedings
    in respect of the offences referred to in para. (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    that could identify the victim shall not be published in any document or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. Pascal, 2020 ONCA 287

DATE: 20200506

DOCKET: C53388

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stewart Pascal

Appellant

Stewart Pascal, appearing via
    videoconference

James Lockyer and Catriona Verner, for
    the appellant

Craig Harper, for the respondent

Heard: September 11-12, 2019

On appeal from the conviction entered on
    January 8, 2009 and the sentence imposed on June 11, 2010 by Justice Terrence
    A. Platana of the Superior Court of Justice, with reasons reported
at
2010 ONSC 3187
.

Watt J.A.:

[1]

S.S. and B.S. had summer jobs at a provincial
    park near Kenora. On a scheduled day off, they travelled to Kenora and rented a
    room at Lubys Motel.

[2]

Sometime later, Stewart Pascal (the appellant)
    and his friend Dawley Dunsford, walked by the open door of S.S. and B.S.s
    motel room. The appellant and Dunsford were invited in for a drink. They joined
    S.S., B.S. and M.B., a man whom S.S. and B.S. had earlier invited for a drink.

[3]

Hours later, S.S. and the appellant were alone
    on a picnic table by a dock near the motel. It was there, S.S. alleged, that
    the appellant sexually assaulted her causing injuries to different parts of her
    body.

[4]

Arrested shortly after these events, the
    appellant was charged with sexual assault causing bodily harm and two counts of
    failing to comply with the terms of a recognizance on which he had earlier been
    released.

[5]

After a trial before a judge of the Superior
    Court of Justice sitting without a jury, the appellant was convicted of sexual
    assault causing bodily harm.
[1]
The Crown instituted dangerous offender proceedings. The trial judge found the
    appellant a dangerous offender and imposed an indeterminate penitentiary sentence.

[6]

The appellant appeals his conviction of sexual
    assault causing bodily harm. He also challenges his designation as a dangerous
    offender and the indeterminate sentence imposed upon him.

[7]

These reasons explain why I would allow the
    appeal from conviction based on the appellants application to introduce fresh
    evidence. In these circumstances, it is unnecessary to consider the sentence
    appeal.

The Background Facts

[8]

The circumstances underlying the appellants
    conviction took place over a few hours. They involve as principals, S.S. and
    the appellant, although other witnesses contributed to the unfolding of the
    narrative.

The Principals and Their Relationship

[9]

S.S. and B.S. had summer jobs at a provincial park.
    With some days off, S.S. and B.S. decided to spend some time in Kenora. They
    rented a room at Lubys Motel, bought some liquor and mix and returned to their
    room for a drink.

[10]

As they returned to their motel room, S.S. and B.S.
    noticed a man outside the room next door. The man had long hair. He was holding
    a baby. The room he was standing outside was occupied by his wife and two of
    his three children.

[11]

The man had his long hair in a ponytail. He and
    his friend were living at a treatment centre nearby. They were required to refrain
    from consuming alcohol and abide by a curfew. The man with the ponytail was the
    appellant; the other man was his friend, Dawley Dunsford.

[12]

A convenience store was part of the Lubys Motel
    complex. Deidre Jarvis, who would later testify at the appellants trial, worked
    at the convenience store and lived on the lower level of the motel. She knew
    the appellant because she had seen him several times around the motel  in
    particular, in and around Unit 44.

The Early Events

[13]

After having a drink in their room, S.S. and B.S.
    walked across the road to another motel which had video games. They remained
    there and had more drinks until the bar closed. They met a man, M.B., whom they
    invited back to their motel room for more drinks.

[14]

Later, as S.S., B.S. and M.B. sat around the
    motel room, the appellant and Dawley Dunsford stopped at their door. The appellant
    asked what was going on. S.S., who had seen the appellant earlier outside the
    room next door, invited the two men to join them. Both the appellant and Dunsford
    entered the room.

The First Incident

[15]

After some
    initial socializing, S.S. and the appellant began demonstrating self-defence
    manoeuvres. The appellant accidentally struck S.S. during the course of this
    demonstration.

[16]

Soon afterwards, according to S.S.
, Dawley Dunsford pushed B.S. down on one
    of the beds and got on top of her
. When S.S.
    intervened, the appellant threw her down on the other bed and tried to kiss her.
    She pushed him away and yelled at him to get off her. M.B. helped to pull both
    men off the two women. S.S. ran to the bathroom.

[17]

M.B. told the appellant and Dunsford to leave
    the room. When both men came towards him, M.B. bolted from the room. He asked
    the clerk in the convenience store to call the police.

[18]

Eventually, after things quieted down, S.S. came
    out of the bathroom. She closed the curtains, turned off the lights and shut
    the door to make it appear that she and B.S. were sleeping.

The First Police Response

[19]

In response to a 911 call, the police arrived.
    They spoke to S.S. and B.S. and advised them to stay in their motel room with
    the door locked. S.S. and B.S. followed the officers instructions. The police
    left. Later, M.B. knocked on the door. S.S. opened the door and let M.B. join
    them in the motel room.

The Return Visit

[20]

As S.S., B.S. and M.B. sat in the motel room
    with the door locked, lights off and curtains drawn, S.S. heard a loud banging
    on the door and window. The banging was so forceful that S.S. thought the door
    might break. B.S. was crying. S.S. told B.S. and M.B. to call the police. S.S. then
    left the room. She saw the appellant and Dunsford, who was pounding on the door
    next to S.S.s room.

[21]

The appellant recalled a different series of
    events. When M.B. went to phone the police, he and Dunsford left the motel and
    went into town. The appellant knew he was in breach of two conditions of his
    recognizance and did not want the police to find him. At some point, the
    appellant lost his watch. After about 45 minutes in town, the appellant and Dunsford
    returned to the motel. Dunsford knocked on the door next to the room occupied
    by S.S. and B.S. The appellant waited on the stairwell. S.S. approached the
    appellant and offered him a kiss.

The Dock

[22]

S.S. told the appellant and Dunsford to leave
    because they were scaring B.S., who was only 18 years old. The appellant
    stepped towards S.S. She stepped back. With each step she moved further away
    from her room. The appellant extended his arms so that S.S. could not get by
    him to return to her room. She backed down the stairs to ground level. The
    appellant grabbed her around the waist, tightening his grip as she tried to
    walk away.

[23]

S.S. recalled that she and the appellant got to
    the picnic table at the dock. Aware that the police were likely on their way,
    S.S. tried to stay calm. She attempted to get the appellant to talk about his
    children. They sat on the picnic table smoking a cigarette. The appellant began
    to rub S.S.s back.

[24]

The appellant said that S.S. approached him
    outside her room and offered him a kiss. He put his arm around her and they
    walked to the dock area. They chatted and giggled. S.S. was cold. The appellant
    put his arm around her as they sat on the picnic table.

The Sexual Assault

[25]

S.S. testified that she got up to leave from the
    picnic table when the appellant began to rub her back. The appellant grabbed
    her around the waist and pulled her towards the end of the picnic table closest
    to the water. When she resisted, the appellant threw her down on the dock. She
    landed on her face, then rolled over onto her back. The appellant pinned her
    hands down above her head. She squirmed and yelled, but could not escape. He put
    his left hand on her breasts under her shirt. She yelled: Dont do this. Stop.
    The appellant persisted. He got her pants and underwear down and began feeling
    around her pubic and vaginal areas.

[26]

S.S. then noticed Dawley Dunsford standing on a grassy
    area near the dock. The appellant got off her. S.S. pulled up her underwear and
    pants. She tried to escape. The appellant blocked her way. He spoke to Dunsford
    in a language S.S. did not understand. Dunsford walked away.

