COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. A.L.,

2020 BCCA 18

Date: 20200120

Docket: CA45690

Between:

Regina

Respondent

And

A.L.

Appellant

Restriction
on publication:  Section 16(4) of the
Sex Offender Information and
Registration Act
[
SOIRA
]. This section provides that no person
shall disclose any
information that is collected pursuant to an order under
SOIRA
or
the fact that
information relating to a person is collected under
SOIRA
.

A publication ban has been mandatorily
imposed under s. 486.4 of the
Criminal
Code
restricting the publication, broadcasting, or transmission in any
way of
evidence that could identify a complainant or witness under the age of 18.
This
publication ban applies indefinitely unless otherwise ordered.

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 16, 2018 (conviction) (
R. v. A.L.
, New Westminster Docket No. X080226).

Counsel for the Appellant:

T.C. Paisana

M. Shah

Counsel for the Respondent:

M.E. Sandford, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

April 18, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 20, 2020

Written Reasons by:

The Honourable Mr. Justice
  Fitch

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

Summary:

Appeal from conviction for sexual assault‑related offences
and one count of uttering a threat. The offences involved one complainant
and were alleged to have been committed over a period of approximately 30 years.
The complainant was left with the appellant when she was eight years old
and entirely dependent on him. The complainant testified
that she was subjected to physical, emotional and sexual abuse
by the appellant which began shortly after she was left in his care. The
appellant testified. He denied abusing the complainant when she was a
child but admitted to having sexual intercourse with her after she turned
15 years of age (the age of consent was 14 at the
material time). The appellant acknowledged that he began having sexual intercourse
with the complainant when she was in a relationship of dependency with him. He
nonetheless characterized as consensual all sexual contact he had with the
complainant. The complainant had four children by the appellant, the first
when she was 15 years of age. The Crown was permitted to lead
evidence of acts of extrinsic misconduct by the appellant, including in
relation to matters predating the start date of the indictment. The
defence unsuccessfully sought to adduce, both in the cross‑examination of
the complainant and as part of its case, a sexually explicit video depicting
the appellant and complainant engaging in a variety of sexual acts. The appellant
advances three grounds of appeal. He alleges that the trial judge
erred in: (1) admitting evidence of extrinsic misconduct
and failing to provide a sufficient instruction on the limited use
the jury could make of bad character evidence; (2) failing to
instruct the jury that a finding of guilt on one count had no probative value
in relation to the other counts; and (3) excluding the video
evidence. Held: Appeal dismissed. First, the evidence of
extrinsic misconduct was admissible to put the relationship between the
appellant and complainant in context and explain why the complainant stayed
with the appellant for as long as she did without disclosing the abuse to
anyone. Having regard to the charge as a whole, the jury would have understood
the limited use that could properly be made of the bad character evidence.
Second, while it may have been preferable for the trial judge to have
given an express instruction that a finding of guilt on one count
had no probative value in relation to any other count, nothing the
judge said in her charge would convey to the jury that proof of guilt
on one count could substitute as evidence constituting proof of guilt
on another count. Indeed, the manner in which the jury was instructed
guarded against such impermissible reasoning. Finally, the Crown conceded
that the trial judge erred in her articulation of the Seaboyer test
in her first ruling that excluded clips from the video for cross‑examination purposes.
Properly applying the Seaboyer test to the circumstances of this case
would, however, lead to the same conclusion. The video was not shown to have
any probative value in cross‑examining the complainant. Even if the
video had some limited probative value for cross‑examination purposes,
it was substantially outweighed by the prejudice that would flow from its
admission. The judges second ruling excluding the video as part of the
defence case was not affected by error in principle. The judges
determination that the limited probative value of the video was
substantially outweighed by its prejudicial effect is therefore entitled
to deference on appeal. The appellant established no grounds for
interfering with that discretionary determination.

Table of Contents

I. Introduction

[1] -
  [12]

II. The Indictment

[13] -
  [13]

III. Detailed Overview of the Evidence and
  Rulings Challenged on Appeal

[14] -
  [127]

1. The complainant
  is left in the appellants care at the age of eight

[14] -
  [16]

2. Sexual assaults preceding the start date of the indictment

[17] -
  [18]

3. Sexual offences
  alleged to have occurred during the time frame specified in the
  indictment

[19] -
  [60]

4. The
  appellants unsuccessful attempts to have the video admitted at trial

[61] -
  [71]

5. The
  first ruling prohibiting the appellant from using the video in cross‑examining
  the complainant (
Voir Dire
#1)

[72] -
  [79]

6. The evidence of the complainants mother

[80] -
  [80]

7. The appellants evidence‑in‑chief

[81] -
  [92]

8. The
  admissibility
voir dire
and second ruling excluding the
  video (
Voir Dire
#2)

[93] -
  [102]

9. The appellants evidence on cross‑examination

[103]
  - [115]

10. Closing addresses

[116]
  - [127]

(a) The
  appellants trial counsel

[116]
  - [121]

(b) Crown counsel

[122] - [127]

IV. The Grounds of Appeal

[128]
  - [128]

V. Analysis

[129]
  - [275]

1. Did the trial
  judge err in admitting evidence of extrinsic misconduct and by failing
  to provide a sufficient limiting instruction with respect to that evidence?

[129]
  - [185]

(a) The
  appellants position

[129]
  - [132]

(b) General principles

[133]
  - [142]

(c) Improper
  admission of the pre‑indictment sexual misconduct

[143]
  - [161]

(d) Improper
  admission of bad character evidence in relation to the charged counts

[162]
  - [171]

(e) The
  charge on the use the jury could make of the bad character evidence

[172]
  - [185]

2. Did
  the trial judge err in failing to instruct the jury that a finding of guilt
  on one count had no probative value to the other counts?

[186]
  - [197]

(a) The
  appellants position

[186]
  - [189]

(b) General principles

[190]
  - [191]

(c) Analysis

[192]
  - [197]

3. Did the trial judge err in excluding the video?

[198]
  - [275]

(a) The
  appellants position

[198]
  - [207]

(b) The Crowns position

[208]
  - [214]

(c) Analysis

[215]
  - [275]

(i) Factual
  context informing the admissibility rulings

[215]
  - [218]

(ii) Legal context informing the admissibility rulings

[219]
  - [236]

(iii)
Voir Dire
#1:
  The admissibility ruling for cross‑examination purposes

[237]
  - [260]

(iv)
Voir Dire
#2: The
  ruling on the admissibility of the video as part of the defence case

[261]
  - [275]

VI. Conclusion

[276] - [276]

Reasons for Judgment
of the Honourable Mr. Justice Fitch:

I.   Introduction

[1]

The appellant was convicted by a jury of a number of sexual assault‑related
offences and one count of uttering a threat to cause bodily harm. The
offences were alleged to have occurred between January 4, 1983 and
July 1, 2012. All of the offences were committed in relation to the
same complainant, who was left in the appellants care by her mother
when she was eight years old. The appellant is 19 years older
than the complainant. It was common ground at trial that, as a child, the
complainant was entirely dependent on the appellant for the necessities of life.

[2]

The complainant testified that the appellant began sexually assaulting
her very shortly after she was left in his care. She described being
subjected by the appellant to terrorizing acts of abuse designed to
compel her compliance with his sexual demands. She testified that she gave
in to those demands largely out of fear.

[3]

The appellant testified at trial. He denied sexually abusing the
complainant when she was between the ages of eight and 14.
He admitted, however, having what he described as consensual sexual intercourse
with her when she was 15 and he was 34 years of age.
At all material times, the age of consent was 14. The appellant
admitted that when the first act of sexual intercourse occurred, he
was a person with whom the complainant was in a relationship of dependency.

[4]

The appellant impregnated the complainant when she was 15 years old.
She gave birth to their first child in 1990, about a month before she turned 16. It
was an admitted fact at trial that in 1993, 1998 and 2000,
the complainant gave birth to three other children fathered by the
appellant.

[5]

For a significant period of time, the appellant falsely
represented to others that he was the complainants father, not the father
of her four children. Similarly, the complainant did not tell anyone that
the appellant was the father of her children for a long time.
She presented the appellant as her own father throughout her childhood and
adolescent years. It was only later in life that she began presenting the
appellant as her husband.

[6]

The complainant lived with the appellant for 30 years. She left him
in 2012 when she was almost 38 years of age. Shortly
thereafter, she reported to the police what she said had happened to her.

[7]

The Crown led evidence of a number of disreputable acts committed by the
appellant  most of them in the early years of the
relationship  to secure and maintain the complainants subservience
and submission to his sexual desires. This bad character evidence included
acts of domination and physical assault designed to instill fear,
acts of humiliation designed to undermine the complainants self‑worth
and independence, and acts involving the emotional manipulation and abuse
of the complainant.

[8]

In addition, the bad character evidence adduced by the Crown
included three instances of sexually assaultive behaviour by the appellant
in the fall of 1982, a few months
before
the time period covered by the
indictment.

[9]

Against this background, the appellant submits as his first ground of
appeal that the trial judge erred: (1) by admitting bad character evidence; and (2) by
failing to provide to the jury a sufficient limiting instruction regarding the
use that they could properly make of this evidence.

[10]

The appellants second ground of appeal is that the judge
erred: (1) by failing to instruct the jury not to use the evidence on
one count to assist in proving guilt on another count; and (2) by
failing to warn the jury that a finding of guilt on one count
could not be used as evidence of guilt on another count.

[11]

The appellants third ground of appeal challenges rulings
made by the judge in which she refused to admit a DVD created by the
appellant and complainant depicting explicit sexual conduct between
them. In the court below, the DVD was referred to as the sex tape.
I will refer to it throughout these reasons as the video. The video was
created when the complainant was approximately 20 years of age.
It was said by the defence to depict an act of consensual sexual intercourse
during the time span covered by Count 5 of the indictment. The judge
made two rulings on this issue. The first prohibited the appellants trial counsel
from cross‑examining the complainant on the contents of the video.
The second prohibited introduction of the video as part of the defence case
during the examination‑in‑chief of the appellant.

[12]

Some additional background is required to put the appellants
grounds of appeal in context.

II.  The Indictment

[13]

The appellant was charged in a six‑count indictment as
follows:

Count 1

(Sexual Assault)
 That
between the 4th day of January, 1983 and a day in July 1988, at
Surrey, British Columbia and Red Deer, Alberta, he sexually assaulted
the complainant contrary to s. 246.1 of the
Criminal Code
,
R.S.C. 1970, c. C‑34 and R.S.C. 1985, c. C‑46. [
Section 246.1
came into force on January 4, 1983, the start date of this count.
The time frame encompassed by the count ends the day before the
complainants 14th birthday. The age of consent throughout this time frame
was 14. As the complainant was between the ages of eight and 13
when this offence was alleged to have been committed, consent was not a defence.
];

Count 2

(Sexual Interference)
 That
between the 1st day of January, 1988 and a day in July 1988,
at Surrey, British Columbia, he touched the complainant, a person
under the age of 14, for a sexual purpose contrary to s. 140
of the
Criminal Code
, R.S.C. 1987, c. 24, s. 1. [
Section 140
came into force on January 1, 1988, the start date of this count.
The complainant was then 13 years of age. As with Count 1,
the time frame encompassed by this count ends the day before the
complainants 14th birthday
.
Consent was not a defence.
];

Count 3 (Sexual Exploitation)
 That
between a day in July 1988 and a day in July 1992, at Maple Ridge
and Surrey, British Columbia, while being a person in a position of trust
or authority towards the complainant (a young person) or person with whom the
complainant is in a relationship of dependency, he touched the complainant for
a sexual purpose contrary to s. 146(1)(a) of the
Criminal Code
,
R.S.C. 1987, c. 24, s. 1 and s. 153(1)(a) of the
Criminal
Code
, R.S.C. 1985, c. 19 (3rd Supp.), s. 1. [
Section 146
came into force on January 1, 1988. Section 153 came into force
on December 12, 1988, in identical terms. At all material times young person
was defined to mean a person between 14 and 18 years of age.
The time frame encompassed by this count begins the day the
complainant turned 14 and ends the day before she turned 18. Consent
was not a defence.
];

Count 4 (Sexual Assault)
 That
between a day in July 1988 and the 14th day of August, 1992, at
Maple Ridge and Surrey, British Columbia, he sexually assaulted
the complainant contrary to s. 246.1 of the
Criminal Code
,
R.S.C. 1970, c. C‑34 and R.S.C. 1985, c. C‑46 and
s. 271 of the
Criminal Code
, R.S.C. 1985, c. C‑46
and R.S.C. 1985, c. 19 (3rd Supp.), s. 10. [
Section 246.1
was in force until December 12, 1988, the date upon which s. 271
came into force in identical terms. The time frame encompassed by this
count begins the day the complainant turned 14 and ends the day before
s. 273.1 (defining consent) came into force
.
Consent and honest
but mistaken belief in consent were defences to this count. With the agreement
of the parties, honest but mistaken belief in consent was not left with the
jury as a defence to this count.
];

Count 5 (Sexual Assault)
 That
between the 15th day of August, 1992 and the 1st day of July, 2012,
at Maple Ridge, British Columbia and at Ancaster, Ontario, he
sexually assaulted the complainant contrary to s. 271 of the
Criminal Code
,
R.S.C. 1985, c. C‑46. [
The time frame encompassed by
this count begins the day s. 273.1 (defining consent) and s. 273.2
(defining the defence of mistaken belief in consent) came into force and ends
the day after the complainant left the appellant. Consent and honest but
mistaken belief in consent were defences to this count and both were left with
the jury.
];

Count 6 (Uttering Threats to Cause Death or
Bodily Harm)
 That between the 1st day of July, 1987 and the 1st day
of November, 1989 at Surrey, British Columbia he knowingly uttered a
threat to the complainant to cause her death or bodily harm contrary to
s. 264.1(1) of the
Criminal Code
, R.S.C. 1985, c. C‑46.

III. Detailed
Overview of the Evidence and Rulings Challenged on Appeal

1.  The
complainant is left in the appellants care at the age of eight

[14]

The complainant was born in 1974 and lived with her mother and two older
brothers in Toronto, Ontario. The appellant had a sexual relationship
with the complainants mother in Toronto in the late 1970s and early 1980s
before he moved to Alberta to secure work. He knew the complainant when she was
a toddler. The complainants mother gave birth to her third son in
1981. She claims that the appellant is the father of this child.

[15]

The complainants mother and four children visited the
appellant in Red Deer, Alberta in the summer of 1982 when
the complainant was eight years old and between Grades 2 and 3.
It was common ground at trial that, after this visit, the complainants mother
left the complainant and her one‑year‑old half‑brother
in the appellants care. The complainant remembered begging her mother not
to leave her behind, but recalled coming home from school one day and
realizing that her mother was gone. She testified that [t]hats when it
changed. She never lived with her mother or her two older brothers
again.

[16]

A representative of the Child Welfare Branch of Alberta Social Services
and Community Health had contact with the appellant in Red Deer in October 1982.
The appellant claimed at that time to be the father of the complainant and her half‑brother.

2.  Sexual
assaults preceding the start date of the indictment

[17]

The Crown led evidence from the complainant of the three incidents
pre‑dating the January 4, 1983 start date of Count 1
of the indictment in which the appellant sexually assaulted her. The Crown
characterized these incidents as grooming behaviour by the appellant.

[18]

The complainant testified that the first time the appellant
sexually touched her was about a week after her mother had left Red Deer.
This would have been in the late summer or early fall of 1982.
On this occasion, the complainant testified that the appellant dried her after
she had a bath by rubbing a towel in between her legs. She felt that
the touching was wrong and testified that the appellant told her not to say
anything to anyone about it. Not long after this incident, the complainant
testified the appellant became angry with her for drawing a picture that said
she loved her mother and brothers, but did not say the same about him. She
testified the appellant pulled her pants down and spanked her before proceeding
to caress her bum for a few minutes. The third incident occurred when the
complainant was in Grade 3 in the fall of 1982. The complainant
testified that she was scared of the dark, but that the appellant did not allow
her to have a night light. When the complainant became frightened of the
dark one evening, the appellant said she could come into his bedroom where
there was some light. The complainant testified that she knew what this
meant but was so scared of the dark that she got into his bed. He
spooned her and she could feel the bulge of his penis against her lower
backside as he pushed against her.

3.  Sexual offences
alleged to have occurred during the time frame specified in the indictment

[19]

Sometime after Christmas of 1982 (and after the start date
of the indictment), the complainant remembered waking the appellant up
because it was dark, she heard a noise in the house and became frightened.
The appellant was angry and made her pull her bottom clothing off and
put on her infant half‑brothers diaper. She cried and asked
him not to make her do that because she felt humiliated to be forced to wear a diaper
when she was nine years old. She testified that the appellant told
her she could take the diaper off if she got into bed with him. When she did
this, he put his hand on top of her vagina. She said it felt gross, dirty,
degrading and wrong. She testified that touching incidents like this occurred a
few times a month while she lived with the appellant in Red Deer.
The appellant told her not to tell anyone about these incidents, that she was
asking for it, and that no one would believe her if she said anything. The
complainant testified that she felt scared and dirty.

[20]

In addition to the sexual touching, the complainant testified that while
she lived in Red Deer, the appellant treated [her] like a nothing.
He pinched her below her waist, and threw his construction boots at her
causing bruises that were covered by her clothing. She also testified that
he instructed her to keep her head down when walking with him and slapped her
in the head when she did not comply.

[21]

The complainant testified that she was instructed by the appellant to
call him Dad and to adopt his last name. She was not permitted by him to
participate in extracurricular school activities, nor was she allowed
to have her friends over. She testified that the appellant made her cut her
beautiful long hair into a mushroom cut like a boy and wear
homely looking clothing instead of the dresses she wore when she was
with her mother.

[22]

The appellant relocated from Red Deer to Vancouver,
British Columbia in the summer of 1983 when the complainant was
nine years old. The complainant testified that the appellants
sexually abusive behaviour escalated after this move. He masturbated
in her presence and would guide her hand on his penis until he ejaculated. He
told the complainant to perform oral sex on him. He ejaculated once in the
complainants mouth but she gagged. On future occasions, he usually
ejaculated on her chest or back.

[23]

After the move to Vancouver, the complainant would
occasionally see her mother and brothers. She testified that the
appellant always accompanied her on these visits. Both of the complainants
older brothers testified that during these visits the appellant never left
the complainants side or let her have time alone with them.

[24]

On one occasion after the move to Vancouver, the appellant, who was
under a blue blanket but otherwise naked, made a gesture the complainant
interpreted as a request for oral sex. When the complainant ignored him,
the appellant said to her, [D]o you want to see your mom? The complainant
said Yes and testified that she knew what she would have to do. She said she
performed oral sex on the appellant who then put his penis between her
legs. She said she then got to see her mother.

[25]

The complainant testified that there was only one occasion on which she
refused to perform a sexual act requested by the appellant. This incident
occurred in Vancouver. The complainant was between the ages of nine and 12.
She testified that the appellant became enraged by her refusal, drove her
to a secluded area, told her to get out and take her pants off, and
then drove away. She remembers screaming hysterically. The appellant
returned sometime later. She said she never refused the appellant after
this incident because she was terrified and look what happened [after] the
first time I said no.

[26]

The complainant testified that the sexual abuse escalated again
around the time of her 12th birthday. She asked to see photographs of her
mother and brothers. The appellant told her he would permit it if he could
put it in. The complainant knew this meant penile penetration
but agreed to the act because she wanted to see the photographs. She testified
that the appellant pulled her legs apart, got on top of her and
thrust his penis into her vagina. The complainant remembers screaming in
pain and bleeding everywhere. She said he permitted her to see the photographs afterwards.

[27]

The complainant testified that the appellant continued to have sexual
intercourse with her after this incident but used Vaseline as a lubricant. The
appellant told the complainant that she wanted these acts to occur, that
everyone would think so, and that she should not tell anyone because she would
not be believed. The complainant said she was repeatedly told this and that it
was a notion burned in [her] head.

[28]

She testified that the sexual assaults committed thereafter
generally consisted of oral sex and penetration. If the appellant had
vaginal intercourse with her, he would ejaculate on her chest or back.
If the appellant had oral sex with her, he would sometimes ejaculate in her mouth
and give her a towel to spit it out and clean up.

[29]

When the complainant was 11½ or 12, the appellant told her
that she would start having her menstrual period. The complainant already
knew this. The appellant said he would buy her tampons. He did so and left them
in the bathroom for her.

[30]

The complainant testified that the visits with her mother and two older
brothers stopped after an incident in which the appellant made her call her
mother and say that she hated her and did not want to see her again. The
complainant, who was 12 or 13 years old at the time,
remembers the appellant coaching her through the conversation. After this
conversation, the complainant did not see or speak with her mother for 25 years.

[31]

The complainant said that the appellant also isolated her from others.
She was not allowed to play with school friends unless the appellant
permitted it and was still not allowed to engage in extracurricular activities.
On one occasion, where a school friend surprised her with birthday gifts,
the appellant made her get rid of them.

[32]

While the complainant did have a Big Sister for a while, the
appellant wanted her to take her half‑brother to these get‑togethers.
The Big Sister explained that she was not a babysitting service and
the relationship came to an end. The complainant testified that she never told
her Big Sister what was happening to her because she was ashamed, made to feel
dirty and did not want her Big Sister to think badly of her. She thought
that no one would believe her.

[33]

The complainant said she continued to dress in boyish clothes and
keep her hair short because the appellant wanted her to look that way. She
said he controlled her appearance and dress.

[34]

The appellant, complainant and her half‑brother moved to Surrey,
British Columbia in the summer of 1987 when she turned 13. The
appellant was then 32 years of age. She testified that vaginal
penetration or oral sex would occur about once a week in the living room
or the appellants bedroom. She never said no to the appellant during this
time noting, I learned from [the] last time.

[35]

The complainant testified that she was not allowed to use the phone or
leave the house, other than to go to school. Around this time, the appellant
told her to start calling him Sweetheart, but only when the two of them were
alone together.

[36]

The complainant testified that, after the move to Surrey, she discovered
a note on the door when she came home from school one day. She did not
read the note, but the appellant did when he got home from work. The appellant
reacted very angrily to the note and muttered something about Child Services
under his breath. Without explanation, he loaded up the car and drove the
children to a hotel. The complainants half‑brother was sent off to play.
The appellant told the complainant they were going to stay in the hotel room
and play strip Go Fish. Every time the complainant won, she
had to take some of her clothing off. When all of her clothes were off, the
appellant threatened to put her out in the hall where someone could attack her.
She cried and begged the appellant not to do so. He then had sexual intercourse
with her and calmed down.

[37]

When the complainant was 15, the appellant took a urine sample
from her to test and told her she was pregnant. The appellant instructed her to
tell teachers and counsellors that she had been impregnated by a boy from
another school.

[38]

Just before Christmas in 1989, when the complainant was 15 years old,
pregnant and in Grade 9, they moved to Maple Ridge, British Columbia.
The appellant continued to regularly engage in vaginal and oral sex with
the complainant.

[39]

The complainant testified the appellant became increasingly jealous
and possessive of her. On one occasion, the appellant saw her with a boy.
When she got home, the appellant screamed at her that if she talked to the boy
again he would kill him, cut her breasts and put a knife towards her vagina
(this incident forms the basis of Count 6  uttering a threat to
cause death or bodily harm). On another occasion, when the
complainant complimented a male neighbour on his new hairstyle, the
appellant became irate, confronted her in a narrow hallway and punched a
hole in the wall next to her face.

[40]

The evidence of a school counsellor in Maple Ridge was adduced by
way of an admission. She remembered the complainant being pregnant while in
Grade 9 or 10. She recalled the complainant wearing baggy clothing
and no makeup. The complainant had plain hair and the counsellor
described her appearance as almost like a Hutterite, Amish‑type, cultish look.
The complainant did not have any friends. Unusually, despite the fact that she
was pregnant, the counsellor had no contact with any member of the
complainants family.

[41]

The complainant testified that when she went into labour in June 1990,
the appellant dropped her off at the hospital and left. An emergency Caesarean section
was required. Consent to the procedure was given by the appellant on the
telephone who identified himself as the complainants father, not the
father of her child. The appellant made it clear to her that he was not to be
named as the father on the birth certificate. Until 2012, the
complainant never told anyone in authority that the appellant was the father of
her children.

[42]

After giving birth, the complainant decided to create a pretend world
to protect her child from the crazy and chaotic situation the child
had been born into. When asked what this pretend world meant in terms of
her relationship with the appellant, the complainant answered this way:

Pretend World means you give in to
doing what he says to make things okay. I at that point  I
submitted, I -- I became the wife so my kids would be
happy, and my kids could have what they wanted, and I could protect [her first
child] that way and made Pretend World to make it right for them, not for
me.

[43]

In cross‑examination, the complainant elaborated that the
pretend world was about keeping up appearances and ensuring that
her children were safe and not burdened with what she described as the
disgusting truth of how they came to be.

[44]

The appellant resumed having sexual intercourse with the
complainant six weeks after she gave birth.

[45]

After giving birth to her first child, the appellant prohibited the
complainant from attending school. She stayed home and looked after her
child and half‑brother. She said the appellant continued to restrict her
freedom, including her ability to leave the house without him. Around this
time, the complainant testified that she made the first of several suicide attempts.
She recalled that on one such occasion, the appellant wanted her to call Poison Control
or the hospital when she had taken an overdose of prescription medication.
Despite giving this evidence, the complainant testified that [h]e didnt care.

[46]

Around this time, the appellant instructed the complainant to apply for welfare
and to report that the father of her child had been deported and was
unreachable.

[47]

The complainant gave birth to their second child in 1993. She
was 18 years old. Shortly thereafter, they moved to another community.
After this move, the complainant began telling most other people that the
appellant was her husband. She also began sleeping in the appellants bedroom.

[48]

In 1993 or 1994, while living at this location, the
appellant and complainant participated in the creation of the video. The
complainant disclosed the existence of this video in her preliminary inquiry evidence.
When asked in examination‑in‑chief about the contents of the video
and how it came into being, the complainant said this:

A          What happened? What happened? Im on top,
[the appellant] is on top; oral sex, that is whats going on, and hes filming
it. You do what youre told.

Q         What do you mean by that?

A          You do what he
told -- I did what he told me to do. He tells me to do something and I did it.
You dont question it. You just do it, so I did it. Thats what it means. You
just do it.

[49]

The complainant gave birth to their third child in 1998
when she was 23 years old. She gave birth to their fourth child in 2000
when she was 25 years old. The complainant testified that the
appellants name is not on any of his childrens birth certificates.
She said he made sure he was not identified as their father. The birth
certificates of the third and fourth children were entered as
exhibits at trial. The appellants name does not appear on either of these
birth certificates.

[50]

The appellant and complainant moved frequently in the years they spent together,
including to Ontario. The complainant testified that this would occur when
questions were asked by neighbours as to the nature of the relationship
between them.

[51]

The complainant testified that the appellant continued to have sexual
intercourse with her after the children were born. She said that in her mind
she never consented to having sexual relations with him. She never told him
No. She said that after she told him no once as a child and was forced to
undress before being abandoned on a rural road, she just gave in. This
exchange then occurred between the complainant and Crown counsel:

Q         What do you mean you gave in?

A          Continued on with
the pretend world, and thats part of the pretend world. You just submit. You
give in. You dont make waves. Do what youre told. Do what youre groomed.
Everybodys safe. You say no, I learned from the past you dont say no.

[52]

The complainant testified that even in their later years together,
the appellant objected to her working outside the home. He undermined her in
front of the children by telling them that their mother loved working more
than she loved them.

[53]

When the appellant found out she had taken a job over the Christmas season
selling perfume to male customers, he grabbed her by her shoulders and
shook her. He told her (falsely) on Christmas Eve that he had not
purchased any gifts for the children. This caused the complainant to lose it.
She took the Christmas tree and all the decorations down. When she
sought to blame the appellant in front of the children for ruining Christmas,
he produced gifts for the children making the complainant look like the crazy one.

[54]

The complainant testified that when she went back and obtained her high
school diploma, the appellant would not let her attend the graduation ceremony.

[55]

The complainant left the appellant on one occasion for a number of
weeks between 2008 and 2011. She said she returned at the appellants urging.
She testified that she felt weak and hated herself for doing so. In cross‑examination,
she described the control the appellant had over her as an invisible cord.

[56]

She left the appellant for good on June 30, 2012. She provided
a statement to the police on August 8, 2012. She testified that she
sought the assistance of a divorce lawyer, but was unable to explain to
him the background of her relationship with the appellant.

[57]

The complainant was cross‑examined on why she did not disclose the
sexual abuse at an earlier time to others, including her mother and a school counsellor.
She said that she was afraid to do so and feared that she would not be
believed.

[58]

The complainant was also cross‑examined on the three incidents
that were alleged to have occurred before the start date of the indictment  the
inappropriate touching of the complainant while drying her off after she had a
bath, the spanking and bum fondling incident, and the spooning incident
that occurred when the complainant got into bed with the appellant because she
was afraid of the dark. It was pointed out to the complainant that while she
mentioned these incidents to the police, she did not convey to them the
sexualized version of these events she related at trial. The complainant
was also cross‑examined on her failure to tell the police about the
humiliating diaper incident, the repeated pinching and sexual
touching she says occurred in Red Deer, or the sexual assault she
said occurred in the hotel.

[59]

The inconsistencies between the complainants trial testimony and
statement to the police became an important component of the defence theory
that she was reimaging past events through the lens of a failed relationship
and that her testimony was unreliable.

[60]

In cross‑examination, the complainant objected to the use of the
word relationship to characterize the years she spent with the appellant.

4.  The
appellants unsuccessful attempts to have the video admitted at trial

[61]

When it became apparent towards the end of the cross‑examination
of the complainant that the appellants trial counsel (not counsel before
us on appeal) was setting up equipment to play the video, Crown counsel
advised the judge that he had not seen the video and suggested that it be
played in the absence of the jury in the event the Crown determined to contest
its admissibility. Defence counsel advised that the video was 54 minutes long
and that he only wanted to show part of it in his cross‑examination of
the complainant.

[62]

When the judge asked the purpose for which the video would be used,
trial counsel submitted that cross‑examination should be permitted on the
narrow grounds that it would contradict the complainants trial evidence
that there was no kissing whatsoever [and] no affection whatsoever in
this entire relationship. He submitted that the complainant testified at trial
that she was never able to kiss the appellant throughout the course of their
relationship and that the video would show her evidence on this point to be
fundamentally untrue. Counsel advised that, thats  the only
reason why I want to use it.

[63]

In fact, the complainant had
not
testified at trial that she had
never kissed the appellant or that there were no moments of affection between
them. The essence of the complainants evidence is that she learned to submit
to what the appellant wanted for her physical and mental well‑being and
for the emotional well‑being of the children.

[64]

The judge declared a
voir dire
to assess the prejudicial effect
of the proposed evidence as against its probative value. She was right to
do so:
R. v. Osolin
, [1993] 4 S.C.R. 595 at 671672.
Trial counsel did not ask the judge to defer consideration of her residual discretion
to exclude this evidence until a later point in the complainants cross‑examination.

[65]

Trial counsel advised that he had a full transcript of the
contents of the video and acknowledged that he could put the transcript to the
complainant. He said, that may solve the problem.

[66]

Trial counsel said he wanted to play two brief clips from
the video in cross‑examining the complainant. When the judge asked what
she was being asked to look for in assessing the probative value of the video clips,
defence counsel responded, [t]he kissing, the affectionate kissing.

[67]

In the absence of the jury, and following an order excluding the public,
the video clips were played for the judge. As the complainant testified in‑chief,
the video clips depict the appellant and complainant actively engaged in
oral sex and vaginal intercourse. The video clips also
depict the appellant and complainant kissing. The appellants trial counsel
also noted that it was the complainant who eventually turned off the camcorder.

[68]

The judge pointed out that the complainant had not testified at trial
that she never kissed the appellant. The appellants trial counsel then
agreed that this was so, but noted that the complainant had testified at the preliminary inquiry
that she was unable to bring herself to kiss the appellant. This
alleged inconsistency had
not
been put to the complainant at the time of
the
voir dire
. Trial counsel said he would be laying the
foundation for cross‑examination of the complainant on this point. He did
not do so. The complainant was never confronted in cross‑examination with
evidence she gave at the preliminary inquiry that she was unable to bring
herself to kiss the appellant.