[27]

According to S.S., after Dunsford left, the
    appellant threw her onto the end of the picnic table, then picked her up again
    and threw her down on the dock. She landed face down. The appellant got on top
    of her. She grabbed his ponytail with both hands. She yelled for him to stop.
    He got her pants and underwear down. He removed his own pants, then tried to
    put his penis into her vagina. He did not fully penetrate her. She screamed loudly
    when she felt the appellants penis at her anus. The appellant then put his
    hand over her mouth and nose. He pinched her nose. She could not breathe. He
    then took his hand away from her mouth and slammed her face down twice on the
    dock.

[28]

S.S. recalled that she almost lost consciousness
    when the appellant slammed her face down on the dock. She went limp. She told
    the appellant Ill stop, do whatever you want. Ill stop. Then someone yelled
    Whats going on out there? S.S. no longer felt the appellant on top of her.
    She rolled over and pulled up her pants and underwear. She grabbed some things
    that she thought might be evidence and ran towards the motel, then to the road,
    yelling for help. When she saw two police officers, she ran over to the female
    officer (who had responded to the first 911 call) and turned over the things
    she had gathered as evidence.

[29]

The appellant denied any sexual assault or
    removal of S.S.s clothing. He testified that after he had put his arm around
    S.S. as they sat on the picnic table, he saw Dunsford standing near some trees.
    He spoke to Dunsford in Ojibwe, telling him to give them (he and S.S.) a
    minute. Dunsford left. S.S. wanted to go back to her room, but the appellant
    was reluctant to do so. The police had been there earlier. S.S. grabbed his ponytail
    with both hands to force him to accompany her. The appellant lost his temper.
    He punched S.S. once and pushed her. She landed on the dock and did not move.
    The appellant panicked and ran to his wifes room.

[30]

After the appellant had been in his wifes room
    for about 15 minutes, Dunsford tried to open the door to the room. Unsuccessful,
    Dunsford turned and walked towards the room S.S. and B.S. shared.

The Second Police Response

[31]

When police officers were speaking to M.B. in
    response to the second 911 call, they heard a scream emanating from a motel
    building by the area of the creek. They then saw S.S. try to flag down a
    vehicle on a road near the motel. She was hysterical. She was standing in the
    middle of the roadway yelling Help me. Help me.

[32]

When a male police officer approached S.S. to
    help her, she yelled Get away from me twice. S.S. calmed down when a female
    officer came towards her. S.S. turned over the items she had gathered as
    evidence, which included a ball cap, a wristwatch and a package of cigarettes.

The Complainants Injuries

[33]

S.S. was examined and treated at a local
    hospital. There were bruises to the right side of her neck, and bruises and
    skin tears on both elbows. A superficial laceration and considerable swelling
    were visible on S.S.s nose. A bruise, 2 cm x 2 cm, was apparent on S.S.s left
    thigh, about 6-7 cm from her vaginal opening. Some scar tissue remained on her
    face at the time of trial.

The Forensic Evidence

[34]

The appellants DNA was detected in fingernail
    scrapings from S.S.s hands. One bloodstain from the dock contained long black
    hairs.

[35]

S.S.s DNA was detected in bloodstains found at
    the dock and outside Room 44 at Lubys Motel. Room 44 was the room occupied by
    the appellants wife and children, to which he returned after the alleged
    sexual assault. S.S.s DNA was also detected on the wristwatch she turned over
    to police, as was DNA from at least one male contributor.

The Eyewitness Evidence

[36]

At trial, the Crown called Deidre Jarvis, who
    worked at the time in the convenience store at Lubys Motel. Ms. Jarvis also
    lived in the motel, in Unit 21. Her room was on the lower level and overlooked
    the dock area.

[37]

Ms. Jarvis testified that on the night in question,
    she was awakened around 3:00 a.m. by noises coming from the dock area. It sounded
    to Jarvis like a casual, friendly conversation. She looked out the window and
    saw a man  identified at trial as the appellant  sitting with a woman. Jarvis
    fell back asleep. Around 4:00 a.m. she was awakened again, this time by a
    ruckus. There was no more friendly conversation. This time the woman sounded
    distressed, as though she were trying to call for help. Jarvis went outside and
    yelled at the couple to get off the dock. At this point the man ran away, making
    motions which indicated to Jarvis he was pulling up his pants.

[38]

As discussed below, this testimony was
    inconsistent in several respects with an initial statement Jarvis provided to
    police a few days after the incident. Jarvis was cross-examined on these
    inconsistencies by defence counsel at trial.

[39]

Notwithstanding her inconsistent accounts, the trial
    judge ultimately accepted Jarvis evidence at trial and relied on it to reject
    the appellants version of events.

The Appeal Against Conviction

[40]

The appellant advances two grounds of appeal
    alleging errors in the trial judges reasoning process. He says the trial judge
    erred:

i.

in relying on the identification evidence of Deidre
    Jarvis; and

ii.

in failing to consider the absence of evidence,
    thus shifting the onus of proof from the Crown to the appellant.

[41]

The appellant also challenges his conviction on
    the basis of evidence which he tenders for reception in this court. As this
    appeal turns on that application, and a new trial is required, it is
    unnecessary to consider the other grounds of appeal.

Ground #1: Motion to Admit Fresh Evidence

[42]

The appellant invokes s. 683(1) of the
Criminal
    Code
,
R.S.C., 1985, c. C-46,

to introduce in this
    court evidence not tendered at trial. The proposed evidence targets the
    credibility of Deidre Jarvis and the reliability of her testimony.

[43]

The core of the proposed fresh evidence consists
    of Deidre Jarvis criminal record and of several charges outstanding against
    her when she testified at trial. Included in the latter category is evidence of
    her relationship with a notorious local drug dealer, Frank Novelli. The record
    filed in support of the application also includes evidence about Deidre Jarvis
    subsequent involvement in the criminal justice system, including charges laid
    and convictions entered after she testified at the appellants trial.

[44]

It is common ground that prior to and at trial,
    the Crown had not provided and trial counsel had not sought disclosure of any
    information about Jarvis prior convictions or outstanding charges.

[45]

Recall that Deidre Jarvis provided two
    statements to police, the second of which was far more incriminating of the
    appellant. More detail on Jarvis statements and her evidence at trial provides
    the backdrop essential for an understanding of this ground of appeal.

The First Statement of Deidre Jarvis

[46]

Deidre Jarvis was first interviewed by DC
    Jackson of the Kenora Police Service about two days after the alleged sexual
    assault. Ms. Jarvis recalled having been awakened from sleep by a man and a
    woman talking and giggling on the dock. After about an hour, she fell back
    asleep. She was awakened a second time, around 4:00 a.m. The voices were loud.
    The man was doing most of the talking. Ms. Jarvis could not tell whether either
    of them appeared distressed. Jarvis heard them discussing a third individual;
    she was not certain of the name but mentioned B.S.s first name as one of two
    possibilities. She went outside and yelled at them Im trying to sleep. The
    man had a ponytail. She had seen him before in the convenience store and around
    Room 44 where his girlfriend lived. She saw the man get up, but did not see the
    woman.

[47]

DC Jackson wrote out the questions she asked Ms.
    Jarvis as well as the answers Ms. Jarvis provided. The statement was not audio
    or video recorded, nor was it sworn. It was completed and signed in 17 minutes.

The Second Statement of Deidre Jarvis

[48]

The second statement was provided after PC
    Spencer had reviewed Deidre Jarvis first statement with her to prepare her for
    trial. This statement, provided on the first day of trial, was made about 17
    months after the relevant events and the first statement. Like the first, the
    second statement consisted of questions and answers in written form, but was
    not audio or video recorded or sworn. It was completed in 11 minutes.