[69]

The appellants trial counsel said he was going to ask the
complainant a bunch of questions about the video. He said, I dont need
any video for that. He said that if her evidence contradicted what
was depicted on the video, he might want to use it to undermine the
complainants credibility. He also submitted that the video depicted
a very different relationship from the one the complainant described in
her testimony. He submitted that the video reflected the existence of a
romantic relationship characterized by both affection and passion. He
suggested that the video contradicted the complainants refusal to even
acknowledge there was a relationship between them. Finally, the appellants
trial counsel submitted that the video clips demonstrated that the
complainant enjoyed having sexual relations with the appellant, at least
on that occasion. He suggested that the complainant had testified at trial that
she never experienced or acknowledged any physical pleasure associated
with having sexual intercourse with the appellant. In fact, the complainant
had
not
been asked about this and had
not
given this evidence at
the time of the first
voir dire
.

[70]

Crown counsel submitted that the complainant had not been
contradicted on her preliminary inquiry evidence that she was unable
to bring herself to kiss the appellant. The Crown also submitted that the
probative value of the video was minimal given: (1) the
uncontested fact that the appellant and complainant had engaged in frequent
sexual relations over many years; and (2) the
complainants evidence that she submitted to the appellant and had never said
no to him since she attempted to defy him as a child and was subjected to
terrorizing acts in order to overcome her resistance. By contrast, the Crown
submitted that the prejudicial effect was extremely high as showing the video
in front of the jury would have a significant deleterious impact on the
complainants dignity and privacy interests. In the alternative, and
to balance the appellants interests against those of the complainant, the
Crown suggested that an agreed statement of facts might be
prepared describing what the video depicts and that this might obviate the
need to show it to the jury.

[71]

The appellants trial counsel countered that the video was
critical to the defence and that he would not willingly participate in the
presentation of an agreed statement of facts. He reiterated that
prejudice to the complainants interests would be attenuated because all
he wanted to show was the kissing that accompanied the sexual acts
depicted on the video.

5.  The
first ruling prohibiting the appellant from using the video in cross‑examining
the complainant (
Voir Dire
#1)

[72]

The judge, who had a jury waiting and was required to rule on this issue
with no notice and little time for reflection, framed her ruling by
identifying what was at issue  the admission of two clips from
the video in the cross‑examination of the complainant. The judge was
aware that the appellant might seek to introduce the entirety of the video
later in the trial but noted that that is not before me now in this
application. She acknowledged that due consideration had to be given to the
fair trial rights of the appellant and to the prejudice that would flow
from admission of the video clips in the cross‑examination of the
complainant. After referring to
Osolin
at 671 for the proposition
that, as a general rule, a complainant may be cross‑examined for the
purpose of eliciting evidence pertaining to credibility when the probative
value of that evidence is not substantially outweighed by the danger of unfair
prejudice which may flow from it, the judge ruled as follows:

[5]        In my view  the evidence here is highly
prejudicial and has a shock value that cannot be ignored. It is that shock
value that causes me great concern and as such I am exercising my discretion
not to permit the proposed clips to be played during her cross‑examination
in the manner proposed. Having considered the authorities and the submissions
here,
I am not satisfied that playing of the video is necessary in the
manner suggested by counsel. The object he wishes to pursue can be obtained as
effectively without the shock value through cross‑examination about the
tape as it could be by playing a degrading and highly prejudicial video
recording
capturing a moment in time between the complainant and the
accused.

[6]        Simply put,
I am not satisfied that the defence
has met its burden here, that the probative value outweighs the prejudice and I
am dismissing the application to put the proposed clips to the complainant at
this stage.

[Emphasis added.]

[73]

The Crown concedes that the judge erred in her concluding articulation
of the test by putting the burden on the defence to establish that the
probative value of the evidence outweighs its prejudicial effect. It
is well‑established that defence‑led evidence should only be
excluded where its prejudicial effect substantially outweighs its probative
value:
R. v. Seaboyer
, [1991] 2 S.C.R. 577 at 611.
The test applies to the admission of defence evidence and  as here  to
questions put to a complainant in cross‑examination for impeachment purposes:
Osolin
at 671672;
R. v. Shearing
, 2002 SCC 58 at paras. 107109.

[74]

When cross‑examination of the complainant recommenced, she was
asked whether there was any change in the relationship over time and
whether it became an affectionate or romantic one. The appellants trial counsel
put it to her that it certainly seemed like there was such a change. The
complainant answered this and related questions in the following way:

Yes, sir. One,
I just want to make it clear again, and Im not arguing with you whatsoever, I
dont like the term relationship. I feel thats a different word. But to
answer your question, once I submitted into pretend world, you do to portray to
the outside world and to my children a  relationship of what they
thought it would be. If I -- as long as I behaved, as long as the children needed
things, and to have their life the way it is, you portray a pretend world.

I stated that
pretend world was when my child was born that to maintain sanity for myself and
for my children  I sacrificed my life to live in a crazy world to
make sure my children didnt have to be a part of it.

It is youre good, he rewards you like
a dog rewards -- you behave you dont get beat. You get a treat.

[75]

The complainant testified that she had been instructed by the appellant
to display affection towards him in front of the children. She did so. The
appellants trial counsel asked the complainant whether she had given
evidence at trial that she could not bring herself to kiss the appellant
(she had
not
). The following exchange occurred:

Q         Okay. And so did you -- didnt you
say to my friend when inquiring that you couldnt actually kiss [the appellant]
based on everything that he did? Just couldnt actually kiss him at all? Thats
what you said.

A
Willingly, no, sir. No. Was I forced
to? Yes.

Q
You were forced to kiss him?

A
Behind closed doors you were told you do
it. There are consequences, sir
.

[Emphasis added.]

[76]

The appellants trial counsel pursued in cross‑examination of
the issue of whether kissing occurred behind closed doors:

Q          I was asking before we broke about the
relationship between -- or interaction, to let me use your phrase,
between [the appellant] and you, and
I had suggested to you that you
found it difficult even to kiss him, and you agreed with me that you certainly
did; is that true?

A
Sir, I answered that question

Q
But there was never any kissing behind
closed doors between you and [the appellant]?

A          Sir, I --

Q         Is that true?

A
I told you I did what I was told when I
was told to do it. I dont know how else to answer that.

[Emphasis added.]

[77]

The complainant did not deny in cross‑examination participating in
the video and said that her participation and conduct reflected directions she
was given by the appellant before filming began. The complainant had no
recollection of what she said on the video, which was created about 24 years
before the trial. She did not, however, deny telling the appellant near the end
of the video that she liked it. She said she did so to get it over with
and to please him.

[78]

The following exchange about the video then occurred:

Q         I see. Okay. Well, let me just get right to
it, then.

A          Then lets do it.

Q         That tape does not reflect what you told this
jury in terms of --

A          Okay.

Q         -- the way it reflects --

A          Depending on which tape you have, sir.

Q         Well, you can -- Im happy to show
it.

A          No, thank you. I lived it.

Q         Okay. But it shows you being very affectionate
with [the appellant].

A          Okay.

Q
It shows you kissing him very
affectionately
--

A
Okay.

Q         --
over the entirety of the tape,
which is
--

A
Okay.

Q         -- 54 minutes long.

A          Really? Thats great.

Q         You are controlling everything.

A          Awesome.

Q         Hes doing what you want to do.

A          Yes, controllers tell you what to do.

Q
You told this jury a very different version
of the tape than what actually exists on the tape and
--

A
I did what he told me to do, sir.

Q
-- what actually exists on the tape is that
you are being very affectionate to
--

A
Yes, sir.

Q         -- him and controlling.

A          Yes.

Q
Hes serving you. Hes helping you.

A
Yes.

Q         Hes being nothing but respectful --

THE COURT:              Is there -- is there a
question in there? Theres -- youve said a number of things. Youve asked
her --

[Defence Counsel]:
Im just asking
--

A
And Im saying yes.

[Defence Counsel]:     -- and shes rejecting
me.

Q         Are you rejecting what I say?

A          I did the tape based on what he told me, sir.

...

A
I did what he told me. It showed -- it
shows that I did what exactly -- if that was too believable, then I
did what he told me to do, sir.

Q         Okay. Well --

A          If this is showing before the door, before
all this, what I was told to do beforehand, no, sir.
Am I saying did it
happen? Yes, sir. I am agreeing with you.

Q         Well, we have the -- we have a copy
of the tape.

A          Sir, I did what I was told. I was groomed. I
played the role of what I was told and groomed to do. I dont know what else to
say to you. I dont know what else to say to this court. I did what I was told
and what I was groomed to do as a child.

Q         Well, Im --

A          Yes. I said yes, theres a tape. Yes, I did
it. Yes, youve embarrassed me -- made me feel like dirt. Im saying
yes.

Q         What I say, what I suggest to you, is that the
tape actually portrays a different dynamic and that, in fact, this relationship
was quite different from what youve described, it was a consensual
relationship from 15 onwards, and you -- you wanted to have
these children --

A          Ha.

Q         You wanted these children --

A          Is he allowed to talk to me like that?

Q         Isnt that true?

A          That is enough. Enough.

THE COURT:              [Defence Counsel], what
Id like you to do --

A          Disgusting.

A           Im in pretend world. Okay? Im
explaining it again. I portrayed what was told and groomed, and Ive been
saying that since day one. I didnt want it.

Q         And later you may -- you came to
hate [the appellant] for it. I totally understand that. You may have hated
yourself for it. But that is the reality here. Thats the dynamic. Is that
true?

A          No. No.

[Emphasis added.]

[79]

I pause to make four observations about the cross‑examination
of the complainant on the video. First, the appellants trial counsel was
not prohibited from asking the complainant questions about the contents of the
video or what it depicted to lay the foundation for contradicting her evidence
and thereby impeaching her credibility and reliability. Second, trial counsel
was not prohibited from seeking to use a transcript of the video to cross‑examine
the complainant. Despite suggesting that use of the transcript might solve the
problem, trial counsel never sought to use the transcript in cross‑examination.
Third, the complainant did not deny any of the conduct the video was said
to depict, nor did she deny making any remark she was said to have made while
the video was being created. She acknowledged being an active participant  but
at his direction. As she put it, I did what he told me.  if that
was too believable, then I did what he told me to do, sir. Fourth, trial counsel
advised that the only reason he wanted to show the video to the complainant was
to demonstrate that her preliminary inquiry evidence about never
kissing the appellant was not true. Despite this stated purpose, the
complainant was never cross‑examined on evidence she gave at the
preliminary inquiry that she could not bring herself to kiss the
appellant. At trial, she did not dispute the proposition that she kissed
the appellant or that this was depicted on the video. Her evidence was that she
was groomed to have sexual intercourse with the appellant, that she
learned to submit to his wishes and that she did so unwillingly, including by
kissing him.

6.  The
evidence of the complainants mother

[80]

The complainants mother agreed that she left the complainant and her half‑brother
(whom she says is the appellants son) in the appellants care
because she did not have the means to take care of them. On subsequent visits,
she never saw either of the children when they were not in the appellants company.
She testified that after the visits stopped, she called the appellant on
one occasion and asked to speak to the complainant. The appellant said the
complainant was fat  which the mother understood to mean pregnant  and
had married someone from Saskatchewan. She agreed in cross‑examination
that the complainant never told her she was being sexually abused by the
appellant.

7.  The
appellants evidence‑in‑chief

[81]

The appellant confirmed that the complainant and her half‑brother
were left with him in Red Deer by their mother in the summer of 1982
when the complaint was eight years old. He did not ask for or want
the responsibility of caring for the two young children, but said he was
stuck with them.

[82]

The appellant testified that he never thought of himself as being the
complainants father.

[83]

He testified that the complainant became an independent young adolescent
who determined what she would wear and how she would style her hair. He denied
prohibiting her from seeing her friends. He testified that she had friends but
acknowledged that he never met any of them.

[84]

The appellant denied having any sexual contact with the complainant
when she was a child.

[85]

The appellant testified that their relationship changed after the
complainant turned 15 years old. He said that they started playing around
one day and they ended up having sexual intercourse on the couch. He
said that he had never before sexually touched the complainant and felt
worried and sick about it. He said the complainant became
pregnant as a result of this single act. The appellant wanted
her to have an abortion. She did not believe in abortion and wanted to keep the
child. In his examination‑in‑chief, the appellant relied on the
complainants assertion of her wishes in this regard to show that now
shes in charge.

[86]

The appellant agreed that he dropped the complainant off at the hospital
before she gave birth to their first child. He went to work. He testified
that she had experienced a number of previous false alarms. He agreed
that he was subsequently contacted by the hospital and gave his consent on the
telephone to an emergency C‑section.

[87]

He denied telling the complainant not to go back to school after the
birth of their first child. He said she wanted to stay home to look after
the child.

[88]

The appellant testified that after the birth of their first child,
they became more like husband and wife and had regular sexual relations
which he characterized as being consensual. He said he came to love the complainant.
He said she wanted to have more children and did not believe in birth control.

[89]

The appellant said he found the video in a tool box in the garage
after he was reminded of it by the complainant during her preliminary inquiry testimony.
He said the video depicts the two of them having sexual intercourse,
and that while both of them participated in positioning the camcorder, she was
directing him. Beyond this, the appellant was not asked very much about the
contents of the video. He did not testify that the contents of the video would
contradict the evidence of the complainant on any specific issue.

[90]

The appellants trial counsel then sought to have the appellant
identify the video with the intention of having it admitted as an exhibit at trial.
The jury was excused. The Crown took the position that the video had already
been ruled inadmissible. The judge clarified that the ruling was limited to
whether excerpts of the video could be played during cross‑examination of
the complainant, but that no ruling had been made as to its admissibility as
part of the defence case. The judge said she would declare a further
voir dire
to determine the admissibility of the video. The parties agreed to continue
with the evidence with submissions on the admissibility of the video to be
heard the following morning.

[91]

The appellant testified that at least some of the familys frequent
moves were at the complainants behest, explaining that, [she] gets what
she wants. He denied restricting her freedom. Indeed, he testified that she
took care of the houses, mail and their finances.

[92]

The appellant testified that he never threatened or physically assaulted
the complainant. He denied ever spanking her as a child.

8.  The
admissibility
voir dire
and second ruling excluding the video
(
Voir Dire
#2)

[93]

In her exchanges with the appellants trial counsel, the judge
appeared to accept that the evidence was relevant and material. She was clearly
focused on assessing the probative value of the evidence against its
prejudicial effect. In the absence of any real conflict between the
appellant and complainant about what was depicted on the video, she asked
why it was necessary to show it to the jury.

[94]

The appellants trial counsel submitted that there was a
fundamental conflict between what the video portrays and how the complainant
testified. He submitted that the complainant testified at trial that there was
no kissing in the relationship except in front of the children (she did
not
give this evidence). He argued that the complainant never testified that the
pretend world did not apply behind closed doors in her relations
with the appellant (she did
not
say this). As noted earlier, the
claimant testified that he told her what to do behind closed doors and she
complied with his wishes. Finally, the appellants trial counsel submitted
that the jury should be permitted to see the video to evaluate her evidence
that she never consented to sexual relations with the appellant. Relying
on
R. v. Nikolovski
, [1996] 3 S.C.R. 1197 at para. 28,
he argued that it was critical evidence depicting the commission of at least
one instance of the alleged crime.

[95]

The judge made a second order excluding the public and viewed the
entirety of the video.

[96]

The appellants trial counsel submitted that the video ostensibly
showed consensual sexual relations between the appellant and the
complainant. He submitted that the complainants evidence on this point
completely misrepresented what was depicted on the video.

[97]

Crown counsel submitted that the complainants trial testimony
was not at all inconsistent with the contents of the video. In fact, the video
depicts what the complainant said it would. In the result, the Crown submitted
that the probative value of the video is minimal to none. The Crown
noted that, even on the appellants version of events, the video had been
created about five years after the appellant first had sexual intercourse
with the complainant. The complainant testified that she had long ago stopped
saying no and simply submitted to the appellant. The video depicts one sexual act
in the context of a 30‑year relationship. The Crown argued that the
video could not assist in showing what was in the complainant or the
appellants mind during the sexual encounter. The Crown submitted that
Nikolovski
had no value in assessing the admissibility of evidence of this kind in a
sexual assault trial where the issue was whether the judge should exercise her
residual discretion to exclude the evidence on grounds that its prejudicial
effect substantially outweighed its probative value. The Crown also
submitted that the video was extremely prejudicial. It was said to have
the potential to distort the truth‑seeking function of the trial by
confusing the issues of ostensible factual consent and legal consent. Most
significantly, the Crown submitted that admission of the video before the jury
would be an affront to the complainants dignity and violate her privacy
and equality rights. From the complainants perspective, the video depicts
one instance of the sexual abuse she had endured since she was a child.