[49]

In its material parts, the second statement
    reads:

Q: I have just finished reading you your
    statement from the 17 Aug 07. You have indicated that you have some additional
    information. What can you tell me?

A: That the girl was distressed which is why I
    finally intervened. I saw him with his hand over her mouth. It sounded ok at
    the start but it wasnt friendly anymore and sounded more violent.

Q: Can you tell me what was being said?

A: No. I just went outside because it sounded
    bad. I didnt want to get too close because I didnt know what he was capable
    of. When I yelled at him to get off the dock he stood up and I know he had to
    be pulling up his pants. At this time there was no movement from her so I went
    back inside. I didnt want him coming towards me.

Q: What made you say that you think he was
    pulling up his pants?

A: Just his movement. He was putting on
    something. It had to be because of how he moved.

Q: Can you describe his movements?

A: Bent over hands near ankles and a pulling
    motion coming up.

Q: Did you hear any yelling from the dock
    area?

A: It was really his hand over her mouth. He
    was stifling her. Stopping her from yelling.

The Trial Testimony of Deidre Jarvis

[50]

In her examination in-chief at trial, Deidre
    Jarvis gave evidence of her observations consistent with the substance of her
    second statement. She explained that she first realized a misunderstanding with
    her first statement when she reviewed it on the first day of trial:

I realized that the end of it was wrong cause
    it, I realized the distressed part. Cause if there wasnt distress then I
    would have, I would have stayed out of it, so then I, I corrected it.

[51]

Defence counsel cross-examined Ms. Jarvis about
    the discrepancies between her statements:

Q. Okay maam, Im going to read to you the
    question. Okay? Perhaps well go back to it. Do you recall on the 17th day of
    the eighth month of 2007 that you were interviewed by a police officer by the
    name of Jackson?

A.

Yes.

Q. Yes? Okay. Do you remember him asking you
    certain questions and giving certain answers?

A. Yes, I do.

Q. Do you recall being asked this following
    question and giving this following answer: Question, Could you tell at the
    time if anyone appeared to be distressed?  Answer, No, I couldnt. I could
    hear him talking mostly. Not too much from her.

A. Mm-hmm.

Q. Do you recall giving that answer to that
    question?

A. Yes, I do.

Q. Were you being truthful at that time

A. Not truthful enough.

Q. to the best of your ability?

A. No.

Q. Do you recall being asked the question by
    the police officer in that statement on that day, Could you tell if they were
    clothed at the time?  And giving the answer, No, but I didnt have my
    glasses on. Do you recall giving that answer to that question?

A. Not until today, no. I didnt remember when
    I wrote my statement until today when I reviewed it, and it wasnt very
    thorough, and Im sorry that it wasnt very thorough. But today I figured, you
    know, like thats wrong.  Because, I mean, there was more to it, and I was in
    a hurry, and, you know thats sad of me to say because I should have been more
    thorough with the investigators, but I was working and I was going back to
    work. So, I mean, I should have been more thorough and went over the statement
    with them that day.

Q. So you recall being asked the further
    question, Could you tell if they were clothed at the time? And answering,
    No, but I didnt have my glasses on.?

A. Yes.

Q. Were you being truthful at that time?

A. No, I guess not.

The Reasons of the Trial Judge

[52]

The trial judge acknowledged the frailties of
    Deidre Jarvis evidence, including her nearsightedness, mistaken estimate as to
    her distance from the dock, and the inconsistencies between her statements. He
    nonetheless invoked Jarvis testimony at several points in his reasons.

[53]

For one, he cited Jarvis evidence to confirm
    S.S.s narrative of events at the dock. The trial judge admitted concern with
    respect to S.S.s evidence of how [she and the appellant] got from the motel
    room to the dock. However, he accepted S.S.s account of the sexual assault,
    explaining:

Regardless of any concern I may have had in
    relation to that issue of moving down to the dock, I have no doubt on the
    evidence as to the

following events. As I noted, it is in the accuseds own evidence
    that when Dawley arrived, and this was before any evidence of anything physical
    between the two, [S.S.] a desire to leave.
As noted previously, there is
    significant evidence of [S.S.] of resistance found in the evidence of Deirdre
    Jarvis, who heard the screaming and who saw Stewart ultimately pull up his
    pants and run away
. [Emphasis added.]

In accepting S.S.s evidence the
    judge also relied on the evidence of responding officers, who testified as to
    her distraught condition.

[54]

The trial judge also resorted to Jarvis
    evidence to reject aspects of the appellants testimony. The most significant
    of which being the appellants account of what occurred at the dock, including
    his denial that he ever removed S.S.s clothing. The trial judge said:

In light of the earlier incident in the room
    when [the appellant] accidentally struck [S.S.] while doing some form of
    self-defence manoeuvre, and the evidence of subsequent events, I have no
    difficulty in not being able to accept his evidence that she was pulling him by
    the hair in an attempt to get him to go back up to her room. It simply makes no
    sense in context.

He makes no reference in his evidence to her
    screaming down at the dock.
That is clearly contradicted by the evidence of
    Deidre Jarvis
. I have commented earlier that I have considered the
    difference in Ms. Jarviss evidence given at trial, as opposed to that given in
    an August, 2007 statement to the police.

I also note the fact that Mr. Pascal states
    that at no time did he ever remove [S.S.]s clothes.
That is also
    contradicted by Deidre Jarvis, who says that she saw the man get up, pull his
    pants up, and then run away
. She then saw the other individual getting
    straightened up.

I am satisfied that in spite of the evidence
    as to distance where she may have been mistaken, and the evidence of not having
    her glasses on,
the evidence of Deidre Jarvis was still solid and
    unequivocal, and is sufficient for me to accept her evidence of what occurred
    at the dock
. [Emphasis added.]

The Fresh Evidence

[55]

The materials filed in support of the motion to
    adduce fresh evidence may be divided into several categories. The most
    significant of which are the then-existing convictions and charges outstanding
    against Deidre Jarvis, and the knowledge of the trial participants about them. Although
    not tendered as fresh evidence, I will briefly describe some further charges
    and their disposition to complete the narrative.

The Criminal Record

[56]

At the time of trial, Deidre Jarvis had previous
    convictions of possession under, two counts of possession of controlled
    substances and one of possession of a controlled substance for the purpose of
    trafficking. The convictions were entered on September 10, 2001, over seven
    years prior to the appellants trial.

[57]

Deidre Jarvis convictions arose after police
    executed a search warrant at her residence in Fort Frances. In her home, Ontario
    Provincial Police (OPP) officers found three different kinds of controlled
    substances, a small amount of cash, seven unsafely stored long guns and
    assorted drug paraphernalia.

The Outstanding Charges

[58]

Between her first and second statements Deidre
    Jarvis accumulated a number of criminal charges. In chronological order, those
    charges were:

·

Possession of proceeds, over $5000 (March 2008)

·

Failure to appear (May 5, 2008)

·

Possession of cocaine for the purposes of trafficking
    (July 31, 2008)

·

Possession of proceeds, over $5000 (July 31,
    2008)

·

Failure to comply (July 31, 2008)

·

Possession of proceeds, under $5000 (August 28,
    2008)

·

Trafficking cocaine (2 counts) (August 28, 2008)

None of these charges were disclosed
    to the defence. And none of them were disposed of until after the appellants
    trial was complete.

[59]

The first charge (possession of proceeds over)
    was laid in March 2008. Deidre Jarvis and Frank Novelli were passengers in a
    motor vehicle stopped by an OPP officer. Jarvis had a backpack that contained
    $7,000 in bundled Canadian currency. Frank Novelli was believed to be involved
    in the drug trade and often had large amounts of money. Jarvis, who had been
    dating Novelli for seven months, claimed the money was her own. About 20 months
    later Jarvis pleaded guilty to possession over and received a one-year
    conditional sentence.