[98]

In reply, the appellants trial counsel submitted that the video demonstrates
the existence of a loving relationship with actual emotional engagement
and mutual pleasure in sexual relations which is contrary to the evidence
given by the complainant.

[99]

In ruling the video inadmissible as part of the defence, the judge said
that her reasons should be read in conjunction with the reasons given on
Voir Dire
#1.

[100]

The judge
noted that the complainant appears to be an active participant on the
video and did not express, through words or conduct, resistance to the
activity. After reviewing the positions of the parties, the judge referred to
Seaboyer
and correctly stated the test she was obliged to apply  that the
prejudicial effect of the evidence must be shown to substantially outweigh
its probative value before a judge can exclude evidence tendered by the
defence. She also recognized that the concept of a fair trial embraces
other interests and perspectives beyond those of an accused person.
She said that the test she was obliged to apply engaged a balancing exercise
to ensure that the accuseds fair trial rights were protected while,
at the same time, recognizing the importance of the dignity and privacy
interests of the complainant.

[101]

Having framed the issue thus, the judge said this:

[36]
The difficulty with the DVD is that it does not
portray the inconsistency advanced by [the appellant]. Rather, the DVD portrays
what [the complainant] has already described in her testimony, both in direct
and cross‑examination. She says she had stopped saying no many years before
the DVD was created.

[40]      The issue of consent will be a live one for the
jury [on Counts 4 and 5]. However, it has been nearly 20 years since
the Supreme Court of Canada adopted the legal definition of consent that
rejects the stereotype that women who actually do not agree to the sexual
contact at issue will physically resist, and that those who fail to do so, in
fact, consented. The law is abundantly clear that the absence of protest on the
part of the complainant may be probative of nothing. Acquiescence is not
consent.

[41]      Having viewed the DVD and having considered the
evidence of [the complainant] and [the appellant], and having considered the
authorities relating to consent,
I agree with the Crown that the evidence
proffered has minimal, if any, probative value. That is simply because I do not
assess the images depicted in the DVD as being different from [the
complainants] testimony about its contents.

[42]      In this trial, she has remained consistent about
what is depicted on the DVD and, for the most part, she agreed in cross‑examination
with almost every proposition that was put to her by counsel about the content
of the tape. She testified she could not recall the statements she may have
made, but she did not deny them.

[43]      [The appellant] says that [the complainants] evidence
about the pretend world did not exist when it was just she and [the appellant]
behind closed doors. That is not how I take her evidence about the scope of the
pretend world, and she repeated that evidence in the context of a thorough
cross‑examination about the DVD.

[44]
I agree that the probative value of the DVD is
minimal. On the other hand, the prejudicial effect of the DVD is high for many
of the same reasons expressed in the first ruling regarding the DVD in the
cross‑examination of [the complainant]. The mischief with the DVD is that
it will distort the truth seeking function of the trier of fact. It adds only
the visual images to what has been described by [the complainant].
It is
explicit. It could be disturbing for some members of the jury, and it adds
nothing but a visual to what they have already learned about in this trial.

[45]
Finding the probative value of the DVD to be
minimal, if at all, and the prejudicial effect high, I find that the DVD to be
inadmissible in this trial.

[Emphasis added.]

[102]

The judge
subsequently made clear that her inadmissibility ruling regarding the
video also precluded the defence from adducing as evidence the audio portion
of the video.

9.  The
appellants evidence on cross‑examination

[103]

The
appellant agreed that he cared for both the complainant and her half‑brother
when they were left with him in Red Deer. When asked whether he took on
the role of single‑parent to both children, the appellant replied,
I guess. He agreed that the children were reliant on him for food,
clothing and shelter and that he was their sole caregiver. He acknowledged
that in Red Deer and Vancouver, both of the children were dependent on him
for support.

[104]

He claimed
to have no recollection of identifying himself to the Alberta child
services worker in 1982 as the father of both children.

[105]

He denied
ever coaching the complainant to say hurtful things to her mother that would
likely have the effect of fracturing their relationship. He testified that when
the complainant was about 13 years old, she decided to end her
relationship with her mother and two older brothers because she hated
them.

[106]

He denied
sexually touching the complainant before she was 15.

[107]

The
appellant was unwilling or unable to provide any significant details about how
he came to have sexual intercourse with the 15‑year‑old girl
he knew since she was a toddler and had raised since she was eight years old.
As he testified, they started playing around one day, had sexual intercourse
and thats all there is to it. When pressed as to who made the first move, he
testified that she started playing with him.

[108]

The
appellant testified that he knew it was wrong to have sexual intercourse with
the complainant when she was 15 years of age. He said he felt
guilty and sorry about what had occurred. He said he made a mistake and felt
sick about it. He said he did not have sexual intercourse with her again
until they discovered that she was pregnant.

[109]

When asked
why he felt it was a mistake to have sexual intercourse with the
complainant when she was 15, he initially replied, I dont have an answer for
you  on that. When pressed, the appellant testified that he felt it
was a mistake because it was a stupid thing to do because she was a young
girl. He agreed that he felt bad about it because there was a 19‑year age difference
between them. He also testified that he probably felt bad about it because he
had been taking care of her since she was eight years old.

[110]

Despite
his regrets, the appellant said he resumed having sexual intercourse with
the complainant between one and three months later, after learning
she was pregnant. He was unwilling or unable to provide specifics about the
second occasion upon which he had sexual intercourse with the
complainant. He testified that after learning she was pregnant, he wasnt
worried about having sex with her because the damage was done.

[111]

The appellant conceded that the complainant was entirely dependent on
him when he first had sexual intercourse with her:

Q         -- at the time you first have that sex
with her?

A          Yeah.

Q         Shes 100 percent dependent on you?

A          Yeah.

Q         For her life, do you agree with that?

A          Yes.

Q         You bought her food, right? You bought her
clothes?

A          Thats right.

Q         She wasnt working?

A          No.

Q         She lived with you?

A          Thats right.

Q         There were no adults in the -- other adults in
the house?

A          No.

Q         She didnt even have a drivers licence at the
time?

A          No, she didnt.

Q         If she needed to go somewhere, you drove her?

A          Yeah, on the weekends, yeah.

Q         At that time youd agree with me she -- theres
no way she could live without your support?

A          Thats right.

Q         She didnt have --

A          She had no choice.

Q         Her mother was not in the picture?

A          Not -- not in the picture, no.

Q         In your words, she had no choice --

A          Thats right.

[112]

The
appellant agreed that he provided consent to the complainant undergoing a C‑section
when their first child was born. He agreed that he must have identified
himself as her father. When asked whether he viewed himself at the time as the
complainants father, he said [m]aybe I did and I dont recall.

[113]

The
appellant testified in cross‑examination that he considered the
complainant to be his wife when she was 16 years old. He said he had
nothing to hide. He testified that the complainants half‑brother must
have known they were conducting themselves as husband and wife
because they were sleeping together at the time. He denied ever telling the
complainants half‑brother that the four children in the house were
not his.

[114]

The
complainants half‑brother was called by the defence at trial.
He was brought up believing that the appellant was his father and the father of
the complainant. He described the appellant as the father figure in the
house. He never asked the complainant who fathered her first child. He testified
that when the complainant was in her late teens or early 20s, she
seemed to take on more of  a wife role and would display affection
and use terms of endearment when referring to the appellant in his presence.
This evidence was generally confirmed by the complainants first child who
also testified that she was the boss in the household.

[115]

The complainants
half‑brother testified that later in life, and in the course of an
argument, he asked the appellant if the four children borne by the complainant
were his. The appellant said they were not. The complainants half‑brother
moved out shortly after this conversation.

10. Closing addresses

(a) The
appellants trial counsel

[116]

Defence counsel
submitted to the jury that the fact the complainant never said anything to
anyone about what the appellant was doing to her was a factor telling against
her credibility.

[117]

He
submitted that if the jury rejected some portion of her evidence or found that
she was prone to exaggeration, it should raise a reasonable doubt about her
credibility and reliability generally.

[118]

To
illustrate the point, defence counsel relied on the fact that the
complainant did not tell the police that the three pre‑indictment incidents
she testified to at trial had an ov
ertly
sexual component to them. Her failure to do so was said to negatively impact on
her entire narrative. Indeed, defence counsel submitted that her
failure to make complaint to the police about the sexually‑assaultive nature
of these three pre‑indictment incidents was key to understanding the
appellants position that the complainant was an untrustworthy witn
ess.

[119]

Defence counsel
did not expressly concede in his closing submissions to the jury that the
appellant was guilty on Count 3. He acknowledged, however, that the
appellant was in a
de facto
step‑parent relationship
with the complainant when she was left in his care and at material times
thereafter. He conceded that the relationship started in a very inappropriate
and wrong way and said the appellant admitted as much. Indeed, he
conceded that the appellant was in a position of authority over the complainant
when they first had sexual intercourse. He submitted to the jury that the
relationship became normal over time and that by the time the sexual activity
underlying Counts 4 and 5 occurred, the complainant consented to that
activity and her consent was not vitiated by threats or fear of the application
of force or the exercise of authority (s. 265(3)(b) and (d)) or
induced by the abuse of a position of trust, power or authority (s. 273.1(2)(c)).

[120]

With
respect to the video, defence counsel reminded the jury that it was 54 minutes
in length and depicted what the appellant said it depicted and what the
complainant refused to accept  the existence of a consensual sexual relationship
between them after she turned 15 years of age.

[121]

Defence counsel
submitted that all of the counts were interlinked and that the case turned on
the jurys assessment of the complainant and appellants credibility based
on the entirety of the evidence.

(b) Crown counsel

[122]

Crown counsel
emphasized in his closing address that the appellant refused to concede in
his evidence what was admitted by his counsel in closing submissions  that
he assumed the role of the complainants step‑father and had sexual
intercourse with her when he was a person with whom she was in a relationship
of dependency. The Crown acknowledged that the jurys verdict would
turn on their assessment of the credibility of the complainant and appellant.
He characterized the appellants evidence as nonsensical, evasive and
untruthful. He submitted that the appellant took steps to conceal that he was
the father of the complainants children, choosing instead to describe
himself as her father. He suggested that the complainants first pregnancy
was not the result of a single act of sexual intercourse, but the
inevitable outcome of the appellants decision to engage the complainant in
sexual intercourse throughout her childhood and into her teenage years.

[123]

Crown counsel
submitted that the complainants failure to mention the sexualized details
of the three pre‑indictment incidents was attributable to the
fact that these events occurred 30 years ago when she was a child and
that, as she testified, she was not ready to share certain incidents with the
police.

[124]

The Crown submitted that the complainants decision to submit to
the appellants sexual desires and not tell anyone what was happening to
her was explained by his abusive behaviour towards her. As the Crown put
it:

Put yourself
in the shoes of a little girl, eight years old, abandoned by her
mother, to live with a man she barely knows. This man starts sexually abusing
her right away. At the same time, he humiliates her, he degrades her. When she
refused to engage in sex, he drives her to the middle of nowhere and leaves her
out in the cold, no pants on [indiscernible]. He tells her over and over again No
one is going to believe you. Dont tell anyone because if you do, people are
going to think you wanted it.

He does all this to destroy her self‑esteem
and make her feel guilty and ashamed. It works. She learns her lessons and
adapts her behaviour. She submits. She doesnt say no anymore. At the age of 12,
the last lifeline to her old life is gone, she has no family, no friends, no
support, her entire world is the accused and he made it that way. She is at his
mercy. Also at the age of 12, as Ive described, he forced
intercourse on her for the first time and the sex becomes routine. She told you
she feels dirty, ashamed, disgusted, but she submits because she does not have
any other choice. On one occasion the accused tells her that he saw her with a
boy. He becomes enraged and threatens her. She testified she told you she
became terrified as a result of that incident, thought he could be everywhere.
Remember, this is just a young girl, 13 years old, around -- around
that age. She learns her lesson, dont make him angry, especially when it comes
to other boys.

[125]

With
respect to Count 4, the Crown submitted the complainant did not voluntarily
agree (consent) to have sexual relations with the appellant. In the
alternative, the Crown argued that no consent in law was given because the
complainant submitted to the appellants demand by reason of threats or fear
of the application of force to her or the exercise of authority: s. 265(3)(b) and (d).

[126]

With
respect to Count 5, the Crown submitted the complainant did not
voluntarily agree (consent) to have sexual relations with the appellant.
In the alternative, the Crown argued that no consent in law was given because
the complainant submitted to the appellants demand by reason of threats or fear of
the application or of force to her or the exercise of authority (s. 265(3)(b) and (d))
or because the appellant induced her to engage in sexual activity with him by
abusing a position of trust, power or authority: s. 273.1(2)(c). As was
recently noted in
R. v. Snelgrove
, 2019 SCC 16 at para. 3,
inducing consent by abusing the relationships set out in s. 273.1(2)(c)
does not imply the same kind of coercion contemplated by s. 265(3)(d) of the
Code
which speaks to consent obtained where the complainant submits or does not
resist by reason of the exercise of authority. The Court in
Snelgrove
adopted the observations of Justice Doherty in
R. v. Lutoslawski
,
2010 ONCA 207 at para. 12 that, [a]n individual who is in
a position of trust over another may use the personal feelings and confidence
engendered by that relationship to secure an apparent consent to sexual
activity.

[127]

With the
agreement of counsel, the jury was instructed on honest but mistaken belief and
consent in relation to Count 5 only.

IV. The Grounds of Appeal

[128]

Against this background, the appellant advances three grounds of appeal
which he frames as follows:

1.   The trial
judge erred in admitting evidence of extrinsic misconduct and in failing to
provide a sufficient limiting instruction on bad character evidence;

2.   The trial
judge erred in failing to instruct the jury that a finding of guilt on one
count had no probative value to the other counts; and

3.   The trial judge erred in excluding
the video.

V.  Analysis

1.  Did
the trial judge err in admitting evidence of extrinsic misconduct and by
failing to provide a sufficient limiting instruction with respect to that
evidence?

(a) The
appellants position

[129]

The
appellant takes issue on appeal with the admission of bad character
evidence. His submission on this issue has three prongs.

[130]

First, he
submits that the judge erred by admitting evidence of the three uncharged
sexual assaults said by the complainant to have occurred in the pre‑indictment period  the
toweling, caressing and spooning incidents.

[131]

Second, he submits that the judge erred by admitting general bad character
evidence bound up with sexual assault allegations covered by the
indictment. The appellant refers, in particular, to evidence elicited by the
Crown from the complainant that he:

·

physically
abused and dominated her;

·

undermined
her self‑worth by forcing her to walk with her head down;

·

isolated
her from family and friends;

·

interfered
with the complainants relationship with her Big Sister by telling
her to take her half‑brother with her to these get‑togethers;

·

forced
her to wear plain clothes and made her cut her hair in
an unfashionable style when she was a young woman;

·

did
not mentally prepare the complainant for her menstrual cycle but, instead,
simply bought her tampons and left them in the bathroom;

·

was
jealous and possessive of the complainant and became angry with her when she
attracted even the most innocuous form of male attention;

·

dropped
her off at the hospital before she delivered their first child and left her
there alone;

·

undermined
her in front of their children, particularly when she attempted to assert her
independence, including by working outside the home; and

·

was uncaring when she attempted to commit suicide.

[132]

Third, the
appellant submits that even if all or part of this evidence was properly
admitted, the judge failed to: (1) identify for the jury the bad character
evidence in issue; (2) adequately instruct the jury on the limited use
that could be made of this evidence; and (3) adequately instruct
the jury on the prohibited uses of this evidence.

(b) General principles

[133]

With one exception,
the Crown and defence agree on the general principles governing the admissibility
of bad character evidence at the behest of the Crown. Indeed, those
principles are well‑established in the law.

[134]

The
exception is this  the Crown and defence disagree on whether the bad character evidence
adduced by the Crown (or at least some of it) was admissible as evidence
probative of the appellants disposition to do the very things alleged in the
indictment. Relying on
R. v. Batte
(2000), 145 C.C.C. (3d) 449
at para. 102 (Ont. C.A.), the Crown says the evidence was admissible
for this purpose. The appellant argues that for the extrinsic misconduct
evidence to be admissible on this basis, it must meet the test for the
admission of similar fact evidence set out in
R. v. Handy
,
2002 SCC 56.

[135]

This issue
was not argued at trial. Further, I consider the Crowns position on
appeal to be inconsistent with the position it took in the trial court. I
note, in this regard, that the Crown emphasized the importance of the limited
use instruction in relation to the bad character evidence to guard
against prohibited propensity reasoning.