[60]

The second charge was laid in May 2008 when
    Jarvis failed to appear in relation to the possession over charge. The failure
    to appear charge was later withdrawn.

[61]

The next three charges arose from police
    surveillance of Jarvis and Novelli on July 31, 2008. After completing what
    appeared to be a drug transaction with an unknown person, Novelli went to an
    area near an old age home. He emerged from a wooded area and handed a bag to
    Jarvis, who shoved it down the front of her pants. Police arrested the couple. The
    bag in Jarvis pants contained 60.5 grams of cocaine. Police also found 16
    ounces of cocaine in the wooded area. It was valued at $40,000. A search of the
    couples home yielded $6,850 in cash.

[62]

Deidre Jarvis was charged with possession of
    cocaine for the purpose of trafficking, possession of the proceeds of crime and
    failure to comply with an undertaking. Jarvis pleaded guilty to these charges
    on September 20, 2010. She received a six-month jail sentence (less credit for
    pre-sentence custody) on the possession for the purpose count and conditional
    sentences on the other charges. At the hearing, Jarvis acknowledged a
    relationship of three and one-half years with Frank Novelli. The couple had a
    child who was then 16 months old.

[63]

The final charges  two counts of trafficking
    cocaine and one count of possession under $5000  arose from police
    surveillance of Jarvis and Novellis residence between March and May, 2008.
    During this period, officers noticed as few as 3 and as many as 40 persons
    visit the house each day for short periods of time. Officers confirmed the
    visitors had purchased cocaine.

[64]

After the appellants trial, four of these
    charges were ultimately withdrawn: failure to appear, possession under, and two
    counts of trafficking in cocaine. On the other counts, Jarvis was sentenced as
    follows:

·

Possession of proceeds over  One year
    conditional

·

Possession of proceeds over  One year
    conditional and concurrent

·

Possession cocaine purpose of trafficking  Six (6)
    months jail less pre-sentence custody, concurrent

·

Fail to comply with undertaking  30 days
    conditional and concurrent

The Post-Testimony Charges

[65]

On September 3, 2009 Jarvis and Novelli were
    arrested in connection with possession of less than 30 grams of marijuana and
    Percocets, as well as various counts of failure to comply with earlier forms of
    release. All charges against Jarvis were withdrawn on November 25, 2009.

[66]

In 2017 and again in 2018, Deidre Jarvis was
    arrested in Fort Frances and charged with a number of property offences and
    failures to comply with the terms of prior forms of release. In none of these
    alleged offences was she charged with Frank Novelli, although one count alleged
    that she stole Novellis car.

The Evidence of Knowledge and Disclosure

[67]

The record on the fresh evidence application
    includes affidavits and statements of several persons involved in investigating
    the offences of which the appellant was convicted and of trial counsel for the
    appellant, as well as counsel who represented the appellant at the preliminary
    inquiry. The record also includes cross-examinations of several, but not all,
    participants.

The Evidence of Defence Counsel

[68]

A lawyer from Winnipeg represented the appellant
    at the preliminary inquiry. The Crown disclosed to him a copy of Deidre Jarvis
    first statement. He received no disclosure about Jarvis criminal record or
    outstanding charges. He was unaware of the disclosure practices of the Crown
    Attorneys office in Kenora. It was not his practice, at that time, to ask for
    disclosure of the criminal records of or outstanding charges against Crown
    witnesses.

[69]

Trial counsel was an experienced criminal lawyer
    who practiced law in Thunder Bay. He was contacted by Legal Aid Ontario to take
    over the appellants defence and agreed to do so. He had two to three months
    within which to review the disclosure and prepare for trial. The disclosure
    materials included the first statement of Deidre Jarvis whom he considered a
    possible defence witness. Trial counsel considered Ms. Jarvis description of
    having heard a man and woman laughing and giggling on the dock as
    confirmatory of the appellants version of events. He had no reason to request
    her criminal record.

[70]

Trial counsel explained that in Thunder Bay
    where he practices, he would have known whether a witness had a criminal
    record. He would also have received disclosure of the record from the Crown as
    was the practice in that jurisdiction. He agreed that, as a general rule,
    criminal records of proposed Crown witnesses were disclosed on request.

[71]

On the morning the appellants trial began, defence
    counsel received a copy of Deidre Jarvis second statement given that day.
    Nothing in it gave him any reason to inquire whether Ms. Jarvis had any criminal
    history. He considered it raised a reliability issue, one which could be dealt
    with through cross-examination to neutralize the incriminating aspects of her
    testimony and bring her back to the portions of the contemporaneous first
    statement which were compatible with the defence position.

[72]

When he received Deidre Jarvis second statement,
    trial counsel did not seek an adjournment. His client had been in custody in a
    century-old jail for 17 months. The conditions were deplorable. An adjournment
    would have resulted in a delay of several months, perhaps even a year. The
    appellant was not a candidate for release pending trial. There was also a
    funding issue with Legal Aid Ontario.

[73]

Trial counsel did not seek disclosure from the
    Crown of the criminal record or history of Deidre Jarvis. He saw no warning
    signs. She remained a clerk from the convenience store at Lubys Motel. Her
    second statement took counsel by surprise. He considered that her revised
    version might have had some racial overtones since it supported the account of
    the Caucasian female, describing a violent sexual assault by an Aboriginal
    male. In the end, he considered the second statement to have been made, taken
    and disclosed in good faith.

The Police Evidence

[74]

DC Renita Jackson of the Kenora Police Service
    was the officer in charge of the investigation into S.S.s allegations. DC
    Jackson took Deidre Jarvis original statement two days after the alleged
    offence. The statement was handwritten during an interruption of Jarvis work
    shift at the convenience store. Jarvis did not appear concerned about the
    interruption.

[75]

DC Jackson, who was a sergeant with the OPP at
    the time of trial, assigned Constable Spencer to review Deidre Jarvis
    statement with her as part of witness preparation requested by the trial Crown.
    Constable Spencer, who was there on his day off, reported that Deidre Jarvis
    had more information to provide. The trial Crown directed that a further
    statement be taken from Deidre Jarvis so it could be disclosed to defence
    counsel. Constable Spencer took the statement in a handwritten question and
    answer format.

[76]

Sgt. Jackson acknowledged she was familiar with
    Deidre Jarvis although she could not recall whether she was aware at the time
    of the statements or trial of Ms. Jarvis criminal record, the outstanding
    charges against her or her relationship with Frank Novelli. In accordance with
    Kenora Police Service practice at the time, Sgt. Jackson did not do, nor was
    she asked to do, a criminal record check on Deidre Jarvis or determine whether Jarvis
    had any outstanding charges.

[77]

Constable Spencer was involved in the early
    stages of the investigation. He executed a search warrant at Lubys Motel and
    participated in the post-arrest interview of the appellant. Although it was his
    day off, Constable Spencer attended the first day of the appellants trial and
    was assigned to review Deidre Jarvis statement with her. He prepared Ms.
    Jarvis second statement, but cannot recall who directed him to do so.
    Constable Spencer remained in the courtroom while Deidre Jarvis testified, but
    did not testify himself at trial.

[78]

Constable Spencer was a detective constable with
    the Kenora Police Service at the time of the investigation and trial. He
    acknowledged the Kenora Police Service was a small force in which everyone
    knew everyone. He was aware that Deidre Jarvis was the girlfriend of Frank
    Novelli whom Spencer considered the biggest drug dealer in Kenora. He assumed
    that Jarvis lived with Novelli in his Kenora home. Constable Spencer testified
    that he did not know whether Deidre Jarvis had a criminal record or any
    outstanding charges at the time of the appellants trial. However, the officer had
    entered Deidre Jarvis statement given after her arrest on March 20, 2008 into
    the records management system of the Kenora Police Service.

[79]

Constable Gordon participated in the investigation
    and was the file manager in the courtroom during the appellants trial. He was
    familiar with Deidre Jarvis first statement. He knew that a second statement
    had been taken by DC Spencer but had not seen the statement and was not sure at
    whose request it had been taken.

[80]

Constable Gordon knew about Novellis drug
    dealing activities and his relationship with Deidre Jarvis but he was not sure
    about any charges against Jarvis because drug investigations operated out of a
    different police unit than he did. He did not inquire into potential
    outstanding charges. It was not the practice of Kenora Police Service to do so
    except where the Crown asked about criminal records and outstanding charges in
    connection with a person proposed as a surety. He did not consider Deidre
    Jarvis a significant witness in the prosecution of the appellant.

[81]

Constable Gordon assumed the trial Crown would
    be aware of any outstanding charges against Deidre Jarvis. He based his
    conclusion on the fact that disclosure in drug cases is made through the local
    Crown Attorneys office, in the absence of a standing Federal agent in Kenora,
    and that the provincial and Federal Crowns are in the same courtroom at the
    same time. In this case, no affidavit was filed on behalf of the trial Crown.

[82]

Constable Frankcom was the only forensic
    identification officer at the Kenora Police Service. He was in the courtroom
    throughout the appellants trial assisting counsel on both sides with the
    presentation of forensic evidence gathered during the investigation. He did not
    testify at trial.

[83]

Constable Frankcom was aware of Deidre Jarvis
    and her involvement in various narcotics investigations. He had been assigned
    the task of checking baggies for fingerprints and preparing a list of the
    exhibits seized during the investigation. He continued to work on the drug
    investigation during the appellants trial. He was also aware of Jarvis
    relationship with Novelli and their shared residence in Kenora.

[84]

Constable Frankcom testified that it never
    occurred to him to tell the Crown about the drug seizures and the ensuing
    investigation involving Deidre Jarvis. In his mind, Jarvis testimony at the
    appellants trial and her involvement in drug investigations were two different
    things, neither of which had anything to do with his duties as a forensic
    identification officer.

The CPIC Inquiry

[85]

Three days before the appellants trial was to
    begin, a civilian employee of the Kenora Police Service entered a query in the Canadian
    Police Information Centre (CPIC) system in connection with Deidre Jarvis.
    This occurred two weeks after Jarvis last court date and six weeks before her
    next one. Constable Gordon suggested the query was probably for validation
    purposes  i.e., to confirm the accuracy and purge inaccuracies in the entries
    concerning outstanding charges.

The Arguments on Appeal

[86]

The parties join issue on the obligation of the
    Crown to disclose Deidre Jarvis criminal record and outstanding charges in
    advance of trial as part of the first party disclosure obligation. They are at
    odds over the effect of the failure to disclose on the outcome of the trial and
    the fairness of the trial proceedings.

[87]

The appellant submits that pre-trial disclosure
    of Deidre Jarvis criminal record and outstanding charges was required under the
    first party disclosure regime of
R. v. Stinchcombe
, [1991] 3 S.C.R.
    326. This information was in the possession or control of the Crown and was
    relevant to the credibility of an important Crown witness, as well as the
    reliability of her testimony.

[88]

To assess the impact of the Crowns disclosure
    failure, the appellant continues, this court must conduct a two-step inquiry. First,
    we must assess whether there is a reasonable possibility the verdict rendered
    could have been different had the disclosure been made. Second, we must assess
    whether the failure affected the overall fairness of the trial proceedings.

[89]

The appellant says there is a reasonable
    possibility that the verdict rendered could have been different had the
    required disclosure been made. The original statement of Deidre Jarvis provided
    material support for the appellants defence since her description of laughing
    and giggling with no apparent distress was incompatible with the complainants
    version of events. The second statement was fatal to the defence if the
    substance of it became Deidre Jarvis evidence at trial. It was critical for
    the defence to be able to undermine the reliability of her second statement and
    not just by virtue of its timing relative to the events described.

[90]

The undisclosed material including Deidre Jarvis
    criminal record and outstanding charges, the circumstances underlying them, and
    her relationship with the most notorious drug dealer in Kenora provided a
    storehouse of impeachment material, including information that could support a
    claim that she had a motive to fabricate her evidence to curry favour with the
    Crown in respect of her own outstanding charges. Jarvis was not simply a clerk
    at Lubys Motel who happened to hear and see things on the dock. Impeachment of
    the reliability of her evidence would reduce its confirmatory potential to the
    vanishing point, giving rise to the reasonable possibility of a different
    result at trial.

[91]

The appellant also submits that the non-disclosure
    affected the overall fairness of his trial. The failure to disclose deprived
    the appellant of the evidentiary resources needed to effectively impeach the
    credibility of Deidre Jarvis and the reliability of her testimony.

[92]

The appellant accepts that due diligence is a relevant
    factor, but submits that trial counsel in this case lacked sufficient information
    to request the materials now proposed as fresh evidence. Defence counsel at
    trial was unfamiliar with the local disclosure practices. Prior to the first
    day of trial, all indications were that Deidre Jarvis was a witness of
    unremarkable background, whose observations were consistent with the appellants
    account. An adjournment was not a viable option. There was no reason to
    question the
bona fides
of Jarvis revision of her original statement.

[93]

The respondent acknowledges that Jarvis record
    and outstanding charges were relevant for cross-examination purposes. However,
    the respondent emphasizes that appellate intervention is only warranted where
    an appellant demonstrates that non-disclosure impacted his right to make full
    answer and defence. In this case, the appellant has not satisfied this burden.

[94]

The respondent accepts that the trial judge
    relied on Deidre Jarvis testimony to confirm some aspects of S.S.s evidence.
    But his key findings were not reliant on Deidre Jarvis evidence. Nor was his
    rejection of the appellants account based on an acceptance of Deidre Jarvis
    version of events.

[95]

The trial judge accepted S.S.s evidence and
    found it was confirmed by her physical injuries, her distraught condition
    immediately afterwards, the DNA findings and, in some respects, by the
    appellants own testimony.

[96]

The disclosure failure had no impact on trial
    fairness. It did not impact defence counsels ability to advance his position:
    that while an assault occurred, there was no sexual component.

[97]

In addition, the respondent continues, lack of
    due diligence constitutes a significant impediment to the appellants motion.
    Trial counsel was aware of the general practice that the criminal records and
    outstanding charges of witnesses were only disclosed if a specific request was
    made for them of the Crown. An experienced criminal lawyer, he made no such
    request in connection with Deidre Jarvis. Further, the claim that an
    adjournment was not realistic because of the delay that would likely ensue
    rings hollow. Trial counsel was well aware that if the appellant was convicted,
    the court would institute dangerous offender proceedings which, by their very
    nature, are protracted.

[98]

Overall, defence counsel made a tactical
    decision to attempt to have Deidre Jarvis confirm her observations as reported
    in his first statement. He should not now be permitted to reverse course
    because the result was unfavourable.

The Governing Principles

[99]

The principles that inform our determination of
    this ground of appeal are those that define:

i.

the disclosure obligations of the Crown;

ii.

the evidentiary use of previous convictions and outstanding charges
    in impeachment of a non-accused witness; and

iii.

the remedies available on appeal for disclosure failures at trial.