[136]

In any
event, I do not consider that we need to resolve the controversy in this case.
For reasons I will develop, the bad character evidence was admissible
to assist the jury in comprehending the nature of the relationship between the
complainant and the appellant, how it developed, and why it persisted for as
long as it did. It was also admissible to assist the jury in understanding why
the complainant did not disclose at an earlier time what she says happened
to her. Further, the jury was not invited by the judge to engage in propensity
reasoning in relation to this evidence. Indeed, they were specifically
cautioned against concluding that because the appellant may have engaged in
wrongdoing in the past, he is the kind of person who would have committed the
crimes charged. In these circumstances, the issue that divides the parties is
best left to another day.

[137]

I turn now
to summarize the legal framework about which there is no dispute.
Evidence of an accuseds bad character that shows
only
that he is
the type of person likely to have committed the offence(s) charged is
inadmissible. Bad character evidence may, however, be admissible at
the behest of the Crown where it is relevant to a material issue at trial
other than the accuseds character, and its probative value outweighs its
prejudicial effect:
R. v. B. (F.F.)
, [1993] 1 S.C.R. 697
at 730731;
R. v. G. (S.G.)
, [1997] 2 S.C.R. 716
at paras. 6365.

[138]

The rule
of presumptive inadmissibility recognizes the risks inherent in the
admission of evidence demonstrating an accuseds bad character: namely,
moral prejudice and reasoning prejudice. The trier of fact may assume,
from its acceptance of the evidence of extrinsic misconduct, that the
accused is a bad person more likely to have committed the offence(s)
charged or worthy of punishment for those uncharged acts (moral prejudice).
Alternatively, evidence of this kind may confuse the trier of fact or, worse yet,
distract the trier of fact from its main duty and tempt them to
substitute their conclusion on the extrinsic misconduct for their verdict
in respect of the charges set out in the indictment (reasoning prejudice):
R. v. J.A.T
., 2012 ONCA 177 at paras. 5152.

[139]

As the
appellant concedes, evidence of extrinsic misconduct may be admitted by
exception in cases of this kind to demonstrate a system of control over others
that could explain why the abuse occurred and continued unreported,
or as part of the narrative to provide necessary context for subsequent events:
B. (F.F.)
at 732;
R. v. F. (D.S.)
(1999), 132 C.C.C. (3d) 97
at paras. 22, 26 (Ont. C.A.);
R. v. R.O.
,
2015 ONCA 814 at paras. 16, 18, 25. In
F. (D.S.)
,
the court noted that in cases involving allegations of sexual abuse in the
course of an ongoing relationship, courts have frequently admitted evidence of
discreditable conduct to assist the trier of fact in understanding: (1) the
nature of the relationship between the parties and the context in which the
alleged abuse occurred; and (2) why the complainant did not
leave the relationship or report the abuse at an earlier time,
particularly where the complainants failure to so act is (or will be) relied
on by the defence to undermine her credibility: see also
J.A.T.
at para. 54.

[140]

Further,
in spousal and sexual assault cases, it is not uncommon for extrinsic
misconduct evidence to be led concerning events that predate the allegations
set out in the indictment: see
F. (D.S.)
at paras. 2526;
R. v. R. (B.S.)
(2006), 212 C.C.C. (3d) 65 at
para. 38 (Ont. C.A.).

[141]

A judge
presiding over a criminal trial exercises a gatekeeping function to
ensure that only relevant, material and admissible evidence goes before
the jury. Where bad character evidence is admitted for limited purposes,
it is generally understood that the judge should instruct the jury about the
permitted and prohibited uses of that evidence. Although an instruction to this
effect has occasionally been characterized as being mandatory (
R. v. Ball
,
2019 BCCA 32 at para. 91) or obligatory (
J.A.T.
at para. 50),
in some narrowly defined circumstances the instruction has been found to be
unnecessary: see, for example,
R. v. Beausoleil
,
2011 ONCA 471 at para. 28, where there was no realistic
potential for misuse of the bad character evidence;
R. v. C.B.
,
2008 ONCA 486 at para. 20; and
R. v. M.T.,
2012 ONCA 511

at para. 88. In
Batte
at paras. 113114, no
error was found in non‑direction on this issue in part because a limiting instruction
would inevitably have highlighted a significant body of bad character evidence
and operated against the appellants interests.

[142]

With these
principles in mind, I turn to consider the three prongs of the appellants submission.

(c) Improper
admission of the pre‑indictment sexual misconduct

[143]

The appellant submits that the three pre‑indictment events
testified to by the complainant created significant moral and reasoning prejudice
that exceeded its probative value. He argues that there is a danger the
jury would engage in prohibited propensity reasoning and conclude that it
was more likely he committed the sexual assaults with which he was charged
because he had sexually assaulted the complainant in the past. He submits
that it is not mere speculation to conclude that the introduction of this
evidence caused reasoning prejudice. He notes, in this regard, that the
jury asked this question in the course of their deliberations:

If [the] Red Deer events may have
occurred prior to Jan[uary] 1, 1983, can we count them as evidence?

[144]

The
appellant also submits that evidence respecting these three incidents,
alleged to have occurred just months before the start date of Count 1, was
not essential to explain the relationship or the context in which the abuse
allegedly occurred.

[145]

I am not
persuaded by these submissions.

[146]

It does
not appear from the record before us that the Crown alerted the judge to its
intention to elicit this evidence from the complainant. As evidence of this
kind is presumptively inadmissible, the Crown ought to have done so and,
if the admissibility of the evidence was at issue, obtained a pre‑trial ruling
on the point.

[147]

I am
satisfied, however, that the evidence was admissible for the purposes
identified. On the complainants evidence, these three early acts of
grooming marked the commencement of a series of continuing sexual assaults
of escalating severity that culminated in the appellant engaging in sexual intercourse
with her when she was 12 years old. On the complainants evidence,
the acts were designed to accustom her to giving over her physical and
sexual integrity to the appellant. If the complainants evidence was
accepted, these acts could also be viewed as acclimatizing her to physical abuse
(spanking followed by sexual touching) and emotional abuse (requiring
her to sleep in the appellants bed and experience his sexual arousal
rather than giving her a night light in her own room) in conjunction
with sexual touching. Finally, on the complainants evidence, these acts,
and what the appellant said to her in committing them, reinforced with her at
an early age that she should not tell anyone what was happening to her.
These three acts provided important contextual background for the
jurys evaluation of the charged conduct. Collectively, they were highly probative
of trial issues put in play by the defence  specifically, why the
complainant did not resist the appellants conduct captured by the time frame
of the indictment and why she did not tell anyone about these incidents.

[148]

I see
little potential for undue moral prejudice flowing from the admission of this
evidence. This is not a case in which the Crown sought to tender discreditable
conduct evidence from a witness other than the complainant. Further, if the
jury did not accept the complainants evidence about the charges, they
were unlikely to have been swayed by the additional pre‑indictment evidence
of discreditable conduct: see
F. (D.S.)
at para. 33.

[149]

In
addition, the extent to which the introduction of this evidence truly risked
moral prejudice must be assessed in the context of the appellants admission
at trial that he began having vaginal sexual intercourse with a 15‑year‑old
dependent girl with whom he stood
in loco parentis
 an
egregious act he admitted knowing was morally wrong. In light of the
conduct admitted by the appellant at trial, it cannot reasonably be suggested
that he was prejudiced by the admission of evidence concerning these three comparatively
less serious pre‑indictment events. In any event, it is my view that
any moral or reasoning prejudice flowing from this evidence could be contained
by an appropriate instruction.

[150]

While this
is sufficient to dispose of this aspect of the appellants first ground
of appeal, I note that the appellants trial counsel did not object
to the introduction of this evidence. While failure to object to the admission
of evidence may be a relevant factor, it is not necessarily a determinative one.
The gatekeeping function of trial judges is such that they have a duty to
vigilantly assess and exclude inadmissible evidence regardless of the positions
taken (or not taken) by counsel:
Ball
at para. 89;
R. v. Fierro
,
2013 BCCA 436 at para. 19.

[151]

At the
same time, and absent an allegation of ineffective assistance by trial
counsel (no such allegation has been made on appeal), failure to object may
signal more than simple resignation that objection to the admission of the
evidence would be pointless. The failure to object may point to the existence
of tactical reasons that motivated counsel to remain silent at the time
the evidence was tendered.

[152]

If the
circumstances support an inference that trial counsel made a tactical
decision not to contest the admissibility of evidence at trial, this
Court should be slow to intervene where doing so facilitates a second kick at
the can on appeal following adoption of a different and ultimately
unsuccessful trial strategy:
R. v. Calnen
, 2019 SCC 6
at paras. 44, 67, 70.

[153]

I note, in
this regard, that the judge asked trial counsel during a break in the
complainants examination‑in‑chief (and in the absence of the jury)
whether he had any objection to the Crown tendering certain exhibits. The
inquiry, although directed to another issue, was made immediately after the
complainant had given evidence about the three pre‑indictment incidents.
Defence counsel raised no concern about the admissibility of this
evidence. Indeed, in responding to the judges question about the
introduction of certain exhibits, he said, I havent objected, and  you
dont need to call on me because weve obviously discussed all this. The only
concern defence counsel raised was with the Crown leading the witness.

[154]

The
complainant gave evidence at the preliminary inquiry. It was never suggested
that her preliminary inquiry testimony was inconsistent with the
evidence she gave at trial about these three incidents. The issue pursued
on behalf of the appellant in cross‑examination was that the complainants
trial testimony respecting the pre‑indictment conduct of the
appellant was inconsistent with the statement she had given to the police.

[155]

I infer from
all of this that the appellants trial counsel was not taken by surprise
by the complainants testimony concerning these three incidents. I am
satisfied that trial counsel was not in the position of having to deal as
best he could with unanticipated allegations of pre‑indictment
sexual misconduct. Nor is the failure to object in this case properly
characterized as passive inadvertence: see
R. v. Barton
, 2019 SCC 33
at para. 48. Rather, I infer that defence counsel knew the
complainant would testify at trial as she did and considered that cross‑examining
her on inconsistencies between her trial evidence and her statement to the
police was an important way in which her credibility and reliability might be
undermined in relation to the allegations before the court.

[156]

The
complainant was, in fact, extensively cross‑examined on her failure to
tell the police the sexualized versions of these three incidents she
related at trial.

[157]

In his
closing address, defence counsel emphasized that her failure to do so
undermined her entire version of events and was a critical component of
the theory of the defence that the complainant was an untrustworthy witness.

[158]

When the
jury returned with their question (the use, if any, they could make of the Red Deer
incidents that predated the indictment), defence counsel reminded the
judge that he used the pre‑indictment incidents to undermine the
complainants credibility. He agreed that the jury should be instructed that
they could consider the pre‑indictment incidents as part of the
narrative, to assess the complainants credibility, and to put her evidence in
context.

[159]

In the
course of dealing with another question from the jury, Crown counsel made
further submissions on the response that had been given to the first question.
He asked the judge to consider repeating the instruction she gave the jury in
the main charge on the limited use they could make of the bad character evidence
with specific reference to the pre‑indictment incidents. Defence counsel
said he was somewhat persuaded by the Crowns suggestion that the
discreditable conduct warning be repeated in the context of the pre‑indictment incidents,
but pronounced that he was content with the way in which the issue had been
dealt with in the main charge and suggested that the judge, [j]ust keep [the charge]
the way it was. In the end, the judge supplemented her answer to the first question
in a further instruction which directed the jury to consider the instruction
given in the main charge on the limited use that could be made of the pre‑indictment
bad character evidence.

[160]

I am
prepared to draw two additional inferences from the course of the
proceedings in relation to this issue. First, the appellant wanted the
complainants evidence concerning the three comparatively less serious pre‑indictment incidents
before the jury because it was inconsistent with what she told the police. This
inconsistency provided useful fodder for cross‑examination. It was said
by trial counsel to be the key to the appellants effort at trial to
undermine her credibility.

[161]

Second,
the appellants trial counsel was not concerned about the risk of moral prejudice
stemming from the admission of this evidence. When the opportunity arose, he
did not seek a further direction linking the limited use instruction given in
the main charge to the pre‑indictment incidents. In short, the appellant
made a strategic decision not to object to the admission of this evidence, but
to use it to undermine the complainants credibility. He should not be
permitted to resile from that position now and argue, for the first time on
appeal, that the evidence should never have been admitted.

(d) Improper
admission of bad character evidence in relation to the charged counts

[162]

The
appellant submits that it is not clear why the jury needed to hear evidence
about acts of physical abuse alleged by the complainant or evidence
respecting the degree to which he controlled her life. He submits that this
evidence was not necessary to explain the relationship between the parties, the
context in which the offences were committed, or why the abuse went unreported
for as long as it did. I respectfully disagree.

[163]

I note,
once again, that no objection was taken to the admission of any of this
evidence at trial.

[164]

At
paragraph 131 of these reasons, I have grouped and summarized the evidence
the appellant says on appeal should not have been admitted at trial.

[165]

Some of
the evidence to which objection is taken is not, in my view, properly
characterized as bad character evidence at all. That the appellant
let the complainant have a Big Sister was, if anything, suggestive of good character.
The evidence tended to undermine the testimony of the complainant that he
isolated her from adults to whom complaint might be made. Although it may have
been ill‑advised for the appellant to tell the complainant to take her half‑brother
with her when she visited her Big Sister, the jury could not reasonably
have regarded this as bad character evidence. The jury knew that the
appellant was working long hours and had no care plan for the
complainants half‑brother when she was out of the house. In the
context of the evidence as a whole, this incident was of no moment.

[166]

I say the
same about the appellants assertion that the complainants evidence concerning
her first menstrual period was led to portray him as being uncaring
and insensitive because he did not discuss it with her in advance. That was not
the complainants evidence. She testified that the topic was raised by him
and he left tampons for her in the bathroom. The jury could not reasonably
regard this as evidence of bad character.

[167]

The
alleged acts of physical and emotional abuse and the control the
complainant said the appellant exercised over her, particularly in her
formative years, was important contextual evidence probative of central issues
in the case  including why the complainant said she submitted but did not
consent in her own mind to having sexual relations with the appellant, and
why she did not report what was happening to her for so many years. I
say the same about evidence respecting the appellants jealous rages and
threats he directed at the complainant. Again, this evidence was probative of
the complainants fear of the appellant. She testified that she submitted
to the appellants sexual demands, remained in the relationship and
did not report the abuse to anyone because she was fearful of the
consequences of doing so and taught that no one would believe her account.

[168]

The Crown
led evidence of two additional incidents that, in my mind, have
somewhat less probative value. As noted earlier, the complainant testified that
the appellant directed her to commit welfare fraud when she was 15 years old.
In addition, the complainant testified that the appellant was uncaring about
her first suicide attempt. This evidence was not, however, devoid of
probative value. Like much of the other impugned evidence, it illustrated
the degree of control the appellant exercised over the complainant as an
adolescent. It was contextual evidence the jury could use in determining
whether behavioural patterns established when the complainant was a child and
adolescent were characteristic of the relationship and persisted as the
complainant became an adult.

[169]

Further,
as noted earlier, the risk of moral prejudice that could reasonably be
said to have arisen from the introduction of this evidence paled in comparison
to the appellants admission that he began having regular sexual intercourse
with a 15‑year‑old girl who was dependent on him as a
surrogate parent, and that he continued to have sexual intercourse
with her (despite knowing it was wrong) after she became pregnant and after she
gave birth to their first child.

[170]

Crown counsel
made extensive reference to the body of extrinsic misconduct evidence in his
closing address, but confined his submissions to the permissible reasons for
which the jury could use this evidence (see, for example, paragraph 124 of
these reasons).

[171]

In my
view, this evidence was admissible. The risk of moral and reasoning prejudice
was attenuated by the nature of the appellants admissions and, in my view,
could be contained by an appropriate limiting instruction. It is to that issue
I now turn.

(e) The
charge on the use the jury could make of the bad character evidence

[172]

The judge instructed the jury on the permitted and prohibited uses of
the bad character evidence in the following passage:

Discreditable conduct

During the
trial you heard some evidence from [the complainant] that [the appellant]
spanked, pinched and hit her when she was a child. I will now explain to you
how you may and may not use this evidence. You have heard this evidence because
it would have been impossible for the Crowns case to be presented in an
understandable way if this evidence was not heard. The evidence may not have
made sense. You can use this evidence only to put the events in context and to
help you understand what happened in this case. You can use it for no other
purpose.

I will now
explain why you may not use this evidence for any other purpose. Ordinarily in
a criminal trial the Crown cannot lead evidence of wrongdoing as evidence that
the accused committed the crimes of which the accused is charged. The Crown
cannot lead this kind of evidence because judges and juries cannot conclude
that because an accused may have engaged in prior wrongdoing, hes the kind of
person who could have or would have committed the crime with which he is now
charged. Judges and juries cannot use evidence of wrongdoing as evidence of
guilt in that way. We must rely on evidence that an accused committed the crime
charged with, not evidence that an accused may have done something else wrong.

Despite that rule, this evidence was
permitted to be heard as I have just explained for a different purpose only;
that is to put the events in context. You may not use the evidence for any
other purpose. In particular, you may not use the evidence to conclude that
[the appellant] is a bad person and so is more likely to have committed the
offence with which he is charged, nor may you use the evidence to punish [the
appellant] for any past misconduct.

[173]

With respect to the pre‑indictment acts of sexual misconduct
alleged by the complainant, the jury was instructed in these terms:

With respect
to Count 1, if you are satisfied beyond a reasonable doubt that [the appellant]
intentionally applied force in circumstances of a sexual nature and all of the
other elements have been proven beyond a reasonable doubt, including the fact
that at least one of the incidents took place in British Columbia, then you
must find [the appellant] guilty of Count 1. You heard [the complainant]
testify in general about multiple incidents of sexual conduct that occurred in
Red Deer, Alberta, Vancouver and Surrey, British Columbia. It is not
necessary that all allegations of sexual conduct be proven. One incident in
British Columbia proven beyond a reasonable doubt within the timeframe
alleged and at the place alleged is sufficient for Count 1.

I should tell you as well that you
heard [the complainant] testify about events occurring shortly after her mother
left Red Deer which would have been in 1982. [The appellant] is not charged
with any event that may have occurred before January the 4th, 1983.
As discussed in the Crown and defence closing statements, you may find that
these particular incidents are relevant as part of the narrative and relevant
to [the complainants] credibility, but they should not be relied upon to
convict.

[174]

When the jury asked whether the pre‑indictment events in Red Deer
could be counted as evidence, the judge provided this answer:

During this trial, you heard evidence
relating to events that occurred in Red Deer, Alberta, that occurred before
January the 4th, 1983. You can consider all of that evidence as
part of the narrative and as relevant to [the complainants] credibility, and
to put the evidence into context. However, as I have stated, to convict on
Count 1, you must be satisfied that the Crown has proven beyond a
reasonable doubt that an incident of sexual assault occurred after January 1, 1983
[
sic
] and before [a day in July] 1988, and at least one of those
events occurred in British Columbia.

[175]

At the Crowns request, the judge supplemented her initial response to
the jurys question by linking the limiting instruction on bad character evidence
to the pre‑indictment allegations:

I also want to say, with respect to
the first question that we answered -- or I answered earlier today. I remind
you about paragraphs 49 and 50 in the final written instructions
[paragraphs 49 and 50 of the written copy of the charge provided to
the jury are reproduced above at paragraph 172.] Again, Im not going to
reread those paragraphs to you. You have them. But you can take a look at
paragraphs 49 and 50 when you recommence your deliberations.

[176]

No
objection was taken to the instructions given on the limited use the jury could
make of the bad character evidence, including the evidence of misconduct that
predated the start date of the indictment.

[177]

For the
first time on appeal, the appellant asserts that the limiting instruction was
inadequate to alleviate the prejudice associated with this evidence. He argues
that the judge was obliged to identify all of the evidence to which the
instruction pertained (not just the spanking, pinching, and hitting incidents
when the complainant was a child) and explain to the jury its permitted and
prohibited uses. The appellant complains that the instruction highlighted
only a small fraction of the bad character evidence. He argues that
the jury may have understood it could use bad character evidence not
specifically mentioned by the judge however it wished.

[178]

I do not
agree with the appellants position on this point.

[179]

The
precise form a limiting instruction of this kind should take is a matter
of judicial discretion, shaped by the type and volume of the bad character evidence
admitted at trial, the prejudice that may be occasioned by a more detailed
instruction of the sort the appellant now says should have been given, and the
positions of counsel at trial. A judge is certainly not obliged to review every
instance of discreditable conduct when providing a limiting instruction of this
kind:
R. v. Owen
, 2015 ONCA 462 at para. 24.
In some circumstances, it may be inadvisable to do so.

[180]

While the
judge would not have been wrong to identify with greater particularity the
evidence to which the limiting instruction applied, such an instruction would
not have inured to the appellants benefit. The appellants trial counsel
recognized as much.

[181]

The
instruction the appellant submits on appeal should have been given would have
obliged the judge to highlight his highly abusive conduct, including how the
jury could use the complainants evidence that when she was between nine
and 12 years of age, he abandoned her after telling her to take
her pants off on a dark, rural road after she attempted to defy him. It would
also have obliged the judge to instruct the jury on the use they could make of
the complainants evidence that, when she was 15, he threatened to leave
her unclothed in the hallway of a hotel to coerce her into having sexual intercourse
with him.

[182]

Against
this background, it is not surprising that in one of the pre‑charge
conferences, trial counsel asked the judge to keep the facts to a
minimum in the charge to the jury.

[183]

The
failure to object on this basis, particularly in a case where counsel had been
provided in advance with a hard copy of the proposed charge, may speak to
the overall adequacy of the charge, the gravity of the alleged non‑direction,
and the assessment of trial counsel that the specific direction
sought for the first time on appeal would not have been in his or her clients
interests:
Calnen
at paras. 3841;
Barton
at para. 49.
In this case, the failure to object simply confirms my conclusion that the type
of instruction the appellant now says should have been given was unwanted at
the material time and would have been much more prejudicial to him than the
instruction that was given. I see no reviewable error on this issue.

[184]

Likewise,
while the judge could have said more about the permitted uses of the bad character evidence,
perfection is not the standard applied on appellate review:
R. v. Jacquard
,
[1997] 1 S.C.R. 314 at para. 2. Moreover, it is unlikely
that a more detailed instruction concerning the permitted uses of the evidence
would have been helpful to the appellant.

[185]

In any
event, I am satisfied from the instructions as a whole that the jury would have
understood the limited use that could properly be made of this evidence. I
am also satisfied that the instructions were adequate to convey to the jury the
use that could not be made of this evidence. For these reasons, I would not
give effect to this ground of appeal.

2.  Did
the trial judge err in failing to instruct the jury that a finding of guilt on
one count had no probative value to the other counts?

(a) The
appellants position

[186]

The manner
in which the appellant framed this ground of appeal in his factum
does not fully capture his position on this point. There are, in fact, two prongs
to this ground of appeal. The appellant submits that the judge erred: (1) by
failing to instruct the jury that they were not permitted to use evidence
admissible on one count to prove any other count; and (2) that
a finding of guilt on one count could not be used as evidence of guilt on
any other count.

[187]

The
appellant argues that if the jury accepted the complainants evidence
about the alleged sexual assaults from the time she was eight to 13 years old,
there was a real danger that the jury would engage in impermissible
propensity reasoning and conclude that he also sexually assaulted her when she
was an adult. The appellant submits that this risk was heightened by virtue of
the fact that he admitted having sexual intercourse with the complainant
when she was between the ages of 15 and 18 and when he was in a
position of trust or authority towards her. Although the appellants guilt on
Count 3 was not formally conceded in the trial court, the jury was
instructed that the appellant appears to admit that he was in a position of
authority to [the complainant], and she was in a relationship of dependency to
him in the time frame alleged in Count 3.

[188]

The
appellant submits on appeal that his evidence made a conviction on Count 3
inevitable.

[189]

Once
again, these objections to the charge are raised for the first time on
appeal.

(b) General principles

[190]

In cases
involving multiple counts
and multiple complainants
, the jury
should be instructed to consider each count separately and not to use evidence
on one count to prove any other count:
R. v. Rarru
,
[1996] 2 S.C.R. 165;
R. v. Thomas
, 2019 BCCA 247
at paras. 2932;
R. v. G.W.
, 2016 BCCA 510
at paras. 5052;
R. v. M. (B.)
(1998), 130 C.C.C. (3d) 353
(Ont. C.A.);
J.A.T.
at para. 55. The instruction is
designed to guard against the risk that the jury will use its acceptance of the
evidence of a complainant on one count to bolster their assessment of the
credibility of another complainant on another count.

[191]

Cases like
the one at bar involving multiple counts and allegations of long‑term abuse
in relation to
a single complainant
do not stand on the same footing and
do not necessarily require the same instruction. The risk that a complainants
evidence on one count will be bolstered by acceptance of the evidence of
different complainants on other counts does not logically arise in this
context. Further, in cases like the one at bar, the evidence will
often be common to all of the counts. The whole of the evidence may provide
important contextual evidence concerning the nature of the relationship, the
context in which the abuse was said to have occurred, and why disclosure was
not made at an earlier time. In these circumstances, instructing a jury to
consider each count separately and not to use evidence on one count to prove
any other count might well cause confusion or mislead the jury as to the nature
of its task:
R. v. Albert
(1996), 83 B.C.A.C. 119  at
para. 20, leave to appeal refd [1997] S.C.C.A. No. 205;
R. v. Sandhu
,
2009 ONCA 102

at paras. 1116;
R. v. N.T.
,
2011 ONCA 114 at para. 13.

(c) Analysis

[192]

This was a
case involving a single complainant and multiple counts. The evidence of
abuse on one count could not be compartmentalized as the appellant
suggests. That evidence provided important context for understanding the
dynamics of the relationship between the appellant and complainant over time.
The evidence of abuse, control and domination given by the complainant at the
time of the events underlying Counts 13 was relevant to and probative of
whether the complainant consented in law to the assaultive conduct underlying
Count 4, or whether any ostensible consent was vitiated either by reason
of threats or fear of the application of force or the exercise of authority. In
addition, the conduct associated with Counts 13 was relevant to and
probative of a critical question in relation to Count 5  whether no
consent in law to the sexual acts covered by this count was obtained
because the appellant induced the complainant to engage in the activity by
abusing a position of trust, power or authority that had been established
earlier in their relationship and continued to be operative at the relevant
time. In my view, this use of the evidence does not involve propensity
reasoning.

[193]

Against
this background, I am of the view that the judge was not required to instruct
the jury to consider each count as a separate silo informed only by the evidence
admissible on that count. In the context of this case, such instruction would
have been worse than confusing  it would have misled the jury. In
addition, such instruction would have been to the appellants detriment.

[194]

Again, the
appellants trial counsel recognized this to be the case. In his closing address,
counsel invited the jury to assess the credibility of the complainant against
the whole of the evidence. He suggested that if the jury found that the
complainant was being untruthful, inconsistent or prone to embellishment with
respect to one incident, it should affect their assessment of her credibility
as a whole. He submitted that inconsistencies in the complainants account,
including those already highlighted in relation to the pre‑indictment period,
undermined her reliability in relation to subsequent charged events. Similarly,
he submitted that weaknesses in the complainants evidence with respect to
events that occurred later in time undermined her credibility and the
reliability of her evidence in relation to earlier events that were the subject
of a count. In this way, the defence invited the jury to see all of the counts
as being interlinked, and to have a reasonable doubt based on the whole of
the evidence.

[195]

In this
context, it is not surprising that defence counsel did not object to the charge
on this basis. In addition to potentially undermining the defence strategy, an
instruction of the sort sought by the appellant for the first time on
appeal would necessarily have involved the repetition of evidence that
portrayed the appellant in a most unfavourable light. Such an instruction would
be contrary to trial counsels entreaty to keep the facts to a minimum. I
would not give effect to the appellants submissions on this issue.

[196]

I turn
next to the appellants contention that the trial judge erred by
failing to warn the jury that a finding of guilt on one count was not
evidence of guilt on another. While this ground of appeal was asserted by the
appellant in his factum, it was not developed either in writing or in oral argument.
Again, no objection to the charge was taken on this ground.

[197]

While it
may have been preferable for the trial judge to have given an express
instruction to this effect, I am not prepared to conclude that non‑direction
on this point constitutes reversible error in law. First, the
jury was properly instructed on the different elements of each of the offences
charged and the distinct factual and legal issues they would need to resolve
before convicting on any individual count. Nothing the judge said in her
charge would convey to the jury that proof of guilt on one count could
substitute as evidence constituting proof of guilt on another count.
Indeed, the structure of the charge stands against this reasoning. Second, although
said in the context of the use that could be made of discreditable conduct
evidence, the judges instructions on this issue made clear that [j]udges and
juries cannot use evidence of wrongdoing as evidence of guilt. In the face of
this warning against propensity reasoning, it is unreasonable to suppose that
the jury would regard a finding of guilt on one count as circumstantial
evidence of guilt on another count. Once again, no objection was taken to
the charge on this basis. In my view, defence counsels failure to object
speaks to the seriousness of the alleged non‑direction in this case:
Jacquard
at para. 38. I would not give effect to this ground of appeal.

3.  Did
the trial judge err in excluding the video?

(a) The
appellants position

[198]

In light
of the acknowledged error in principle in the ruling on
Voir Dire
#1
casting the burden on the defence to show that the probative value of the
evidence outweighed its prejudicial effect  the appellant submits
that the judges conclusion is not entitled to appellate deference.

[199]

In light
of this error in principle, the parties agree that this Court should apply the
test set out in
Seaboyer
and determine whether the video ought to have
been admitted at trial for cross‑examination purposes.

[200]

The appellant
argues that the video was relevant, material to the resolution of central
issues at trial, and not subject to an exclusionary rule. It was, thus,
presumptively admissible. It could only be excluded through the exercise of the
judges residual discretion not to admit the evidence on grounds that its
prejudicial effect substantially exceeded its probative value.

[201]

The
appellant submits that this case turned on the jurys assessment of the
credibility of the appellant and complainant. The complainant testified that
she did not consent to any sexual act in the time frame set out in
Counts 4 and 5 (alleging sexual assault when she was between the
ages of 14 and 38). The appellant testified that all of those
acts, which he said started when the complainant was 15 years of age,
were consensual. The appellant submits that the video depicts one instance of
the offence alleged in Count 5. The appellant argues that he should have
been permitted to cross‑examine the complainant on the two video clips,
and introduce the whole of the video as part of his case, to contradict the
complainant generally and on issues going directly to the defence of consent
and honest but mistaken belief in consent.

[202]

The
appellant submits that as a consequence of the ruling on
Voir Dire
#1,
his trial counsel was unable to ask specific and detailed questions about
the video or impeach the complainant on its contents.

[203]

The
appellant further submits that in weighing prejudice against probative value,
the judge improperly emphasized the shock value of the video. The
appellant notes that jurors are often required to view potentially disturbing
images, and that such evidence is rarely excluded because of its potential to
cause prejudice by inflaming the sensibilities of jurors:
R. v. Sipes
,
2011 BCSC 920 at paras. 2223.

[204]

The
appellant says that on a correct application of the
Seaboyer
test,
it is clear that any potential prejudice flowing from admission of the
video did not substantially outweigh its probative value in cross‑examining
the complainant.

[205]

The
appellant acknowledges that the complainants dignity, privacy and
equality interests were appropriate considerations in the application of the
test. He submits, however, that these concerns could have been addressed by
blurring out the depiction of genitals in the video, closing the courtroom when
the video was shown, allowing the complainant to testify behind a screen during
cross‑examination, and instructing the jury on any impermissible
inferences they might be tempted to draw from this evidence.

[206]

The appellant submits that the ruling on
Voir Dire
#2
also reflects error in principle in the articulation of the test. After
reviewing
Seaboyer
and other leading authorities at some length, the
judge said this in her second admissibility ruling:

[33]      I take from these authorities that we again embark
on
a balancing exercise
to ensure that [the appellants] fair trial rights are
protected, and recognizing the importance of dignity and the privacy and
[e]quality rights of [the complainant].

[Emphasis added.]

The appellant argues that the judge erred in this passage by
characterizing her task as a simple exercise in balancing interests. He
submits that in considering her residual discretion to exclude defence‑led evidence,
the judge was required to consider whether prejudice substantially outweighed
the probative value of that evidence.

[207]

With
respect to the ruling on
Voir Dire
#2, the appellant repeats
his submission that the video was probative of the complainants credibility
because it was capable of contradicting her testimony on the critical issues
of consent and honest but mistaken belief in consent. Relying on
Nikolovski
at para. 21, the appellant also argues that the video was the best
available evidence of at least one instance of sexual assault alleged within
the timeframe set out in Count 5. He points out that, while the absence of
consent is subjectively determined, the jury was required to consider the
complainants words and actions, before and during the sexual activity,
to determine whether there was a reasonable doubt about whether she did not
consent:
R. v. Ewanchuk
, [1999] 1 S.C.R. 330
at paras. 2930. The appellant submits that the complainants conduct
in participating in the creation of the video, and the reasonable inferences
that the appellant says flow from that conduct, give the video significant
probative value.