The Disclosure Obligations of the Crown

[100]

Two different disclosure regimes govern disclosure in criminal
    cases. First party disclosure under
Stinchcombe
supplemented by the
    duties imposed upon the Crown and investigating police in
R. v. McNeil
,
    2009 SCC 3, [2009] 1 S.C.R. 66, and third party disclosure under
R. v. OConnor
,
    [1995] 4 S.C.R. 411. The purpose of each regime is to protect an accuseds
    right to make full answer and defence, while at the same time to recognize the
    need to impose limits on disclosure when required:
R. v. Gubbins
, 2018
    SCC 44, [
2018] 3 S.C.R. 35,
at para. 29;
World Bank Group v. Wallace
, 2016 SCC 15,
    [2016] 1 S.C.R. 207, at para. 115.

[101]

First party disclosure under
Stinchcombe
imposes a duty on
    the Crown to disclose all relevant, non-privileged information in its
    possession or control, whether that information is inculpatory or exculpatory,
    unless disclosure of that information is governed by some other regime. This
    duty is ongoing and corresponds to the accuseds constitutional right to the
    disclosure of all material which meets the
Stinchcombe
standard:
Gubbins
,
    at paras. 18-19;
Stinchcombe
, at pp. 339; and
R. v. McQuaid
,
    [1998] 1 S.C.R. 244, at para. 22.

[102]

The purpose of disclosure is to protect an accuseds
Charter
right to make full answer and defence. That right will be impaired where there
    is a reasonable possibility that undisclosed information could have been used
    by the accused to meet the case for the Crown, to advance a defence or to
    otherwise make a decision which could have affected the conduct of the defence:
Gubbins
, at para. 18;
McQuaid
, at para. 22.

[103]

Crown entities other than the prosecuting Crown  including the
    police  are third parties for the purposes of disclosure. They are not subject
    to the
Stinchcombe
regime:
Gubbins
, at para. 20;
McNeil
,
    at para. 22; and
R. v. Quesnelle
, 2014 SCC 46, [2014] 2 S.C.R. 390, at
    para. 11. The prosecuting Crowns disclosure duty under
Stinchcombe
is
    triggered upon a defence request for disclosure:
Gubbins
, at para. 19;
Stinchcombe
, at pp. 342-43.

[104]

It ill lies in the mouth of the prosecuting Crown to explain failure
    to disclose relevant material on the basis that the investigating police service
    failed to disclose it to the Crown. When put on notice of potentially relevant
    material in the hands of the police or other Crown entities, the prosecuting
    Crown has a duty to make reasonable inquiries. Correspondingly, the police have
    a duty to disclose to the prosecuting Crown all material pertaining to its
    investigation of the accused. This material is often termed the fruits of the
    investigation:
Gubbins
, at para. 21;
McNeil
, at paras. 14,
    22-24 and 52.

[105]

The fruits of the investigation refers to the police investigative
    files, not their operational records or background information. In other words,
    fruits of the investigation refers to information generated or acquired
    during or as a result of the specific investigation into the charges against
    the accused:
Gubbins
, at para. 22.

[106]

However, the police obligation of disclosure to the prosecuting
    Crown extends beyond the fruits of the investigation. The police should also
    disclose to the prosecuting Crown any additional information that is obviously
    relevant to the accuseds case. This obviously relevant information is not
    within the investigative files, but must be disclosed under
Stinchcombe
because it relates to the accuseds ability to meet the Crowns case, raise a
    defence, or otherwise consider the conduct of the defence:
Gubbins
,
    at para. 23.

[107]

To determine which disclosure regime applies to information, a court
    must consider whether:

i.

the information sought is in the possession or
    control of the prosecuting Crown; and

ii.

the nature of the information sought is such that the police or
    another Crown entity in possession or control of it should have supplied the
    information to the prosecuting Crown.

The second question will be answered
    affirmatively where the information is part of the fruits of the investigation
    or is obviously relevant. An affirmative response on either of these issues
    means that the first party or
Stinchcombe
disclosure regime applies:
Gubbins
,
    at para. 33.

Evidentiary Use of Prior Convictions and Outstanding
    Charges

[108]

Section 12(1) of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5,
permits questioning a witness on whether they have been convicted of any
    offence. The fact that a witness has been convicted of a crime is relevant to
    that persons trustworthiness as a witness. Some convictions  for example,
    offences involving dishonesty or false statements  have a greater bearing on testimonial
    trustworthiness than others. The probative value of prior convictions also
    varies with other factors. The number of prior convictions. Their proximity or
    remoteness at the time of the witness
testimony. See e.g.
R. v. Brown
(1978), 38
    C.C.C. (2d) 339 (Ont. C.A.), at p. 342;
R. v. Murray
(1997), 115 C.C.C. (3d) 225 (Ont. C.A.)
, at para. 9.

[109]

As a general rule, an ordinary witness, unlike an accused, may be
    cross-examined on unrelated misconduct which has not resulted in a criminal
    conviction. This includes cross-examination on conduct that underlies charges
    outstanding against a witness at the time of their testimony. The purpose of
    this cross-examination is to impeach the witness credibility:
R. v.
    Davison
,
DeRosie

and MacArthur
(1974), 20 C.
C.C. (2d) 424 (Ont. C.A.), at pp. 443-44,
    leave to appeal refused,
[1974] S.C.R. viii
;
R.
v. Gonzague
(1983), 4 C.C.C. (3d) 505 (Ont. C.A.), pp. 510-11; and
R. v.
    Gassyt
(1998), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 37, leave to
    appeal
refused,
[1999] 2 S.C.R. vi
.

[110]

As a general rule, the mere fact that a witness is charged with an
    offence cannot degrade the witness character or impair their credibility. Generally
    this rule would mean that a witness could not be cross-examined about whether they
    were then charged with a criminal offence. But this rule gives way and permits
    cross-examination for the purpose of showing that the witness has a possible
    motivation to seek favour with the prosecution. A circumstance that may permit
    cross-examination on the fact of outstanding charges arises when the same
    police service that laid the charges outstanding against the witness also laid
    the charges against the accused about which the witness testifies for the
    Crown:
Gonzague
, at p. 511;
Gassyt
, at paras. 36-38; and
R.
    v.
Titus
, [1983] 1 S.C.R. 259
, at p. 263.

Appellate Remedies for Non-Disclosure

[111]

An appellant who seeks to set aside a conviction on the basis of the
    Crowns failure to meet its disclosure obligations bears the onus of
    establishing not only a breach of the right to disclosure, but also a breach of
    the right to make full answer and defence. This is so because the right to
    disclosure is a component of, but not coextensive with, the right to make full
    answer and defence. And it is a breach of the right to make full answer and
    defence that forms the basis for the remedy of the new trial:
R. v.
    Taillefer
, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 71;
R. v. Dixon
,
    [1998] 1 S.C.R. 244, at paras. 23-24.

[112]

An appellant who seeks a new trial based on a disclosure failure
    must first demonstrate a breach of the right to disclosure. This requires that
    the appellant demonstrate a
reasonable

possibility
that the
    undisclosed information could have been used:

i.

to meet the case for the Crown;

ii.

to advance a defence; or

iii.

to make a decision that could have affected the conduct of the
    defence.

See
Dixon
, at paras. 22-23.

[113]

Second, the appellant must establish, on the balance of
    probabilities, that his right to make full answer and defence was impaired by
    the Crowns failure to disclose:
Dixon
, at paras. 31, 33. To discharge
    this burden, the appellant must demonstrate there is a reasonable possibility
    that the non-disclosure affected either the outcome at trial or the overall
    fairness of the trial process. This reasonable possibility must be based on
reasonably
possible uses of the undisclosed evidence or
reasonably
possible
    avenues of investigation that were closed to the accused as a result of the
    disclosure failure. Mere speculation does not satisfy this reasonably possible
    standard:
Dixon
, at para. 34. See also
R. v. C.(M.H.)
, [1991]
    1 S.C.R. 763, at pp. 776-77.

[114]

A two-step analysis is necessary to determine whether the disclosure
    failure impaired the appellants right to make full answer and defence. The
    first step invites an assessment of the reliability of the verdict. The second
    step involves an assessment of the effect of the disclosure failure on the
    overall fairness of the trial process:
Dixon
, at para. 36;
Taillefer
,
    at paras. 80-81.

[115]

At the first step, to assess the reliability of the result at trial
    in light of the disclosure default, we are to examine the undisclosed
    information to determine the impact it might have had on the decision to
    convict as expressed in the reasons for judgment. If,
on its face
, the
    undisclosed information affects the reliability of the conviction, we should
    order a new trial. The application of this test requires that we determine
    whether there was a reasonable possibility that the trier of fact, with the benefit
    of all the relevant evidence, might have had a reasonable doubt about the
    appellants guilt. This determination is made on the basis of the evidence in
    its entirety:
Dixon
, at para. 36;
Taillefer
, at paras. 81-82.

[116]

If the undisclosed evidence does
not
itself affect the
    reliability of the verdict, the second step requires us to consider the effect
    of the non-disclosure on the overall fairness of the trial process. To do this,
    we must assess, on the basis of reasonable possibility, the lines of inquiry with
    witnesses or the opportunities to obtain additional evidence that could have
    been available to the defence had timely disclosure been made. This step has to
    do not only with the content of the undisclosed information, but also with the
realistic
opportunities to explore possible uses of the undisclosed information
    for purposes of investigation and gathering evidence:
Dixon
, at para.
    36 (emphasis in original).

[117]

This step involves weighing and balancing. Important factors are the
    materiality of the undisclosed information and the diligence of counsel in its
    pursuit:
Dixon
, at paras. 38-39. If defence counsel knew  or should
    have known based on other Crown disclosure  that the Crown had failed to
    disclose information, yet remained passive as a result of a tactical decision
    or lack of due diligence, it would be difficult to establish that trial
    fairness was affected:
Dixon
, at paras. 37-38.

The Principles Applied

[118]

I would give effect to this ground of appeal. The appellant has
    established a breach of his right to disclosure and a consequent impairment of
    his right to make full answer and defence.

[119]

The analysis that follows involves a series of steps. It begins with
    a consideration of the subject-matter of the alleged disclosure failure.

The Subject-Matter of Disclosure

[120]

Deidre Jarvis was a witness whom the Crown intended to call at the
    appellants trial. On the basis of her first statement to police, she could
    fairly be described as a mixed witness.

[121]

It is well established that as a witness in a criminal trial,
    Deirdre Jarvis could be cross-examined on any prior convictions under s. 12(1)
    of the
Canada Evidence Act
. And as a non-accused witness, she could be
    cross-examined on disreputable conduct  for example, her outstanding charges
    at the time of trial, and the conduct underlying those charges.

[122]

It follows that Deidre Jarvis criminal record, as well as
    information about outstanding charges and the circumstances on which those
    charges were based, was relevant in the sense that it could be used to impeach
    Ms. Jarvis as a witness. This information was not substantively admissible. Its
    use was limited to impeachment.

The Applicable Disclosure Scheme

[123]

To determine which, if any, disclosure regime required disclosure of
    this information in advance of trial, it is necessary to consider two
    questions:

·

Is the information in the possession or control
    of the prosecuting Crown?

·

Is the nature of the information sought such
    that the police or another Crown entity in possession or control of the information
    ought to have supplied it to the prosecuting Crown?

[124]

No one suggests that the information at issue here was in the
    possession or control of the prosecuting Crown. Even if it be assumed that the
    local Crown was aware of the antecedents of the witness, this does not amount
    to possession or control of the information:
R. v. Yumnu
, 2012 SCC 73,
    [2012] 3 S.C.R. 777, at para. 64.

[125]

On the other hand, it cannot be seriously suggested that the
    investigating police service is not in possession or control of a prospective
    witness criminal record since that force has access to records of criminal
    convictions through CPIC. Likewise, at the very least where that force is the
    investigating agency, or a participant in a joint forces investigation into the
    alleged criminal conduct of a witness, that agency can be said to have
    possession and control of the information with which we are concerned here.

[126]

To engage the obligation of a police service in possession or
    control of information to supply that information to the prosecuting Crown,
    that information must be either part of the fruits of the investigation or obviously
    relevant.

[127]

I am not satisfied that the information at issue may fairly be categorized
    as fruits of the investigation in the circumstances of this case.

[128]

However, in my respectful view, the information with which we are
    concerned here falls within the obviously relevant category for disclosure
    purposes. It follows that it was incumbent on the police to turn over this
    information to the prosecuting Crown for disclosure to defence counsel.

[129]

The phrase obviously relevant describes information that is not
    within the investigative file but is nonetheless required to be disclosed under
Stinchcombe
because it relates to an accuseds ability to meet the
    case for the Crown, to raise a defence or to otherwise consider the conduct of
    the defence:
Gubbins
, at para. 23. Logically, this would include
    evidence that could be used to impeach the credibility of witnesses to be
    called to establish the accuseds guilt:
Taillefer
, at para. 62. The
    relevance of outstanding charges in particular was emphasized by the Court in
Titus
,
    at pp. 263-64:

[T]he accused is entitled to employ every
    legitimate means of testing the evidence called by the Crown to negative that
    presumption and in my opinion this includes the right to explore all
    circumstances capable of indicating that any of the prosecution witnesses had a
    motive for favouring the Crown. In my opinion the outstanding indictment
    preferred against the witness
by the same police department that had laid
    the present charge against Titus constitutes such a circumstance
.
    [Emphasis added.]

[130]

It is difficult to gainsay the relevance of the information at issue
    here. A criminal record. Outstanding charges. Evidence about the circumstances
    underlying the relevant charges. Each available for impeachment of a witness
    called by the Crown. Each a relevant factor in deciding whether to call Deidre
    Jarvis as a defence witness in the event she was not to be called by the Crown.
    Relevance is the controlling principle, not the likelihood of use or prospect
    of success.

[131]

Several police officers were examined under oath about their
    knowledge of any outstanding charges against Deidre Jarvis at the time she
    testified at the appellants trial. Two constant refrains emerged from their
    testimony. They did not conduct the investigation; thus they did not know
    anything about it or about any charges that may have resulted from it. And it
    was not the practice in Kenora at the time to check for a criminal record or
    outstanding charges against a Crown witness, or to discuss these issues with
    the prosecuting Crown.

[132]

Kenora is not a large place. It had a police service at the time of
    about 40 members. That police service conducted or participated in the
    investigation that led to the charges against Deidre Jarvis and her partner, Frank
    Novelli, the biggest drug dealer in town. The offences involved were
    significant. Some of the arrests, including that of Jarvis, were publicized on
    local media outlets. One of the officers who was involved in the investigation
    of the offence alleged against the appellant was in the courtroom assisting in
    the organization of the exhibits throughout the appellants trial at which
    Deidre Jarvis testified. During the same period of time, the same officer was conducting
    forensic analyses of some exhibits seized during the investigation of the drug
    charges then outstanding against Deidre Jarvis and essential to the proof of
    those charges. I am satisfied the police knew about Jarvis outstanding
    charges.

[133]

The local practice, if such it be, not to discuss the criminal
    records or outstanding charges faced by a Crown witness did not obviate the
    disclosure obligation on the police. Even if it could be argued that the
    disclosure obligation had not clearly crystallized when Deidre Jarvis gave her
    first statement, it had plainly crystallized by the time she provided her
    second statement on the morning of the first day of trial.

The Disclosure Failure

[134]

I have concluded that the police working on the appellants case
    knew about Deirdre Jarvis outstanding charges. Accordingly, they carried a
    disclosure obligation to turn over to the Crown Ms. Jarvis criminal record and
    information concerning the outstanding charges she was then facing. The Crown
    was then required to disclose this information to the defence.