(b) The Crowns position

[208]

The Crown
submits that while the test in
Seaboyer
gives expression to an
accuseds constitutionally protected right to make full answer and
defence, care must be taken to ensure that the truth‑seeking function
of the trial is not impaired by the admission of evidence that relies for its
probative value on myths, stereotypes and generalizations about how
complainants in sexual assault cases are expected to behave:
Osolin
at 671;
R. v. D.D.
,
2000 SCC 43 at para. 65;
R. v. A.R.D.
,
2017 ABCA 237 at paras. 51, 57, affd 2018 SCC 6;
R. v. Mills
, [1999] 3 S.C.R. 668 at para. 119.

[209]

With
respect to
Voir Dire
#1, the Crown concedes error in principle
in the judges articulation of the
Seaboyer
test but submits
that the application of the correct test would result in the same decision.

[210]

The Crown
submits that the prejudicial effect of admitting the two video clips
for cross‑examination purposes substantially outweighed the probative value
of the evidence in impeaching the complainants testimony. The Crown says
that on the basis of the submissions made by trial counsel, the video was
not shown to have any probative value.

[211]

The Crown
argues that trial counsels submissions on the probative value of the video clips
in cross‑examining the complainant rested on his own misapprehension of
her evidence. The Crown says that when the ruling was made, the contents
of the video had not been shown to be inconsistent in any way with the
complainants testimony. Further, no evidentiary foundation for potential
impeachment of the complainants credibility was established after the ruling
was made. The Crown says this explains why no application was made by the
appellant to have the judge revisit the ruling on grounds of a material change
in circumstance  specifically, that the post‑ruling evidence given
by the complainant in cross‑examination was inconsistent with the
contents of the video.

[212]

In
contrast, the Crown submits that admission of the video clips would
constitute a gross invasion of the privacy, dignity and equality interests
of the complainant. In addition, admission of this evidence would raise the
risk that the jury would engage in impermissible and stereotypical reasoning
about how complainants in sexual assault cases should engage with their
alleged abuser.

[213]

With
respect to
Voir Dire
#2, the Crown submits that the judge did
not err in principle by concluding that the
Seaboyer
test
contemplates a balancing exercise. The Crown submits, therefore, that
the ruling is entitled to deference on appellate review and that it has not
been shown that the judge was clearly wrong in determining that the probative value
of the evidence was substantially outweighed by its prejudicial effect.

[214]

Finally,
the Crown submits that it is not open to the appellant to advance on appeal arguments
in support of the probative value of the video that were not raised below.
In this regard, the Crown notes that trial counsel did not argue on the
second
voir dire
that the video was probative of honest but
mistaken belief in consent in relation to Count 5.

(c) Analysis

(i)   Factual
context informing the admissibility rulings

[215]

The
complainant testified that when the video was created, the appellant had been
having sexual intercourse with her on a weekly basis for approximately
eight years, starting when she was about 12 years old. By the time
the video was created, she had given birth to two children fathered by the
appellant. For reasons the complainant described, rooted largely in her fear of
the appellant and the control he exercised over her, she testified that she had
long ago given up resisting his sexual advances. The complainant said she
participated in the creation of the video because he instructed her to do so.

[216]

On the
appellants version of events, when the video was created, he had been having
regular sexual intercourse with the complainant for about five years
conduct that he admitted followed his sexual exploitation of her. He did
not take issue with the complainants testimony that he had sexual intercourse
with her on a roughly weekly basis since she was 15 years of age.
Thus, it was common ground at trial that the video depicts one of
literally hundreds of sexual encounters between the complainant and
appellant in the time period covered by the sexual assault counts.

[217]

In
practical terms, the video was potentially relevant only to Counts 4 and 5
counts to which the defences of consent (Count 4) or consent and honest
but mistaken belief in consent (Counts 4 and 5) were left with
the jury.

[218]

Finally,
the video was not created surreptitiously. Both the appellant and complainant
participated in staging the video and performing for the camera.

(ii)  Legal
context informing the admissibility rulings

[219]

Full
answer and defence is a principle of fundamental justice protected by s. 7
of the
Canadian Charter of Rights and Freedoms,
Part I of the
Constitution Act, 1982,
being Schedule B to the
Canada Act 1982
(U.K.),
1982, c. 11. A key element of the right to make full answer and defence is
the right to cross‑examine a Crown witness without significant and
unwarranted restraint:
R. v. Lyttle
, 2004 SCC 5
at paras. 1, 41.

[220]

Canadian
courts must exercise caution in restricting the ability of an accused to call
evidence in his or her defence or to cross‑examine a Crown witness.
This reluctance is founded in the fundamental tenet of our justice system
that an innocent person must not be convicted:
Seaboyer
at 611.
It is reflected in the
Seaboyer
test itself. Generally, a
complainant may be cross‑examined for the purpose of eliciting evidence
relating to consent and pertaining to credibility when the probative value of
that evidence is not substantially outweighed by the risk of unfair prejudice
flowing from its admission:
Osolin
at 671.

[221]

The right
to cross‑examine is not, however, unlimited:
R. v. R.V
.,
2019 SCC 41 at para. 40. In the context of sexual assault cases
in particular, limits may be necessary to protect the complainants dignity,
privacy and equality interests:
Osolin
at 669. These interests
may be more compelling where, as here, the sexual assault offences
alleged and the circumstances in which the video was created are, by the
appellants own admission, historically bound up with the sexual exploitation
of a very young girl:
R.V.
at para. 68.

[222]

These
limits also aim to achieve the important social objective of encouraging the
reporting of sexual assault offences. As Justice LHeureux‑Dubé
noted in her dissenting reasons in
Osolin
at 628, [o]ne
of the most powerful disincentives to reporting sexual assaults is womens fear
of further victimization at the hands of the criminal justice system.

[223]

These
countervailing considerations are not unique to the legislative regime
established under s. 276 of the
Code
. They are rooted in the common law.
Their goal is to ensure that trials be fair from both the perspective of the
accused and of society more broadly:
Barton
at para 83.
Indeed, as Justice Binnie noted in
Shearing
at para. 98, some
of our current legislative provisions designed to more appropriately
balance the privacy interests of sexual assault complainants
with the right of an accused to make full answer and defence  including
the regime set out for the production of private records in ss. 278.1278.97
of the
Code
 sprang from the recognition of privacy and
equality interests in common law and
Charter
cases.

[224]

In the result,
the right to make full answer and defence does not necessarily open the
door to the widest possible range of inquiries. Nor does it guarantee to an
accused the most favourable procedures imaginable  procedures that
take only his or her interests into account or that permit the introduction of
evidence that purports to take its probative value from impermissible
reasoning based on myths and stereotypes that have long plagued this area of
the law and distorted the truth‑seeking function of a trial:
R.V.
at para. 67;
R. v. Darrach
, 2000 SCC 46 at para. 24;
Barton
at para. 1;
R. v. Goldfinch
, 2019 SCC 38 at paras. 2, 30.

[225]

In some
cases, it will be appropriate for trial judges to narrow the scope of
questioning to minimize infringement of the complainants legitimate interests,
while maintaining the accuseds ability to make full answer and defence:
R.V.
at
para. 67. Where serious concerns arise about the potential for unnecessary
infringement of a complainants privacy, dignity and equality interests, a judge
applying
Seaboyer
may legitimately ask how important the evidence
really is to the accuseds right to make full answer and defence:
Goldfinch
at para. 69 (per Justice Karakatsanis) and at para. 96 (per Justice Moldaver,
concurring in the result). The more important evidence is to the defence, the
more weight must be given to the rights of the accused:
R.V.
at para. 64.
In my view, such an approach is faithful to the requirement that competing
Charter
rights
be examined in a contextual manner to resolve conflicts between them:
Mills
at
para. 21.

[226]

By its
terms, the
Seaboyer
test permits the introduction of relevant and
material evidence that is not captured by an exclusionary rule where the
evidence is possessed of some probative value not substantially outweighed
by its prejudicial effect.

[227]

The
probative value of evidence is a function of its tendency to establish the
proposition for which it is tendered:
Handy
at para. 148. In
assessing probative value, the trial judge does not determine whether the evidence
establishes the proposition for which it is tendered, but only the threshold
question of whether it should be heard by the trier of fact because it is
capable of doing so.

[228]

In this
case, the probative value of the video for cross‑examination
purposes was said to lie in its capacity to undermine the complainants
credibility in both general and specific ways. In general terms, the evidence
was said to be capable of undermining the complainants characterization of the
nature of the relationship she had with the appellant in her adult years.
More specifically, the evidence was said to be capable of undermining her
testimony that she did not consent to sexual activity with the appellant.

[229]

Prejudice
from allowing the video to be used in cross‑examination of the
complainant could manifest itself in two overlapping ways.

[230]

The first is reasoning prejudice based on the risk that the jury
would be tempted to draw impermissible inferences based on stereotypes and
myths about how sexual assault complainants who allege long‑term abuse
should behave. This is what I understand the judge to be referring to when she
emphasized the shock value of the video. Preventing the admission of evidence
that purports to take its probative value from impermissible reasoning founded
on gender‑based myths and stereotypes promotes trial fairness.
In my view, this type of prejudice may be more amenable to limiting
instructions that guard against impermissible reasoning. But the risk of
misuse persists precisely because some of the myths and stereotypes upon which
illegitimate reasoning rests have long masqueraded as truths based on common
sense:
Seaboyer
at 679680 (per LHeureux‑Dubé J.,
dissenting in part);
A.R.D.
at paras. 9, 4243. As Chief Justice McLachlin
observed in
R. v. Find
,

2001 SCC 32

at para. 103:

These myths and
stereotypes about child and adult complainants are particularly invidious
because they comprise part of the fabric of social common sense in which we
are daily immersed. Their pervasiveness, and the subtlety of their operation, create
the risk that victims of abuse will be blamed or unjustly discredited in the
minds of both judges and jurors.

[231]

I pause here to make two additional observations. First, the phrase
gender‑based myths reflects both the gendered nature of sexual violence
and the inescapable reality that the myths and stereotypes the law has recently
attempted to ferret out have traditionally disadvantaged female complainants.
I recognize, however, that similar myths and stereotypes about how sexual assault complainants
should behave can equally arise in trials that involve the alleged abuse of male
complainants.

[232]

Second, some of the evidence led by the defence in this case underscores
the extent to which gender‑based myths continue to permeate the
resolution of sexual assault cases. For example, the complainants daughter
gave unsolicited evidence that her mother dressed in a way that made it clear
she was very proud of her cleavage. For his part, the appellant gave
unsolicited (and unsubstantiated) evidence that the complainant had an
affair with the husband of a close friend. There was nothing the trial judge
or counsel could have done to prevent either witness from blurting out
this evidence in front of the jury. The sole purpose of this testimony was
to discredit the complainant by suggesting that she was, by virtue of her dress
and sexual history, a promiscuous woman who could not be trusted. In
their determination to give this evidence, the complainants daughter and
the appellant were implicitly relying on the false (but what they considered to
be common sense) premise that a woman who is alleged to have dressed
provocatively or to have engaged an extra‑marital affair is
inherently less worthy of belief.

[233]

The second type of prejudice has both an individual and societal
component. On an individual level, showing any portion of the video to the
jury, even in the face of an order excluding the public from the courtroom,
would constitute a significant invasion of the complainants privacy and
dignity interests. In addition, the admissibility of the video engaged the
complainants equality rights under ss. 15 and 28 of the
Charter
:
Osolin
at
669. As noted in
Law v. Canada (Minister of Employment and
Immigration)
, [1999] 1 S.C.R. 497 at para. 64, the role
of s. 15(1) is to overcome prejudicial stereotypes in society.
Individual harm occasioned by the unnecessary introduction of evidence like the
evidence at issue in this case is not remediable. Prejudice in this context
also engages broader societal interests. Those interests include promoting
access to justice by encouraging sexual assault victims to report
complaints of sexual abuse, and to participate in criminal trials
which do not turn on the invocation of unfounded and discredited myths and
stereotypes.

[234]

As with any exercise of discretion, the balancing of probative value and
prejudicial effect is fact‑specific and context‑dependent.

[235]

Section 276
of the
Code
has no direct application to this case. It prohibits the
admission of evidence that a complainant has engaged in sexual activity
with the accused or with any other person to support an inference that, by
reason of the sexual nature of that activity, the complainant is more likely to
have consented to the sexual activity that forms the subject matter of the
charge or is less worthy of belief (the twin myths). Where an accused
seeks to introduce such evidence for some other purpose, the evidence is
presumptively inadmissible unless the accused establishes under s. 276(2)
that the evidence is of specific instances of sexual activity, is relevant to
an issue at trial, and has significant probative value that is not
substantially outweighed by the danger of prejudice to the proper
administration of justice:
Goldfinch
at para. 49. Section 276
applies where the prior sexual history evidence sought to be adduced relates to
activity other than the sexual activity that forms the subject‑matter of
the charge. In this case, the video depicts sexual activity that forms one
instance of the offence charged in Count 5.

[236]

As a final
comment, I note that this trial was completed before the enactment of ss. 278.92278.97
of the
Code.
In summary, these provisions establish a framework for
the admission of a record (defined in s. 278.1 to mean any form of
record that contains personal information for which there is a reasonable
expectation of privacy) in the possession or control of an accused that relates
to a complainant in proceedings for enumerated sexual assault‑related
offences. Specifically, such a record shall not be admitted at the behest of an
accused unless the judge determines: (1) where the admissibility of
the evidence is subject to s. 276, that the evidence meets the conditions
set out in s. 276(2); or (2) in any other case, that the
evidence is relevant to an issue at trial and has
significant probative
value
that is not substantially outweighed by the danger of prejudice to
the proper administration of justice. The factors to be considered on an
application engaging s. 278.92 largely mirror the factors to be considered
on an application under s. 276. These provisions give statutory expression
to a test that is different from the
Seaboyer
test the judge was
required to apply in this case.

(iii) Voir Dire #1:
The admissibility ruling for cross‑examination purposes

[237]

The judge
made clear in her first ruling that she was addressing the admissibility
of the video for cross‑examination purposes based on the two clips
she had been shown. Her ruling was necessarily based on the evidentiary
foundation that existed when trial counsel attempted to use the video
clips to cross‑examine the complainant. Our assessment of the correctness
of the judges ruling must be sensitive to the context in which that
determination was made.

[238]

As noted
earlier, the parties agree that the task of this Court is to consider the
admissibility of the video afresh on the basis of the test set out in
Seaboyer
and the arguments presented to the trial judge. In my view, our assessment
must also accord deference to any factual findings made below that are
untainted by the error.

[239]

As I read
her reasons, the judge concluded that the appellant could make full answer and
defence without the need to show the complainant the video in cross‑examination.
As she put it, [t]he object [the appellant] wishes to pursue can be obtained
as effectively without the shock value through cross‑examination about
the tape as it could be by playing a degrading and highly prejudicial video. In
my view, that is a heavily fact‑laden finding to which
deference is owed. It is also entirely consistent with the approach taken in
R.V.
Although
decided in the context of s. 276,
R.V.
stands for the proposition
that the manner in which full answer and defence is made may be judicially
shaped in order to minimize the impact the admission of certain types of
evidence will have on a complainants privacy, dignity and equality
interests: at paras. 6770.

[240]

The
probative value of the portion of the video trial counsel sought to put to
the complainant in cross‑examination was said to lie in its capacity to
impeach her credibility on specific issues: (1) whether she ever
kissed the appellant; (2) whether the pretend world was limited to
the maintenance of outward appearances and, therefore, did not extend to sexual
conduct behind closed doors; (3) whether she was in a relationship
with the appellant; (4) whether she ever derived physical pleasure
from having sexual intercourse with the appellant; and (5) whether
that relationship was romantic and affectionate as opposed to one characterized
by dominance and abuse.

[241]

In my
view, cross‑examining the complainant on the two video clips could
not have served to impeach the complainants credibility on whether she
kissed the appellant. The complainant did not deny kissing the appellant. Her
evidence was that she did not do so voluntarily. I note that this was the
primary basis upon which the defence sought to use the video. Indeed,
trial counsel said at one point that it was the only reason he
sought to use the video in cross‑examination. It was the only thing he
asked the judge to look for in viewing the video clips on the first
voir
dire
.

[242]

Further,
the video would not contradict the complainant on her description of the
pretend world. The complainant did not testify that the pretend world
was limited to the maintenance of outward appearances. She clearly
testified that the pretend world extended to the appellants expectations
of her behind closed doors, and that there were consequences for her if
she did not comply with his wishes.

[243]

On the
issue of whether the complainant was in a relationship with the appellant, the
complainant objected to trial counsels use of the term relationship if
it was meant to connote a loving partnership entered into through an
exercise of free will. It is obvious the complainant did not deny being in a
relationship with the appellant and the video could not possibly have been used
to undermine the complainants credibility on this issue.

[244]

I do not
see any meaningful difference between what is depicted on the video and the
complainants evidence. In these circumstances, I am unable to see how the
video had any probative value in terms of impeaching the complainants
credibility. A similar conclusion was reached in
R. v. S.B.
,
2016 NLCA 20 at para. 55, revd on other grounds 2017 SCC 16.
Unlike the case at bar,
S.B.
directly engaged s. 276 of the
Code
.
The complainant told the police she did not enjoy anal intercourse, but
engaged in it with the accused to fulfil his desires. The appellant sought to
cross‑examine the complainant on a video the two of them had made showing
her (at least ostensibly) to be a willing partner with the accused in an
act of anal intercourse. The video was made before the charges arose and,
therefore, depicted activity other than the sexual activity that formed
the subject matter of the charges before the court. The trial judge
permitted cross‑examination of the complainant on a transcript of the
video (but not the video itself). In the absence of any meaningful difference
between the contents of the video and the complainants statement to the
police, Rowe J.A. (as he then was), writing for the Court on this issue,
was unable to discern how the video had any probative value in cross‑examining
the complainant. Put simply, it did not give rise to an inconsistency capable
of impeaching her credibility. The same is true in this case.

[245]

I do not
accept the appellants position that without the video, trial counsel
was unable to ask specific and detailed questions about the video with a view
to impeaching the complainant on its contents. Trial counsel was not
prohibited from asking the complainant
any
questions about the contents
of the video in an effort to lay the foundation for impeachment  either
before or after the first ruling. In fact, he attempted to do so after the
first ruling. He put to the complainant that the video showed her kissing
the appellant and being affectionate with him. She did not deny either
suggestion. He put to the complainant that the video would show him servicing her
in a sexually pleasurable way. She agreed that it would. Her evidence was not
in any way inconsistent with the video clips trial counsel sought to
confront her with in cross‑examination. Against this background, I do not
see how introducing the video clips for cross‑examination purposes
would impeach the complainants credibility and thereby assist the appellant in
making full answer and defence.

[246]

The
appellants trial counsel was not prohibited from using a transcript of
the video to cross‑examine the complainant on alleged inconsistencies  an
avenue that he acknowledged may solve the problem. He did not do so. It is
fair to infer that the transcript was not used in cross‑examination
because it would not contradict the complainant on any material issue.

[247]

In
addition, the appellant was not prohibited from giving evidence himself that
the contents of the video contradicted what the complainant said it would
depict. In fact, he was never asked to describe what was on the video, let
alone how its contents were inconsistent with the complainants account. It is a curious
feature of this case that the appellant  who submits that the video
was a critical component of his defence, particularly in relation to Counts 4 and 5  was
never asked in examination‑in‑chief to describe what was on the
video. Further, the appellant never testified that the sexual acts performed in
front of the camera on this occasion were typical of the sexual relations
the two of them had between 1988 (when the complainant was 14 years of age) and 2012,
or that the context in which the sexual acts depicted on the video was no
different from the context in which other sexual acts covered by the
indictment period took place.

[248]

I turn
next to consider the probative value of the video in potentially
undermining the complainants testimony that she did not consent to any
sexual activity with the appellant. Although the argument was poorly
articulated in the trial court, I understand the appellant to advance the
position that the video could be used in cross‑examination in an effort
to raise a reasonable doubt about the absence of consent because: (1) the
complainant appears to be a willing participant to the acts depicted on the
video; (2) the video demonstrates that the complainant derived
physical pleasure from having sexual intercourse with the appellant on
this occasion; and (3) the video depicts the complainant
displaying affection towards the appellant.

[249]

I note
that the complainant was never specifically asked in cross‑examination
about whether she ever derived any physical pleasure from having sexual intercourse
with the appellant. The issue was not explored either before or after the first
voir dire
ruling. Similarly, it was never put to the
complainant in cross‑examination that there were no moments of affection
between them in the 24‑year period covered by the sexual assault
counts  a period in which they raised four children together.

[250]

If the
video had any probative value for cross‑examination purposes, it was
attenuated by three additional facts. First, it does not depict a single
act said to constitute the offence of sexual assault. Rather, the video in
the case at bar depicts only one of several hundred sexual acts involving
the appellant and complainant in the time frame encompassed by the
indictment. Second, it depicts the conduct of a woman who was sexually
exploited by the appellant, beginning, at the latest, when she was 15 years of age.
Third, it depicts a staged event  the creation of a pornographic
video. One could not reasonably expect that such a video would reveal much
about the truth of the relationship between the two people performing for
the camera. For these reasons, I am of the view that the video reveals
virtually nothing probative of the state of mind of either the complainant or
appellant at the relevant time.

[251]

In any
event, I am of the view that the probative value the two video clips
were said to possess in fact rested largely, if not exclusively, on
impermissible reasoning. This reasoning is grounded in myths and stereotypes
about how a sexual assault complainant, in circumstances such as these, should
behave.

[252]

The
appellants submission that consent (or a reasonable doubt about the
complainants testimony that she did not consent to having sexual intercourse
with him) may be inferred from the complainants active participation in the
creation of the video rests on stereotypic assumptions about how sexual
assault complainants who allege long‑term abuse should be expected
to behave. The submission is insufficiently sensitive to the context in which
this particular relationship arose and comes freighted with gender‑based assumptions
that are ill‑suited to this case. The appellants submission rests on a
further stereotypic assumption about how a young person who was sexually exploited
from the age of 15 (at the latest) should subsequently engage with
her abuser.

[253]

The
appellants submission that a reasonable doubt about the absence of consent
could properly be inferred from the fact that the complainant was shown to
physically respond to the sexual acts depicted on the video also rests on
stereotypic assumptions and myths about how truthful complainants who
allege long‑term abuse can be expected to behave. In my view, the
appellants position rests on the invalid premise that sexual abuse
victims should be expected to demonstrate resistance, even if doing so will
likely result in injury. The appellants position also rests on the invalid
premise that no truthful sexual assault complainant, even one who alleges long‑term abuse,
should ever be responsive to the physical sensations that accompany sexual acts.
By employing this reasoning, submission to the inevitable and responsiveness to
sexual touch risks becoming an illegitimate proxy for consent.

[254]

Finally,
although the appellant denies this, I am of the view that what lies at the
heart of the appellants submission on the probative value of the video is
the notion that a trier of fact could legitimately infer that consent to one sexual
act on an indictment charging a single count of sexual assault over a very
broad period of time is probative of whether consent was given on another
occasion.

[255]

This goes directly to one of the twin myths identified in
Seaboyer
.
As explained above, s. 276(1) of the
Code
protects
against the admission of evidence that the complainant has engaged in sexual
activity to support an inference that by reason of the sexual nature of the
activity, the complainant is more likely to have consented to the sexual
activity that forms the subject matter of the charge. Although s. 276 is
not
applicable to this case because the act depicted forms one instance of the
subject matter of the charge, I see no reason why the principles animating this
provision should not be considered in cases involving multiple counts over a
long period of time. Accordingly, even assuming the video clearly depicts
consensual acts, the fact that the complainant may have consented to one staged
sexual act performed in front of a camera during the period covered by the
charge does not permit an inference that she consented on any other occasion.
As the Supreme Court of Canada noted in
Goldfinch
at para. 60:

It is difficult to conceive of a
more clear instance of twin‑myth reasoning than the proposition that
because the complainant had at some point consented to be intimate with the
accused, it was more probable that she would have done so again.

[256]

I would
also note that trial counsel was not prevented from using the
viva voce
evidence respecting the contents of the video in his closing address. He
emphasized that this evidence supported the appellants position that his
sexual relationship with the complainant was consensual. As he put it, the
relationship started in a very inappropriate way, in a very wrong way, as [the
appellant] has said and admitted  but it became normal.

[257]

If there
is any probative value in the video clips proposed to be used in
cross‑examination of the complainant, that limited probative value
must be weighed against the substantial prejudice that would be occasioned
by admission of the evidence.

[258]

Although this is not a case that falls within the legislative framework
of s. 276 of the
Code
, I am of the view that the considerations
properly taken into account in determining whether the prejudicial effect of
the evidence substantially outweighs its probative value largely mirror those
set out in s. 276(3). Those factors include:

(a)  the interests of justice, including the
right of the accused to make a full answer and defence;

(b)  societys interest in encouraging the
reporting of sexual assault offences;

(c)  whether there is a reasonable prospect
that the evidence will assist in arriving at a just determination in the case;

(d)  the need to remove from the fact‑finding
process any discriminatory belief or bias;

(e)  the risk that the evidence may unduly
arouse sentiments of prejudice, sympathy or hostility in the jury;

(f)   the potential prejudice to the
complainants personal dignity and right of privacy; [and]

(g)  the right of
the complainant and of every individual to personal security and to the full
protection and benefit of the law[.]

[259]

Applying the
Seaboyer
test to the circumstances of this
case, I conclude that any probative value the video clips may have possessed
in impeaching the complainant in cross‑examination was substantially
exceeded by the prejudicial effect, both individual and societal, that admission
of the evidence would entail.

[260]

In the result, and looking at the matter afresh with the
Seaboyer
test
in mind, I have come to the same conclusion that the trial judge did in
her first
voir dire
ruling. I am satisfied that the error in law
committed by the judge in her articulation of the
Seaboyer
test on
the first
voir dire
is harmless in the sense that it did not have
any impact on the result:
R. v. Van
, 2009 SCC 22
at para. 34. Given my conclusion on this point, I would apply the curative proviso
in s. 686(1)(b)(iii) of the
Code
to the error committed in the
first
voir dire
ruling.

(iv) Voir Dire #2: The ruling on the admissibility of
the video as part of the defence case

[261]

The appellant does not argue that the judge erred in her articulation
of the
Seaboyer
test in the second ruling. To reiterate, he
submits that the judge erred in principle in her application of the test.
Specifically, he submits that the judge erred by holding that the test required
her to embark on
a balancing exercise
to ensure that [the appellants]
fair trial rights are protected, and recognizing the importance of dignity and
the privacy and [e]quality rights of [the complainant] (emphasis added).

[262]

I do not agree with the appellants submission that the judges remarks
highlighted above reflect error in principle. In my view, there was nothing
remarkable or incorrect about this statement.

[263]

The
Seaboyer
test does contemplate a balancing exercise.
The judge did not suggest that
Seaboyer
engages a simple balancing of
interests test, nor did she import into the analysis irrelevant
considerations. She expressly recognized that prejudice must be shown to
substantially outweigh probative value before defence‑led evidence can
be excluded.

[264]

Further, characterizing the test as requiring a balancing exercise
does not mean that the factors being balanced cannot have asymmetric legal
weights. For example, in
R. v. Crosby
, [1995] 2 S.C.R. 912
at para. 11, in addressing the test contemplated by s. 276(2)(c) of the
Code
,
LHeureux‑Dubé J., for the majority, noted that the provision
requires judges to undertake a balancing exercise that is sensitive to
potential conflicting interests. The same is true here.

[265]

The appellant reiterates many of the arguments asserted in relation to
the first admissibility ruling but argues, in addition, that the video was
relevant to the jurys consideration of the defence of honest but mistaken
belief in consent in relation to Count 5. He submits that the judge erred
by failing to recognize the probative value of the video in relation to
this defence.

[266]

This argument was not put to the judge on the second
voir dire.
Thus, the appellant challenges the second ruling of the judge not only on
the basis of admissibility arguments that were made, but on the basis of
admissibility arguments that might have been made, but were not.

[267]

While I accept that judges exercising their gatekeeping function on
evidentiary matters must generally be vigilant to protect what Binnie J.
described in
Shearing
at para. 140 as the legitimate entitlement
of the accused, the duty to do so must have reasonable limits.

[268]

To give effect to this goal, it may be necessary in some cases for an
appellate court to consider an admissibility argument not made below to prevent
a miscarriage of justice. On the other hand, permitting justifications for the
admissibility of evidence to be advanced for the first time on appeal would
alter the traditional role of appellate courts to sit in review of rulings made
at trial. It would require appellate courts to become the court of first
instance on discretionary rulings respecting the admissibility of evidence. Routinely
entertaining new arguments on appeal would also tend to impair achievement of
the important public policy goal of finality in criminal proceedings.

[269]

In my view, it is neither desirable nor necessary in this case to
attempt to posit a general rule governing the circumstances in which new
arguments in support of the admissibility of evidence should be entertained on
appeal. What can be said is this: trial counsel disclaimed reliance on the
defence of honest but mistaken belief in consent, including in relation to
Count 5, until very shortly before the jury was charged. The defence of
honest but mistaken belief in consent had not been put in play by trial counsel
when the second
voir dire
ruling was made. The appellant has
not suggested he was ineffectively represented by his trial counsel.

[270]

More importantly, the
viva voce
evidence left little to the
imagination in terms of what was depicted on the video. The jury would have
taken this evidence into account in assessing the defence of honest but
mistaken belief in consent in relation to Count 5. I am not persuaded in
this case that the judge erred in principle by failing to take into account an
argument not put to her at the relevant time.

[271]

Even accepting that it is open to us to consider this argument for the
first time on appeal, I am not persuaded that it would lead to a different
admissibility determination. For the reasons given, I am not persuaded that
exclusion of the video impaired the appellants ability to make full answer and
defence or undermined the fairness of the trial.

[272]

In the absence of error in principle, a misapprehension
of the evidence or a decision that is clearly wrong or unreasonable, the
judges second ruling on the admissibility of the video must be accorded a
good deal of deference on appeal:
Shearing
at para. 73;
R. v. Stewart
,
2018 BCCA 76 at para. 14;
R. v. Skeete
, 2017 ONCA 926
at para. 88. The rationale underlying this deferential standard of review
was explained in
R. v. Shafia
, 2016 ONCA 812 at para. 255,
leave to appeal refd [2017] S.C.C.A. No. 17:

[255]
Any assessment of where the
balance between probative value and prejudicial effect falls is case‑specific.
It is an analysis that a trial judge is uniquely equipped to undertake. After
all, the trial judge is an ear and eye witness to the trial process, the issues
raised and the positions advanced. The inquiry must be undertaken and a
determination made in the context of the trial, not on some level of
abstraction at one remove from the trial process. The inquiry is very much a
function of the other evidence and issues raised in the case.

[273]

A similar rationale for appellate deference to rulings that weigh
probative value against prejudicial effect was expressed in
Shearing
:

[73]

In the weighing up of probative value versus
prejudice, a good deal of deference is inevitably paid to the view of the trial
judge  This does not mean that the trial judge has a discretion to
admit similar fact evidence whose prejudicial effect outweighs its probative
value, but it does mean that the Court recognizes the trial judges advantage
of being able to assess on the spot the dynamics of the trial and the likely
impact of the evidence on the jurors.
These are evidentiary issues on which
reasonable judges may differ and, absent error in principle, the decision
should rest where it was allocated, to the trial judge.

[Emphasis added.]

[274]

The trial judge concluded that the probative value of the video was
minimal, at best. It would not serve to contradict the complainant and would
add only visual images to the explicit sexual conduct described by the
complainant in her testimony. On the other hand, the judge concluded that the
prejudicial effect flowing from admission of the video would be high. Admission
of the video would be a gross invasion of the complainants privacy and dignity
interests. In addition, it was found to have the potential to cause mischief by
distorting the truth‑seeking function of the trial. I see no reason
to interfere with that conclusion.

[275]

In the result, I would not give effect to this ground of appeal.

VI. Conclusion

[276]

For the foregoing reasons, I am of the view that the appellant had a
fair trial unimpaired by consequential legal error. I would, therefore, dismiss
the appeal.

The Honourable Mr. Justice Fitch

I AGREE:

The
Honourable Chief Justice Bauman

I AGREE:

The Honourable Madam Justice Newbury