[135]

Without the benefit of hindsight, it is difficult to assign fault to
    defence counsel for a failure to request disclosure and information of which he
    was neither aware nor had any reason to suspect existed even after the
volte-face
of the witness on the first day of trial.

The Impact of Non-Disclosure

[136]

The appellant has demonstrated a breach of his right to disclosure.
    But, as we have seen, to obtain a new trial the appellant must also demonstrate
    that this breach infringed his right to make full answer and defence. To do so
    he must show a reasonable possibility that the disclosure failure affected the
    outcome of his trial or the overall fairness of the trial process:
Dixon
,
    at para. 34;
Taillefer
, at para. 71.

[137]

As I will explain, I find the appellant has shown both.

The Reliability of the Verdict

[138]

In my examination of the undisclosed information to determine the
    impact it might have had on the decision to convict, I have the advantage of
    the trial judges reasons that describe the extent to which he accepted Deidre
    Jarvis evidence and how it influenced his decision to convict. My analysis
    proceeds through several steps.

[139]

First, the nature and scope of the controversy at trial.

[140]

At trial, it was uncontested that, at the material time, the
    appellant and S.S. were at the dock area together. The appellant admitted
    punching S.S. in the face. This caused her to fall to the ground. Her injuries
    amounted to bodily harm within its definition in s. 2 of the
Criminal Code
.
    The essential issue at trial was whether a sexual assault had occurred and, to
    some extent, in light of the appellants claim of third party authorship by
    Dawley Dunsford, the identity of its perpetrator.

[141]

Second, the evidence of sexual assault.

[142]

Aside from S.S.s evidence, Deidre Jarvis testimony constituted the
    main evidence that a sexual assault occurred. While forensic evidence confirmed
    contact between the appellant and S.S., this evidence did not necessarily
    contradict the appellants version of events.

[143]

Third, the substance of Deidre Jarvis evidence.

[144]

The substance of Deirdre Jarvis testimony at the appellants trial
    consisted of observations of activity on the dock area which she made on the
    night in question. Ms. Jarvis evidence confirmed the appellants presence on
    the dock with a woman. This was uncontroversial. But other aspects of her
    testimony  particularly the man pulling up his pants  went to the key issues
    at trial.

[145]

Fourth, the trial judges use of Deidre Jarvis evidence.

[146]

The trial judge rejected the appellants version of events including
    those that took place in the motel room prior to the trip to the dock and the
    events that took place there. The trial judge accepted the evidence of S.S.,
    B.S. and M.B. that the appellant pushed S.S. down on the bed and tried to kiss
    her. The evidence of Deidre Jarvis played no part in this finding.

[147]

However, the same cannot be said of the trial judges findings about
    what occurred at the dock. In rejecting the appellants version of events, the
    judge accepted Deirdre Jarvis solid and unequivocal evidence about what
    occurred at the dock. Although the trial judge also rejected the appellants
    evidence on the basis of its inherent implausibility in light of the evidence
    of what had occurred earlier in the evening and the 911 call that resulted, it
    cannot be said that Deirdre Jarvis evidence was peripheral to the trial
    judges rejection of the appellants evidence or to his conclusion that the
    prosecution had proven the appellants guilt in relation of the sexual assault
    beyond a reasonable doubt.

[148]

Aggravating matters is the trial judges use of Jarvis evidence to
    confirm critical aspects of S.S.s testimony. While he also enlisted the testimony
    of responding police officers, his acceptance of S.S.s version of events at
    the dock was based, at least in part, on the significant evidence of
    resistance found in the evidence of Deirdre Jarvis, who heard the screaming and
    who saw [the appellant] ultimately pull up his pants and run away.

[149]

Finally, the undisclosed information and its impact on the
    reliability of the result at trial.

[150]

Were the application based solely on Deidre Jarvis criminal record,
    I would not allow the appeal. The criminal record is dated. No offences of
    dishonesty. No disobedience of court orders. No interferences with the
    administration of justice. There is no reasonable possibility that disclosure
    could have impacted the result at trial.

[151]

However, the outstanding charges are a different matter. While
    evidence of Jarvis charges was not relevant or admissible to prove any
    material issue at trial, it was highly probative of Jarvis credibility and was
    admissible for impeachment purposes.

[152]

Facing charges laid by the same police service handling the
    appellants case, Jarvis may have been motivated to ingratiate herself with the
    police and prosecution. Between her first and second statements, Jarvis accumulated
    eight charges. Some were minor. Others  related to trafficking of cocaine
    less so. None were resolved by the time of the appellants trial. Jarvis first
    statement, before the charges, was consistent with the appellants version of
    events. Her second, after the charges, was not. To the contrary, her testimony
    provided tailored support for the Crowns position on the contested issues at
    trial.

[153]

I take no position on whether Jarvis in fact altered her account to
    curry favour with the prosecution. The relevant point is that Jarvis, at first
    a key but mixed witness for the Crown, 17 months later, on the morning of the
    first day of trial, while herself facing serious outstanding charges laid by
    the same police service that investigated the appellant, transformed into a
    witness who sealed the case for the Crown on the critical issue at the
    appellants trial, the sexual nature of the assault.

[154]

Without the benefit of this information, the trial judge apparently
    accepted Jarvis explanation that her first statement was incomplete because
    the interview had interrupted her shift at the convenience store. As explained
    above, the trial judge proceeded to accept Deidre Jarvis evidence and rely on it
    to reject the appellants narrative of events at the dock.

[155]

Under these circumstances, I am satisfied that with the benefit of
    all the relevant evidence, the trial judge may have been left with a reasonable
    doubt and reached a different conclusion.

The Fairness of the Trial

[156]

Even if the trial result was not affected, I would allow the appeal
    on the basis that the non-disclosure compromised trial fairness. As noted, this
    step involves balancing factors such as the materiality of the undisclosed
    information and the diligence of counsel in its pursuit:
Dixon
, at
    paras. 38-39.

[157]

The materiality of the undisclosed information is high. As I have
    explained, the outstanding charges imbued Jarvis with a strong motivation to
    alter her statement in order to curry favour with the prosecution. Failure to
    disclose these charges foreclosed the possibility for defence counsel to
    impeach Ms. Jarvis on this basis.

[158]

While trial counsel did not request the undisclosed information, I
    do not find this omission was based on a tactical decision. In his affidavit,
    counsel explained that had he known of Jarvis charges and convictions, he
    would have conducted further investigation and tried to impeach her on this
    basis. Indeed, defence counsel attempted to impeach Jarvis credibility through
    cross-examination on her inconsistencies. But in this attempt he was deprived
    of certain tools to which he was entitled.

[159]

Nor do I find that trial counsels conduct amounts to a failure of
    due diligence of the magnitude which would preclude a finding of trial
    unfairness. Defence counsel did not practice in the jurisdiction in which the
    trial was conducted. He was unaware of the disclosure practices of the local
    Crown Attorneys office. Based on his practice in Thunder Bay, he would have
    expected the record of Crown witnesses to be disclosed to him even absent a
    request.

[160]

In these circumstances, trial counsels failure to request the
    information does not outweigh its materiality with respect to the impeachment
    of Deidre Jarvis. The appellant has established that the non-disclosure caused trial
    fairness to be compromised, and his right to make full answer and defence,
    breached.

disposition

[161]

For these reasons, I would allow the conviction appeal and order a
    new trial. It is therefore unnecessary to consider the appeal against sentence.

Released: DW May 6, 2020

David Watt J.A.

I agree. B.W. Miller
    J.A.

I agree. Fairburn J.A.

[1]
The appellant pleaded guilty to both counts of failure to comply
    with a recognizance. Those convictions are not under appeal.